223 F.3d 502 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Larry Collins, Defendant-Appellant.
No. 98-3530
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 12, 2000Decided August 4, 2000Rehearing and Rehearing En Banc Denied Sept. 7, 2000

Appeal from the United States District Court  for the Central District of Illinois, Springfield Division.  No. 97 CR 30059--Richard Mills, Judge.
Before Cudahy, Coffey and Kanne, Circuit Judges.
Kanne, Circuit Judge.


1
Larry Collins was  convicted of conspiracy to distribute  methamphetamine and now raises four claims on  appeal. He alleges that the district court erred  by permitting the government to bolster the  credibility of its witnesses and by giving both  a factually incorrect jury instruction and an  untimely "dynamite" jury instruction. He also  challenges the constitutionality of the mandatory  life sentence for multiple drug-crime  convictions. We find that the factually incorrect  jury instruction was error, but it was harmless  under the circumstances. We affirm Collins's  conviction.

I.  History

2
A federal grand jury issued a three-count  superseding indictment against Collins, including  one count of conspiracy to distribute and possess  with intent to distribute methamphetamine in  violation of 21 U.S.C. sec.sec. 841 and 846, and  two counts of money laundering in violation of 18  U.S.C. sec. 1956. The indictment alleged that,  from January 1993 to June 1996, Collins  "knowingly and intentionally conspired with  Warren Wegman, Robin Allen, David Mabry, Earl  Jackson Hiland III and with others to possess  with the intent to distribute and to distribute  a controlled substance, namely methamphetamine."


3
Allen, Mabry and Hiland each testified against  Collins at his trial pursuant to plea agreements  in connection with guilty pleas on unrelated drug  charges. In its opening statement, the government  announced that it would present the testimony of  Collins's co-conspirators and introduced the  trio's plea agreements into evidence over  Collins's objections. All but one of the plea  agreements emphasized that the witness had agreed  to provide "complete and truthful" testimony, and  each witness averred that he or she was obligated  by plea agreement to be truthful.


4
Robin Allen testified that she began selling  methamphetamine in 1992, when Wegman began  delivering money and buying from her on Collins's  behalf. Allen testified that Collins continued to  purchase methamphetamine from her the following  year, using Wegman as a runner. David Mabry,  Allen's boyfriend at the time, joined her during  the summer of 1993, and the couple became  Collins's primary drug source. Allen and Mabry  testified that between June 1993 and May 1996,  they supplied methamphetamine to Collins about  ten times in two- to five-pound batches. In  addition to those sales, Allen and Mabry earned  a million dollars between 1993 and 1996 by  serving a host of customers other than Collins,  including Dale Daugherty.


5
Daugherty operated his own drug-dealing  operation, which had no connection with Collins.  In fact, Collins instructed Allen not to deal  with his competitor Daugherty because it "would  take food off my table." Allen agreed to cease  working with Daugherty, but Mabry continued  selling to Daugherty through a third party  without her help. After their arrests in May  1996, Allen and Mabry both pleaded guilty to  participation in a conspiracy headed by Daugherty  to distribute methamphetamine. However, by the  government's admission both at trial and on  appeal, the Daugherty conspiracy did not involve  Collins, and the conspiracy for which Collins was  charged constituted a separate and distinct  operation. The government adduced telephone  records that listed calls between Daugherty and  Allen to corroborate Allen's and Mabry's  testimony, but the government was careful to  explain that Daugherty was not a member of  Collins's operation. The government declared,  "we're not alleging that Mr. Daugherty . . . was  a part of the conspiracy in which the defendant  was charged."


