United States v. Clarence Ward , 154 F. App'x 190 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 14, 2005
No. 05-10005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-60158-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE WARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 14, 2005)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Clarence Ward appeals his life sentence imposed after his conviction on four
counts of possession with intent to distribute cocaine base, all in violation of 21
U.S.C. §§ 841(a) and 851, and one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). We affirm his conviction and
sentence.
Ward raises four arguments on appeal. First, he argues his mandatory life
sentence, which was based upon his recidivism, was cruel and unusual punishment
in violation of the Eighth Amendment. As part of this argument, he cites for the
first time on appeal the disparity in sentences for crack and powder cocaine
offenses. Second, he argues 21 U.S.C. § 851(e)’s prohibition against challenges to
the validity of a sentence-enhancing prior conviction that occurred more than five
years prior to the conviction at issue violates due process. Third, Ward argues the
imposition of a life sentence based upon his prior convictions violated his Sixth
Amendment right to a jury trial. Finally, he argues for the first time on appeal the
district court erred in sentencing him based upon a drug amount that included the
weight of water contained in the cocaine base. Each argument is considered in
turn.
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I. DISCUSSION
We review a constitutional challenge to a sentencing statute de novo. United
States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). We review arguments
raised for the first time on appeal for plain error. United States v. Olano, 113 S. Ct.
1770, 1776 (1993); United States v. Harness, 180 F.3d 1232, 1234 (11th Cir.
1999).
A. Cruel and Unusual Punishment
Ward first asserts his mandatory life sentence, which was based upon his
recidivism, was cruel and unusual punishment in violation of the Eighth
Amendment. In United States v. Lyons, 403 F.3d 1248 (11th Cir. 2005), the
appellant argued his 235-month sentence imposed based on his status as an “armed
career criminal,” pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4(b),
constituted cruel and unusual punishment in violation of the Eighth Amendment.
Id. at 1256–57. We rejected Lyons’ argument on the following basis:
“[r]ecidivism has long been recognized as a legitimate basis for increased
punishment,” and “the Supreme Court has consistently affirmed the imposition of
longer sentences, even for non-violent offenses, based on an offender’s
recidivism.” Id. We also held an appellant’s mandatory life sentence imposed
pursuant to 21 U.S.C. § 841(b)(1)(A) on his third and fourth convictions for drug
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offenses involving at least five kilograms of cocaine was not “cruel and unusual
punishment” as proscribed by the Eighth Amendment. United States v. Willis, 956
F.2d 248, 251 (11th Cir. 1992). Additionally, the Supreme Court has held a
mandatory sentence of life imprisonment was not cruel and unusual punishment in
violation of the Eighth Amendment. Harmelin v. Michigan, 111 S. Ct. 2680, 2701
(1991). We have stated a challenge to the constitutionality of disparities in
sentences between crack and powder cocaine is “without merit.” United States v.
Harden, 37 F.3d 595, 602 (11th Cir. 1994).
The decisions in Willis, Lyons, and Harmelin, have not been overruled and
remain good law. Accordingly, Ward’s argument that his mandatory life sentence
based upon his recidivism violates the Eighth Amendment is without merit.
Ward’s argument his life sentence was a violation of the Eighth Amendment
because of the disparity in crack and powder cocaine offenses is also foreclosed by
our precedent, so he cannot show plain error.
B. Due Process
Ward’s second argument is that 21 U.S.C. § 851(e)’s prohibition against
challenges to the validity of a sentence-enhancing prior conviction that occurred
more than five years prior to the conviction at issue violates due process. Anyone
convicted of an offense under § 841 may not challenge the validity of a prior
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conviction alleged thereunder that occurred more than five years prior to the date
of the information alleging the prior conviction. 21 U.S.C. § 851(e). We have held
that application of § 851(e) is not a violation of due process. United States v.
Williams, 954 F.2d 668, 673 (11th Cir. 1992). Accordingly, Ward’s argument is
foreclosed.
C. Sixth Amendment
Ward’s third argument is that the imposition of a mandatory life sentence
based upon his prior convictions violated his Sixth Amendment right to a jury trial.
It is well established the Sixth Amendment does not require a defendant’s prior
convictions be found by the jury. United States v. Booker, 125 S. Ct. 738, 756
(2005); Blakely v. Washington, 124 S. Ct. 2531, 2536–37 (2004); Apprendi v. New
Jersey, 120 S. Ct. 2348, 2362–63 (2000). Accordingly, this argument is also
foreclosed.
D. Drug Amount
Ward’s final argument is that the district court erred in sentencing him based
upon a drug amount that included the weight of water contained in the cocaine
base. Absent controlling precedent, there can be no plain error See United States
v. LeJarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Because neither we nor
the Supreme Court has considered the issue that Ward raises in this argument, he
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has not demonstrated an error that was “plain,” and therefore cannot prevail on this
issue. Moreover, the jury’s determination of drug weight was supported by
competent evidence.
II. CONCLUSION
Ward’s mandatory life sentence was not cruel and unusual punishment in
violation of the Eight Amendment. Section 851(e)’s prohibition against challenges
to the validity of a sentence-enhancing prior conviction occurring more than five
years prior to the conviction at issue does not violate due process. The imposition
of a life sentence based on prior convictions did not violate Ward’s Sixth
Amendment right to a jury trial. Finally, the district court did not plainly err in
determining the amount of cocaine base that Ward possessed.
AFFIRMED.
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