                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 95-9261.

                        UNITED STATES of America, Plaintiff-Appellee,

                                                 v.

                           Alberto CESPEDES, Defendant-Appellant.

                                          Aug. 25, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CR-50-
1-WCO), William C. O’Kelley, Judge.

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

       MARCUS, Circuit Judge:

       Appellant Cespedes appeals from his conviction of conspiracy to possess with intent to

distribute and possession with intent to distribute cocaine. Only one of the issues that he raises on

appeal merits any discussion: Cespedes asserts that 21 U.S.C. § 841 et. seq. is an unconstitutional

delegation of legislative authority to the executive branch because it places in the hands of the

prosecutor unbridled discretion to determine whether or not to file a sentencing enhancement

pursuant to 21 U.S.C. § 851 without providing any "intelligible principle" to guide that discretion.

We disagree and affirm.

                                                 I.

       On July 19, 1995, Cespedes was convicted after trial by jury of one count of conspiracy to

possess with intent to distribute and one count of possession with intent to distribute cocaine in


   *
     Honorable Stanley Marcus was a U.S. District Judge for the Southern District of Florida
sitting by designation as a member of this panel when this appeal was argued and taken under
submission. On November 24, 1997, he took the oath of office as a United States Circuit Judge
of the Eleventh Circuit.
violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2. The Presentence Investigation Report

for the Defendant concluded that the Defendant should be held accountable for the entire 10

kilograms of cocaine seized from a hidden compartment and, therefore, calculated Cespedes's base

offense level at 32. Prior to trial, the government filed an information pursuant to 21 U.S.C. § 851,

notifying the court that Cespedes had a prior conviction for selling cocaine. Under the facts of this

case, § 851 effectively provides for a ten-year sentence enhancement upon the filing of such an

information. Cespedes objected to the government's filing of a ten-year enhancement, and, at the

time of sentencing for the first time to attributing the full 10 kilograms to him. On October 5, 1995,

at the time of sentencing, the district court first concluded that "10 kilograms is attributable to each

of the defendants without equivocation," subjecting Cespedes to a mandatory minimum sentence

of ten years under § 841. And then, pursuant to the Sentencing Reform Act of 1984 and the

enhancement embodied in the government's information, the court sentenced Cespedes to concurrent

terms of imprisonment of 240 months to be followed by ten years of supervised release. The district

court further ordered the Defendant deported from the United States upon completing his prison

term as a condition of supervised release.

                                                  II.

        The constitutionality of a statute is a question of law subject to de novo review. See United

States v. Trout, 68 F.3d 1276 (11th Cir.1995), cert. denied, 516 U.S. 1153, 116 S.Ct. 1032, 134

L.Ed.2d 110 (1996). The central question raised on appeal is one of first impression in this Circuit.

       Under 21 U.S.C. § 841(b)(1)(A), any person convicted of possession with intent to distribute

more than 5 kilograms of cocaine "shall be sentenced to a term of imprisonment which may not be

less than 10 years or more than life." Furthermore, if the defendant "commits such a violation after


                                                   2
a prior conviction for a felony drug offense has become final, such person shall be sentenced to a

term of imprisonment which may not be less than 20 years and not more than life imprisonment."

Id. In order for the court to exercise jurisdiction to impose an enhanced sentence based on prior

convictions, however, the government must comply with the procedural requirements of Title 21

U.S.C. § 851:

       (a) Information filed by United States Attorney

                (1) No person who stands convicted of an offense under this part shall be sentenced
       to increased punishment by reason of one or more prior convictions, unless before trial, or
       before entry of a plea of guilty, the United States attorney files an information with the court
       (and serves a copy of such information on the person or counsel for the person) stating in
       writing the previous convictions to be relied upon. Upon a showing by the United States
       attorney that facts regarding prior convictions could not with due diligence be obtained prior
       to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of
       the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical
       mistakes in the information may be amended at any time prior to the pronouncement of
       sentence.

               (2) An information may not be filed under this section if the increased punishment
       which may be imposed is imprisonment for a term in excess of three years unless the person
       either waived or was afforded prosecution by indictment for the offense for which such
       increased punishment may be imposed.