6
The third co-conspirator to testify against  Collins was Earl Hiland. He testified that he  traveled to California in 1993 or 1994 to acquire  methamphetamine from Allen for Collins and  visited St. Louis, Missouri, in 1994 to obtain  methamphetamine from an Allen affiliate. Hiland  was arrested in May 1996 and pleaded guilty to  possession with intent to distribute. At trial,  Hiland admitted that "there was absolutely no  involvement of Larry Collins" with his arrest and  the charges to which he pleaded guilty "didn't  have anything to do with Larry Collins."  Collins's attorney challenged Hiland's  truthfulness on cross-examination, just as he had  attacked the credibility of Allen and Mabry  during their testimony. The government responded  to each challenge by highlighting the fact that  the witnesses were obligated under plea agreement  to tell the truth.


7
The government also presented several other  witnesses who had either worked with Collins or  purchased drugs from him. Michael Peters, a  friend of Wegman, testified that he purchased  methamphetamine from Collins in 1992, but shortly  thereafter began buying directly from Allen by  mail. In 1994, Peters was arrested and pleaded  guilty to possession of methamphetamine purchased  from Allen. Peters testified at trial that his  arrest and the underlying charges had nothing to  do with Collins. During closing argument, the  government based its case on the wealth of  testimony against Collins, particularly that of  Allen, Mabry and Hiland. The government again  stressed that these witnesses were testifying  pursuant to plea agreements and were bound to  tell the truth. The government emphasized that  there was "powerful motive for each one of these  witnesses to tell you the truth."


8
At the close of trial, Collins objected to Jury  Instruction No. 14, a cautionary instruction  reciting the following


9
You have heard testimony from Earl Jackson Hiland  III, Herman Hudson, Robin Allen, David Mabry,  Frank Cikovich, Cheri Knowles, Ola Redes, Sonny  Logan, Michael Peters and Belinda Peters, who  received immunity; that is a promise from the  government that any testimony or other  information they provided would not be used  against them in a criminal case.


10
Earl Jackson Hiland III, Robin Allen, David Mabry  and Michael Peters have stated that they were  involved in the alleged conspiracy charged  against the defendant and that each has pled  guilty to a crime arising out of the same  occurrence for which the defendant is now on  trial.


11
Further, David Mabry, Carolyn Burd, Arduth Sapp  and Belinda Peters have admitted lying under  oath, and David Mabry has been convicted of lying  under oath.


12
You may give the testimony of these witnesses  such weight as you feel it deserves, keeping in  mind that it must be considered with caution and  great care. Moreover, the guilty pleas of Earl  Jackson Hiland III, Robin Allen, David Mabry and  Michael Peters are not to be considered as  evidence against the defendant.


13
* * *


14
Evidence that a witness has been convicted of a  crime is to be considered by you only insofar as  it may affect the witness's credibility.


15
Collins argued that the second paragraph of this  jury instruction was incorrect because Allen and  Mabry had pleaded guilty to charges pertaining to  the Daugherty conspiracy, not the Collins  operation, and Hiland and Peters had pleaded  guilty to charges that each testified had nothing  to do with Collins. Unpersuaded, the district  court gave the instruction over Collins's  objection.


16
After a day of deliberation, the jury announced  that it was "deadlocked" with respect to the  conspiracy count. The court convened a conference  that day with all counsel present to determine  how to proceed. Collins's attorney acknowledged  that giving a "dynamite charge" would violate  United States v. Silvern, 484 F.2d 879 (7th Cir.  1973), because the court had not issued the  instruction to the jury in its initial charge.  Collins's attorney, however, consulted with  Collins and authorized the court to give Seventh  Circuit pattern instruction 7.06, a modification  of the Silvern deadlock instruction. He explained  to the government and the court


17
I believe that the law is and still is in the  Seventh Circuit that it's error to give that  instruction after the jury has been instructed if  it wasn't tendered originally. We would waive any  objection to the giving of that instruction. I've  discussed this with Mr. Collins and we would  certainly put our waiver on the record.


18
We certainly would like to have the jury return  a verdict in the case and we would suggest that  the instruction be given to the jury. . . . And  we are certainly willing to put a waiver on the  record to any error caused by giving of the  instruction by the timing.


