OPINION
ANDERSON, PAUL H., Justice.William Allen Frazier pleaded guilty to one count of a controlled substance crime committed for the benefit’ of a gang. Despite his plea, Frazier asked the district court to sentence him without regard to the crime committed for the benefit of a gang statute, Minn.Stat. § 609.229 (2000). He argued that the statute, as applied, denies equal protection and due process under the federal and state constitutions. In support of his argument, Frazier presented data which he asserted indicated that section 609.229 has a disparate impact on the basis of race. The district court found that Frazier’s data demonstrated that section 609.229 has a disparate impact on racial minorities. Nevertheless, the *830court ultimately rejected Frazier’s constitutional argument, finding that the statute survived constitutional scrutiny under Minnesota’s active rational basis test. On appeal, the Minnesota Court of Appeals did not address whether Frazier’s data demonstrated disparate impact, apparently accepting the district court’s finding. However, the court of appeals concluded that the statute survived our active rational basis test. We affirm, but on different grounds.
Appellant William Allen Frazier is a black male and admits that he belongs to the New Breed Disciples, a criminal gang located in Duluth. The state alleged that on four separate occasions, Frazier sold crack cocaine to confidential reliable informants working with the Special Investigations Unit of the Duluth Police Department. The state charged Frazier with (1) one count of first-degree conspiracy to sell cocaine, in violation of Minn.Stat. §§ 152.021, subd. 1(1), and 152.096, subd. 1 (2000), (2) two counts of second-degree controlled substance crime in violation of Minn.Stat. § 152.022, subd. 1(6) (20,00), and (3) two counts of third-degree controlled substance crime in violation of Minn.Stat. § 152.023, subd. 1(1) (2000). When charging Frazier with these offenses, the state alleged that these offenses were committed for the benefit of a gang in violation of Minn.Stat. § 609.229 (2000), a separate crime.
Frazier entered into a plea agreement with the state and pleaded guilty to one count of second-degree controlled substance crime committed for the benefit of a gang. The state then dismissed the remaining counts. At his sentencing hearing, Frazier moved the district court to sentence him without regard to section 609.229, which provides a mandatory minimum sentence for crimes committed for the benefit of a gang. He asserted that (1) the statute violates the due process and equal protection clauses of the federal and state constitutions and (2) under section 609.229, the Minnesota Sentencing Guidelines Commission (Guidelines Commission) lacks the statutory and jurisdictional authority to require a 12 month sentence enhancement for gang-related crimes.
In support of his sentencing motions, Frazier presented two arguments supporting his contention that section 609.229 offends the equal protection and due process clauses of the federal and state constitutions. First, Frazier argued that section 609.229 has a discriminatory impact on racial minorities. Frazier presented four kinds of data to support this argument. Frazier pointed to statistics from the Minnesota Gang Strike Force (Strike Force) which he argued indicate that about 92 percent of the 1,025 confirmed gang members in Minnesota are members of a racial minority. According to the Strike Force, 27 percent of confirmed gang members are white and 73 percent are minorities. Frazier arrived at the 92 percent figure by inferring that of the 281 confirmed gang members classified by the Strike Force as white, 202 are Hispanic and only 79 are white. He also used national level data to support his claim that minorities are more likely than whites to be gang members. Next, Frazier argued that data from the Guidelines Commission indicate that since 1994, only 10 percent of those sentenced under section 609.229 are white. Finally, Frazier presented data indicating that the incarceration rate of blacks is 12 times greater than their percentage of Minnesota’s population. He did not offer any evidence regarding the strength and relevance of the data he presented to the court.
Frazier’s second argument was that members of a racial minority who are convicted under section 609.229 are systemat*831ically given more severe sentences than individuals engaged in identical or similar conduct, but who are convicted under other statutes. More specifically, Frazier compared the crime committed for the benefit of a gang statute to Minnesota’s RICO statute, Minn.Stat. §§ 609.901 et seq. (2000), and asserted that the state RICO statute does not establish an additional and consecutive sentence merely because the defendant is part of a criminal enterprise.
