                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             SEPT 07, 2006
                              No. 05-16618                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 05-60108-CR-WJZ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

OTHA PETERSON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                            (September 7, 2006)

Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:

     Otha Peterson appeals his 120-month sentence for knowingly and
intentionally distributing and possessing with intent to distribute at least five grams

or more of a mixture containing cocaine base, in violation of 21 U.S.C.

§ 841(a)(1)(B). The government filed an information, pursuant to 21 U.S.C. § 851,

seeking to enhance Peterson’s sentence based on his prior felony drug convictions.

      Peterson first contends that the district court violated his Fifth Amendment

right to due process and his Sixth Amendment right to a jury trial when it enhanced

his sentence based on prior convictions that were alleged in the government’s

§ 851 information but not the indictment. Peterson acknowledges that his

argument is foreclosed by United States v. Almendarez-Torres, 523 U.S. 224, 118

S. Ct. 1219 (1998). He states, however, that he wishes to preserve the issue on

appeal. The government responds that Peterson has already waived his right to

raise challenges to his sentence that are based on the Supreme Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

      There is no need to resolve whether Peterson has waived his right to raise an

argument that is presently a loser. Almendarez-Torres remains good law. See

United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). A district court

can use prior convictions to enhance a sentence even if those convictions were not

alleged in the indictment or proven to a jury. See United States v. Gibson, 434

F.3d 1234, 1246 (11th Cir.), cert. denied, 126 S. Ct. 2911 (2006). This circuit is



                                           2
“bound by Almendarez-Torres until it is explicitly overruled by the Supreme

Court.” United States v. Dowd, 451 F.3d 1244, 1253 (11th Cir. 2006).

         Second, Peterson contends that Congress’ power to enact criminal laws

pursuant to the Commerce Clause does not reach his conduct because his crime

was a local street-corner sale that did not directly utilize the instrumentalities or

channels of interstate commerce. However, the Controlled Substances Act does

not leave to the courts the task of determining whether a particular drug sale affects

interstate commerce. United States v. Lopez, 459 F.2d 949, 953 (5th Cir. 1972).1

Lopez expressly upheld Congress’ power to enact 21 U.S.C. § 841(a). Id.; see also

United States v. Bernard, 47 F.3d 1101, 1103 (11th Cir. 1995) (same). “The illegal

possession and sale of drugs affects interstate commerce, and Congress

accordingly has authority under the Commerce Clause to criminalize and punish

drug-related activity.” United States v. Jackson, 111 F.3d 101, 102 (11th Cir.

1997).

         Peterson notes that in recent years both the Supreme Court and this circuit

have appeared more solicitous towards challenges based on the Commerce Clause.

See e.g. United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995); United


         1
          In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we held that
all decisions handed down by the former Fifth Circuit before the close of business on September 30,
1981 are binding precedent in the Eleventh Circuit.


                                                 3
States v. Denalli, 73 F.3d 328 (11th Cir. 1996). Whatever else these cases may

mean for our Commerce Clause jurisprudence, they do not call into question the

constitutionality of the Controlled Substances Act. The Supreme Court made this

point explicit last year in Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195 (2005), in

which it rejected a challenge to the act brought by purely intrastate growers and

consumers of marijuana.

      Third, Peterson argues that his enhanced term of incarceration violates the

Eighth Amendment prohibition against cruel and unusual punishment. He

concedes that longer sentences may be imposed upon recidivists even if the offense

of conviction is relatively minor in nature. See United States v. Lyons, 403 F.3d

1248, 1256–57 (11th Cir.), cert. denied, 126 S. Ct. 732 (2005); see also Ewing v.

California, 538 U.S. 11, 16, 30–31, 123 S. Ct. 1179, 1183, 1190 (2003) (affirming

a 25-year to life sentence given to recidivist who stole three golf clubs priced at

$399 each). Nonetheless, he argues that the sentence enhancement occurred only

because the government moved the case from state to federal court and then filed

under § 851, despite initially indicating that it did not intend to do so. This

“capricious” behavior, he asserts, moves the sentence enhancement into the realm

of unconstitutionality.

      Because Peterson raised this claim for the first time on appeal, it is



                                           4
reviewable only for plain error. United States v. Thompson, 422 F.3d 1285, 1300

(11th Cir. 2005). “An appellate court may not correct an error the defendant failed

to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that

affects substantial rights.” Id. (citations and internal quotation marks omitted). “If

all three conditions are met, an appellate court may then exercise its discretion to

notice a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (citation and internal

quotation marks omitted).

       The district court did not plainly err. It enhanced Peterson’s sentence by

only 20 months for his recidivism. The sentence still was within the guideline

range. That the government opted to file under § 851 does not create a

constitutional problem. The Supreme Court “has long acknowledged the

Government’s broad discretion to conduct criminal prosecutions, including its

power to select the charges to be brought in a particular case.” Ball v. United

States, 470 U.S. 856, 859, 105 S. Ct. 1668, 1670 (1985).

       AFFIRMED.




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