                                                                                         [PUBLISH]



                     IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT

                                   ________________________
                                                                                 FILED
                                                               U.S. COURT OF APPEALS
                                         No. 95-9261             ELEVENTH CIRCUIT
                                 ________________________             08/25/98
                                                                  THOMAS K. KAHN
                              D.C. Docket No. 1:95-CR-50-1-WCO         CLERK




UNITED STATES OF AMERICA,
                                                                               Plaintiff-Appellee,

               versus


ALBERTO CESPEDES,
                                                                               Defendant-Appellant.

                                 __________________________

                        Appeal from the United States District Court for the
                                   Northern District of Georgia
                                  _________________________
                                        (August 25, 1998)

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

MARCUS, Circuit Judge:

       Appellant Cespedes appeals from his conviction of conspiracy to possess with intent to

distribute and possession with intent to distribute cocaine. Only one of the issues that he raises

on appeal merits any discussion: Cespedes asserts that 21 U.S.C. § 841 et. seq. is an



       *
         Honorable Stanley Marcus was a U.S. District Judge for the Southern District of Florida
sitting by designation as a member of this panel when this appeal was argued and taken under
submission. On November 24, 1997, he took the oath of office as a United States Circuit Judge
of the Eleventh Circuit.
unconstitutional delegation of legislative authority to the executive branch because it places in

the hands of the prosecutor unbridled discretion to determine whether or not to file a sentencing

enhancement pursuant to 21 U.S.C. § 851 without providing any “intelligible principle” to guide

that discretion. We disagree and affirm.

                                                 I.

       On July 19, 1995, Cespedes was convicted after trial by jury of one count of conspiracy

to possess with intent to distribute and one count of possession with intent to distribute cocaine

in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2. The Presentence Investigation

Report for the Defendant concluded that the Defendant should be held accountable for the entire

10 kilograms of cocaine seized from a hidden compartment and, therefore, calculated Cespedes’s

base offense level at 32. Prior to trial, the government filed an information pursuant to 21 U.S.C.

§ 851, notifying the court that Cespedes had a prior conviction for selling cocaine. Under the

facts of this case, § 851 effectively provides for a ten-year sentence enhancement upon the filing

of such an information. Cespedes objected to the government’s filing of a ten-year

enhancement, and, at the time of sentencing for the first time to attributing the full 10 kilograms

to him. On October 5, 1995, at the time of sentencing, the district court first concluded that “10

kilograms is attributable to each of the defendants without equivocation,” subjecting Cespedes to

a mandatory minimum sentence of ten years under § 841. And then, pursuant to the Sentencing

Reform Act of 1984 and the enhancement embodied in the government’s information, the court

sentenced Cespedes to concurrent terms of imprisonment of 240 months to be followed by ten

years of supervised release. The district court further ordered the Defendant deported from the

United States upon completing his prison term as a condition of supervised release.


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                                                 II.

       The constitutionality of a statute is a question of law subject to de novo review. See

United States v. Trout, 68 F.3d 1276 (11th Cir. 1995), cert. denied, 116 S.Ct.1032 (1996). The

central question raised on appeal is one of first impression in this Circuit.

       Under 21 U.S.C. § 841(b)(1)(A), any person convicted of possession with intent to

distribute more than 5 kilograms of cocaine “shall be sentenced to a term of imprisonment which

may not be less than 10 years or more than life.” Furthermore, if the defendant “commits such a

violation after a prior conviction for a felony drug offense has become final, such person shall be

sentenced to a term of imprisonment which may not be less than 20 years and not more than life

imprisonment.” Id. In order for the court to exercise jurisdiction to impose an enhanced

sentence based on prior convictions, however, the government must comply with the procedural

requirements of Title 21 U.S.C. § 851:

       (a) Information filed by United States Attorney

               (1) No person who stands convicted of an offense under this part shall be
       sentenced to increased punishment by reason of one or more prior convictions,
       unless before trial, or before entry of a plea of guilty, the United States attorney
       files an information with the court (and serves a copy of such information on the
       person or counsel for the person) stating in writing the previous convictions to be
       relied upon. Upon a showing by the United States attorney that facts regarding
       prior convictions could not with due diligence be obtained prior to trial or before
       entry of a plea of guilty, the court may postpone the trial or the taking of the plea
       of guilty for a reasonable period for the purpose of obtaining such facts. Clerical
       mistakes in the information may be amended at any time prior to the
       pronouncement of sentence.
               (2) An information may not be filed under this section if the increased
       punishment which may be imposed is imprisonment for a term in excess of three
       years unless the person either waived or was afforded prosecution by indictment
       for the offense for which such increased punishment may be imposed.

