                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4109



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LARRY FRANKLIN PHILLIPS, a/k/a Shag,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-02-104)


Submitted:   February 25, 2005            Decided:   March 29, 2005


Before NIEMEYER, LUTTIG, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David G. Belser, BELSER & PARKE, P.A., Asheville, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Larry Franklin Phillips appeals his conviction after a

jury trial of one count of conspiracy to possess with intent to

distribute at least 1.5 kilograms of methamphetamine, in violation

of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2004), and his

sentence of life imprisonment.    We affirm.

            None of the arguments raised on appeal were presented to

the district court; therefore, this court reviews only for plain

error.     In order to correct error not asserted in the district

court, Phillips must establish “that an error occurred, that the

error was plain, and that the error affected his substantial

rights.”      United States v. Olano, 507 U.S. 725, 732 (1993).

Correction of plain error established by the appellant remains,

however, in the court’s discretion, which should only be exercised

if the error “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (quoting United States v.

Young, 470 U.S. 1, 15 (1985)).

            Phillips first argues that the Government violated his

due process rights by presenting the false testimony of three

co-defendants. Such a claim requires that Phillips establish that:

“(1) the testimony was false; (2) the Government knew the testimony

was false; and (3) there is a reasonable probability that the false

testimony could have affected the verdict.”       United States v.

Roane, 378 F.3d 382, 400 (4th Cir. 2004).      Phillips asserts the


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co-defendants’        testimony    was    false       because   they   testified     to

transactions that involved quantities of methamphetamine in excess

of the quantities that they were held responsible for in their plea

agreements.      Although he alleges the Government presented false

testimony, he disclaims any allegation of a failure to disclose

evidence or other personal misconduct on the part of the Assistant

United States Attorney.            Our review of the record leads us to

conclude that Phillips has not established that the trial testimony

of   the   co-defendants     was    false,       as    the   descriptions    of    drug

quantities attributable to Phillips were corroborated by other

witnesses.

            In    a    related     argument,      Phillips       asserts    that   the

Government violated his due process and jury trial rights when it

engaged in unconstitutional fact bargaining.                    He asserts that “if

the testimony of the co-defendants was in fact true, the state

engaged    in    unconstitutional        fact     bargaining      by   significantly

reducing the quantity of drugs attributable to those co-defendants

who were willing to testify against the defendant.”                        He asserts

that the Government also improperly offered to reduce the drug

quantity for which he would be held responsible at sentencing if he

agreed to plead guilty, but prosecuted him for the amount charged

in the indictment when he rejected the plea offer.                     We find this

argument meritless.        The process of plea bargaining has long been

accepted as legitimate.            Corbitt v. New Jersey, 439 U.S. 212,


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218-19 (1978).       Moreover, to the extent Phillips has standing to

contest the Government’s decisions to offer plea agreements with

favorable    terms    to   his    co-defendants,   the   Supreme    Court   has

accorded wide discretion to prosecutors in reaching precisely these

types of decisions.         Bordenkircher v. Hayes, 434 U.S. 357, 364

(1978).     Phillips does not allege any improper motives in the

Government’s decision making with regard to plea offers in his

case, and our review of the record leads us to conclude that the

Government acted properly in its negotiations with Phillips and his

co-defendants.

            In his remaining assertions of error, Phillips attacks

his life sentence.          He does not contest that he was in fact

previously convicted of two felony drug offenses, or that those

convictions qualified to enhance his sentence to a mandatory life

term under 21 U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2004).

Phillips first argues that his mandatory life sentence violates the

separation of powers doctrine because the statutory provision

mandating a life sentence removes discretion from the sentencing

judge and transfers that discretion to the prosecutor.

            To the extent Phillips seeks to challenge recent changes

enacted     by   Congress    to    the   composition     of   the   Sentencing

Commission, he cannot demonstrate any prejudice attributable to

this change. Although the district court calculated the applicable

range under the sentencing guidelines, it is undisputed that


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Phillips’s   sentence    was    determined         based   upon     straightforward

application of the terms of a statute to the facts of Phillips’s

instant   conviction    and     his    two     prior       felony    drug     offense

convictions.      As   his   sentence      was     not     determined       under   the

sentencing guidelines, the makeup of the Sentencing Commission is

irrelevant   to   Phillips’s      sentence.           We    also    conclude        that

Phillips’s case does not present a legitimate separation of powers

issue.    Phillips     was     sentenced      in    compliance       with    specific

statutory language.      In light of the broad discretion accorded

prosecutors recognized by the Supreme Court in Bordenkircher,

Phillips cannot establish any constitutional infirmity in the

mandatory minimum provisions of § 841(b).                   Although the Supreme

Court has recognized criticisms of mandatory minimum sentencing

provisions, it has not held them unconstitutional.                          Harris v.

United States, 536 U.S. 545, 568-69 (2002).

          Phillips next asserts that his sentence is cruel and

unusual punishment in violation of the Eighth Amendment.                             In

considering this argument, we apply the three-part test of Solem v.

Helm, 463 U.S. 277 (1983), which examines: “(1) the gravity of the

offense and the harshness of the penalty, (2) the sentences imposed

on other criminals in the same jurisdiction, and (3) the sentences

imposed for commission of the same crime in other jurisdictions.”

United States v. Kratsas, 45 F.3d 63, 66 (4th Cir. 1995).                             We

conclude that Phillips’s life sentence is not constitutionally


                                      - 5 -
disproportionate.         First,         his   offense   is    extremely    serious.

Phillips was not just a drug user, but a dealer who sold what can

only be described as massive quantities of methamphetamine over

several years to many different people. Also, Phillips is a repeat

drug offender.       Applying the second prong of Solem, this court has

concluded that “it is clear that a life sentence for a major drug

violation     is    not   disproportionate         in    comparison      with    other

sentences mandated by the Guidelines and other drug statutes.”

Kratsas, 45 F.3d at 68.            Finally, applying the third prong reveals

similarly     lengthy     state      penalties     for   crimes    involving      the

significant    quantity       of    methamphetamine      charged    in    Phillips’s

indictment     and    found    by     the      jury.     See    N.C.     Gen.    Stat.

§ 90-95(h)(3b)(c) (2003) (range of 225 to 279 months imprisonment

for   400   grams    or   more      of    methamphetamine);       S.C.    Code   Ann.

§ 44-53-375(C)(5) (Law. Co-op. 2002) (twenty-five to thirty years

imprisonment, mandatory minimum of twenty-five years without parole

for 400 grams or more); Va. Code Ann. § 18.2-248(H)(5) (Michie

2004) (twenty years to life with mandatory minimum of twenty years

for 200 grams or more).

             Phillips’s final argument is that his mandatory life

sentence violates his due process rights.                He specifically asserts

that “where a statute dictates life imprisonment such a sentence

cannot be consistent with due process without an individualized

determination of whether the defendant’s conduct and criminal


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history justify such a sentence.”        We have squarely rejected this

argument in prior cases involving sentences virtually identical to

Phillips’s.    Kratsas, 45 F.3d at 69; United States v. D’Anjou, 16

F.3d 604, 613-14 (4th Cir. 1994).

            Accordingly,   we   affirm     Phillips’s   conviction   and

sentence.     We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                               AFFIRMED




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