                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              ______________

                    No. 19-1941
                  ______________

         UNITED STATES OF AMERICA

                          v.

                HENRY A. BRUCE,
                                          Appellant
                  ______________

     Appeal from the United States District Court
      for the Western District of Pennsylvania
            (D.C. No. 2-18-cr-00198-001)
        District Judge: Hon. Nora B. Fischer
                  ______________

  Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                 February 3, 2020
                 ______________

Before: SHWARTZ, SCIRICA, and RENDELL, Circuit
                   Judges.

             (Filed: February 13, 2020)
                       ______________

                          OPINION
                       ______________


Lisa B. Freeland
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
       Counsel for Appellant

Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
       Counsel for Appellee


SHWARTZ, Circuit Judge.

       Henry A. Bruce appeals his sentence for possession
with the intent to distribute cocaine base, arguing for the first
time that the statute that allows the Government to seek an
enhanced sentence based on his prior convictions, 21 U.S.C.
§ 851, violates the non-delegation doctrine. Because there is
no such violation, we will affirm.




                               2
                                I

       Bruce was indicted for possession with intent to
distribute 28 grams or more of a mixture or substance
containing a detectable amount of cocaine base, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). Pursuant to 21 U.S.C.
§ 851, the Government filed an information alleging that Bruce
had previously been convicted of two serious drug felonies and
that he was therefore subject to an enhanced sentence,
including a mandatory minimum term of imprisonment of ten
years.1 Bruce pleaded guilty and acknowledged that he was
subject to the ten-year mandatory minimum.


       1
          Because Bruce’s sentence was imposed after the
December 2018 enactment of the First Step Act, the Act’s
amendments to 21 U.S.C. § 841(b) apply. See First Step Act
of 2018, Pub. L. No. 115-391, § 401, 132 Stat. 5194, 5220-21.
Under § 841(b), Bruce’s offense of conviction, possession with
intent to distribute 28 grams or more of a mixture or substance
containing cocaine base, ordinarily carries a five-year
mandatory minimum term of imprisonment. See 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(iii). Because Bruce committed this
offense “after a prior conviction for a serious drug felony . . .
ha[d] become final,” a ten-year mandatory minimum applies.
§ 841(b)(1)(B). “[S]erious drug felon[ies]” are certain drug-
related offenses with statutory maximums of at least ten years,
for which the defendant “served a term of imprisonment of
more than 12 months,” and for which the defendant was
released within fifteen years of the date of the new offense.
§ 802(57) (citing 18 U.S.C. § 924(e)(2)). The parties agree
that at least one of Bruce’s prior convictions constitutes a
“serious drug felony.”




                               3
       At sentencing, Bruce argued that the ten-year
mandatory minimum was “disproportionately harsh,” App. 69,
was unsupported by “any legitimate scientific, medical or law
enforcement justification,” App. 76, and was the result of
“racially motivated fears” that influenced policymaking. App.
76, 107. Nevertheless, Bruce acknowledged that the District
Court was “bound by the statutory minimum” in imposing his
sentence. App. 84. The Court “recognize[d]” Bruce’s
objections, but stated that it had “no discretion” to impose a
sentence below ten years of imprisonment, App. 112, and
sentenced him to ten years of imprisonment and eight years of
supervised release. Bruce appeals.

                               II2

       Bruce argues that his sentence should be vacated, and
the case remanded for resentencing without the mandatory
minimum, because 21 U.S.C. § 851 violates the non-delegation
doctrine. Bruce did not argue this in the District Court and thus
we apply plain error review.3 Doing so, we conclude that there
was no error, plain or otherwise.


       2
          The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).
        3
          “The plain error standard is met when ‘(1) there is an
error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; [and] (3) the error affected the appellant’s
substantial rights,’ which in the ordinary case means it affected
the outcome of the district court proceedings.” United States
v. Lee, 612 F.3d 170, 178 (3d Cir. 2010) (quoting United States
v. Marcus, 560 U.S. 258, 262 (2010)). A court may address




                               4
        Article I of the Constitution provides that “[a]ll
legislative Powers herein granted shall be vested in a Congress
of the United States.” U.S. Const. art. I, § 1. “Congress
generally cannot delegate [this] legislative power to another
Branch” of government. United States v. Cooper, 750 F.3d
263, 266 (3d Cir. 2014) (quoting Mistretta v. United
States, 488 U.S. 361, 371-72 (1989)); see also Gundy v. United
States, 139 S. Ct. 2116, 2123 (2019) (plurality opinion).
Congress may, however, delegate legislative power to another
branch if it “lay[s] down by legislative act an intelligible
principle to which the person or body authorized to [exercise
the delegated authority] is directed to conform.” Gundy, 139
S. Ct. at 2123 (alterations in original) (quoting Mistretta, 488
U.S. at 372); see also Whitman v. Am. Trucking Ass’ns, Inc.,
531 U.S. 457, 472 (2001). An “intelligible principle” is one
that “[makes] clear to the delegee ‘the general policy’ he must
pursue and the ‘boundaries of [his] authority.’” Gundy, 139 S.
Ct. at 2129 (second alteration in original) (quoting Am. Power
& Light Co. v. S.E.C., 329 U.S. 90, 105 (1946)); see also
Cooper, 750 F.3d at 270 (citing Mistretta, 488 U.S. at 372-73);
United States v. Berberena, 694 F.3d 514, 523-24 (3d Cir.
2012).

