                                                                      [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________                         FILED
                                                                    U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                    No. 07-14703                          October 23, 2008
                              ________________________                  THOMAS K. KAHN
                                                                            CLERK
                       D.C. Docket No. 06-00597-CR-RBP-HGD

UNITED STATES OF AMERICA,


                                                                        Plaintiff–Appellee,

                                           versus

DEATONI MARTIAL DIXON,

                                                                     Defendant–Appellant.


                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________

                                    (October 23, 2008)

Before BARKETT and WILSON, Circuit Judges, and POGUE,* Judge.

PER CURIAM:


       *
        Honorable Donald C. Pogue, Judge, United States Court of International Trade, sitting
by designation.
       Deatoni Dixon appeals his conviction and 60-month sentence for possession

of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c). Dixon

argues that the district court committed plain error by accepting his guilty plea

without a reasonable factual basis in violation of Federal Rule of Criminal

Procedure 11(b)(3). He also argues that his statutory mandatory minimum

sentence is unconstitutional as it violates the Eighth Amendment’s prohibition

against cruel and unusual punishment and because mandatory minimum sentences

violate the separation of powers doctrine of the Constitution.

       When a defendant fails to object to plea proceedings based on Rule 11, we

review for plain error. United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.

2007), cert. denied, 128 S.Ct. 257 (2007). “To establish plain error, a defendant

must show there is (1) error, (2) that is plain, and (3) that affects substantial

rights.” Id. Here, Dixon did not object to plea proceedings nor did he argue, as he

does on appeal, that the quantity of marijuana involved was too small to form the

basis for a drug trafficking crime. Indeed, Dixon pled guilty to the specific charge

of possession of a firearm in furtherance of a drug trafficking crime. Moreover, we

find the factual basis proffered at the plea hearing sufficient to support the

conviction.1


       1
          The government proffered that when Dixon was approached by a police officer while
sitting in an illegally parked car, he threw five bags of marijuana out the window. The officer

                                                2
       As to his sentence, Dixon makes two constitutional claims. First, he argues

that his mandatory minimum sentence of 60 months is unconstitutionally

disproportionate and as such constitutes cruel and unusual punishment prohibited

by the Eighth Amendment, as he had no prior criminal history and the amount of

marijuana seized was small. Constitutional objections not raised before the district

court are reviewed only for plain error, United States v. Moriarty, 429 F.3d 1012,

1018 (11th Cir. 2005), and we find none here. Possession of a firearm in

furtherance of a drug trafficking crime is a serious offense and 60 months is not a

grossly disproportionate sentence. “Moreover, ‘a sentence which is not otherwise

cruel and unusual does not become so simply because it is mandatory.’” United

States v. Raad, 406 F.3d 1322, 1324 (11th Cir. 2005) (quoting Harmelin v.

Michigan, 501 U.S. 957, 995 (1991) (internal quotation marks and alterations

omitted)).

       Finally, Dixon argues, as he did before the district court, that mandatory

minimum sentences violate the separation of powers principle of the Constitution

as they combine both the power to prosecute and the judicial power to sentence

within the executive branch. However, Dixon’s argument is foreclosed by this

Court’s precedent. See United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir.


found eleven more bags of marijuana and a 9 mm pistol under the driver’s seat. The marijuana
totaled 24.99 grams.

                                              3
1988) (“It is for Congress to say what shall be a crime and how that crime should

be punished . . . .” (quoting United States v. Smith, 686 F.2d 234, 239 (5th Cir.

1982))); United States v. Cespedes, 151 F.3d 1329 (11th Cir. 1998) (holding that

the prosecutor’s ability to influence the sentencing decision through charging does

not violate the separation of powers doctrine).

      AFFIRMED.




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