19
The court then asked the following questions to  Collins directly:


20
Court: I would ask Mr. Collins, directly, if he  concurs with what his counsel has just stated?


21
Collins: Yes, sir.


22
Court: And do you agree and waive any problem  that might exist as far as a legal consequence is  concerned?


23
Collins: Yes, sir.


24
Court: And do you wish the Court at this time to  give the 7.06 instruction, is that right?


25
Collins: Yes, sir.


26
Out of an "abundance of caution," the district  court also asked Collins's attorney to explain  for the record Collins's reasons for waiving his  objection. Collins's attorney cited the attorney-  client privilege but reiterated, "I discussed  with Mr. Collins and read with him the content of  the instruction and discussed with him the  consequences of giving and not giving the  instruction so that he could reach a reasoned  judgment on that." The court again asked Collins  if he agreed with his attorney, and Collins again  confirmed his consent, "Yes, sir." The court  concluded, "[T]hat's as far as we can probably  go. . . . [T]hat is their decision and I accept  that."


27
The court then read the Silvern instruction to  the jury,1 and later that day, the jury  convicted Collins on the conspiracy charge. On  September 30, 1998, the court sentenced Collins,  who had two prior drug convictions, to mandatory  life imprisonment and ten years supervised  release, pursuant to the "three-strikes"  sentencing provision of 21 U.S.C. sec.  841(b)(1)(A)(viii).

II.  Analysis

28
Collins raises four issues on appeal. First,  Collins claims that the district court gave a  jury instruction that misstated the testimony of  Allen, Mabry, Hiland and Peters. Second, Collins  argues that the district court committed  reversible error by giving the Silvern  instruction without having previously included it  in the initial jury charge. Third, Collins  contends that the district court improperly  allowed the government to bolster the credibility  of its witnesses. Fourth, Collins challenges the  constitutionality of his mandatory life sentence.

A.  Jury Instruction No. 14

29
Jury Instruction No. 14 served a cautionary  purpose, expressing "the idea that testimony from  witnesses who have been paid for assistance  should be received with greater skepticism  ('greater care' or 'caution and great care' or  'more caution') than the testimony of other  witnesses. . . . Lower punishment is one coin in  which witnesses may be paid." United States v.  Cook, 102 F.3d 249, 251 (7th Cir. 1996). The  intent of the instruction was to warn the jury  that certain government witnesses, including  Allen, Mabry, Hiland and Peters, had received  leniency in exchange for their testimony and that  their questionable credibility was subject to the  jury's careful consideration. We review for abuse  of discretion whether the jury instructions, "in  the light most favorable to the government" and  "viewed as a whole, address the issues fairly and  adequately." United States v. Stillo, 57 F.3d  553, 559 (7th Cir. 1995). Even if the instruction  was erroneous, Collins must establish actual  prejudice to win reversal. See United States v.  Aldaco, 201 F.3d 979, 990 (7th Cir. 2000).


30
Collins challenges the accuracy of the second  paragraph in the instruction, which states that  "Earl Jackson Hiland III, Robin Allen, David  Mabry and Michael Peters have stated that they  were involved in the alleged conspiracy charged  against the defendant and that each has pled  guilty to a crime arising out of the same  occurrence for which the defendant is now on  trial." Allen and Mabry pleaded guilty to crimes  connected to the Daugherty conspiracy, which the  government agreed was unrelated to Collins's  operation. The Daugherty conspiracy therefore is  not "the alleged conspiracy charged against the  defendant," nor did those crimes underlying the  Daugherty conspiracy "aris[e] out of the same  occurrence" as the charges against Collins.  Furthermore, Hiland and Peters both unequivocally  stated that they were arrested for and pleaded  guilty to crimes having no connection to Collins.  This directly contradicts the instruction's  assertion that they "pleaded guilty to a crime  arising out of the same occurrence" as Collins's  crimes. Indeed, Peters never testified that he  had any involvement in the Collins operation and  testified only that he had purchased  methamphetamine from Collins in 1992, two years  before his own arrest. Jury Instruction No. 14  was factually incorrect.


