United States v. Gilbert Lopez , 459 F. App'x 488 ( 2012 )

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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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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