                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               March 5, 2008
                              No. 07-11487                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket No. 06-00325-CR-T-23-MAP

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DAVID EUGENE LEE,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (March 5, 2008)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Appellant David Eugene Lee appeals his conviction and sentence for
possession with intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A)(ii). On appeal Lee raises five issues: (1) whether his

guilty plea was unknowingly and involuntarily entered; (2) whether the alleged

failure of both the government and the district court to comply strictly with 21

U.S.C. § 851 requires reversal; (3) whether the cumulative effect of the errors

alleged in Issues 1-2 warrants reversal; (4) whether the district court violated his

Eighth Amendment rights in enhancing his sentence under § 841 and § 851; and

(5) whether § 841 and § 851 are unconstitutional.

I.    Lee’s Guilty Plea

      Because Lee made no objection that his plea proceedings were inadequate,

we review his arguments that his guilty plea was invalid for plain error only. See

United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.), cert. denied, 128 S. Ct.

257 (2007). Under this standard, there must be an error that is plain and that affects

substantial rights. United States v. Vance, 494 F.3d 985, 993 (11th Cir. 2007)

(internal quotations and citations omitted). Accordingly, in order to prevail, Lee

must show a reasonable probability that, but for the alleged errors, he would not

have entered the plea. Evans, 478 F.3d at1338.




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A.    Statute of limitations waiver

      Lee argues first that the magistrate judge erred by failing to inform him that

he had the right to require the government to prove to a jury that the statute of

limitations had not expired, and failing to correct his lawyer’s misapprehension

that there was no “good faith basis” for asserting a statute of limitations defense.

      A court’s violation of Federal Rules of Criminal Procedure 11 constitutes

plain error only where the court totally fails to address one of the rule’s three core

objectives, identified by us as: “(1) ensuring that the guilty plea is free of coercion;

(2) ensuring that the defendant understands the nature of the charges against him;

and (3) ensuring that the defendant is aware of the direct consequences of the

guilty plea.” Gordon v. United States, 496 F.3d 1270, 1278 (11th Cir. 2007)

(internal quotations and citation omitted). Further, we have held that a district

court's failure to inform a defendant during the plea colloquy that he could raise a

“good faith” defense to the charges if he were to proceed to trial does not violate

Rule 11, as nothing in Rule 11 requires the trial judge to inform the defendant of

every possible defense that he may have. Dismuke v. United States, 864 F.2d 106,

107 (11th Cir. 1989).

      It is clear to us from the plea colloquy that Lee knowingly and voluntarily

pled guilty.



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B.    Ineffective assistance of counsel

      Lee next contends that he was denied effective assistance of counsel, and his

trial attorney’s deficient performance rendered his plea unknowing and

involuntary. Specifically, he argues that his defense counsel provided him with

“patently erroneous advice” in advising him that she had no good faith basis for

mounting a statute of limitations defense, and failed to evaluate fully the limited

waiver of appeal as it related to the facts of his case.

      “We will not consider an ineffective assistance of counsel claim that is

raised for the first time on direct appeal where there has been an insufficient

opportunity to develop the record with regard to the merits of the claim.” United

States v. Garcia-Jaimes, 484 F.3d 1311, 1321 (11th Cir.), petition for cert. filed,

(Jun. 11, 2007) (No. 06-11863).

      Because there is insufficient evidence in the record concerning whether

Lee’s trial counsel misadvised him regarding his statute of limitations defense and

failed to evaluate the limited waiver of appeal as it related to the facts of his case,

we decline to address the merits of these claims. See id.

C.    The Plea Agreement

      Lee argues also that the plea agreement was ambiguous and contained

contradictory and incorrect statements regarding the sentencing consequences of



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his plea.

       “Any ambiguities in the terms of a [plea] agreement should be resolved in

favor of the criminal defendant.” United States v. Pielago, 135 F.3d 703, 709-710

(11th Cir. 1998). Where the language of the agreement is ambiguous, extrinsic

evidence of the parties’ intent may be considered to interpret the agreement.

United States v. Copeland, 381 F.3d 1101, 1106 (11th Cir. 2004).

       The plea agreement at issue here does not appear to be ambiguous.

Moreover, Lee stated under oath that he was aware that he faced a statutory

minimum penalty of life imprisonment, and understood that the sentencing court

had no authority to sentence him below the mandatory minimum unless the

government elected, in its sole discretion, to file a motion recognizing his

substantial assistance.

II. Compliance with 21 U.S.C. § 851

A.     Sufficiency of the information under § 851(a)

       Lee argues that the information filed by the government failed to comply

strictly with the requirements of § 851(a) and, because the government’s

compliance with § 851(a) is jurisdictional, the district court lacked jurisdiction to

impose the enhanced penalty.

       Lee failed to challenge the sufficiency of the information below, and



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therefore, we ordinarily would review his arguments for plain error only. See

United States v. Taylor, 417 F.3d 1176, 1183 (11th Cir. 2005). Lee argues,

however, that his challenge to the sufficiency of the information should be

reviewed de novo because the sufficiency of the information is jurisdictional, and

jurisdiction may be challenged at any time. We need not resolve the question of

which standard of review is appropriate here, however, because the district court’s

jurisdiction to enhance Lee’s sentence under § 851 was proper even applying the

more demanding standard of de novo review.

      To obtain a sentence enhancement under § 841, the government must

comply with the notice requirement of § 851(a)(1), which provides that an

enhancement based on prior convictions may not be imposed “unless before

trial,. . .the United States attorney files an information with the court (and serves a

copy of such information on the [defendant] or counsel for the [defendant]) stating

in writing the previous convictions to be relied upon.” United States v. Rutherford,

175 F.3d 899, 903 (11th Cir. 1999) (quoting 21 U.S.C. § 851(a)(1)).

      Although the information here contained the incorrect date of one of Lee’s

convictions, and misidentified the title of the U.S. Code under which the

enhancement was sought, it stated with specificity the previous convictions relied

upon by the government in seeking an enhancement. Accordingly, we conclude



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that the district court had jurisdiction to enhance Lee’s sentence under § 851.