31
Nonetheless, when viewed in the light most  favorable to the government, the district court's  error here was harmless, though narrowly so. As  Collins acknowledges, the trial record is clear  that Collins was not involved with the Daugherty  conspiracy. Collins's indictment alleges that  Collins conspired with Wegman, Allen, Mabry and  Hiland, but neither the indictment nor the jury  instructions mention Daugherty even once. At  trial, the witnesses distinguished the Collins  and Daugherty drug-dealing operations and  characterized Collins and Daugherty as  competitors. Allen testified that Collins, her  grandfather, instructed her "[n]ot to do anything  with Dale," and Mabry confirmed that Collins had  told Allen that "dealing with Dale Daugherty  would take food off [Collins's] table." Peters  testified that Wegman and Collins had quarreled  over money and Wegman "was looking for the new  money man." As a result, Wegman stopped dealing  with Collins, and "[Wegman and Daugherty] got  together and started making their own trips."  Similarly, another member of the Daugherty  conspiracy, Ola Redes, testified that she had  worked for Daugherty but that Collins was not  involved and she had never seen Collins with any  methamphetamine. Outside the presence of the  jury, Collins's attorney agreed that Wegman's and  Mabry's testimony established Daugherty as "a  competitor of the defendant" and stated that "[he  did not] think there is anything to connect Mr.  Daugherty in any conspiracy with [Collins]." The  government agreed that it was "not alleging that  Mr. Daugherty . . . was part of the conspiracy in  which the defendant was charged." Despite the  erroneous jury instruction, it is unlikely that  the jury would confuse the Collins and Daugherty  conspiracies or believe that Collins participated  in the criminal activity of the Daugherty  operation.


32
When viewed in this context, the jury  instructions were not so misleading that the jury  would likely be confused or misled by the  district court's error. Jury Instruction No. 14  was merely a cautionary instruction directed to  the credibility of the witnesses, not to  Collins's guilt or culpability. Although the  instruction was inaccurate, the thrust of the  instruction was that the prosecution witnesses  had cut deals with the government and possessed  incentives to incriminate Collins; the  instruction did not pose as a direction on  Collins's involvement in criminal activity. In  addition, we assess jury instructions "when  considered in their entirety and not in  isolation," Reed v. Union Pacific R.R. Co., 185  F.3d 712, 715 (7th Cir. 1999), and the other  instructions make clear that the jury was  required to evaluate Collins's guilt  independently from the guilt of the testifying  co-conspirators. Jury Instruction No. 14 itself  commands that "the guilty pleas of Earl Jackson,  Hiland III, Robin Allen, David Mabry and Michael  Peters are not to be considered as evidence  against the defendant." Jury Instruction No. 21  directed, "In determining whether the defendant  became a member of the conspiracy you may  consider only the evidence concerning the acts  and statements of that particular defendant."  Although the instruction was factually  inaccurate, the trial sufficiently established  that the two men were competitors rather than  collaborators, and as a result, we find that the  jury was not improperly influenced by the  inaccurate cautionary instruction.


33
For the same reason, the faulty jury  instruction did not constructively amend  Collins's indictment or create an improper  variance between the indictment and proof. To  establish either claim, Collins must show that he  was convicted based on proof running to the  Daugherty conspiracy, rather than the conspiracy  for which he was indicted. See United States v.  Willoughby, 27 F.3d 263, 265-66 (7th Cir. 1994).  As we have explained, we believe that the jury  was not confused by the incorrect association in  Instruction No. 14 between the Daugherty and  Collins conspiracies. The trial established that  the two operations were independent and that  Collins had no involvement with the Daugherty  conspiracy to which Allen and Mabry had pleaded  guilty. The government provided sufficient  evidence relating to the Collins conspiracy that  "a reasonable trier of fact could have found  beyond a reasonable doubt the existence of the  single conspiracy charged in the indictment."  United States v. Townsend, 924 F.2d 1385, 1389  (7th Cir. 1991). Allen and Mabry testified that  they dealt extensively with Collins in  distributing methamphetamine but explained that  Collins and Daugherty were competitors. Hiland  testified that he purchased methamphetamine from  Collins and also made at least two trips to buy  methamphetamine for Collins from suppliers. Lavon  Logan testified that Collins provided him  methamphetamine, which Logan then distributed on  the street. This testimony, in addition to  testimony from other witnesses, co-conspirator  statements and corroborating phone records,  provides sufficient evidence to support Collins's  conviction for knowingly and intentionally  conspiring to distribute a controlled substance  with Wegman, Allen, Mabry and Hiland, as his  indictment charges.