       (b) Affirmation or denial of previous conviction


                                                  3
        If the United States attorney files an information under this section, the
court shall after conviction but before pronouncement of sentence inquire of the
person with respect to whom the information was filed whether he affirms or
denies that he has been previously convicted as alleged in the information, and
shall inform him that any challenge to a prior conviction which is not made before
sentence is imposed may not thereafter be raised to attack the sentence.

(c) Denial; written response; hearing

        (1) If the person denies any allegation of the information of prior
conviction, or claims that any conviction alleged is invalid, he shall file a written
response to the information. A copy of the response shall be served upon the
United States attorney. The court shall hold a hearing to determine any issues
raised by the response which would except the person from increased punishment.
The failure of the United States attorney to include in the information the
complete criminal record of the person or any facts in addition to the convictions
to be relied upon shall not constitute grounds for invalidating the notice given in
the information required by subsection (a)(1) of this section. The hearing shall be
before the court without a jury and either party may introduce evidence. Except
as otherwise provided in paragraph (2) of this subsection, the United States
attorney shall have the burden of proof beyond a reasonable doubt on any issue of
fact. At the request of either party, the court shall enter findings of fact and
conclusions of law.
        (2) A person claiming that a conviction alleged in the information was
obtained in violation of the Constitution of the United States shall set forth his
claim, and the factual basis therefor, with particularity in his response to the
information. The person shall have the burden of proof by a preponderance of the
evidence on any issue of fact raised by the response. Any challenge to a prior
conviction, not raised by response to the information before an increased sentence
is imposed in reliance thereon, shall be waived unless good cause be shown for
failure to make a timely challenge.

(d) Imposition of sentence

         (1) If the person files no response to the information, or if the court
determines, after hearing, that the person is subject to increased punishment by
reason of prior convictions, the court shall proceed to impose sentence upon him
as provided by this part.
         (2) If the court determines that the person has not been convicted as
alleged in the information, that a conviction alleged in the information is invalid,
or that the person is otherwise not subject to an increased sentence as a matter of
law, the court shall, at the request of the United States attorney, postpone sentence
to allow an appeal from that determination. If no such request is made, the court
shall impose sentence as provided by this part. The person may appeal from an

                                         4
       order postponing sentence as if sentence had been pronounced and a final
       judgment of conviction entered.

       (e) Statute of limitations

               No person who stands convicted of an offense under this part may
       challenge the validity of any prior conviction alleged under this section which
       occurred more than five years before the date of the information alleging such
       prior conviction.

Cespedes argues that § 851 affords prosecutors unbridled discretion to fix the statutory sentence,

a legislative power. The government responds that the power that prosecutors exercise under §

851 is analogous to the executive branch’s classic charging power. We agree.

       “The Attorney General and United States Attorneys retain ‘“broad discretion”’ to enforce

the Nation’s criminal laws.” United States v. Armstrong, 517 U.S. 456, 464 (1996)(quoting

Wayte v. United States, 470 U.S. 598, 607 (1982)(quoting United States v. Goodwin, 457 U.S.

368, 380 n.11 (1982))). “They have this latitude because they are designated by statute as the

President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the

Laws be faithfully executed.’” Id.(quoting U.S. Const. Art. II, § 3 & citing 28 U.S.C. §§ 516,

547). “[S]o long as the prosecutor has probable cause to believe that the accused committed an

offense defined by statute, the decision whether or not to prosecute, and what charge to file or

bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes,

434 U.S. 357, 364 (1977). Indeed, the federal courts have long recognized “that when an act

violates more than one criminal statute, the Government may prosecute under either so long as it

does not discriminate against any class of defendants.” United States v. Batchelder, 442 U.S.

114, 123-24 (1979)(citations omitted). Moreover, in selecting which charge to file, “[a]




                                                 5
prosecutor may be influenced by the penalties available upon conviction.” United States v.

Harden, 37 F.3d 595, 599 (11th Cir. 1994)(quoting Batchelder, 442 U.S. at 125).

