                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             JAN 08 2008
                              No. 07-12009                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                      D. C. Docket No. 05-00414-CR-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JESUS MENDOZA-RODRIGUEZ,
a.k.a. Jesus Castanada-Mendoza,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                             (January 8, 2008)

Before TJOFLAT, BIRCH and BLACK, Circuit Judges.

PER CURIAM:

     Jesus Mendoza-Rodriguez appeals the sentence imposed following his
convictions for conspiracy to possess with intent to distribute more than 500 grams

of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and

possessing a firearm in furtherance of a drug trafficking crime, in violation of 21

U.S.C. § 924(c)(1)(A). Mendoza-Rodriguez was sentenced to a statutory

mandatory minimum 240 months of imprisonment on the drug trafficking

conviction and a statutory mandatory minimum consecutive sentence of 60 months

of imprisonment on the firearm possession conviction. Mendoza-Rodriguez

presents several arguments on appeal, all of which either lack merit or are

foreclosed by our prior precedent. For the following reasons, we AFFIRM.

                                I. BACKGROUND

      Mendoza-Rodriguez was indicted on one count of possessing at least 500

grams of a mixture or substance containing a detectable amount of

methamphetamine, in violation of 18 U.S.C. § 2, 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(viii) (“Count One”), and one count of possessing a firearm in furtherance

of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (“Count

Two”). The government filed an information indicating that, in 1994, Mendoza-

Rodriguez was convicted in the Southern District of Texas for conspiracy to

possess with intent to distribute 595 kilograms of marijuana, in violation of 21

U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B), and was therefore subject to the



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enhanced sentencing provisions of 21 U.S.C. §§ 841(b)(1), 846, and 851.1

Mendoza-Rodriguez pled guilty to both counts. At his change-of-plea hearing,

Mendoza-Rodriguez admitted that he had been previously convicted of a drug

trafficking offense.

       At sentencing, the district court found under the guidelines that the total

offense level was 33 and Mendoza-Rodriguez’s criminal history category was 2,

which provided a custody range of 151 to 188 months. However, a total statutory

mandatory minimum of 300 months of imprisonment applied, 240 months as to

Count One, and 60 months as to Count Two. Mendoza-Rodriguez asked the

district court to apply the statutory mandatory minimum sentence arguing that,

because the unenhanced guidelines range, along with the 60-month mandatory

consecutive firearms sentence, was an unreasonable sentence under the facts of this

case, the 300-month mandatory minimum was sufficient. Mendoza-Rodriguez did

not object to the fact of his prior conviction or to the applicability of statutory

mandatory minimum sentences, and he made no other objections. The district

court sentenced Mendoza-Rodriguez to 240 months of imprisonment as to Count

One and 60 months of imprisonment as to Count Two, to be served consecutively,

for a total of 300 months of imprisonment. The district court concluded that this


       1
        In the information, the government indicates that it attached the 1994 judgment as Exhibit
A, see R1-43, but no such exhibit included in the record on appeal.

                                                3
was a fair and just sentence, even without regard to the mandatory minimums.

                                 II. DISCUSSION

      Mendoza-Rodriguez argues that his sentence is unconstitutional because

(1) the statutory mandatory minimum sentences constitute a violation of the

constitutional separation of powers because, in establishing such high mandatory

minimums, Congress encroached on the judiciary’s role of determining an

appropriate sentence; (2) his 240-month sentence for possessing with intent to

distribute methamphetamine is based on the prosecutor’s discretionary decision to

file an information under a statutory system that constituted an impermissible

delegation of legislative authority to the executive branch; (3) it is enhanced based

on a conviction that was not mentioned in the indictment or submitted to a jury;

and (4) his sentence constitutes cruel and unusual punishment under the Eighth

Amendment because it is grossly disproportionate to his crime. He also argues that

his sentence is unreasonably long.

      In the district court, Mendoza-Rodriguez challenged only the reasonableness

of his sentence. We review a district court’s sentence for reasonableness, but

“[w]e do not apply the reasonableness standard to each individual decision made

during the sentencing process.” United States v. Thomas, 446 F.3d 1348, 1351

(11th Cir. 2006) (quoting United States v. Winingear, 422 F.3d 1241, 1245 (11th



                                          4
Cir. 2005) (per curiam)). Our review is deferential. Id. at 1351. The appellant

bears the burden of establishing that the sentence is unreasonable in view of the

record and the sentencing factors provided in 18 U.S.C. § 3553(a). United States

v. Turner, 474 F.3d 1265, 1280 (11th Cir. 2007).

       Mendoza-Rodriguez did not raise any constitutional concerns or objections

regarding his sentence in the district court. Where a defendant fails to make an

objection in the district court to the constitutionality of his sentence, we review

only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005). Under plain error review, there must be “‘(1) error, (2) that is plain, and

(3) that affects substantial rights.’” Id. (citation omitted). If these three conditions

are met, we may “‘notice a forfeited error, but only if (4) the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.’” Id. (citation

omitted).