The state opposed Frazier’s sentencing motions, contending that Frazier had failed to demonstrate that section 609.229 has a discriminatory impact on racial minorities. The state contested Frazier’s assumption that not all of the individuals classified as white by the Strike Force are in fact white and questioned Frazier’s use of national level data to bolster his claim regarding the racial make-up of gangs in Minnesota. The state also asserted that Frazier failed to demonstrate that the racial distribution of those incarcerated in Minnesota prisons or the racial distribution of those convicted of drug offenses in Minnesota was due to section 609.229. Finally, the state argued that even if the data did demonstrate that section 609.229 has a discriminatory impact, the statute survives scrutiny under the active rational basis test specified in State v. Russell, 477 N.W.2d 886, 889-90 (Minn.1991). Like Frazier, the state did not offer any evidence regarding the strength and relevance of the data presented by Frazier to the court.
The district court rendered its decision based on oral arguments of counsel and the parties’ memoranda of law. With respect to Frazier’s constitutional claim, the court found that section 609.229 has a racially disparate impact, noting that Frazier had “provided several statistics citing the number of minorities who have been sentenced under the gang statute as compared to whites.”' The court then found that Frazier failed to meet his burden under Minnesota’s active rational basis test as set forth in Russell. More specifically, the court found that the legislature chose to address the threat of gangs to the safety of citizens by enhancing the penalties of crimes committed for the benefit of a gang. The court concluded that there was a genuine and substantial reason for the statute.
The court also found that Frazier’s comparison of the crime committed for the benefit of a gang statute with the state RICO statutes was misplaced because the RICO statutes are seldom used in prosecution and the Minnesota Sentencing Guidelines do not contain a severity level for such convictions. The court noted that Frazier failed to present evidence that RICO is used primarily against whites. With respect to Frazier’s statutory claim, the court found that Minn.Stat. § 244.09, which authorizes the Guidelines Commission to promulgate the presumptive sentence duration for felony offenses, provides the statutory authority for the Guidelines Commission to require a 12-month enhancement for gang-related crimes. The court then sentenced Frazier to a 48-month executed term on the second-degree controlled substance conviction and an additional consecutive 12-month executed term on the crime committed for the benefit of a gang conviction.
Frazier appealed and the court of appeals held that section 609.229 does not offend the Equal Protection Clause of the Minnesota Constitution. State v. Frazier, 631 N.W.2d 432, 436-37 (Minn.App.2001). The court did not address whether Frazier’s data indicated that section 609.229 had a disparate impact on" racial minorities. The court applied the active rational basis *832test set forth in Russell to evaluate the statute’s constitutionality. Id. at 435.
In its analysis, the court of appeals identified certain evidence presented at a senate subcommittee hearing on the crime committed for the benefit of a gang bill. See Hearing on S.F. 809 before the Senate Criminal Law Subcommittee, 77 Minn. Leg. (April 4, 1991). Based on this evidence, the court of appeals concluded that the statute survives Russell’s active rational basis test because the legislature based its decision to enact section 609.229 on more than anecdotal evidence. 631 N.W.2d at 436. The evidence identified by the court is the following. First, an assistant attorney general testified that crimes committed for the benefit of a gang are more serious and deserve a greater penalty because of the impact on the victim and the community. Second, the legislature was presented with a number of newspaper articles reflecting the seriousness of the gang problem, including an article detailing the dismissal of felony charges in three cases in Hennepin County because witnesses were threatened by gang members. Third, a psychologist with the Minneapolis Public Schools testified that an increasing number of students are afraid to leave their homes at night because of street gangs and that he has observed young children flashing gang signs and has noticed gang insignias on student folders. The psychologist also testified that there was a recent death threat by a gang member against an assistant principal and that if nothing was done to respond to the influx of street gangs, gangs would become a permanent part of our community. Finally, the Minnesota President of the NAACP, a central Minneapolis resident, testified that residents in his neighborhood are living in fear because of gang intimidation.
The court of appeals also rejected Frazier’s argument based on the RICO statute that the gang statute does not have a rational basis because it does not cover similarly situated organizations that do not have a “common name or common identifying sign or symbol.” The court found that Frazier had failed to identify a similarly situated criminal organization that may escape the gang statute’s purview because it does not have a common name or identifying symbol. 631 N.W.2d at 436.