B.  Silvern Instruction

34
In Allen v. United States, 164 U.S. 492, 501  (1896), the Supreme Court upheld a trial court's  issuance to a deadlocked jury of a "dynamite"  supplemental jury instruction, which encouraged  the jurors to reconsider their individual  positions and asked minority dissenters whether  they "might not reasonably doubt the correctness  of a judgment which was not concurred in by the  majority." Subsequent to Allen, lower courts and  commentators vigorously debated whether the  efficiency gains of avoiding mistrials outweigh  the risks of prejudice and jury coercion flowing  from the use of dynamite charges. See, e.g.,  United States v. Johnson, 432 F.2d 626, 630-34  (D.C. Cir. 1970); United States v. Fioravanti,  412 F.2d 407, 414-20 (3d Cir. 1969); Note, Due  Process, Judicial Economy and the Hung Jury: A  Re-Examination of the Allen Charge, 53 Va. L.  Rev. 123 (1967); Note, Deadlocked Juries and  Dynamite: A Critical Look at the "Allen Charge,"  31 U. Chi. L. Rev. 386 (1964). Faced with this  controversy in United States v. Silvern, 484 F.2d  879, 883 (7th Cir. 1973), we established a clear  procedure for the issuance of supplemental jury  instructions to deadlocked juries by providing a  model dynamite charge and explaining that it may  be given to the jury after deliberations reach a  deadlock, provided that "a supplemental  instruction is deemed necessary and provided that  the . . . instruction has been given prior to the  time the jury has retired." Id.


35
Collins agrees that the dynamite instruction  given in this case comports with the model  instruction in Silvern, but he argues that the  district court committed reversible error by  issuing the dynamite instruction without first  having included the instruction in the initial  jury charge before deliberations commenced.  Indeed, United States v. Brown, 634 F.2d 1069,  1070 (7th Cir. 1980), holds that the trial court  must include the Silvern instruction in its  initial charge to the jury, as the district court  here did not.


36
However, Collins waived this objection to the  timing of the Silvern instruction in most  unmistakable and unequivocal terms. The court and  both opposing parties were painfully aware of the  absence of the Silvern instruction in the court's  initial jury charge and discussed whether to give  the supplemental instruction after the jury  deadlocked. Anxious to reach a verdict and avoid  retrial, both parties consented on the record to  the issuance of the Silvern instruction. Collins  attorney explained, "I believe that the law is  and still is in the Seventh Circuit that it's  error to give that instruction after the jury has  been instructed if it wasn't tendered originally.  We would waive any objection of to the giving of  that instruction. I've discussed this with Mr.  Collins and we would certainly put our waiver on  the record." The court then thrice asked Collins  directly whether he consented to the Silvern  instruction, and each time Collins responded,  "Yes, sir." A claim now regarding the timing of  the Silvern instruction is therefore not merely  forfeited, but affirmatively waived. As a result,  this issue is not subject to appellate review at  all because "there is technically no 'error' to  correct." United States v. Ross, 77 F.3d 1525,  1542 (7th Cir. 1996); see also United States v.  Olano, 507 U.S. 725, 733 (1993).


