United States v. Deatoni Martial Dixon , 297 F. App'x 865 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-14703 October 23, 2008
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 06-00597-CR-RBP-HGD
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
DEATONI MARTIAL DIXON,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(October 23, 2008)
Before BARKETT and WILSON, Circuit Judges, and POGUE,* Judge.
PER CURIAM:
*
Honorable Donald C. Pogue, Judge, United States Court of International Trade, sitting
by designation.
Deatoni Dixon appeals his conviction and 60-month sentence for possession
of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c). Dixon
argues that the district court committed plain error by accepting his guilty plea
without a reasonable factual basis in violation of Federal Rule of Criminal
Procedure 11(b)(3). He also argues that his statutory mandatory minimum
sentence is unconstitutional as it violates the Eighth Amendment’s prohibition
against cruel and unusual punishment and because mandatory minimum sentences
violate the separation of powers doctrine of the Constitution.
When a defendant fails to object to plea proceedings based on Rule 11, we
review for plain error. United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.
2007), cert. denied, 128 S.Ct. 257 (2007). “To establish plain error, a defendant
must show there is (1) error, (2) that is plain, and (3) that affects substantial
rights.” Id. Here, Dixon did not object to plea proceedings nor did he argue, as he
does on appeal, that the quantity of marijuana involved was too small to form the
basis for a drug trafficking crime. Indeed, Dixon pled guilty to the specific charge
of possession of a firearm in furtherance of a drug trafficking crime. Moreover, we
find the factual basis proffered at the plea hearing sufficient to support the
conviction.1
1
The government proffered that when Dixon was approached by a police officer while
sitting in an illegally parked car, he threw five bags of marijuana out the window. The officer
2
As to his sentence, Dixon makes two constitutional claims. First, he argues
that his mandatory minimum sentence of 60 months is unconstitutionally
disproportionate and as such constitutes cruel and unusual punishment prohibited
by the Eighth Amendment, as he had no prior criminal history and the amount of
marijuana seized was small. Constitutional objections not raised before the district
court are reviewed only for plain error, United States v. Moriarty, 429 F.3d 1012,
1018 (11th Cir. 2005), and we find none here. Possession of a firearm in
furtherance of a drug trafficking crime is a serious offense and 60 months is not a
grossly disproportionate sentence. “Moreover, ‘a sentence which is not otherwise
cruel and unusual does not become so simply because it is mandatory.’” United
States v. Raad, 406 F.3d 1322, 1324 (11th Cir. 2005) (quoting Harmelin v.
Michigan, 501 U.S. 957, 995 (1991) (internal quotation marks and alterations
omitted)).
Finally, Dixon argues, as he did before the district court, that mandatory
minimum sentences violate the separation of powers principle of the Constitution
as they combine both the power to prosecute and the judicial power to sentence
within the executive branch. However, Dixon’s argument is foreclosed by this
Court’s precedent. See United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir.
found eleven more bags of marijuana and a 9 mm pistol under the driver’s seat. The marijuana
totaled 24.99 grams.
3
1988) (“It is for Congress to say what shall be a crime and how that crime should
be punished . . . .” (quoting United States v. Smith, 686 F.2d 234, 239 (5th Cir.
1982))); United States v. Cespedes, 151 F.3d 1329 (11th Cir. 1998) (holding that
the prosecutor’s ability to influence the sentencing decision through charging does
not violate the separation of powers doctrine).
AFFIRMED.
4