                               _____________

                                No. 96-2110
                               _____________

United States of America,             *
                                      *
           Plaintiff-Appellee,        *    Appeal from the United States
                                      *    District Court for the
     v.                               *    Southern District of Iowa.
                                      *
Reed Raymond Prior,                   *
                                      *
           Defendant-Appellant.       *


                               _____________

                      Submitted:   October 23, 1996

                            Filed: February 27, 1997
                               _____________

Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
                              _____________


HANSEN, Circuit Judge.

     Reed Raymond Prior received a mandatory life sentence following his
plea of guilty to one count of possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1994).          Prior
                                                  1
appeals his sentence and the district court's         denial of his motion to
withdraw his plea.    We affirm.


                                      I.


     Acting upon information that Prior was dealing in narcotics, police
made numerous attempts to locate Prior.      On May 2, 1995, police located
Prior's vehicle at a Motel 6 in Des Moines, Iowa.         They observed Prior
carrying bags to his car as he prepared to




      1
       The Honorable Ronald E. Longstaff, United States District
Judge for the Southern District of Iowa.
leave his room.          Police officers followed Prior to a mini storage unit
where they saw him transferring items from his vehicle to the storage unit.
Police officers then obtained a search warrant for the storage unit and
Prior's vehicle.          During the search, officers found a large quantity of
methamphetamine in a duffle bag on the floor of the storage unit.                   In all,
the police seized 869 grams of methamphetamine from the vehicle and storage
unit.       The police also seized a scale, other drug paraphernalia, and
$17,690 in cash.


        Prior was arrested and charged with possession of methamphetamine
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).                     Given
the amount of cash and actual methamphetamine found in the search, Prior
could      have   been   held   responsible       for   a   total   of   1,147.6   grams   of
methamphetamine.         The government provided notice that it would request the
enhanced mandatory minimum sentence of life imprisonment without the
possibility of parole, pursuant to § 841(b)(1)(A)(viii), because Prior's
offense involved over 100 grams of methamphetamine and he had three prior
felony drug convictions.


        Three days after his arrest, Prior signed a written waiver of
indictment, a waiver of detention hearing, and a guilty plea agreement in
which Prior agreed to fully cooperate with the government and provide
complete and truthful information concerning any criminal matters of which
he   has    knowledge.       If the government determined Prior had provided
substantial assistance in the investigation or prosecution of another
person, the government had the sole discretion under the agreement to move
for a departure below the mandatory minimum life sentence.                          Prior's
attorney moved quickly with this agreement to preserve Prior's option of
providing substantial assistance, which was the only way to avoid the
mandatory life sentence.          (Plea Tr. at 23.)          After a hearing on May 31,
1995, the district court accepted Prior's plea of guilty and ordered the
preparation of a presentence investigation report.




                                              2
     On November 30, 1995, before sentencing had taken place, Prior filed
a motion to withdraw his guilty plea.            During a hearing on the motion,
Prior presented testimony that he had been incompetent to enter the plea
agreement because he was going through withdrawal from addiction to
controlled substances at the time he signed the agreement on May 5, 1995.
Following a hearing, the district court filed a written order denying the
motion.     The court found that even if Prior had been incompetent at the
time he signed the agreement, he undoubtedly was competent to make a
knowing and voluntary waiver of his rights at the plea hearing when the
district court accepted his plea of guilty.


     On April 11, 1996, the district court entered judgment on Prior's
guilty plea.    The government presented certified copies of Prior's previous
drug convictions and refused to make a substantial assistance motion,
rendering     the   district   court   without   authority   to   depart   below   the
statutory minimum life sentence.       Accordingly, the district court sentenced
Prior to a mandatory life sentence without the possibility of parole.
Prior appeals.


                                         II.


     Prior first contends that the district court erred in denying his
motion to withdraw his guilty plea.        A guilty plea is a solemn act not to
be set aside lightly.      United States v. Morrison, 967 F.2d 264, 268 (8th
Cir. 1992).    We review the district court's denial of a motion to withdraw
a plea for an abuse of discretion.        United States v. Newson, 46 F.3d 730,
732 (8th Cir. 1995).


