                                                     [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                   FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                     ________________________   ELEVENTH CIRCUIT
                                                       OCTOBER 28, 2005
                            No. 05-12044               THOMAS K. KAHN
                       Non-Argument Calendar               CLERK
                      ________________________

               D. C. Docket No. 03-00075-CR-OC-10-GRJ

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                versus

ROLAND WILLIS FREDERICK MARPOE, II,

                                                     Defendant-Appellant.


                      ________________________

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

                           (October 28, 2005)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Roland Willis Frederick Marpoe, II, appeals his conviction for conspiracy to

manufacture and possess with intent to distribute 100 or more marijuana plants, in

violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B). On appeal, Marpoe argues that

§ 841 is facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its progeny. He contends that,

prior to the Supreme Court’s decisions in Jones v. United States, 526 U.S. 227, 119

S. Ct. 1215, 143 L. Ed. 2d 311 (1999), Blakely v. Washington, 542 U.S. 296, 124

S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi, we considered the provisions

in § 841(b) to be sentencing factors and not elements of the offense. He argues

that our approach in United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en

banc), abrogated in part, United States v. Duncan, 400 F.3d 1297, 1308 (11th Cir.

2005), where we limited the scope of Apprendi to when judge-decided facts

increase a sentence above the statutory maximum, would not survive a

constitutional challenge, and contends that it is unclear whether, under Sanchez, §

841(b) contains elements or sentencing factors. He further argues that, in light of

Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63, which held that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt,” there are only three ways to preserve the constitutionality of §



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841: (1) sever the unconstitutional section - § 841(b); (2) reinterpet the § 841(b)

factors as elements of the offense; or (3) declare § 841 and § 846 unconstitutional

in their entirety. Marpoe argues that only the third option is appropriate, and

therefore, his conviction should be reversed.

         Ordinarily, we review constitutional issues de novo. United States v. Wright,

392 F.3d 1269, 1280 (11th Cir. 2004), cert. denied, 125 S. Ct. 1751 (2005).

However, because Marpoe did not assert his constitutional claim in the district

court, it is within our discretion whether to address the issue. Id. Where a

defendant fails to raise his constitutional claim in the district court, we review his

claim only for plain error. United States v. Walker, 59 F.3d 1196, 1198 (11th Cir.

1995).

         In United States v. Tinoco, 304 F.3d 1088, 1098-99 (11th Cir. 2002), we

relied on Sanchez in rejecting a facial challenge to 21 U.S.C. § 960 similar to the

one that Marpoe now makes to § 841. In Sanchez, we held that § 841 “is impacted

by Apprendi but only to the limited extent that judge-decided facts actually

increase a defendant’s sentence above the prescribed statutory maximum.” 269

F.3d at 1268. As a result of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738,

756, 160 L. Ed. 2d 621 (2005), the requirements for a successful Apprendi facial

challenge have changed since Sanchez and Tinoco, but Marpoe still must satisfy



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the requirements as they exist currently. Therefore, in the words of Booker,

Sanchez now stands for the proposition that Apprendi does not apply where a

defendant’s actual sentence falls within the range “authorized by the facts

established by a plea of guilty . . . [which] must be admitted by the defendant.”

See Booker, 543 U.S. at ___, 125 S.Ct. at 756; Sanchez, 269 F.3d at 1268.

      In this case, Marpoe’s sentence fell within the maximum authorized by the

facts established by his guilty plea. Marpoe signed a written plea agreement,

admitting that the 125 marijuana plants recovered on his property belonged to him,

and during the plea colloquy, he admitted that the government’s proffer - namely,

possession with intent to distribute 125 marijuana plants with his wife - was true.

Furthermore, Marpoe did not object to the Presentence Investigation Report, which

stated that he possessed, with intent to distribute, 125 marijuana plants with his

wife. Pursuant to § 841, and given these admitted facts, the minimum sentence

that he could have received was five years’ imprisonment, and the maximum was

40 years’ imprisonment. Because Marpoe’s sentence fell within the range

authorized by the facts established by a plea of guilty, Apprendi does not apply.

Booker, 543 U.S. at ___, 125 S. Ct. at 756; Sanchez, 269 F.3d at 1268.

Accordingly, Marpoe’s facial challenge fails because he “cannot demonstrate that

no set of circumstances exist under which [§ 841] would be valid,” primarily



                                           4
because, under the circumstances of his own case, § 841 (b) is constitutionally

valid. See Tinoco, 304 F.3d at 1101 (internal quotation omitted). Therefore, the

district court did not plainly err in not finding that § 841 facially violates the

Constitution, and we affirm Marpoe’s conviction.

      Upon review of the record, and upon consideration of the briefs of the

parties, we discern no reversible error. Accordingly, we affirm.

      AFFIRMED.




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