On appeal to our court, Frazier presents three claims under the Minnesota Constitution. First, he contends that section 609.229 violates the Equal Protection Clause of the Minnesota Constitution because the statute has a disparate impact on racial minorities. Second, he argues that section 609.229 violates the Equal Protection Clause of the Minnesota Constitution because it criminalizes conduct that is similar to the conduct penalized by Minnesota’s RICO statute, but imposes a longer sentence. Third, he argues for the first time that section 609.229 violates freedom of expression and association protected by the Minnesota Constitution.
I.
We review challenges to the constitutionality of a statute under a de novo standard. State v. Behl, 564 N.W.2d 560, 566 (Minn.1997). Minnesota statutes are presumed to be constitutional and we exercise with extreme caution our power to declare a statute unconstitutional. Id. The party challenging the constitutionality of a statute bears the burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional. Id.
Frazier’s first claim is that section 609.229 violates the Equal Protection Clause of the Minnesota Constitution because the statute has a disparate impact on racial minorities. In support of his argu*833ment, Frazier presents statistics from the Strike Force and the Guidelines Commission. He asserts that these data indicate that 27 percent of confirmed gang members are white, but only 10 percent of those convicted and sentenced under the statute are white; while 73 percent of confirmed gang members are members of a racial minority, but 90 percent of those convicted and sentenced under the statute are minorities.1 Frazier argues that we should evaluate the statute under Russell’s active rational basis test.2
The state argues that Frazier has not demonstrated that section 609.229 has a disparate impact on racial minorities. While acknowledging at oral argument that Frazier’s data appear to indicate that the statute has a disparate impact, the state contends that the disparity (1) may not be statistically significant because of the small sample size and (2) can be explained by the fact that minorities are more likely than whites to be gang members. Wfiien specifically addressing the sample size, the state contends that the 39 convictions cited by the Guideline Commission’s data was too small a sample to draw statistically rehable inferences regarding section 609.229’s impact on racial minorities. The state also argues, based on federal equal protection standards, that disproportionate impact alone is not determinative of invidious racial discrimination and that Frazier’s equal protection claim fails because he has neither alleged nor presented evidence of discriminatory intent by the legislature. Finally, the state contends that the statute survives scrutiny under .both the compelling interest and active rational basis tests. According to the state, there was ample substantive evidence submitted to the legislature to-justify the gang statute under Russell’s active rational basis test. The state asserts that the statute also satisfies strict scrutiny because preventing and curbing gang activity constitutes a compelling state interest and the statute is narrowly tailored to meet that interest.
The arguments presented by Frazier and the state raise the following three questions. First, does Frazier demonstrate that section 609.229 has a disparate impact on racial minorities such that he states a claim under Minnesota’s Equal Protection Clause? Second, if Frazier states a cognizable equal protection claim, is the appropriate standard for evaluating this claim rational basis, active rational basis, or strict scrutiny? Third, if Frazier has a cognizable claim, does section 609.229 satisfy the proper equal protection standard?
An individual challenging a statute on equal protection grounds must demon*834strate that the statute classifies individuals on the basis of some suspect trait. 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 18.4 at 255 (3d ed.1999). Thus, the threshold question before us is whether Frazier’s data demonstrate that section 609.229 creates a racial classification. The parties agree that on its face section 609.229 does not classify on the basis of race. Therefore, Frazier must demonstrate that the statute creates a racial classification in practice.
Frazier bases his disparate impact claim on a comparison of two sets of data. The Strike Force data consist of the number and racial distribution of confirmed gang members identified by law enforcement officials. The Guidelines Commission data consist of the number and racial distribution of individuals convicted under section 609.229. Frazier compares the racial distribution of those convicted under section 609.229 to the racial distribution of confirmed gang members in the Strike Force data. He then argues that because the racial distribution of those convicted under the statute deviates from the racial distribution of confirmed gang members, the statute, as applied, has a racially disparate impact.