     Rule 32(d) of the Federal Rules of Criminal Procedure provides that
a district court may permit a defendant to withdraw a guilty plea prior to
sentencing upon a showing of "any fair and just reason," and we have held
that the defendant bears the burden of establishing such a justification.
United States v. Yell, 18 F.3d 581, 582 (8th Cir. 1994).          While a defendant
seeking to withdraw a




                                          3
plea before sentencing is given a more liberal consideration than someone
seeking to withdraw a plea after sentencing, "a defendant has no absolute
right to withdraw a guilty plea before sentencing," and the decision to
allow or deny the motion remains within the sound discretion of the trial
court.     United States v. Boone, 869 F.2d 1089, 1091 (8th Cir.), cert.
denied, 493 U.S. 822 (1989).           Factors to consider in determining whether
to   set   aside   a   plea    of    guilty   include   whether   the    defendant    has
demonstrated a fair and just reason, whether the defendant has asserted his
innocence, the length of time between the guilty plea and the motion to
withdraw, and whether the government will be prejudiced.                Id. at 1091-92.


      The reasons offered by Prior for withdrawing his plea were that he
was mentally incompetent due to substance abuse at the time he signed the
plea agreement and that he did not knowingly and intelligently waive his
constitutional rights.        At the December 22, 1995, hearing on his motion to
withdraw his guilty plea, Prior presented the testimony of a psychiatrist,
Dr. Mark Souza, who concluded that because Prior was undergoing withdrawal
from several controlled substances, he was unable to fully comprehend the
agreement or appreciate its implications at the time he signed it on May
5, 1995.    Dr. Souza further testified that Prior would have been competent
by the time of the plea hearing on May 31, 1995, when the court accepted
Prior's guilty plea.        Prior asserts that because he had been incompetent
when he signed the plea agreement and when it was explained to him, his
plea was not knowing and voluntary at the May 31, 1995, plea hearing.


      Prior was competent at the time of the plea hearing, and he cannot
seriously argue otherwise.          Furthermore, the transcript of the plea hearing
indicates that Prior understood his rights.              The Assistant United States
Attorney summarized the plea agreement in court, explaining that under the
agreement    Prior     is   subject     to    a   mandatory   minimum    term   of   life
imprisonment, he has agreed to cooperate with the government, and upon a
government motion, there




                                              4
may be a possibility of reducing his sentence below the mandatory minimum
if he provides substantial assistance.     (Plea Tr. at 11-12.)   The district
court asked Prior if he was able to follow the government's summary
description of the plea agreement.    Prior replied, "Yeah, I was, because
I've read it a couple of times myself."      (Id. at 13.)   Prior also stated
that he had understood its terms at the time he signed the agreement and
that he had been given a full opportunity to confer with counsel about this
matter.   The district court carefully explained to Prior his constitutional
rights, including the right to trial by a jury, to confront the witnesses
against him, and to put the government to its proof.    Prior indicated that
he understood that he had the right to go to trial and have his case
decided by a jury if he so chose.    (Id. at 25.)    Prior indicated that he
understood and voluntarily waived all his trial-related constitutional
rights.   Prior provided an adequate factual basis for the plea, admitting
to possessing 3 1/2 pounds of methamphetamine with intent to deliver.
Additionally, at the hearing on his motion to withdraw the plea, Prior
testified that he had told the truth at the May 31, 1995, plea hearing.


     We agree with the district court's conclusion that Prior, who at all
times was represented by counsel, knowingly and voluntarily waived his
rights and pled guilty to the charge at the plea hearing on May 31, 1995.
Thus, Prior's asserted fair and just reason to withdraw his plea cannot
carry the day.     Additionally, he did not assert his innocence of the
charges and he waited approximately five months before seeking to withdraw
his plea.   We conclude that the district court did not abuse its discretion
in denying Prior's motion to withdraw his guilty plea.


                                    III.


     Prior raises several constitutional challenges to his sentence.
Specifically, he contends that the mandatory life sentence, imposed
pursuant to 21 U.S.C. § 841(b)(1)(A)(viii),




                                     5
violates his rights to due process and equal protection under the Fifth
Amendment, his right to be free from cruel and unusual punishment under the
Eighth Amendment, and the doctrine of separation of powers.               "The question
of whether a statute is constitutional is a question of law and must be
reviewed de novo."        United States v. Wesley, 990 F.2d 360, 363 (8th Cir.
1993).