       Importantly, the non-delegation doctrine applies only to
delegations by Congress of legislative power; it has no
application to exercises of executive power. See Gundy, 139
S. Ct. at 2123 (holding that the non-delegation doctrine
prevents Congress from transferring to another branch “powers
which are strictly and exclusively legislative” (quoting
Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825)));


the error if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id.




                                 5
Loving v. United States, 517 U.S. 748, 772-73 (1996) (holding
that “the same limitations on delegation do not apply where the
entity exercising the delegated authority itself possesses
independent authority over the subject matter,” such as
delegations to the Executive Branch of matters that
traditionally fall within executive discretion, like commander-
in-chief power (internal quotation marks omitted) (collecting
cases)); United States v. Hutchinson, 573 F.3d 1011, 1032 n.4
(10th Cir. 2009) (rejecting a non-delegation challenge to filing
a § 851 information because the filing “involves no delegation
of legislative power: such a decision is an exercise of the
prerogative power committed to the executive department”
(emphasis omitted)).

        Bruce’s non-delegation challenge fails because the
filing of a § 851 information is an exercise of executive, not
legislative, power. A prosecutor’s decision to file a § 851
information is akin to the decision of “what, if any, charges to
bring against a criminal suspect.”          United States v.
Washington, 869 F.3d 193, 211 (3d Cir. 2017) (citing United
States v. LaBonte, 520 U.S. 751, 762 (1997)), cert. denied, 138
S. Ct. 713 (2018). That power is firmly committed to the
discretion of the Executive Branch. See id.; see also Greenlaw
v. United States, 554 U.S. 237, 246 (2008) (“[T]he Executive
Branch has exclusive authority and absolute discretion to
decide whether to prosecute a case.” (quoting United States v.
Nixon, 418 U.S. 683, 693 (1974))); United States v. Sanchez,
517 F.3d 651, 670-71 (2d Cir. 2008) (“[T]he decision as to
what federal charges to bring against any given suspect is
within the province of the Executive Branch . . . .” (citing, inter
alia, United States v. Armstrong, 517 U.S. 456, 464 (1996))).
That the filing of the information may result in a harsher
sentence than might otherwise have been imposed does not




                                6
change this conclusion, given that “[t]he Supreme Court has
unambiguously upheld the prosecutor’s ability to influence the
sentence through the charging decision.” United States v.
Cespedes, 151 F.3d 1329, 1332 (11th Cir. 1998) (citing United
States v. Batchelder, 442 U.S. 114, 126 (1979)); Sanchez,
517 F.3d at 670 (recognizing the Executive Branch’s
“exclusive authority . . . to decide which of alternative statutory
sections, which may carry penalties of varying severity, the
defendant will be charged with violating”). “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.” Cespedes, 151
F.3d at 1333.4

       Because the filing of a § 851 information is not a
delegation of legislative power, we join our sister Courts of
Appeals in holding that its filing does not implicate the non-
delegation doctrine. See United States v. Lopez, 459 F. App’x
488, 489 (5th Cir. 2012) (per curiam); Hutchinson, 573 F.3d at
1032 n.4; United States v. Mendoza-Ramirez, 326 F. App’x
705, 706-07 (4th Cir. 2009) (per curiam); United States v.
Jensen, 425 F.3d 698, 707 (9th Cir. 2005); United States v.
Crayton, 357 F.3d 560, 572 (6th Cir. 2004); Cespedes, 151
F.3d at 1333; cf. United States v. Gonzalez-Ramirez, 561 F.3d
22, 30 (1st Cir. 2009) (Section 851 does not violate the

       4
         Bruce’s argument that § 851 effectively authorizes the
Executive Branch to predetermine the sentence for a federal
offense, and is legislative in nature, is misplaced. Far from
predetermining a sentence, a § 851 information “simply alters
the range of the final penalty available to the [district] court”
by virtue of increasing the minimum sentence. Cespedes, 151
F.3d at 1334.




                                7
separation of powers); Sanchez, 517 F.3d at 670 (Section 851
does not “impermissibly transfer[] power over sentencing”
from the judiciary to the executive).

                             III

      For the foregoing reasons, we will affirm.




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