While it is possible that Frazier could have a valid argument that section 609.229 has a racially disparate impact, we have difficulty accepting his argument based on the evidence he has presented. This is because we have several questions regarding the foundation for Frazier’s data analysis and the reliability and validity of the data. First, it is possible that Frazier’s data indicate that blacks are not disproportionately disfavored by section 609.229. According to the Strike Force, of the 1,025 confirmed gang members, 73 (7 percent) are Asian, 614 (60 percent) are black, 55 (5 percent) are American Indian, 2 are unknown, and 281 (27 percent) are white. There is currently no separate category for Hispanics. According to the Guidelines Commission, between 1994 and 1998, 39 individuals were convicted of violating section 609.229. The population of convicted gang members consists of 4 whites (10.3 percent), 12 blacks (30.8 percent), 1 American Indian (2.6 percent), 21 Asians (53.8 percent), and 1 other (2.6 percent). Again, there is currently no separate category for Hispanics. On their face, these data show that 60 percent of confirmed gang members in Minnesota are black, but 30.8 percent of those convicted of violating section 609.229 are black. Because neither party presented any analysis regarding the meaning of Frazier’s data, we cannot determine whether the aforementioned interpretation of the data has merit or whether Frazier’s interpretation is more accurate. Therefore, without further analysis or explanation, we cannot, based on these data alone, conclude that blacks are disfavored by section 609.229.
A second question we have regarding the reliability and validity of Frazier’s data is whether the Strike Force data are a reliable estimate of the racial distribution of the population of gang members in Minnesota. Frazier uses data derived from the Strike Force’s Criminal Gang Pointer File, a statewide computer system that tracks gangs and the number of “confirmed gang members.” A confirmed gang member is defined by the Strike Force as a person who has “been found guilty of a felony or gross misdemeanor,” is “at least fourteen years of age,” and meets at least three of the following ten-point criteria:
1. Admits gang membership or association;
2. Is observed to associate on a regular basis with known gang members;
*8353. Has tattoos indicating gang membership;
4. Wears gang symbols to identify with a specific gang;
5. Is in a photograph with known gang members and/or using gang-related hand signs;
6. Name is on a gang document, hit list, or gang-related graffiti;
7. Is identified as a gang member by a reliable source;
8. Arrested in the company of identified gang members or associates;
9. Corresponds with known gang members or writes and/or receives correspondence about gang activities; and
10. Writes about gang (graffiti) on walls, books, and paper.
Frazier has failed to present information from the Strike Force or any other source that enables us to evaluate whether these criteria are reliable indicators of gang membership.
Based on the above indicators of gang membership, the Strike Force has identified 1,025 persons as confirmed gang members. According to the Strike Force, these data do not represent the total number of gang members living or operating in the state of Minnesota, but only the “confirmed” members of gangs. Frazier has presented one page from a Strike Force report which indicates that the Strike Force identifies individuals as confirmed gang members based, in part, on their criminal history and certain gang-oriented behavior that is observed by law enforcement. But Frazier has not presented information from the Strike Force detailing the procedures and methods it used to identify the 1,025 confirmed gang members. Therefore, we have no basis for evaluating whether the racial composition of the population of confirmed gang members is a reliable estimate of the racial distribution of gang members in Minnesota or whether these data reflect the influence of other factors.
The fact that we cannot determine whether the Strike Force data are a reliable estimate of the racial distribution of gang members in Minnesota has significance for evaluating Frazier’s disparate impact claim. Frazier compares the Strike Force and Guidelines Commission data and asserts that racial minorities are over-represented in the population of individuals convicted under section 609.229 compared to their representation in the population of confirmed gang members. But neither party presented any evidence regarding the reliability and validity of the Strike Force data. Therefore, we cannot evaluate whether deviations from the population of convicted gang members, as shown by the Guidelines Commission data, indicate that section 609.229 has a racially disparate impact.