       The Supreme Court has unambiguously upheld the prosecutor’s ability to influence the

sentence through the charging decision. In United States v. Batchelder, for example, the Court

found that no improper delegation of legislative power to the executive results from

prosecutorial discretion to charge a defendant with either one of two statutes with identical

elements but differing maximum penalties:

       The provisions at issue plainly demarcate the range of penalties that prosecutors
       and judges may seek and impose. In light of that specificity, the power that
       Congress has delegated to those officials is no broader than the authority they
       routinely exercise in enforcing the criminal law. Having informed the courts,
       prosecutors, and defendants of the permissible punishment alternatives available
       under each Title, Congress has fulfilled its duty.

442 U.S. 114, 126 (1979)(citation omitted).

       Plainly, a prosecutor’s selection of which charge to file against a given defendant

necessarily implicates the range of potential penalties available to the court. For example, when

prosecuting an individual for a crime of violence or a drug trafficking crime, if the defendant

used or carried a firearm during the crime, the prosecutor has absolute discretion over whether or

not to charge him with a violation of 18 U.S.C. § 924(c)(1), which necessarily carries a five-year

mandatory sentence to be served consecutively to that for the underlying crime. The power of

the prosecutor in such a case to increase unilaterally the mandatory minimum sentencing

exposure by charging the defendant under § 924(c)(1) is analogous to the power of a prosecutor

under § 851 to increase a defendant’s mandatory minimum sentence by filing an information. In

fact, the very decision whether to prosecute under § 841(a)(1) rather than, for example, under §

843 (telephone count) necessarily carries with it profound sentencing implications. Thus, rather

                                                 6
than delegating legislative power, § 851 affords prosecutors a power no greater than that

traditionally exercised by the executive branch in the charging decision. Indeed, the Supreme

Court has explicitly analogized prosecutorial discretion under § 851 to the charging power of the

executive:

       Insofar as prosecutors, as a practical matter, may be able to determine whether a
       particular defendant will be subject to the enhanced statutory maximum, any such
       discretion would be similar to the discretion a prosecutor exercises when he
       decides what, if any, charges to bring against a criminal suspect. Such discretion
       is an integral feature of the criminal justice system, and is appropriate, so long as
       it is not based upon improper factors.

United States v. LaBonte, 117 S.Ct. 1673, 1679 (1997)(citations omitted)(rejecting argument that

prosecutorial discretion under § 851 leads to unwanted disparity).1

       Moreover, in a context falling outside of the prosecutor’s charging power, we have also

upheld the power of the prosecutor to influence the sentence available to the court. We have

found, for example, that the sole discretion to initiate a request to reduce a sentence under



       1
          Even if the sentence enhancement provisions of § 851 were characterized as a delegation
of legislative power, we would find that Congress had provided altogether intelligible principles
to render the delegation constitutional. So long as Congress “lay[s] down by legislative act an
intelligible principle” governing the exercise of delegated power, it has not unlawfully delegated
its legislative power. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409
(1928)(quoted in Touby v. United States, 500 U.S. 160, 165 (1991)). Sections 841 and 851
identify with specificity the type of defendant and the nature of crimes that are to be considered
for sentencing enhancement purposes, and limit the choice of sentencing enhancement to a single
decision of whether or not to seek the higher sentence by filing an information. These provisions
provide a narrow window of opportunity for the government to seek a sentence enhancement and
a limited formula for doing so, and they ensure that this opportunity is accompanied by multiple
procedural safeguards for the defendant. Indeed, the provision is carefully designed to ensure
that the defendant has the opportunity to review the allegations and consider the consequences of
his decisions prior to trial, and the discretion conferred on the prosecutor does nothing to detract
from the achievement of this legislative purpose. Since the statute provides definite boundaries
on the discretion conferred on the executive branch and the discretion is carefully tailored to
achieve the statutory purpose, any delegation of legislative power would be constitutional.

                                                 7
section 5K1.1 of the Sentencing Guidelines and 18 U.S.C. § 3553(e) based on the “substantial

assistance” provided by the defendant properly rests with the government:

       Initially, we observe that the only authority “delegated” by the rule is the
       authority to move the district court for a reduction of sentence in cases in which
       the defendant has rendered substantial assistance. The authority to actually
       reduce a sentence remains vested in the district court, a delegation which
       [defendant] does not challenge. Moreover, although the term “substantial
       assistance” is not defined in the statute, the discretion of prosecutors is limited by
       considering the “substantial assistance” provision within the overall context of the
       Anti-Drug Abuse Act itself. Cf. United States v. Gordon, 580 F.2d 827 (5th Cir.
       1978), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978). Finally,
       appellants’ argument ignores Congress’ plenary authority in all areas in which it
       has substantive legislative jurisdiction as long as exercise of that authority does
       not offend some other constitutional provision. Buckley v. Valeo, 424 U.S. 1, 96
       S.Ct. 612, 46 L.Ed.2d 659 (1976). Appellants certainly have no constitutional
       right to the availability of the “substantial assistance” provision, and hence no
       grounds upon which to challenge Congress’ manner of enacting it.