       (b) Affirmation or denial of previous conviction

               If the United States attorney files an information under this section, the court shall
       after conviction but before pronouncement of sentence inquire of the person with respect to
       whom the information was filed 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.

       (c) Denial; written response; hearing

               (1) If the person denies any allegation of the information of prior conviction, or
       claims that any conviction alleged is invalid, he shall file a written response to the
       information. A copy of the response shall be served upon the United States attorney. The
       court shall hold a hearing to determine any issues raised by the response which would except
       the person from increased punishment. The failure of the United States attorney to include

                                                  3
       in the information the complete criminal record of the person or any facts in addition to the
       convictions to be relied upon shall not constitute grounds for invalidating the notice given
       in the information required by subsection (a)(1) of this section. The hearing shall be before
       the court without a jury and either party may introduce evidence. Except as otherwise
       provided in paragraph (2) of this subsection, the United States attorney shall have the burden
       of proof beyond a reasonable doubt on any issue of fact. At the request of either party, the
       court shall enter findings of fact and conclusions of law.

               (2) A person claiming that a conviction alleged in the information was obtained in
       violation of the Constitution of the United States shall set forth his claim, and the factual
       basis therefor, with particularity in his response to the information. The person shall have
       the burden of proof by a preponderance of the evidence on any issue of fact raised by the
       response. Any challenge to a prior conviction, not raised by response to the information
       before an increased sentence is imposed in reliance thereon, shall be waived unless good
       cause be shown for failure to make a timely challenge.

       (d) Imposition of sentence

              (1) If the person files no response to the information, or if the court determines, after
       hearing, that the person is subject to increased punishment by reason of prior convictions,
       the court shall proceed to impose sentence upon him as provided by this part.

               (2) If the court determines that the person has not been convicted as alleged in the
       information, that a conviction alleged in the information is invalid, or that the person is
       otherwise not subject to an increased sentence as a matter of law, the court shall, at the
       request of the United States attorney, postpone sentence to allow an appeal from that
       determination. If no such request is made, the court shall impose sentence as provided by
       this part. The person may appeal from an order postponing sentence as if sentence had been
       pronounced and a final judgment of conviction entered.

       (e) Statute of limitations

               No person who stands convicted of an offense under this part may challenge 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 conviction.

Cespedes argues that § 851 affords prosecutors unbridled discretion to fix the statutory sentence, a

legislative power. The government responds that the power that prosecutors exercise under § 851

is analogous to the executive branch's classic charging power. We agree.




                                                  4
         "The Attorney General and United States Attorneys retain " "broad discretion" ' to enforce

the Nation's criminal laws." United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134

L.Ed.2d 687 (1996)(quoting Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d

547 (1985)(quoting United States v. Goodwin, 457 U.S. 368, 380 n. 11, 102 S.Ct. 2485, 73 L.Ed.2d

74 (1982))). "They have this latitude because they are designated by statute as the President's

delegates to help him discharge his constitutional responsibility to "take Care that the Laws be

faithfully executed.' " Id.(quoting U.S. Const. Art. II, § 3 & citing 28 U.S.C. §§ 516, 547). "[S]o

long as the prosecutor has probable cause to believe that the accused committed an offense defined

by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand

jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct.

663, 54 L.Ed.2d 604 (1978). Indeed, the federal courts have long recognized "that when an act

violates more than one criminal statute, the Government may prosecute under either so long as it

does not discriminate against any class of defendants." United States v. Batchelder, 442 U.S. 114,

123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (citations omitted). Moreover, in selecting which

charge to file, "[a] prosecutor may be influenced by the penalties available upon conviction." United

States v. Harden, 37 F.3d 595, 599 (11th Cir.1994)(quoting Batchelder, 442 U.S. at 125, 99 S.Ct.

2198).