37
In Silvern, we mentioned that we were  exercising our "supervisory power" over the  district courts of this Circuit, Silvern, 484  F.2d at 882, but this does not avert our  conclusion. Collins proposes that the Silvern  timing rule was a supervisory directive to the  district courts and cannot be waived by  defendants. Collins cites no authority for his  ambitious claim, and we have found none. As  Silvern itself notes, a primary concern driving  anxiety over dynamite charges is the due process  rights of the parties to a fair trial. Silvern,  484 F.2d at 882 (explaining in that case "neither  the wording of the supplemental charge . . . nor  the timing and circumstances surrounding the  charge violated defendant's constitutional  rights"). When the parties definitively express  their consent to a dynamite charge, despite the  fact that it had not been included in the initial  jury charge, no due process concerns inhere and  the district court may find waiver and issue the  instruction. See United States v. Clayton, 172  F.3d 347, 351-52 (5th Cir. 1999) (enforcing  forfeiture of objections to an Allen charge);  United States v. Barbioni, 62 F.3d 5, 7 n.2 (1st  Cir. 1995); United States v. Nguyen, 28 F.3d 477,  484 (5th Cir. 1994); United States v. Meuli, 8  F.3d 1481, 1487 (10th Cir. 1993). Any deviation  from Silvern is not necessarily reversible error.  For example, in United States v. Sblendorio, 830  F.2d 1382, 1388 (7th Cir. 1987), the district  court gave a dynamite charge that strayed from  the model instruction dictated by Silvern, but we  noted that the defendant did not object. We  evaluated the court's decision for plain error  and found none, even though the language of  "Silvern does not admit of exceptions." Id. True,  we invoked our supervisory authority in Silvern  to set a bright-line rule with an eye toward  avoiding redundant and time-consuming appeals to  consider every minute permutation of the Silvern  instruction. See Sblendorio, 830 F.2d at 1388.  However, that concern is patently absent in cases  like this in which the defendant affirmatively  waived his objections to the timing of the  Silvern instruction.

C.  Witness Bolstering

38
Over Collins's objections, the government  introduced into evidence cooperation and plea  agreements for ten government witnesses including  Allen, Mabry, Hiland, Peters, Logan and Redes.  All but one agreement stipulated that the witness  agreed to provide "complete and truthful"  information and trial testimony, and to reinforce  this point, the government elicited testimony  from each witness confirming that he or she was  obligated by the agreement to be truthful at  trial. Collins argues that the district court  erred by admitting the agreements into evidence  because it impermissibly enhanced the credibility  of the witnesses in the jury's eyes. The  admission of the plea agreements was an  evidentiary decision, which we review for abuse  of discretion. See United States v. Lewis, 110  F.3d 417, 422 (7th Cir. 1997).


39
Although the government may present evidence  about its witnesses' plea agreements and their  concomitant obligations to be truthful, the  district court should not permit the government  "unnecessarily repetitive references to  truthfulness." Lewis, 110 F.3d at 421. However,  we held in United States v. Thornton, 197 F.3d  241, 252 (7th Cir. 1999), that it was not an  abuse of discretion to admit plea agreements  containing even more numerous references to  truthfulness than in the agreements admitted  here. The agreements in Thornton required "full,  complete and truthful information and testimony"  from the witnesses, reserving the government's  right to withdraw the plea agreement and  prosecute for perjury if the witness testified  falsely. Id. at 251. We found that the  agreements, plus proffer letters with similar  terms, "merely laid out the terms and conditions  of the agreements" and "the jury's role as  independent fact finder was not undermined." Id.  at 252; see also Lewis, 110 F.3d at 421; United  States v. Renteria, 106 F.3d 765, 767 (7th Cir.  1997). Admission of the plea agreements for the  government's witnesses in this case was not an  abuse of discretion, and as in Thornton, the  court's cautionary jury instructions removed  potential prejudice by directing the jury to  consider the government witnesses' testimony  "with caution and great care." Thornton, 197 F.3d  at 252 n.4; United States v. Robbins, 197 F.3d  829, 842 (7th Cir. 1999). Remember, however, that  Thornton reproved prosecutors for coming  "perilously close to being unnecessarily  repetitive" and to "think twice before risking  reversal." Thornton, 197 F.3d at 252-53.  Collins's trial preceded Thornton's admonitions,  and the government promised at oral argument that  it had modified its trial modus operandi since  Thornton. We expect to see appropriate adjustment  to the government's practice in subsequent cases.