      First, Prior contends that the mandatory life sentence violates his
due process rights, arguing that the statute deprives the district court
of   discretion     to   impose    an     individualized    sentence.    Where   capital
punishment     is   not    involved,       however,    an   individualized   sentencing
determination is not a constitutional imperative.                   United States v.
Goodface, 835 F.2d 1233, 1236, 1237 n.4 (8th Cir. 1987).                See Harmelin v.
Michigan, 501 U.S. 957, 995 (1991) (plurality) (recognizing the Court's
repeated     holding     that     there    is   no   requirement   comparable    to   the
"individualized capital sentencing doctrine" outside the capital context
due to "the qualitative difference between death and all other penalties").
"[D]ue process is not violated merely because a statute divests the trial
judge of discretion to sentence as he might wish," even if the resulting
effect is to place wide discretion in the hands of the prosecutor.
Goodface, 835 F.2d at 1236.         In noncapital cases, "Congress has the power
to define criminal punishments without giving the courts any sentencing
discretion."      Chapman v. United States, 500 U.S. 453, 467 (1991); United
States v. Hammer, 3 F.3d 266, 269 (8th Cir. 1993), cert. denied, 510 U.S.
1139 (1994).    Consistent with its authority to do so, Congress has merely
made a legislative choice in section 841(b) to deprive the courts of
sentencing discretion.


      Prior argues that the statute is overinclusive and violates due
process because it does not differentiate between drug kingpins, who run
large drug trafficking operations, and drug addicts, who may traffic in
controlled substances only to make enough money to buy more drugs to feed
their habit.      We find no due




                                                6
process violation.    "Absent classifications based on race or some other
forbidden or suspect ground, legislative decisions of the sort here in
question -- how severely to punish a particular class of drug-trafficking
crimes -- need only have a rational basis to survive" a due process
challenge.   United States v. Frieberger, 28 F.2d 916, 921 (8th Cir. 1994),
cert. denied, 115 S. Ct. 765 (1995).       Section 841(b) rationally serves to
discourage illegal drug trafficking activity by imposing a mandatory
minimum life sentence upon any defendant convicted of violating section 841
who was criminally responsible for a certain quantity of drugs and who also
has a record of two or more felony drug convictions.         Drug addicts who
traffic in illegal substances contribute to the same problem addressed by
the statute as do so-called drug kingpins who engage in drug trafficking
solely for profit.   "That distributors of varying degrees of culpability
might be subject to the same sentence does not mean that the penalty system
. . . is unconstitutional."   Chapman, 500 U.S. at 467.


     Prior contends that the unbridled prosecutorial discretion to allow
some, but not all, defendants to avoid life in prison in exchange for their
cooperation offends the Equal Protection Clause.     We disagree.   Defendants
convicted of section 841(a) are not all similarly situated with regard to
their ability to provide substantial assistance to aid the government in
further prosecutions.    Allowing prosecutors to provide the benefit of a
motion for a sentence below the mandatory minimum only to those who are
capable of providing substantial assistance to the government is rationally
related to the legitimate government interest in prosecuting criminal
conduct.     We have previously determined that a sentencing scheme that
removes discretion from the courts but builds in a safety-valve adjustment
"predicated on the reasonable assumption that the government is in the best
position to supply the court with an accurate report of the extent and
effectiveness of the defendant's assistance," does not violate due process.
United States v. Grant, 886 F.2d 1513, 1514 (8th Cir. 1989)




                                       7
(internal quotations omitted).         Likewise, we now determine that this scheme
does not offend equal protection rights.                 Accord United States v. Van
Winrow, 951 F.2d 1069, 1073 (9th Cir. 1991).


