                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                               Oct. 5, 2009
                               No. 08-16879                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 06-00396-CR-TCB-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

OLIVAR MARTINEZ-BLANCO,

                                                           Defendant-Appellant.


                         ________________________

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

                               (October 5, 2009)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Olivar Martinez-Blanco was convicted of conspiracy to possess with intent
to distribute at least five kilograms of cocaine and attempt to distribute at least five

kilograms of cocaine, both in violation of 21 U.S.C. § 846. Prior to trial, the

government filed a notice of enhanced penalties identifying two prior controlled

substance convictions, which subjected Martinez-Blanco to mandatory life

imprisonment. 21 U.S.C. §§ 841(b)(1)(A), 851.

      At sentencing, Martinez-Blanco acknowledged that the sentence was set by

statute, but argued that it was unjust. He asserted that the government filed the two

§ 851 notices to coerce him into entering a plea, and his codefendants received

lesser sentences but were more culpable. He explained that the two prior

convictions occurred when he was only 22 and 24 years old, while he was addicted

to drugs, and involved a very small amount of drugs. He claimed the mandatory

life sentence was cruel and unusual punishment and did not permit the court to

consider mitigating sentencing factors in 18 U.S.C. § 3553(a).

      The court stated that it believed a significant sentence was required, but that

the mandatory life imprisonment was “savage, cruel and unusual.” The court

acknowledged that its hands were tied and stated that it regretted its lack of

discretion in determining the sentence. Nevertheless, the court explained that it

would adhere to its duty to follow the law. Accordingly, the court sentenced

Martinez-Blanco to life imprisonment.



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      On appeal, Martinez-Blanco raises four challenges to his mandatory life

sentence: (1) the court should have considered the § 3553(a) factors and the rule of

lenity; (2) the sentence violates the Eighth Amendment; (3) the court erroneously

enhanced his sentence based on prior convictions not alleged in the indictment or

proven to the jury; and (4) § 851 violates the separation of powers.

      We review de novo the legality of a criminal sentence. United States v.

Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007). We also review de novo

constitutional claims. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir.

2004). Issues not raised before the district court are reviewed for plain error.

United States v. Martinez, 407 F.3d 1170, 1173 (11th Cir. 2005).

      I. Mandatory Sentences and the § 3553(a) Factors

      Martinez-Blanco argues that the mandatory minimum sentence violates his

constitutional rights and conflicts with the mandate that the court consider the

sentencing factors in § 3553(a). He asserts therefore the court should apply the

rule of lenity and conclude that § 3553(a) supersedes the mandatory minimum

sentence.

      Martinez-Blanco’s challenge is foreclosed by this court’s decision in United

States v. Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008) (holding that the

district court remains bound by statutory minimum sentences after United States v.



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Booker, 543 U.S. 220 (2005)). We are bound by decisions of prior panels until

overruled by this court sitting en banc or by the Supreme Court. United States v.

Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998). Therefore, despite the district

court’s obvious disagreement with sentence, the court was required to impose the

statutory mandatory minimum.1

       Moreover, the court did not need to consider the rule of lenity. To apply the

rule, the court must conclude that the statute is ambiguous and that narrower

constructions are possible. United States v. Svete, 556 F.3d 1157, 1169 (11th Cir.

2009) (en banc); see also United States v. Camacho-Ibarquen, 410 F.3d 1307 (11th

Cir. 2005) (“we will apply the rule of lenity only if the provision being construed is

still ambiguous after application of normal rules of construction.”). Because there

is no conflict between the mandatory minimum sentence and the § 3553(a) factors,

there is no ambiguity or narrower construction possible, and the rule would not

apply. Accordingly, there is no merit to Martinez-Blanco’s first challenge to his

sentence.

       II. Eighth Amendment

       As Martinez-Blanco concedes, this court has rejected an Eighth Amendment


       1
          The court is permitted to impose a sentence below the mandatory minimum only if the
government files a substantial assistance motion or if the defendant qualifies for the safety-valve
provision, see 18 U.S.C. §§ 3553(e) and 3553(f), neither of which is applicable to Martinez-Blanco’s
case.

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challenge to mandatory minimum sentences. See United States v. Brant, 62 F.3d

367 (11th Cir. 1995); see also United States v. Johnson, 451 F.3d 1239, 1243-44

(11th Cir. 2006). Accordingly, this argument is foreclosed by circuit precedent.

      III. Prior Convictions

      Martinez-Blanco argues that §§ 841 and 851 are unconstitutional because

they permit a defendant to face an enhanced mandatory minimum based on prior

convictions not alleged in the indictment or proven to the jury.

      This court has rejected the claim that prior convictions must be charged in

the indictment or proven to a jury. Camacho-Ibarquen, 410 F.3d at 1315-16.

Accordingly, Martinez-Blanco’s claim fails.

      IV. Separation of Powers

      Finally, Martinez-Blanco argues that §§ 841 and 851 violate the separation

of powers doctrine by granting federal prosecutors greater power to determine

penalties than the power granted to federal judges.

      This court has upheld § 851’s constitutionality under a separation-of-powers

challenge. See United States v. Cespedes, 151 F.3d 1329, 1335 (11th Cir. 1998)

(“[T]he 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.”); see also



                                          5
United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir. 1988) (explaining that

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

punished.”). Accordingly, there is no merit to Martinez-Blanco’s separation-of-

powers claim.

      Because each of Martinez-Blanco’s challenges is foreclosed by this court’s

case law, we AFFIRM the sentence imposed.

      AFFIRMED.




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