A third concern that we have with Frazier’s use of the Guidelines Commission data to construct an equal protection claim is the sample size. Between 1994 and 1998, 39 individuals were convicted under section 609.229. In other settings, courts have rejected certain statistical inferences as unreliable based on the fact that the sample size is too small. See Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974) (rejecting as “meaningless” racial composition statistics because, among other problems, the sample size was 13); Lewis v. Aerospace Community Credit Union, 114 F.3d 745, 750 (8th Cir.1997) (holding that where the sample size of a group in a statistical analysis is too small to be statistically significant, a plaintiff cannot rely on those statistics alone to support a claim of disparate impact); Shutt v. Sandoz Crop Protection *836Corp., 944 F.2d 1431, 1433 (9th Cir.1991) (holding that discriminatory impact based on a class of 21 employees is statistically insufficient); Mems v. City of St. Paul— Dept. of Fire and Safety Services, 73 F.Supp.2d 1031, 1040 (D.Minn.1999) (holding that statistical evidence based on a sample size of 10 was insufficient to prove a claim of racially motivated disparate impact). Neither party presented evidence as to whether we can draw statistically rehable inferences regarding the statute’s racially disparate impact based on the sample size of the Guidelines Commission data. In addition, because Section 609.229 was enacted in 1991, we question why Frazier does not include the convictions, if any, under the statute before 1994. Therefore, we lack adequate information upon which to evaluate whether the Guidelines Commission data are sufficient to support Frazier’s claim.
We have two final questions regarding the validity of Frazier’s data analysis. First, we question whether it is permissible for Frazier to demonstrate disparate impact by examining the effect of section 609.229 on all minorities rather than the effect of section 609.229 on the group to which he belongs. The Eighth Circuit has held that under the Age Discrimination in Employment Act (ADEA), a disparate impact plaintiff must “demonstrate a disparate impact upon the group to which he or she belongs.” Lewis, 114 F.3d at 750. Other federal courts have refused to permit the grouping of blacks and Hispanics for purposes of establishing disparate impact under the Civil Rights Act of 1964. See Rich v. Martin Marietta Corp., 522 F.2d 333, 346 (10th Cir.1975); Ramirez v. City of Omaha, 538 F.Supp. 7, 13 (D.Neb.1981). The parties did not address whether these principles apply in the context of a constitutionally-based disparate impact claim.
We also have a related question of whether it is statistically appropriate for Frazier to group all minorities together and compare the impact of section 609.229 on minorities as a group with whites. According to Frazier, the Guidelines Commission data indicate that 10 percent of those convicted under section 609.229 are white and 90 percent are minorities. However, an examination of the racial breakdown of those convicted of violating section 609.229 indicates that Asians are more likely than any other group to be convicted of violating section 609.229. We have a concern that grouping all minorities together may not present an accurate picture of the impact of section 609.229 on blacks. Moreover, Frazier has presented no statistical or legal authority for grouping minorities. In addition, this issue was neither briefed nor argued below. Therefore, we do not have sufficient information to evaluate whether Frazier’s grouping of minorities is statistically or legally appropriate.
In sum, we have several questions regarding the reliability and validity of Frazier’s data and data analysis. Because neither party presented any analysis of the data or expert testimony, we lack an adequate record to evaluate whether section 609.229 creates a race-based classification in practice. Here, it is important to note that we are not concluding that the Strike Force and Guidelines Commission data do not or cannot demonstrate disparate impact. Nor are we concluding that an equal protection plaintiff must base his claim on data that are derived and analyzed according to the best social science methods of the day. What we do require, however, is a factual record that permits us to evaluate the reliability and validity of both the data and the data analysis. We do not have such a record here. For these reasons, we hold that Frazier did not prove beyond a reasonable doubt that section 609.229 is *837unconstitutional. We therefore affirm the district court’s decision that section 609.229 does not deny equal protection under the Minnesota Constitution, but do so on different grounds.
II.
Frazier’s second argument is that section 609.229 violates the equal protection clause because Minnesota’s RICO statute, Minn.Stat. § 609.901 et seq., punishes criminal intent and criminal conduct that is similar to the conduct penalized by section 609.229, but the gang statute imposes a longer sentence. More particularly, Frazier asserts that a person who violates the RICO statute falls outside the purview of section 609.229 because the enterprise would not have a common name or common identifying sign or symbol. He contends that there is no rational basis for this distinction and that those who violate the RICO statute should have the same enhanced penalty as those violating the gang statute. Frazier also contends that the only difference between a criminal gang and an enterprise is that a criminal gang has a common name or common identifying sign or symbol. Thus, an individual who commits a criminal offense for the benefit of a criminal gang is similarly situated to an individual who participates in a criminal act in connection with an enterprise.