      We note that there is no assertion here that the prosecutor acted in
bad faith by denying Prior a motion for substantial assistance.                 In fact,
the   government   offered     Prior    the       opportunity   to   benefit   from   this
"prosecutorial grace," as Prior calls it (Appellant's Br. at 27), but he
refuses to provide the government with any assistance at all.                Prior flatly
asserts that he will not aid the government in arresting any more people.
(See Sent. Tr. at 45.)    Unfortunately, his steadfast refusal to offer any
help renders the courts unable to provide him with any relief from the
congressionally mandated life sentence to which he is subject.2


      Next, Prior asserts that his sentence violates his right to be free
from cruel and unusual punishment because the life sentence is grossly
disproportionate    to   his   crime.         Prior    argues   that   his   sentence   is
disproportionate because he is an addict and, until the time of his arrest
on this charge at the age of 45, he had never spent a day in jail because
his three previous felony drug convictions yielded no more than suspended
sentences and fines.




         2
         At the sentencing hearing, the district court clearly
expressed to Prior that he is, in effect, needlessly confining
himself to life imprisonment by his refusal to provide substantial
assistance. Judge Longstaff explicitly told Prior the following:

      You're making me do something I hate doing today . . .
      you're making me send you to jail for life, and I don't
      want to do that, and I hope someday that in the next
      approximately 365 days I have a chance to revisit this
      sentence and give you a just sentence and prove to you
      that the system works; but unfortunately, Reed, under the
      law, right or wrong, you're the only person right now
      that holds the key to unlock the handcuffs that bind me
      right now, and I hope someday in the next year you'd make
      a decision to give me a chance to do what's right.

(Sent. Tr. at 43-44.)

                                              8
Prior asserts that he is capable of leading a productive life as he was an
excellent student who completed a Bachelor of Arts degree in history and
a Master of Arts degree in education.       Thus, Prior claims that his life
sentence is disproportionate to his crime.


     The   Eighth   Amendment   "forbids   only   extreme   sentences   that   are
`grossly disproportionate' to the crime."         Harmelin, 501 U.S. at 1001
(opinion of Kennedy, J., concurring in part and concurring in the judgment)
(quoting Solem v. Helm, 463 U.S. 277, 288, 303 (1983)); accord Frieberger,
28 F.d at 920; United States v. Jones, 965 F.2d 1507, 1518 (8th Cir.),
cert. denied, 506 U.S. 924 (1992).         Our review to determine whether a
sentence is grossly disproportionate is quite narrow.       Frieberger, 28 F.3d
at 920.


     While Prior's sentence is harsh, we conclude that it is not grossly
disproportionate given the equally serious nature of his crime.                The
Supreme Court concluded in Harmelin that a state sentence of mandatory life
imprisonment without the possibility of parole for possessing 672 grams of
cocaine did not violate the Eighth Amendment, despite the fact that the
defendant had no prior felony convictions.        501 U.S at 994 (plurality).
In this case, Prior has a record of three prior drug felony convictions,
and he was held responsible for possessing with intent to distribute
1,147.6 grams of methamphetamine.     Comparing this case with the facts of
Harmelin leads us to conclude that Prior's sentence does not violate the
Eighth Amendment's ban on cruel and unusual punishments.


     Prior seems to assert that because he is an addict, he is not as
deserving of a life sentence as so-called drug kingpins.        A comparison of
his conduct with that of even larger-scale distributors, however, is not
relevant to our analysis.   Such a proportional analysis is only appropriate
after an initial comparison of the crime to the sentence for which it is
imposed leads to an inference of gross disproportionality.        United States




                                      9
v. Johnson, 944 F.2d 396, 409 (8th Cir.) (relying on Harmelin), cert.
denied, 502 U.S. 1008 (1991).                We have noted that the possession of
narcotics with the intent to distribute is an offense "at the root of some
of the gravest problems facing our country.                   The `fruit' of the drug plague
is everywhere; it fills our jails, our courts, our streets, and our
nurseries."       United States v. Meirovitz, 918 F.2d 1376, 1381 (8th Cir.
1990),   cert.     denied,      502   U.S.   829      (1991).      Prior's    three     previous
convictions indicate that he has been involved in drug distribution for
many years, and his actions have furthered the spread of this plague.                         Life
imprisonment without the possibility of parole in this circumstance is not
grossly disproportionate to the offense.                     As an aside, it is again worth
noting that Prior has been given the opportunity to attempt to reduce this
sentence himself by providing substantial assistance to the government, and
he steadfastly refuses to do so.


