                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4543


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

HERMES JEOVANY MENDOZA-RAMIREZ,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge. (5:06-cr-00058-RLV-CH-1)


Submitted:    April 23, 2009                 Decided:   April 29, 2009


Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Adam Morris,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Hermes        Jeovany        Mendoza-Ramirez             pled      guilty          to

possession        with   intent     to    distribute        at   least       500     grams      of

cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006) (count one),

and    unlawful     reentry       after    deportation,          8    U.S.C.       § 1326(a),

(b)(2) (2006) (count two).                 The Government filed a 21 U.S.C.

§ 851 (2006) notice alleging a prior felony drug offense.                                  Based

on    the   prior    conviction,         Mendoza-Ramirez         was     sentenced         to    a

statutory minimum of 120 months’ imprisonment on count one and

the    guidelines        minimum    of    63       months   on       count    two,    to     run

concurrently.            On   appeal,      Mendoza-Ramirez            asserts       that     his

sentence, based on the Government’s exercise of discretion to

file a § 851 information, is unreasonable as it violates the

Sentencing Reform Act of 1984, the Due Process Clause of the

Fifth Amendment, and the Cruel and Unusual Punishment Clause of

the Eighth Amendment.           Finding no reversible error, we affirm.

             The     court      reviews        Mendoza-Ramirez’s             sentence        for

reasonableness under a deferential abuse-of-discretion standard.

See Gall v. United States, 128 S. Ct. 586, 591 (2007).                                          In

reviewing     a    sentence,       this   court      must    first      ensure       that    the

district court committed no significant procedural error, such

as    incorrectly         calculating       the       guideline        range.          United

States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied,

128    S.   Ct.     2525      (2008).          The    court      then        considers       the

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substantive         reasonableness         of    the    sentence             imposed   under     the

totality of the circumstances.                  Gall, 128 S. Ct. at 597.

               Mendoza-Ramirez            was       sentenced           to      the     statutory

mandatory minimum sentence of 120 months’ imprisonment and we

find     the       sentence    reasonable.              To        the    extent        he   posits

constitutional         challenges      to       § 851    based          on    the   prosecutor’s

discretion to file an information, we find the claim without

merit.         A    prosecutor’s      discretion             to    “determine          whether     a

particular defendant will be subject to the enhanced statutory

maximum” is “similar to the discretion a prosecutor exercises

when   he      decides    what,      if     any,       charges      to        bring    against     a

criminal suspect.”            United States v. LaBonte, 520 U.S. 751, 761-

62   (1997).         “Such    discretion         is     an   integral           feature     of   the

criminal justice system, and is appropriate, so long as it is

not based upon improper factors.”                       Id. at 762; see also United

States v. Allen, 160 F.3d 1096, 1108 (6th Cir. 1998) (finding no

impermissible delegation of authority by Congress in affording

discretion to prosecutors to choose between statutes carrying

different      penalties       for    identical         conduct);             United   States    v.

Cespedes, 151 F.3d 1329, 1334-35 (11th Cir. 1998) (holding § 851

does not improperly delegate legislative power to executive).

               Accordingly, we affirm the judgment.                            We dispense with

oral     argument      because       the    facts       and       legal        contentions       are



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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




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