         The Supreme Court has unambiguously upheld the prosecutor's ability to influence the

sentence through the charging decision. In United States v. Batchelder, for example, the Court

found that no improper delegation of legislative power to the executive results from prosecutorial

discretion to charge a defendant with either one of two statutes with identical elements but differing

maximum penalties:


                                                  5
       The provisions at issue plainly demarcate the range of penalties that prosecutors and judges
       may seek and impose. In light of that specificity, the power that Congress has delegated to
       those officials is no broader than the authority they routinely exercise in enforcing the
       criminal law. Having informed the courts, prosecutors, and defendants of the permissible
       punishment alternatives available under each Title, Congress has fulfilled its duty.

442 U.S. 114, 126, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (citation omitted).

       Plainly, a prosecutor's selection of which charge to file against a given defendant necessarily

implicates the range of potential penalties available to the court. For example, when prosecuting

an individual for a crime of violence or a drug trafficking crime, if the defendant used or carried a

firearm during the crime, the prosecutor has absolute discretion over whether or not to charge him

with a violation of 18 U.S.C. § 924(c)(1), which necessarily carries a five-year mandatory sentence

to be served consecutively to that for the underlying crime. The power of the prosecutor in such a

case to increase unilaterally the mandatory minimum sentencing exposure by charging the defendant

under § 924(c)(1) is analogous to the power of a prosecutor under § 851 to increase a defendant's

mandatory minimum sentence by filing an information. In fact, the very decision whether to

prosecute under § 841(a)(1) rather than, for example, under § 843 (telephone count) necessarily

carries with it profound sentencing implications. Thus, rather than delegating legislative power, §

851 affords prosecutors a power no greater than that traditionally exercised by the executive branch

in the charging decision. Indeed, the Supreme Court has explicitly analogized prosecutorial

discretion under § 851 to the charging power of the executive:

       Insofar as prosecutors, as a practical matter, may be able to determine whether a particular
       defendant will be subject to the enhanced statutory maximum, any such discretion would be
       similar to the discretion a prosecutor exercises when he decides what, if any, charges to
       bring against a criminal suspect. Such discretion is an integral feature of the criminal justice
       system, and is appropriate, so long as it is not based upon improper factors.




                                                  6
United States v. LaBonte, 520 U.S. 751, 117 S.Ct. 1673, 1679, 137 L.Ed.2d 1001 (1997) (citations

omitted)(rejecting argument that prosecutorial discretion under § 851 leads to unwanted disparity).1

       Moreover, in a context falling outside of the prosecutor's charging power, we have also

upheld the power of the prosecutor to influence the sentence available to the court. We have found,

for example, that the sole discretion to initiate a request to reduce a sentence under section 5K1.1

of the Sentencing Guidelines and 18 U.S.C. § 3553(e) based on the "substantial assistance" provided

by the defendant properly rests with the government:

       Initially, we observe that the only authority "delegated" by the rule is the authority to move
       the district court for a reduction of sentence in cases in which the defendant has rendered
       substantial assistance. The authority to actually reduce a sentence remains vested in the
       district court, a delegation which [defendant] does not challenge. Moreover, although the
       term "substantial assistance" is not defined in the statute, the discretion of prosecutors is
       limited by considering the "substantial assistance" provision within the overall context of the
       Anti-Drug Abuse Act itself. Cf. United States v. Gordon, 580 F.2d 827 (5th Cir.1978), cert.
       denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978). Finally, appellants' argument
       ignores Congress' plenary authority in all areas in which it has substantive legislative
       jurisdiction as long as exercise of that authority does not offend some other constitutional


   1
     Even if the sentence enhancement provisions of § 851 were characterized as a delegation of
legislative power, we would find that Congress had provided altogether intelligible principles to
render the delegation constitutional. So long as Congress "lay[s] down by legislative act an
intelligible principle" governing the exercise of delegated power, it has not unlawfully delegated
its legislative power. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct.
348, 72 L.Ed. 624 (1928)(quoted in Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752,
114 L.Ed.2d 219 (1991)). Sections 841 and 851 identify with specificity the type of defendant
and the nature of crimes that are to be considered for sentencing enhancement purposes, and
limit the choice of sentencing enhancement to a single decision of whether or not to seek the
higher sentence by filing an information. These provisions provide a narrow window of
opportunity for the government to seek a sentence enhancement and a limited formula for doing
so, and they ensure that this opportunity is accompanied by multiple procedural safeguards for
the defendant. Indeed, the provision is carefully designed to ensure that the defendant has the
opportunity to review the allegations and consider the consequences of his decisions prior to
trial, and the discretion conferred on the prosecutor does nothing to detract from the achievement
of this legislative purpose. Since the statute provides definite boundaries on the discretion
conferred on the executive branch and the discretion is carefully tailored to achieve the statutory
purpose, any delegation of legislative power would be constitutional.

