                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  April 12, 2011
                               TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                  Clerk of Court


 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 10-6083
 v.                                            (D.C. No. 5:09-CR-00229-F-1)
                                                     (W.D. Oklahoma)
 LEO MAX BURNS, JR.,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before MURPHY, HARTZ, and HOLMES, Circuit Judges.


      Leo Max Burns pleaded guilty in the United States District Court for the

Western District of Oklahoma to one count of being a felon in possession of a

firearm. See 18 U.S.C. § 922(g)(1). The district court imposed a mandatory

minimum sentence of 180 months’ imprisonment after determining that

Mr. Burns’s criminal history qualified him as an armed career criminal under the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). On appeal he attacks

      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the constitutionality of mandatory minimum sentences and of statutes allowing a

court to impose a sentence below the mandatory minimum only if the government

so moves. He also appears to contend that the federal sentencing statutes permit a

court to impose a sentence below the mandatory minimum even if the prosecutor

does not request such a reduction in sentence. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm because Mr. Burns’s contentions are contrary to this

court’s precedents.

I.    BACKGROUND

      On July 21, 2009, Mr. Burns was indicted on one count of being a felon in

possession of a firearm. He pleaded guilty without a plea agreement. His

presentence investigation report stated that he was an armed career criminal

because of his two prior convictions of burglary and one prior conviction of

possession of methamphetamine with intent to distribute, and therefore faced a

mandatory minimum sentence of 15 years’ imprisonment. See 18 U.S.C. 924(e).

He sought a lower sentence, however, by providing information to the

government. Under 18 U.S.C. § 3553(e) the district court may impose a sentence

below the mandatory minimum if the defendant provides “substantial assistance”

to the government and the government moves for a downward departure. But no

government agency could use Mr. Burns’s information and the government did

not request a sentence below the mandatory minimum.

II.   DISCUSSION

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         The government argues that we should review all of Mr. Burns’s arguments

under a plain-error standard because he failed to preserve them properly below.

Mr. Burns, at least in his reply brief, asserts that he preserved his arguments

below so that our review is de novo. We tend to agree with the government. But

we need not resolve the dispute on the standard of review, because there was no

error.

         A.    Statutory Argument

         We first address Mr. Burns’s statutory claims. He contends that 18 U.S.C.

§ 3553(e) (which gives the district court authority, subject to a motion by the

government, to impose a sentence below the mandatory minimum if the defendant

has provided “substantial assistance in the investigation or prosecution of another

person”) conflicts with 28 U.S.C. § 994(n) (which states that the sentencing

guidelines should reflect the appropriateness of imposing a below-minimum

sentence on a defendant who provides substantial assistance) and with 18 U.S.C.

§§ 3553(a) (which directs courts to impose the minimum sentence that satisfies

the statutorily enumerated purposes of sentencing). What Mr. Burns would have

us infer from the alleged conflict, however, is far from clear; after asserting the

conflict, he switches abruptly to his constitutional contentions. Giving him the

benefit of the doubt, we will assume that he is contending that § 3553(e) is

overridden by the statutes it supposedly conflicts with. But we reject this

contention. Section 3553(e) is the most specific provision on the matter. As its

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title states, it addresses precisely the “[l]imited authority to impose a sentence

below a statutory minimum.” Because it is the more precise provision, it controls

over any contrary inferences that may be drawn from the language in § 3553(a) or

§ 994(n). See Rosillo-Puga v. Holder, 580 F.3d 1147, 1150 n.2 (10th Cir. 2009);

see also United States v. Huskey, 502 F.3d 1196, 1200 (10th Cir. 2007) (§ 3553(a)

does not apply to mandatory sentences). Hence, Mr. Burns is not entitled to relief

based on 18 U.S.C. § 3553(a) or 28 U.S.C. § 994(n).

      B.     Eighth Amendment Argument

      Mr. Burns argues that mandatory minimum sentences violate the Eighth

Amendment because they deprive a defendant of individualized sentencing.

Absent the mandatory minimum, he argues, the district court might well have

sentenced him to less than 180 months because he has “no record of violence

perpetrated physically against anyone.” Aplt. Br. at 21. Relying on decisions in

capital cases that require an individualized inquiry, he contends that the same

principle should be applied to felonies. But he ignores the Supreme Court’s

rejection of this very contention. In Harmelin v. Michigan, 501 U.S. 957, 995–96

(1991), the Court held that the capital-case requirement of individualized

sentencing did not apply to a mandatory sentence of life imprisonment without the

possibility of parole. Following Harmelin, we have rejected the claim that

mandatory minimum sentences for felonies violate an Eighth Amendment right to

individualized sentencing. See Huskey, 502 F.3d at 1197, 1200 (mandatory

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minimum sentence under 21 U.S.C. § 841(b)(1)(A)); cf. United States v. Horn,

946 F.2d 738, 746 (10th Cir. 1991) (no due-process right to individualized

sentencing in noncapital case); United States v. Nolan, 342 F. App’x 368, 371–72

(10th Cir. 2009) (unpublished) (mandatory minimum sentence under ACCA; issue

addressed as matter of due process).

       Mr. Burns’s reply brief on appeal seems to argue that the imposition of a

mandatory minimum also violates the Eighth Amendment because of a lack of

proportionality. But we decline to address the claim because he failed to argue it

in his opening brief. See United States v. Murray, 82 F.3d 361, 363 n.3 (10th Cir.

1996) (“We decline to consider arguments raised for the first time in a reply

brief.”).

       C.    Separation of Powers Argument

       Mr. Burns contends that 18 U.S.C. § 3553(e) violates the separation-of-

powers doctrine because it allows encroachment on judicial power by the

executive branch. He argues that sentencing is a power conferred upon the

judiciary and although Congress shares the power “on its peripheries to the extent

of determining sentencing limits generally, the encroachment occurs when it

separates a certain group of offenders and mandates that the executive branch

prosecution, not the judicial branch court, has the sole authority to permit a

sentence below the mandatory minimum.” Aplt. Br. at 11. Again, however, this

argument is foreclosed by our precedent. We have held that § 3553(e) does not

                                         -5-
violate the separation-of-powers doctrine. See United States v. Snell, 922 F.2d

588, 590–91(10th Cir. 1990).

       D.    Fifth Amendment Argument

       Mr. Burns argues that 18 U.S.C. § 3553(e) violates the Due Process Clause

of the Fifth Amendment because the decision to make a downward-departure

motion is “not governed by any standards or guidelines and thus result[s] in

random, arbitrary, and disproportionate decisions.” Aplt. Br. at 4. He asserts that

“[t]he risk of arbitrary decisions or widely disproportionate determinations of

what cooperation is deemed substantial is obvious and is analogous to the striking

down of the death penalty statute in the per curiam opinion in Furman v. Georgia,

408 U.S. 238 (U.S. 1972).” Id. at 12.

       Once more, however, our precedent is to the contrary. We have rejected

the contention that § 3553(e) violates procedural due process absent judicial

review of the prosecutor’s decision not to recommend a reduced sentence. See

United States v. Sorensen, 915 F.2d 599, 601, 603 (10th Cir. 1990), overruled on

other grounds by United States v. Duncan, 242 F.3d 940, 947 (10th Cir. 2001).

III.   CONCLUSION

       We AFFIRM the judgment of the district court. The appellate briefs in this

case will be unsealed 20 days from the date that this Order and Judgment is filed

unless one of the parties moves to seal or redact one or more briefs, stating




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specific reasons necessitating sealing or redaction. Such a motion may be

provisionally sealed.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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