     Finally, Prior argues that section 841(b) is unconstitutional under
the doctrine of separation of powers.                 The district court can depart from
the mandatory minimum sentence only if the prosecution makes a motion for
departure    on   the    basis    that    the    defendant       has   provided   substantial
assistance,      and    Prior    argues   that        this    usurps   the   function    of   the
judiciary.    We have previously rejected this argument, see United States
v. Mason, 902 F.2d 1314, 1316 (8th Cir. 1990), and one panel is not at
liberty to overrule a decision of another panel.                   Mack v. Caspari, 92 F.3d
637, 641 n.6 (8th Cir. 1996).          Accordingly, we reject this argument without
further discussion.


                                                IV.


     Prior also challenges the constitutionality of 21 U.S.C. § 851(e),
which is a statute of limitations provision that prohibits defendants from
challenging "the validity of any prior conviction alleged under this
section which occurred more than five years before the date of the
information alleging such prior




                                                10
conviction."      Two of Prior's previous convictions occurred more than five
years earlier, and the district court did not permit Prior to attack their
validity.    Prior contends that section 851(e) provides an arbitrary and
irrational classification that violates due process and equal protection.
We disagree.


     While we have not previously addressed this question, several of our
sister circuits have squarely reached the issue.        They have determined
that, except for the limited circumstance where a prior conviction was
obtained in violation of the right to have counsel appointed, a defendant
has no constitutional right to challenge a prior conviction used to enhance
a current sentence, and accordingly, section 851(e) does not violate due
process.    See   United States v. Gonzales, 79 F.3d 413, 426-27 (5th Cir.),
117 S. Ct. 183 (1996); United States v. Arango-Montoya, 61 F.3d 1331, 1338
(7th Cir. 1995); United States v. Davis, 36 F.3d 1424, 1438-39 (9th Cir.
1994), cert. denied, 115 S. Ct. 1147 (1995); United States v. Williams, 954
F.2d 668, 673 (11th Cir. 1992).     Several courts have also rejected an equal
protection challenge to section 851(e).      See Gonzales, 79 F.3d at 426-27;
Davis, 36 F.3d at 1438-39; Williams, 954 F.2d 668, 673.          No court has
sustained a constitutional attack against this provision.


     Because no suspect class or fundamental right is at issue,3 the ban
against challenging convictions over five years old need only be supported
by a rational legislative purpose.          The five-year ban, which applies
equally to all recidivists to whom the statute applies, rationally serves
the legitimate purpose of avoiding the costs and other problems associated
with keeping court records indefinitely.       Davis, 36 F.3d at 1438.   Prior
argues that a five-year cutoff point is arbitrary, but we do not find it
to be unconstitutional.      Five years is a reasonable amount of time to




     3
     Prior does not claim that his prior convictions were secured
without the benefit of counsel.

                                       11
require court documents to be preserved without the requirement becoming
overly   burdensome.    Any cutoff point for the right to collaterally
challenge a prior conviction will sound somewhat arbitrary, but we conclude
that the five-year mark is rationally related to the goals of the statute.
We agree with the conclusion of our sister circuits that "[s]ection 851(e)
is wholly reasonable, both to effectuate the legitimate purposes of
enhanced sentencing for recidivists, and to eliminate a host of practical
problems with respect to ancient records absent such a provision."   Arango-
Montoya, 61 F.3d at 1338 (internal quotations omitted); accord Davis, 36
F.3d at 1438-39; Williams, 954 F.2d at 673.    Accordingly, we join those
circuits that have held that section 851(e) does not violate due process
or equal protection, and we conclude that the district court properly
applied it to preclude Prior from challenging the validity of two of his
previous convictions.


                                    V.


     Finally, Prior contends that his conviction should be set aside
because he was denied the effective assistance of counsel.       Claims of
ineffective assistance are ordinarily reserved for collateral attack, but
we may consider such a claim where the record is established and there is
no need to develop additional facts.     United States v. Martin, 62 F.3d
1009, 1012 (8th Cir. 1995), cert. denied, 116 S. Ct. 1556 (1996).    We will
consider Prior's claim because his argument does not incorporate or depend
upon the development of facts outside the original record.    See id.


