United States v. Phillips , 127 F. App'x 641 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4109
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY FRANKLIN PHILLIPS, a/k/a Shag,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-02-104)
Submitted: February 25, 2005 Decided: March 29, 2005
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, P.A., Asheville, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Larry Franklin Phillips appeals his conviction after a
jury trial of one count of conspiracy to possess with intent to
distribute at least 1.5 kilograms of methamphetamine, in violation
of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2004), and his
sentence of life imprisonment. We affirm.
None of the arguments raised on appeal were presented to
the district court; therefore, this court reviews only for plain
error. In order to correct error not asserted in the district
court, Phillips must establish “that an error occurred, that the
error was plain, and that the error affected his substantial
rights.” United States v. Olano, 507 U.S. 725, 732 (1993).
Correction of plain error established by the appellant remains,
however, in the court’s discretion, which should only be exercised
if the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (quoting United States v.
Young, 470 U.S. 1, 15 (1985)).
Phillips first argues that the Government violated his
due process rights by presenting the false testimony of three
co-defendants. Such a claim requires that Phillips establish that:
“(1) the testimony was false; (2) the Government knew the testimony
was false; and (3) there is a reasonable probability that the false
testimony could have affected the verdict.” United States v.
Roane, 378 F.3d 382, 400 (4th Cir. 2004). Phillips asserts the
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co-defendants’ testimony was false because they testified to
transactions that involved quantities of methamphetamine in excess
of the quantities that they were held responsible for in their plea
agreements. Although he alleges the Government presented false
testimony, he disclaims any allegation of a failure to disclose
evidence or other personal misconduct on the part of the Assistant
United States Attorney. Our review of the record leads us to
conclude that Phillips has not established that the trial testimony
of the co-defendants was false, as the descriptions of drug
quantities attributable to Phillips were corroborated by other
witnesses.
In a related argument, Phillips asserts that the
Government violated his due process and jury trial rights when it
engaged in unconstitutional fact bargaining. He asserts that “if
the testimony of the co-defendants was in fact true, the state
engaged in unconstitutional fact bargaining by significantly
reducing the quantity of drugs attributable to those co-defendants
who were willing to testify against the defendant.” He asserts
that the Government also improperly offered to reduce the drug
quantity for which he would be held responsible at sentencing if he
agreed to plead guilty, but prosecuted him for the amount charged
in the indictment when he rejected the plea offer. We find this
argument meritless. The process of plea bargaining has long been
accepted as legitimate. Corbitt v. New Jersey, 439 U.S. 212,
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218-19 (1978). Moreover, to the extent Phillips has standing to
contest the Government’s decisions to offer plea agreements with
favorable terms to his co-defendants, the Supreme Court has
accorded wide discretion to prosecutors in reaching precisely these
types of decisions. Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978). Phillips does not allege any improper motives in the
Government’s decision making with regard to plea offers in his
case, and our review of the record leads us to conclude that the
Government acted properly in its negotiations with Phillips and his
co-defendants.
In his remaining assertions of error, Phillips attacks
his life sentence. He does not contest that he was in fact
previously convicted of two felony drug offenses, or that those
convictions qualified to enhance his sentence to a mandatory life
term under 21 U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2004).
Phillips first argues that his mandatory life sentence violates the
separation of powers doctrine because the statutory provision
mandating a life sentence removes discretion from the sentencing
judge and transfers that discretion to the prosecutor.
To the extent Phillips seeks to challenge recent changes
enacted by Congress to the composition of the Sentencing
Commission, he cannot demonstrate any prejudice attributable to
this change. Although the district court calculated the applicable
range under the sentencing guidelines, it is undisputed that
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Phillips’s sentence was determined based upon straightforward
application of the terms of a statute to the facts of Phillips’s
instant conviction and his two prior felony drug offense
convictions. As his sentence was not determined under the
sentencing guidelines, the makeup of the Sentencing Commission is
irrelevant to Phillips’s sentence. We also conclude that
Phillips’s case does not present a legitimate separation of powers
issue. Phillips was sentenced in compliance with specific
statutory language. In light of the broad discretion accorded
prosecutors recognized by the Supreme Court in Bordenkircher,
Phillips cannot establish any constitutional infirmity in the
mandatory minimum provisions of § 841(b). Although the Supreme
Court has recognized criticisms of mandatory minimum sentencing
provisions, it has not held them unconstitutional. Harris v.
United States, 536 U.S. 545, 568-69 (2002).
Phillips next asserts that his sentence is cruel and
unusual punishment in violation of the Eighth Amendment. In
considering this argument, we apply the three-part test of Solem v.
Helm, 463 U.S. 277 (1983), which examines: “(1) the gravity of the
offense and the harshness of the penalty, (2) the sentences imposed
on other criminals in the same jurisdiction, and (3) the sentences
imposed for commission of the same crime in other jurisdictions.”
United States v. Kratsas, 45 F.3d 63, 66 (4th Cir. 1995). We
conclude that Phillips’s life sentence is not constitutionally
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disproportionate. First, his offense is extremely serious.
Phillips was not just a drug user, but a dealer who sold what can
only be described as massive quantities of methamphetamine over
several years to many different people. Also, Phillips is a repeat
drug offender. Applying the second prong of Solem, this court has
concluded that “it is clear that a life sentence for a major drug
violation is not disproportionate in comparison with other
sentences mandated by the Guidelines and other drug statutes.”
Kratsas, 45 F.3d at 68. Finally, applying the third prong reveals
similarly lengthy state penalties for crimes involving the
significant quantity of methamphetamine charged in Phillips’s
indictment and found by the jury. See N.C. Gen. Stat.
§ 90-95(h)(3b)(c) (2003) (range of 225 to 279 months imprisonment
for 400 grams or more of methamphetamine); S.C. Code Ann.
§ 44-53-375(C)(5) (Law. Co-op. 2002) (twenty-five to thirty years
imprisonment, mandatory minimum of twenty-five years without parole
for 400 grams or more); Va. Code Ann. § 18.2-248(H)(5) (Michie
2004) (twenty years to life with mandatory minimum of twenty years
for 200 grams or more).
Phillips’s final argument is that his mandatory life
sentence violates his due process rights. He specifically asserts
that “where a statute dictates life imprisonment such a sentence
cannot be consistent with due process without an individualized
determination of whether the defendant’s conduct and criminal
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history justify such a sentence.” We have squarely rejected this
argument in prior cases involving sentences virtually identical to
Phillips’s. Kratsas, 45 F.3d at 69; United States v. D’Anjou, 16
F.3d 604, 613-14 (4th Cir. 1994).
Accordingly, we affirm Phillips’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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