The equal protection clause guarantees that similarly situated individuals receive equal treatment. State v. Merrill, 450 N.W.2d 318, 321 (Minn.1990). A statute violates the equal protection clause when it prescribes different punishments or different degrees of punishment for the same conduct committed under the same circumstances by persons similarly situated. Id. Thus, the critical inquiry is whether the elements of section 609.229 and the RICO statute are the same or essentially similar. Id. at 321-22.
Section 609.229 provides that:
A person who commits a crime for the benefit of, at the direction of, or in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members, is guilty of a crime.
Minn.Stat. § 609.229, subd. 2. The statute also provides that a criminal gang means “any ongoing organization, association, or group of three or more persons, whether formal or informal,” that meets the following three criteria:
(1) has, as one of its primary activities, the commission of one or more of the offenses listed in section 609.11, subdivision 9;3 (2) has a common name or common identifying sign or symbol; and (3) includes members who individually or *838collectively engage in or have engaged in a pattern of criminal activity. •
Minn.Stat. § 609.229, subd. 1.
Section 609.903 of the RICO statute provides that a person is guilty of racketeering if the person
(1) is employed by or associated with an enterprise and intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity; (2) acquires or maintains an interest in or control of an enterprise, or an interest in real property, by participating in a pattern of criminal activity; or (3) participates in a pattern of criminal activity and knowingly invests any proceeds derived from that conduct, or any proceeds derived from the investment or use of those proceeds, in an enterprise or in real property.
Minn.Stat. § 609.903, subd. 1.
The RICO statute defines “enterprise” as:
[A] sole proprietorship, partnership, corporation, trust, or other legal entity, or a union, governmental entity, association, or group of persons, associated in fact although not a legal entity, and includes illicit as well as legitimate enterprises.
Minn.Stat. § 609.902, subd. 3. The statute defines “pattern of criminal activity” as:
[C]onduct constituting three or more criminal acts4 that: (1) were committed within ten years of the commencement of the criminal proceeding; (2) are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a single criminal offense; and (3) were either: (i) related to one another through a common scheme or plan or a shared criminal purpose or (ii) committed, solicited, requested, importuned, or intentionally aided by persons acting with the mental culpability required for the commission of the criminal acts and associated with or in an enterprise involved in those activities.
Minn.Stat. § 609.902, subd. 6.
Here, Frazier pleaded guilty to and was sentenced for second-degree controlled substance crime committed for the benefit of a gang. This crime qualifies as a predicate criminal offense under both section 609.229 and RICO. However, it is not possible to convict an individual under RICO for racketeering based on his participation *839in just one act of second-degree controlled substance crime. Rather, the state would have to prove that the defendant participated in a pattern of criminal activity that includes three or more criminal acts. Minn.Stat. §§ 609.902, subd. 6, and 609.903, subd. 1. Therefore, Frazier, whose conviction under section 609.229 was based on the commission of one criminal offense, is not similarly situated to an individual convicted under RICO, whose conviction must be based on his participation in at least three criminal acts.
There is a further reason why Frazier is not similarly situated to an individual convicted under RICO. Criminal gangs have a common name or common identifying sign or symbol while enterprises may or may not. In addition, the commission of criminal offenses is one of the primary activities of a criminal gang, MinmStat. § 609.229, subd. 1(1), while enterprises may be engaged in legitimate pursuits. Therefore, an individual who commits a single offense for the benefit of a criminal gang, an entity whose primary activity is the commission of criminal offenses, is not similarly situated to an individual who participates in a single criminal act in connection with what could be a legitimate and law-abiding enterprise.
Because we conclude that Frazier is not similarly situated to someone who violates RICO, we hold that the different penalties for violations of the RICO statute and section 609.229 do not deny equal protection.
III.