       Upon review of the record and the parties’ briefs, we find that Mendoza-

Rodriguez’s sentence is reasonable and we discern no plain error. Further,

Mendoza-Rodriguez’s constitutional challenges to his sentence are all foreclosed

by binding precedent, but he requests that we reconsider our cases to the contrary.2

Mendoza-Rodriguez argues that these cases are either wrongly decided or


       2
        A panel of this Court may not overturn the decision of a prior panel. See Cargill v. Turpin,
120 F.3d 1366, 1386 (11th Cir. 1997).

                                                 5
distinguishable, however, they are neither. We address each of Mendoza-

Rodriguez’s arguments in turn.

      Mendoza-Rodriguez’s first argument is that his sentence was imposed in

violation of the doctrine of separation of powers. Mendoza-Rodriguez submits that

Congress unconstitutionally encroached on the judiciary’s role of determining an

appropriate sentence. We have already addressed and rejected this argument. In

United States v. Holmes, 838 F.2d 1175 (11th Cir. 1988), we held that statutory

mandatory minimum sentences do not violate the separation of powers doctrine.

We stated in Holmes that “[i]t is for Congress to say what shall be a crime and how

that crime shall be punished.” Id. at 1178 (quotation and citation omitted).

Accordingly, this argument lacks merit.

      Second, Mendoza-Rodriguez argues that his 240-month sentence for

possessing with intent to distribute methamphetamine is unconstitutional because it

was based on the prosecutor’s discretionary decision to file an information under a

statutory system that constitutes an impermissible delegation of legislative

authority to the executive branch. We have previously upheld the constitutionality

of 21 U.S.C. § 851 against a separation of powers challenge. See United States v.

Cespedes, 151 F.3d 1329, 1334-35 (11th Cir. 1998) (finding that there was no

impermissible delegation of authority in triggering mandatory sentences based on



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the prosecutor’s discretion to file an information). Consequently, this argument

also fails.

       Mendoza-Rodriguez’s third argument is that his sentence is unconstitutional

because it was enhanced based on a felony conviction that was not alleged or

contained in the indictment or proven to a jury beyond a reasonable doubt.

Mendoza-Rodriguez admitted to having a prior felony conviction at his plea

hearing. Even so, he contends that this argument is not foreclosed by his

confession or our precedent because the felony nature of the prior conviction, in

addition to the fact of the conviction itself, was necessary for the enhancement.

This argument lacks merit. First, when sentencing a defendant, the district court

may rely upon the fact of a prior conviction that was neither admitted by a

defendant nor proved to a jury. United States v. Camacho-Ibarquen, 410 F.3d

1307, 1316 (11th Cir. 2005) (per curiam) (“the government need not allege in its

indictment and need not prove beyond a reasonable doubt that a defendant had

prior convictions” before a district court may use those convictions to enhance a

sentence), see also United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738

(2005) (“Any fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or proved to a jury



                                          7
beyond a reasonable doubt); Almendarez-Torres v. United States, 523 U.S. 224,

226-27, 118 S. Ct. 1219, 1222 (1998). Second, a sentencing court may rely on

undisputed facts and prior convictions described in a PSI to determine the nature of

a prior conviction. United States v. Bennett, 472 F.3d 825, 832-33 (11th Cir.

2006) (per curiam).

      Mendoza-Rodriguez’s PSI indicated that he had a prior felony drug

trafficking conviction, and he did not object to this fact. This amounts to an

admission. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (a

failure to make a valid objection to the underlying facts in the PSI or at sentencing

is an admission that such facts are true). Therefore, the district court did not err in

relying upon this fact for the purpose of a sentencing enhancement.

      Fourth, Mendoza-Rodriguez contends that his sentence constitutes cruel and

unusual punishment under the Eighth Amendment because it was grossly

disproportionate to his crime. This argument is also foreclosed by prior precedent

and is without merit. In Harris v. United States, 536 U.S. 545, 568-69, 122 S. Ct.

2406, 2420 (2002), the Supreme Court held that the seven-year minimum sentence

under 18 U.S.C. § 924(c)(1)(A)(ii) for brandishing a firearm is constitutional. Id.,

536 U.S. at 568-69, 122 S. Ct. at 2420; cf. United States v. Moriarty, 429 F.3d

1012, 1024 (11th Cir. 2005) (per curiam) (“In general, a sentence within the limits



                                           8
imposed by statute is neither excessive nor cruel and unusual under the Eighth

Amendment.”) (quotations omitted). We decide, based on Harris, that Mendoza-

Rodriguez’s 60-month sentence imposed under § 924(c)(1)(A) for possessing a

firearm in furtherance of a drug trafficking crime is constitutional.

