     Case: 11-40571     Document: 00511749618         Page: 1     Date Filed: 02/07/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 7, 2012
                                     No. 11-40571
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GILBERT LOPEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:06-CR-544-2


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Gilbert Lopez appeals the sentence imposed following his guilty-plea
conviction of conspiracy to possess with intent to distribute over 1000 kilograms
of marijuana and over 5 kilograms of cocaine. Because Lopez had prior drug
felony offense convictions, the district court sentenced him to the mandatory
minimum sentence of life imprisonment. See 21 U.S.C. §§ 841(b)(1)(A), 851.
        Lopez argues that his sentence violates the Fifth and Eighth Amendments
to the Constitution, as well as the Constitution’s delegation of authority to the

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-40571   Document: 00511749618      Page: 2     Date Filed: 02/07/2012

                                  No. 11-40571

judiciary in Article III, Section 1. Because Lopez did not apprise the district
court of his claim that application of § 841(b)(1)(A) violated his constitutional
rights, this court reviews his challenge for plain error. See United States v.
Bishop, 629 F.3d 462, 468 (5th Cir. 2010). Plain error exists when the appellant
demonstrates that (1) an error; (2) that was clear or obvious; and (3) that
affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 129
S. Ct. 1423, 1429 (2009). If the first three prongs are met, we court will correct
such an error only if it ?seriously affects the fairness, integrity or public
reputation of judicial proceedings.”    Id. (internal quotations and citations
omitted).
      As Lopez acknowledges, we have previously determined that the Supreme
Court’s decision in Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991) rejected
the argument that a term of life imprisonment constitutes cruel and unusual
punishment. See United States v. Fragoso, 978 F.2d 896, 903 (5th Cir. 1992); see
also Harmelin, 501 U.S. at 994-95 (“Severe, mandatory penalties may be cruel,
but they are not unusual in the constitutional sense.”).             Lopez’s Fifth
Amendment      argument     is   similarly   without     merit.    See    generally
Almendarez–Torres v. United States, 523 U.S. 224, 230; accord United States v.
Robinson, 344 F. App’x 936, 940-41 (5th Cir. 2009) (per curiam) (holding that
application of statutory mandatory minimum in § 841(b)(1)(A) does not violate
defendant’s Fifth and Fourteenth Amendment rights).
      Finally, we have rejected the argument that a sentencing scheme
permitting the prosecution to seek an enhancement potentially resulting in life
imprisonment represents an unconstitutional delegation of authority to the
executive branch of the federal government. See United States v. Rasco, 123
F.3d 222, 226-27 (5th Cir. 1997) (holding constitutional the recidivism-based
mandatory life sentence penalty created by 18 U.S.C. § 3559). Our analysis is
in line with other circuit courts of appeal that have considered this issue. See
United States v. Jensen, 425 F.3d 698, 707 (9th Cir. 2005); United States v.

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                                 No. 11-40571

Crayton, 357 F.3d 560, 571-72 (6th Cir. 2004); United States v. Cespedes, 151
F.3d 1329, 1331-35 (11th Cir. 1998); United States v. Prior, 107 F.3d 654, 658-59
(8th Cir. 1997).
      Lopez has not shown clear or obvious error. Puckett, 129 S. Ct. at 1429.
Accordingly, we AFFIRM the judgment of the district court.




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