     To make out a claim of ineffective assistance of counsel during the
plea process, a defendant must first demonstrate that counsel's performance
was deficient, which requires a showing that the representation fell below
an objective standard of reasonableness.    Strickland v. Washington, 466
U.S. 668, 687-88 (1984); see also Hill v. Lockhart, 474 U.S. 52, 57 (1985)
(holding Strickland's two-part standard applies to ineffective assistance




                                    12
claims arising out of the plea process).            Second, the defendant must
demonstrate prejudice, that is, that "there is a reasonable probability
that, but for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial."            Hill v. Lockhart, 474 U.S. 52, 59
(1985); see Strickland, 466 U.S. at 687.


     Prior contends that he received ineffective assistance of counsel
when he signed the plea agreement on May 5, 1995, while incompetent, and
at the plea hearing on May 31, 1995.     At the plea hearing, Prior's attorney
stated that he moved quickly with the plea agreement in order to timely
preserve for Prior the possibility of avoiding a life sentence by providing
substantial assistance.   Prior's attorney stated that it was apparent very
early on that Prior would be subject to a mandatory life sentence, given
the quantity of methamphetamine in his possession when he was arrested and
his three prior felony convictions.             (Plea Tr. at 22-23.)    Counsel
acknowledged that he had considered the strength of the government's case
and asserted that while he had explored the possible defenses that might
be available, none were feasible.            (Id. at 23-25.)   Prior's attorney
stated,   "we determined that Mr. Prior, who had cooperated with the
government initially and, faced with the overwhelmingly severe sentence
that he was looking at, needed to provide the government with some
substantial assistance in order to have any hope of avoiding the mandatory
life imprisonment."   (Id. at 22-23.)    Although Prior now refuses to provide
any assistance to the government, counsel's strategy was reasonable and
prudent, and Prior consented to it.          The fact that this strategy has now
proven unsuccessful because Prior refuses to cooperate does not render
counsel's performance deficient.   See James v. State of Iowa, 100 F.3d 586,
590 (8th Cir. 1996) ("Reasonable trial strategy does not constitute
ineffective assistance simply because it is not successful.")       We conclude
that, in the face of a very strong case against Prior, counsel provided
objectively reasonable representation by timely securing an opportunity for
Prior to provide substantial assistance in the




                                        13
hope of securing a sentence of less than life imprisonment.              We reject
Prior's attempt to lay off on his experienced and able counsel the
consequences of his own criminal conduct and the statutorily mandated
result of his adamant refusal to help himself.


      Even if counsel's performance could be considered deficient because
of Prior's withdrawal from substance abuse at the time he signed the
agreement, a conclusion we specifically reject, there is no credible
evidence that Prior would not have pleaded guilty had he been competent
when he signed the agreement.    As noted above, Prior was competent at the
plea hearing on May 31, 1995.        The government had a strong case against
Prior that would send him to prison for life absent a government motion for
departure based on substantial assistance.        Prior provided a factual basis
for the plea and was advised of all his rights.          Prior testified that he
knew he faced a life sentence.        During the plea hearing, the Assistant
United States Attorney recited a summary of the plea agreement, including
the   provision   allowing   Prior   an    opportunity   to   provide   substantial
assistance to the government in order to avoid the life sentence.             Prior
indicated that he understood because he had read the agreement a couple of
times himself.    He indicated that this was a correct statement of what he
had agreed to and that it included nothing that he did not agree to.          (Plea
Tr. at 13-14.)    Also, the district court carefully informed Prior of his
right to a trial and that "if I accept this plea of guilty today, there
will be no trial."    (Id. at 27.)        Prior indicated that he understood and
waived his rights.   There simply is no credible evidence to indicate that
Prior would have insisted upon going to trial had he not signed the plea
agreement while in withdrawal.        Thus, Prior was not prejudiced by his
counsel's conduct.




                                          14
                                   VI.


     We conclude that the trial court committed no reversible error and
that Prior received the effective assistance of counsel.   Accordingly, we
affirm the judgment of the district court.


     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   15
