                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                         NOVEMBER 14, 2005
                             No. 05-10005
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                    D. C. Docket No. 04-60158-CR-JIC

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

CLARENCE WARD,

                                                   Defendant-Appellant.


                       ________________________

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

                            (November 14, 2005)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
        Clarence Ward appeals his life sentence imposed after his conviction on four

counts of possession with intent to distribute cocaine base, all in violation of 21

U.S.C. §§ 841(a) and 851, and one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). We affirm his conviction and

sentence.

        Ward raises four arguments on appeal. First, he argues his mandatory life

sentence, which was based upon his recidivism, was cruel and unusual punishment

in violation of the Eighth Amendment. As part of this argument, he cites for the

first time on appeal the disparity in sentences for crack and powder cocaine

offenses. Second, he argues 21 U.S.C. § 851(e)’s prohibition against challenges to

the validity of a sentence-enhancing prior conviction that occurred more than five

years prior to the conviction at issue violates due process. Third, Ward argues the

imposition of a life sentence based upon his prior convictions violated his Sixth

Amendment right to a jury trial. Finally, he argues for the first time on appeal the

district court erred in sentencing him based upon a drug amount that included the

weight of water contained in the cocaine base. Each argument is considered in

turn.




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                                   I. DISCUSSION

         We review a constitutional challenge to a sentencing statute de novo. United

States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). We review arguments

raised for the first time on appeal for plain error. United States v. Olano, 113 S. Ct.

1770, 1776 (1993); United States v. Harness, 180 F.3d 1232, 1234 (11th Cir.

1999).

A. Cruel and Unusual Punishment

         Ward first asserts his mandatory life sentence, which was based upon his

recidivism, was cruel and unusual punishment in violation of the Eighth

Amendment. In United States v. Lyons, 403 F.3d 1248 (11th Cir. 2005), the

appellant argued his 235-month sentence imposed based on his status as an “armed

career criminal,” pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4(b),

constituted cruel and unusual punishment in violation of the Eighth Amendment.

Id. at 1256–57. We rejected Lyons’ argument on the following basis:

“[r]ecidivism has long been recognized as a legitimate basis for increased

punishment,” and “the Supreme Court has consistently affirmed the imposition of

longer sentences, even for non-violent offenses, based on an offender’s

recidivism.” Id. We also held an appellant’s mandatory life sentence imposed

pursuant to 21 U.S.C. § 841(b)(1)(A) on his third and fourth convictions for drug



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offenses involving at least five kilograms of cocaine was not “cruel and unusual

punishment” as proscribed by the Eighth Amendment. United States v. Willis, 956

F.2d 248, 251 (11th Cir. 1992). Additionally, the Supreme Court has held a

mandatory sentence of life imprisonment was not cruel and unusual punishment in

violation of the Eighth Amendment. Harmelin v. Michigan, 111 S. Ct. 2680, 2701

(1991). We have stated a challenge to the constitutionality of disparities in

sentences between crack and powder cocaine is “without merit.” United States v.

Harden, 37 F.3d 595, 602 (11th Cir. 1994).

      The decisions in Willis, Lyons, and Harmelin, have not been overruled and

remain good law. Accordingly, Ward’s argument that his mandatory life sentence

based upon his recidivism violates the Eighth Amendment is without merit.

Ward’s argument his life sentence was a violation of the Eighth Amendment

because of the disparity in crack and powder cocaine offenses is also foreclosed by

our precedent, so he cannot show plain error.

B. Due Process

      Ward’s second argument is that 21 U.S.C. § 851(e)’s prohibition against

challenges to the validity of a sentence-enhancing prior conviction that occurred

more than five years prior to the conviction at issue violates due process. Anyone

convicted of an offense under § 841 may not challenge the validity of a prior



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conviction alleged thereunder that occurred more than five years prior to the date

of the information alleging the prior conviction. 21 U.S.C. § 851(e). We have held

that application of § 851(e) is not a violation of due process. United States v.

Williams, 954 F.2d 668, 673 (11th Cir. 1992). Accordingly, Ward’s argument is

foreclosed.

C. Sixth Amendment

      Ward’s third argument is that the imposition of a mandatory life sentence

based upon his prior convictions violated his Sixth Amendment right to a jury trial.

It is well established the Sixth Amendment does not require a defendant’s prior

convictions be found by the jury. United States v. Booker, 125 S. Ct. 738, 756

(2005); Blakely v. Washington, 124 S. Ct. 2531, 2536–37 (2004); Apprendi v. New

Jersey, 120 S. Ct. 2348, 2362–63 (2000). Accordingly, this argument is also

foreclosed.

D. Drug Amount

      Ward’s final argument is that the district court erred in sentencing him based

upon a drug amount that included the weight of water contained in the cocaine

base. Absent controlling precedent, there can be no plain error See United States

v. LeJarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Because neither we nor

the Supreme Court has considered the issue that Ward raises in this argument, he



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has not demonstrated an error that was “plain,” and therefore cannot prevail on this

issue. Moreover, the jury’s determination of drug weight was supported by

competent evidence.

                                 II. CONCLUSION

      Ward’s mandatory life sentence was not cruel and unusual punishment in

violation of the Eight Amendment. Section 851(e)’s prohibition against challenges

to the validity of a sentence-enhancing prior conviction occurring more than five

years prior to the conviction at issue does not violate due process. The imposition

of a life sentence based on prior convictions did not violate Ward’s Sixth

Amendment right to a jury trial. Finally, the district court did not plainly err in

determining the amount of cocaine base that Ward possessed.

      AFFIRMED.




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