B.    District court’s compliance with § 851(b)

      Lee further asserts that the district court’s failure to conduct the required

§ 851(b) colloquy, by asking him whether he affirmed or denied the prior

convictions, and warning him that any challenge to a prior conviction not raised

prior to the imposition of sentence may not be raised later to attack the sentence,

requires reversal.

      Section 851(b) provides that, if the government files an information under

this section, the court shall, before imposing sentence, inquire of the defendant

“whether he affirms or denies that he has been previously convicted as alleged in

the information, and shall inform him that any challenge to a prior conviction

which is not made before sentence is imposed may not thereafter be raised to attack

the sentence.” 21 U.S.C. § 851(b). We have held that “[a] trial court is not

required to adhere to the rituals of § 851(b) where a defendant, as a matter of law,

is precluded from attacking the conviction forming the basis of the enhancement

information.” United States v. Weaver, 905 F.2d 1466, 1482 (11th Cir. 1990)

(internal quotations and citation omitted). Section § 851(e) precludes a defendant

from challenging the validity of any prior conviction alleged under § 851 that

occurred more than five years before the date of the information alleging the prior



                                           7
conviction. 21 U.S.C. § 851(e).

      The record demonstrates that the magistrate judge did not make the inquiries

as described in § 851(b). Nevertheless, the information shows that the convictions

on which Lee’s enhancement was based, possession of cocaine in 1987, and

possession of cocaine with intent to sell in 1994, were well over five years old, and

therefore not subject to challenge under § 851(e).

III. Cumulative Effect of Alleged Errors

      Lee argues that the above errors, when combined, violate the concepts of

fundamental fairness and due process of the law, and require reversal.

      We review the cumulative impact of multiple errors de novo, although some

of the errors might individually be reviewed for plain error. United States v.

Dohan, 508 F.3d 989, 993 (11th Cir. 2007). Reversal of a conviction may be

warranted where the cumulative effect of multiple errors is so prejudicial that a

defendant was deprived of the right to a fair trial, even though the errors

considered individually were harmless. United States v. Ramirez, 426 F.3d 1344,

1353 (11th Cir. 2005).

      Because, as we discussed infra, the district court did not make a series of

cumulative errors, Lee’s cumulative effect argument necessarily fails.

IV. Eighth Amendment



                                           8
      Lee next maintains that his sentence violates the Eighth Amendment's

prohibition against cruel and unusual punishment because §§ 841 and 851 allow

for arbitrary application of the mandatory life sentence enhancement, in that the

decision whether to seek an enhanced sentence “depends on the whim of the

prosecutor in the defendant's individual case.”

      Because Lee’s sentence is affirmable under either plain error or de novo

review, we need not decide whether Lee adequately preserved his Eighth

Amendment challenge below. Not only is there no precedent from this court or the

Supreme Court establishing the proposition that Lee advances on appeal, that

mandatory life sentences constitute cruel and unusual punishment, both this court

and the Supreme Court have held that mandatory life sentences do not violate the

Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 994, 95 111 S. Ct.

2680, 2701 (1991); see United States v. Willis, 956 F.2d 248, 251 (11th Cir. 1992).

Accordingly, we conclude that the district court committed no error, plain or

otherwise, when it sentenced Lee to a mandatory term of life imprisonment.

V. Constitutionality of 21 U.S.C. § 841 and 851

      Lee raises the following constitutional challenges to the district court’s

sentence enhancement for the first time on appeal, and therefore, our review is for

plain error only. See United States v. Ward, 486 F.3d 1212, 1221 (11th Cir.), cert.



                                          9
denied, 128 S. Ct. 398 (2007).

A. Fifth and Sixth Amendment Claims

         Lee first argues that § 841 and § 851 violate the Fifth and Sixth

Amendments by allowing for enhanced penalties based upon prior convictions that

are neither alleged in the indictment nor proven to a jury beyond a reasonable

doubt.

         “In Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 [ ]

(1998), the Supreme Court held that the government need not allege in its

indictment and need not prove beyond a reasonable doubt that a defendant had

prior convictions for a district court to use those convictions for purposes of

enhancing a sentence.” United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315

(11th Cir. 2005). We consistently have stated that “we are bound to follow

Almendarez-Torres unless and until the Supreme Court itself overrules that

decision.” United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001).

         The district court therefore committed no constitutional error when it

enhanced Lee’s sentence based on prior qualifying convictions that were not listed

in the indictment.

B.       Separation of Powers Doctrine

         Lee argues additionally that, by subjecting enhancements to prosecutorial



                                            10
discretion, and depriving district courts of the ability to impose any other sentence

absent further action by the prosecutor, §§ 841 and 851 give prosecutors the power

to alter the penalty attached to a particular offense, and therefore unlawfully

delegate the judicial function of sentencing to the executive branch.

      We have held that the discretion conferred upon a prosecutor under § 851 to

determine whether a particular defendant will be subject to the statutory maximum

“is an integral feature of the criminal justice system, and is appropriate, so long as

it is not based upon improper factors.” United States v. Cespedes, 151 F.3d 1329,

1333 (11th Cir. 1998) (quoting United States v. LaBonte, 520 U.S. 751, 117 S. Ct.

1673 (1997)).

      In light of our established precedent, we conclude that the district court did

not plainly err in enhancing Lee’s sentence under § 841 and § 851. For the above-

stated reasons, we affirm Lee’s conviction and sentence.

      AFFIRMED.




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