      As Mendoza-Rodriguez acknowledges, we have previously addressed the

statutory minimums provided by 21 U.S.C. § 841 and found them to be

constitutional. United States v. Willis, 956 F.2d 248, 250-51 (11th Cir. 1992) (per

curiam) (holding that a mandatory life sentence for drug trafficking did not violate

the Eighth Amendment). In fact, we have held that a 240-month mandatory

minimum sentence imposed pursuant to 21 U.S.C. §§ 841(b)(1), 846, and 851 was

constitutional against an Eighth Amendment challenge. United States v. Sanchez,

215 F. App’x 853, 854-55 (11th Cir. 2007) (per curiam). In Sanchez, as in this

case, the defendant raised an Eighth Amendment challenge to his sentence for the

first time on appeal. Id. at 854. The defendant in Sanchez argued that his sentence

was unconstitutional because it was enhanced through two old prior felony drug

convictions, and his codefendants received lesser sentences. Id. Under plain error

review, we upheld the defendant’s sentence. Id. We decided that the time span

between the defendant’s prior convictions and his latest conviction did not

“disqualif[y]” those prior convictions from triggering the enhanced sentence, and



                                           9
we concluded that the defendant’s criminal history was materially different from

that of his codefendants. Id. at 855. Further, we determined that “upholding [the

defendant’s] sentence of 20 years follows a fortiori from the Willis decision, which

affirmed the constitutionality of a life mandatory minimum sentence under §

841(b)(1).” Id.

      Similar to the manner in which the defendant in Sanchez sought to minimize

his criminal history, Mendoza-Rodriguez argues that his sentence is grossly

disproportionate because he has only one prior felony drug conviction. However,

that conviction alone is sufficient to trigger the enhanced sentence provided by 21

U.S.C. § 841(b)(1)(A). Mendoza-Rodriguez’s other arguments, relating to his

potential inability to sell the drugs and his joint responsibility for them, are

insufficient to establish that his sentence is grossly disproportionate to his crime.

We conclude that Mendoza-Rodriguez’s sentence, imposed at the statutory

mandatory minimum, does not violate the Eighth Amendment.

      Finally, Mendoza-Rodriguez argues that his sentence was unreasonably long

under the 18 U.S.C. § 3553(a) factors, and that it should be vacated

notwithstanding the statutory mandatory minimums. Mendoza-Rodriguez

preserved this argument, unlike his other arguments on appeal. “After Booker, we

review sentences under the advisory guidelines for reasonableness. Sentencing is a



                                           10
two step process, requiring (1) the correct calculation of the guideline range and

(2) the consideration of the 18 U.S.C. § 3553(a) factors.” United States v.

Ciszkowski, 492 F.3d 1264, 1269-70 (11th Cir. 2007) (citations omitted). Under §

3553(a), a district court should consider, among other things, the nature and

circumstances of the offense, the history and characteristics of the defendant, the

need for adequate deterrence and protection of the public, policy statements of the

Sentencing Commission, provision for the medical and educational needs of the

defendant, the need to avoid unwarranted sentencing disparities. See 18 U.S.C. §

3553(a)(1)-(7). The district court is not required to discuss each of the § 3553(a)

factors. United States v. Bohannon, 476 F.3d 1246, 1248 (11th Cir. 2007). The

district court also must comply with the statutory mandatory minimums.

Ciszkowski, 492 F.3d at 1270. In sentencing Mendoza-Rodriguez, the district

court explicitly considered several of the § 3553(a) factors during the sentencing

hearing, including the fact that this is Mendoza-Rodriguez’s second drug

conviction, the nature and circumstances of this particular drug crime, the need for

deterrence, and the need to protect the public. Further, the district court sentenced

Mendoza-Rodriguez to the statutory minimum sentences for his crimes of

conviction, which resulted in the shortest possible sentences available. Therefore,

after reviewing the record, we conclude that Mendoza-Rodriguez’s sentence was



                                          11
reasonable.

                                III. CONCLUSION

      Mendoza-Rodriguez appeals the sentence imposed following his convictions

for conspiracy to possess with intent to distribute more than 500 grams of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and

possessing a firearm in furtherance of a drug trafficking crime, in violation of 21

U.S.C. § 924(c)(1)(A). Mendoza-Rodriguez was sentenced to a statutory

mandatory minimum 240 months of imprisonment on the drug trafficking

conviction and a statutory mandatory minimum consecutive sentence of 60 months

of imprisonment on the firearm possession conviction, for a total sentence of 300

months of imprisonment. After careful consideration of the briefs of the parties,

and a thorough review of the record, we determine that Mendoza-Rodriguez’s

sentence is reasonable and we conclude that the rest of his arguments on appeal are

foreclosed by prior precedent. Accordingly, Mendoza-Rodriguez’s sentence is

AFFIRMED.




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