United States v. Olivar Martinez-Blanco

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 5, 2009
No. 08-16879 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00396-CR-TCB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLIVAR MARTINEZ-BLANCO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 5, 2009)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Olivar Martinez-Blanco was convicted of conspiracy to possess with intent
to distribute at least five kilograms of cocaine and attempt to distribute at least five
kilograms of cocaine, both in violation of 21 U.S.C. § 846. Prior to trial, the
government filed a notice of enhanced penalties identifying two prior controlled
substance convictions, which subjected Martinez-Blanco to mandatory life
imprisonment. 21 U.S.C. §§ 841(b)(1)(A), 851.
At sentencing, Martinez-Blanco acknowledged that the sentence was set by
statute, but argued that it was unjust. He asserted that the government filed the two
§ 851 notices to coerce him into entering a plea, and his codefendants received
lesser sentences but were more culpable. He explained that the two prior
convictions occurred when he was only 22 and 24 years old, while he was addicted
to drugs, and involved a very small amount of drugs. He claimed the mandatory
life sentence was cruel and unusual punishment and did not permit the court to
consider mitigating sentencing factors in 18 U.S.C. § 3553(a).
The court stated that it believed a significant sentence was required, but that
the mandatory life imprisonment was “savage, cruel and unusual.” The court
acknowledged that its hands were tied and stated that it regretted its lack of
discretion in determining the sentence. Nevertheless, the court explained that it
would adhere to its duty to follow the law. Accordingly, the court sentenced
Martinez-Blanco to life imprisonment.
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On appeal, Martinez-Blanco raises four challenges to his mandatory life
sentence: (1) the court should have considered the § 3553(a) factors and the rule of
lenity; (2) the sentence violates the Eighth Amendment; (3) the court erroneously
enhanced his sentence based on prior convictions not alleged in the indictment or
proven to the jury; and (4) § 851 violates the separation of powers.
We review de novo the legality of a criminal sentence. United States v.
Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007). We also review de novo
constitutional claims. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir.
2004). Issues not raised before the district court are reviewed for plain error.
United States v. Martinez, 407 F.3d 1170, 1173 (11th Cir. 2005).
I. Mandatory Sentences and the § 3553(a) Factors
Martinez-Blanco argues that the mandatory minimum sentence violates his
constitutional rights and conflicts with the mandate that the court consider the
sentencing factors in § 3553(a). He asserts therefore the court should apply the
rule of lenity and conclude that § 3553(a) supersedes the mandatory minimum
sentence.
Martinez-Blanco’s challenge is foreclosed by this court’s decision in United
States v. Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008) (holding that the
district court remains bound by statutory minimum sentences after United States v.
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Booker, 543 U.S. 220 (2005)). We are bound by decisions of prior panels until
overruled by this court sitting en banc or by the Supreme Court. United States v.
Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998). Therefore, despite the district
court’s obvious disagreement with sentence, the court was required to impose the
statutory mandatory minimum.1
Moreover, the court did not need to consider the rule of lenity. To apply the
rule, the court must conclude that the statute is ambiguous and that narrower
constructions are possible. United States v. Svete, 556 F.3d 1157, 1169 (11th Cir.
2009) (en banc); see also United States v. Camacho-Ibarquen, 410 F.3d 1307 (11th
Cir. 2005) (“we will apply the rule of lenity only if the provision being construed is
still ambiguous after application of normal rules of construction.”). Because there
is no conflict between the mandatory minimum sentence and the § 3553(a) factors,
there is no ambiguity or narrower construction possible, and the rule would not
apply. Accordingly, there is no merit to Martinez-Blanco’s first challenge to his
sentence.
II. Eighth Amendment
As Martinez-Blanco concedes, this court has rejected an Eighth Amendment
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The court is permitted to impose a sentence below the mandatory minimum only if the
government files a substantial assistance motion or if the defendant qualifies for the safety-valve
provision, see 18 U.S.C. §§ 3553(e) and 3553(f), neither of which is applicable to Martinez-Blanco’s
case.
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challenge to mandatory minimum sentences. See United States v. Brant, 62 F.3d
367 (11th Cir. 1995); see also United States v. Johnson, 451 F.3d 1239, 1243-44
(11th Cir. 2006). Accordingly, this argument is foreclosed by circuit precedent.
III. Prior Convictions
Martinez-Blanco argues that §§ 841 and 851 are unconstitutional because
they permit a defendant to face an enhanced mandatory minimum based on prior
convictions not alleged in the indictment or proven to the jury.
This court has rejected the claim that prior convictions must be charged in
the indictment or proven to a jury. Camacho-Ibarquen, 410 F.3d at 1315-16.
Accordingly, Martinez-Blanco’s claim fails.
IV. Separation of Powers
Finally, Martinez-Blanco argues that §§ 841 and 851 violate the separation
of powers doctrine by granting federal prosecutors greater power to determine
penalties than the power granted to federal judges.
This court has upheld § 851’s constitutionality under a separation-of-powers
challenge. See United States v. Cespedes, 151 F.3d 1329, 1335 (11th Cir. 1998)
(“[T]he power of the prosecutor under § 851 to increase the mandatory minimum
sentence facing the defendant is no greater than the classic power of the executive
to choose between charges carrying different mandatory penalties.”); see also
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United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir. 1988) (explaining that
“[i]t is for Congress to say what shall be a crime and how that crime shall be
punished.”). Accordingly, there is no merit to Martinez-Blanco’s separation-of-
powers claim.
Because each of Martinez-Blanco’s challenges is foreclosed by this court’s
case law, we AFFIRM the sentence imposed.
AFFIRMED.
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