United States v. Musser, 856 F.2d 1484, 1487 (11th Cir. 1988); see also United States v. Ayarza,

874 F.2d 647, 653 (9th Cir. 1989)(finding prosecutorial discretion to move for sentence

reduction under section 5K1.1 and § 3553(e) does not violate separation of powers doctrine);

United States v. Smith, 953 F.2d 1060, 1065 (7th Cir. 1992)(finding prosecutorial discretion to

refrain from moving for a sentence reduction under section 5K1.1 to be “the back end of the

decision to select a particular statute under which to prosecute”); United States v. Huerta, 878

F.2d 89 (2d Cir. 1989)(finding no improper delegation of judicial power to executive in §

3553(e)); United States v. Francois, 889 F.2d 1341, 1344 (4th Cir. 1989)(finding discretion to

move for sentence reduction under section 5K1.1 properly lies with the government). Likewise,

under § 851, the district court retains the final authority to reduce the sentence, and prosecutors

may file for enhanced sentences only in a limited and explicitly defined category of cases. We

add that a defendant has no constitutional right to avoid the statutory enhancement, and therefore


                                                 8
has no grounds upon which to challenge the delegation of discretion over when the government

may seek the enhancement as long as the exercise of that discretion does not offend some other

constitutional provision. Cf. Wayte v. United States, 470 U.S. 598, 608 (1982).

        Cespedes argues, nevertheless, that prosecutorial discretion under § 851 differs from the

charging power (or the power to request a sentence reduction for “substantial assistance”)

because § 851 decision-making purportedly transfers to the executive the power to predetermine

ultimate sanctions, while the more “traditional” charging power allows the judicial branch to

retain control over the penalty ultimately assigned. Cespedes misapprehends the sentence

enhancement process. In § 841, Congress has fixed the statutory sentence, mandating a range of

ten years to life for a first offense, and twenty years to life for a repeated violation. In filing an

information about the defendant’s prior convictions, a prosecutor simply alters the range of the

final penalty available to the court by increasing the mandatory minimum sentence. Under the

scheme created by § 851(b), the district court must then ask the defendant whether he affirms or

denies his prior convictions.2 If he denies any allegation of the information or challenges the

constitutionality of any conviction alleged in the information, the court must hold a hearing on

the matter. See 21 U.S.C. § 851(c). In sum, the district court may impose an enhanced sentence

only after determining (1) that the prosecutor timely filed a proper information, (2) that the

government served a copy of the information on the defendant or his counsel, and (3) that the


        2
         Although the district court failed to so inquire of the Defendant at the sentencing
hearing, Cespedes made no claim regarding this omission on appeal, nor could he do so since his
prior conviction occurred more than five years before the date of the information. See 21 U.S.C.
§ 851(e). “A trial court is not required ‘to adhere to the rituals of § 851(b) where a defendant, as
a matter of law, is precluded from attacking the conviction forming the basis of the enhancement
information.’” United States v. Weaver, 905 F.2d 1466, 1482 (11th Cir. 1990)(quoting United
States v. Nanez, 694 F.2d 405, 413 (5th Cir.1982), cert. denied, 461 U.S. 909 (1983)).

                                                   9
defendant does not contest or failed to contest successfully the convictions in the information.

The court then may select a sentence within the parameters set by Congress, ranging from ten

years to life if the information is improper, or twenty years to life if it is valid. Thus, the filing of

an information is in no sense a predetermination of the ultimate sanction by the prosecutor. In

short, the power of the prosecutor under § 851 to increase the mandatory minimum sentence

facing the defendant is no greater than the classic power of the executive to choose between

charges carrying different mandatory penalties.

        In sum, the statutory scheme does not improperly delegate legislative power to the

executive, and, accordingly, the judgment of the district court must be, and is, AFFIRMED.




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