                                                 7
       provision. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Appellants
       certainly have no constitutional right to the availability of the "substantial assistance"
       provision, and hence no grounds upon which to challenge Congress' manner of enacting it.

United States v. Musser, 856 F.2d 1484, 1487 (11th Cir.1988); see also United States v. Ayarza, 874

F.2d 647, 653 (9th Cir.1989)(finding prosecutorial discretion to move for sentence reduction under

section 5K1.1 and § 3553(e) does not violate separation of powers doctrine); United States v. Smith,

953 F.2d 1060, 1065 (7th Cir.1992)(finding prosecutorial discretion to refrain from moving for a

sentence reduction under section 5K1.1 to be "the back end of the decision to select a particular

statute under which to prosecute"); United States v. Huerta, 878 F.2d 89 (2d Cir.1989)(finding no

improper delegation of judicial power to executive in § 3553(e)); United States v. Francois, 889

F.2d 1341, 1344 (4th Cir.1989)(finding discretion to move for sentence reduction under section

5K1.1 properly lies with the government). Likewise, under § 851, the district court retains the final

authority to reduce the sentence, and prosecutors may file for enhanced sentences only in a limited

and explicitly defined category of cases. We add that a defendant has no constitutional right to

avoid the statutory enhancement, and therefore has no grounds upon which to challenge the

delegation of discretion over when the government may seek the enhancement as long as the

exercise of that discretion does not offend some other constitutional provision. Cf. Wayte v. United

States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).

       Cespedes argues, nevertheless, that prosecutorial discretion under § 851 differs from the

charging power (or the power to request a sentence reduction for "substantial assistance") because

§ 851 decision-making purportedly transfers to the executive the power to predetermine ultimate

sanctions, while the more "traditional" charging power allows the judicial branch to retain control

over the penalty ultimately assigned. Cespedes misapprehends the sentence enhancement process.


                                                 8
In § 841, Congress has fixed the statutory sentence, mandating a range of ten years to life for a first

offense, and twenty years to life for a repeated violation. In filing an information about the

defendant's prior convictions, a prosecutor simply alters the range of the final penalty available to

the court by increasing the mandatory minimum sentence. Under the scheme created by § 851(b),

the district court must then ask the defendant whether he affirms or denies his prior convictions.2

If he denies any allegation of the information or challenges the constitutionality of any conviction

alleged in the information, the court must hold a hearing on the matter. See 21 U.S.C. § 851(c). In

sum, the district court may impose an enhanced sentence only after determining (1) that the

prosecutor timely filed a proper information, (2) that the government served a copy of the

information on the defendant or his counsel, and (3) that the defendant does not contest or failed to

contest successfully the convictions in the information. The court then may select a sentence within

the parameters set by Congress, ranging from ten years to life if the information is improper, or

twenty years to life if it is valid. Thus, the filing of an information is in no sense a predetermination

of the ultimate sanction by the prosecutor. In short, the 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.




   2
    Although the district court failed to so inquire of the Defendant at the sentencing hearing,
Cespedes made no claim regarding this omission on appeal, nor could he do so since his prior
conviction occurred more than five years before the date of the information. See 21 U.S.C. §
851(e). "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)(quoting United
States v. Nanez, 694 F.2d 405, 413 (5th Cir.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76
L.Ed.2d 813 (1983)).

                                                   9
        In sum, the statutory scheme does not improperly delegate legislative power to the

executive, and, accordingly, the judgment of the district court must be, and is, AFFIRMED.




                                              10