In a footnote in his brief to our court, Frazier argues that section 609.229 violates freedom of expression and association protected by the Minnesota Constitution. Frazier did not raise this issue before the district court or the court of appeals. Furthermore, neither court addressed this issue. Constitutional challenges to a statute may not generally be raised for the first time on appeal. “Where an issue of constitutionality is not raised and acted upon in the court below, a party will not be heard to raise the issue for the first time on appeal to the supreme court.” Hampton v. Hampton, 303 Minn. 500, 229 N.W.2d 139, 140 (Minn.1975). Therefore, we need not address Frazier’s first amendment claim.
Affirmed.
MEYER, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.. The data Frazier offers in support of his disparate impact claim are in part different from the data he presented to the district court and the court of appeals. In his brief to this court, Frazier omits data regarding the racial distribution of the Minnesota population and national level data regarding the racial distribution of gang members. Instead, Frazier relies exclusively on the data from the Strike Force and the Guidelines Commission. With respect to the Strike Force data, Frazier no longer makes the assumption he made in his briefs to the lower courts that because only 79 of the 281 individuals classified by the Strike Force are white and the rest are Hispanic, 92 percent of confirmed gang members in Minnesota are racial minorities. Thus, Frazier's description of the Strike Force data in his brief to this court now comports with the Strike Force's characterization of its data, which is that 27 percent of confirmed gang members are white and 73 percent are racial minorities.
. Frazier argued in his brief that the. constitutional validity of section 609.229 must be evaluated under the strict scrutiny standard, but at oral argument he requested that we evaluate the statute under Russell’s active rational basis test.
. Section 609.11, subd. 9, lists the applicable offenses as follows:
murder in the first, second, or third degree; assault in the first, second, or third degree; burglary; Jddnapping; false imprisonment; manslaughter in the first or second degree; aggravated robbery; simple robbery; first-degree or aggravated first-degree witness tampering; criminal sexual conduct under the circumstances described in sections 609.342, subdivision 1, clauses (a) to (f); 609.343, subdivision 1, clauses (a) to (Í); and 609.344, subdivision 1, clauses (a) ta (e) and (h) to (j); escape from custody; arson in the first, second, or third degree; drive-by shooting under section 609.66, subdivision le; harassment and stalking under section 609.749, subdivision 3, clause (3); possession or other unlawful use of a firearm in violation of section 609.165, subdivision lb, or 624.713, subdivision 1, clause (b), a felony violation of chapter 152; or any attempt to commit any of these offenses.
. The RICO statute defines criminal act as:
[Cjonduct constituting, or a conspiracy or attempt to commit, a felony violation of chapter 152, or a felony violation of section 297D.09; 299F.79; 299F.80; 299F.82; 609.185; 609.19; 609.195; 609.20; 609.205; 609.221; 609.222; 609.223; 609.2231; 609.228; 609.235; 609.245; 609.25; 609.27; 609.322; 609.342; 609.343; 609.344; ' 609.345; 609.42; 609.48; 609.485; 609.495; 609.496; 609.497; 609.498; 609.52, subdivision 2, if the offense is punishable under subdivision 3, clause (3)(b) or clause 3(d)(v) or (vi); section 609.52, subdivision 2, clause. (4); 609.527, if the crime is punishable under subdivision 3, clause (4); 609.528, if the crime is punishable under subdivision 3, clause (4); 609.53; 609.561; 609.562; 609.582, subdivision 1 or 2; 609.668, subdivision 6, paragraph (a); 609.67; 609.687; 609.713; 609.86; 609.894, subdivision 3 or 4; 609.895; 624.713; 624.74; or 626A.02, subdivision 1, if the offense is punishable under section 626A.02, subdivision 4, paragraph (a). "Criminal act” also includes conduct constituting, or a conspiracy or attempt to commit, a felony violation of section 609.52, subdivision 2, clause (3), (4), (15), or (16), if the violation involves an insurance company as defiped in section 60A.02, subdivision 4, a nonprofit health service plan corporation regulated under chapter 62C, a health maintenance organization regulated under chapter 62D, or a fraternal benefit society regulated under chapter 64B.
Minn.Stat. § 609.902, subd. 4.