40
In addition, Collins argues that the government  impermissibly vouched for the credibility of its  witnesses during opening statements and closing  argument by referring to the plea agreement  requirement of complete truthfulness. A  prosecutor may not vouch for the credibility of  a witness by either expressing a personal belief  in the truthfulness of a witness or implying that  facts not before the jury lend credibility to a  witness. See Thornton, 197 F.3d at 252. The  government did not commit either form of  impermissible vouching in this case because it  declared only that the government witnesses had  entered plea agreements requiring truthfulness  and that the jury ought to consider that fact  when evaluating their testimony. As in United  States v. Renteria, 106 F.3d at 767, the plea  agreements were in evidence and the government  "was free to invite the jury to draw a particular  inference from this evidence." Indeed, Collins  did not object to these references to the plea  agreements, and it was not error for the district  court to permit them.

D.  Mandatory Life Sentence

41
Collins challenges the constitutionality of the  mandatory life sentence imposed by the "three-  strikes" provision in 21 U.S.C. sec. 841, and we  review these challenges de novo. See United  States v. Black, 125 F.3d 454, 458 (7th Cir.  1997). Collins, however, concedes that his  arguments under the Equal Protection, Double  Jeopardy, Due Process and Cruel and Unusual  Punishment Clauses were rejected in United States  v. Wicks, 132 F.3d 383, 387-90 (7th Cir. 1997),  and United States v. Washington, 109 F.3d 335,  337-38 (7th Cir. 1997).


42
Washington also addressed and rejected Collins's  argument that the three-strikes mandatory life  sentence violates the Ex Post Facto Clause. Id.  at 338. Carmell v. Texas, ___ U.S. ___, 120 S.Ct.  1620 (2000), does not derogate Washington.  Carmell overturned under the Ex Post Facto Clause  a criminal statute that reduced the quantum of  trial evidence required to convict the defendant  for sexual assault from the higher level of  evidence required by law when his offense was  committed. Carmell, 120 S.Ct. at 1643. Collins  makes a different claim, one squarely rejected in  Washington, 109 F.3d at 338, and distinguished in  Carmell, 120 S.Ct. at 1627 (differentiating ex  post facto laws that change punishment from ex  post facto laws that change the legal rules of  evidence). Like the defendant in Washington, he  argues that the three-strikes provision violates  the Ex Post Facto Clause because his previous two  drug offenses occurred before the enactment of 21  U.S.C. sec. 841. We see no reason to overrule  Washington now.

III.  Conclusion

43
For the foregoing reasons, we Affirm the  decisions of the district court.



Note:


1
 The court gave the following "dynamite"  instruction:
The verdict must represent the considered  judgment of each juror. Your verdict, whether it  be guilty or not guilty, must be unanimous.
You should make every reasonable effort to reach  a verdict. In doing so, you should consult with  one another, express your own views, and listen  to the opinions of your fellow jurors. Discuss  your differences with an open mind. Do not  hesitate to re-examine your own views and change  your opinion if you come to believe it is wrong.  But you should not surrender your honest beliefs  about the weight or effect of evidence solely  because of the opinions of your fellow jurors or  for the purpose of returning a unanimous verdict.
The twelve of you should give fair and equal  consideration to all the evidence and deliberate  with the goal of reaching an agreement which is  consistent with the individual judgment of each  juror. You are impartial judges of the facts. Your sole  interest is to determine whether the Government  has proved its case beyond a reasonable doubt.  Now with that additional instruction, I would ask  that you return to the jury room and please  continue your deliberations. Thank you very much.


