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                                                                      [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-14482
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 6:11-cr-00206-GAP-GJK-1



UNITED STATES OF AMERICA,


                                                           Plaintiff - Appellee,

versus

KENNETH L. HARRIS,
a.k.a. Kenneth Leander Harris,


                                                           Defendant - Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                 (January 28, 2014)

Before CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.

CARNES, Chief Judge:
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      Kenneth Harris was convicted of three counts of Hobbs Act robbery and

four other counts relating to his possession and use of firearms during those

robberies. Because he had prior convictions for other violent crimes, he was

sentenced to life imprisonment and consecutive prison terms totaling 57 years.

Harris appeals his sentence, arguing that imposing a mandatory life sentence

without a finding by the jury as to the fact of his prior convictions is inconsistent

with Alleyne v. United States, 

(2013). He also challenges the

constitutionality of 18 U.S.C. § 3559(c) and 21 U.S.C. § 851, which provide for the

imposition of mandatory life sentences for persons convicted of certain felonies, on

the ground that they impermissibly remove sentencing discretion from the courts

and delegate it to the executive branch.

                                           I.

      Harris was released from Florida state prison in 2008. He had been in prison

for nearly sixteen years for committing numerous armed robberies in central

Florida, but the time served did not have its intended effect. Just a year after his

release, Harris was back at it –– he robbed a local video games store four times

over the course of a seven-month period. In each of these robberies, he used a gun

and threatened to kill store employees. On two occasions, he discharged his

weapon. During the May 6, 2009 robbery he fired a bullet in an employee’s

direction, narrowly missing the employee’s head, and during the December 21,


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2009 robbery, he shot an employee in the leg. Harris was later arrested for and

charged with these crimes.

      The indictment charged: four counts of Hobbs Act robbery, in violation of

18 U.S.C. § 1951(a) and (b); four counts of using and carrying a firearm during

those robberies, in violation of 18 U.S.C. § 924(c)(1)(A); and two counts of being

a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2), and 924(e)(1). Following a three-day trial, the jury was unable to reach

a verdict on three of the counts1 but convicted him of seven counts –– three for

Hobbs Act robberies, three for using a firearm during those robberies, and one for

being a felon in possession of ammunition. The government, seeking a mandatory

life sentence under 18 U.S.C. § 3559(c), had filed the required information under

21 U.S.C. § 851, averring that Harris previously had been convicted of one felony

that qualified as a serious drug offense and seven felonies that qualified as serious

violent felonies under § 3559(c).

      Harris’ presentence investigation report calculated a base offense level of 20

for the first robbery and related offenses under United States Sentencing

Guidelines § 2B3.1(a), to which it added a 4-level enhancement under

§ 2B3.1(b)(3)(B) because a victim was shot in the leg. For the second and third

robberies and related offenses, Harris’ base offense level was 20 under § 2B3.1(a),


      1
          These three counts were later dismissed on the government’s motion.
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with no adjustments. The PSR then applied a multiple count adjustment, which

resulted in a total offense level of 27. Because he had prior felony convictions for

robbery with a firearm and battery on a law enforcement officer, Harris qualified

as a career offender under U.S.S.G. § 4B1.1. As a result, the PSR increased his

offense level to 37. It calculated his criminal history category to be VI. The result

was a guidelines range of 440 months to life imprisonment. Under 18 U.S.C.

§ 3559(c), however, a defendant convicted of a serious violent felony, who has

previously been convicted of a combination of two or more serious violent felonies

or serious drug offenses is subject to a mandatory sentence of life imprisonment.

Harris met those criteria, and the district court imposed the statutorily mandated

life sentence. It also sentenced him to serve, consecutively, 57 years imprisonment

for his other crimes.

       Harris contends for the first time on appeal that the Supreme Court’s recent

decision in Alleyne prohibits a court at sentencing from considering a defendant’s

prior convictions if the jury has not found that the defendant committed those

crimes. He also renews the argument that he made in the district court that

imposing a mandatory life sentence under 18 U.S.C. § 3559(c) is unconstitutional

on separation of powers grounds. 2


       2
        Harris does not challenge here, and he did not challenge in the district court, the factual
accuracy of the averments contained in the § 851 notice. He could have challenged their
accuracy using the procedure provided in § 851(c), which would have required the government
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                                             II.

       This Court normally reviews constitutional sentencing issues de novo. See

United States v. Steed, 

, 978 (11th Cir. 2008). However, where a

defendant fails to raise such an objection before the district court at sentencing, we

review only for plain error. United States v. Rodriguez, 

, 1298 (11th

Cir. 2005). Because Harris raised the Alleyne argument for the first time on

appeal, the proper standard of review is for plain error. Under that standard, we

cannot “correct an error the defendant failed to raise in the district court” unless the

defendant shows “(1) error, (2) that is plain, and (3) that affects substantial rights.”

omitted). If those conditions are met, we may exercise our

discretion to correct the error only if “the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” 

raised his constitutional challenge to 18 U.S.C. § 3559 and

21 U.S.C. § 851 in the district court, we will apply de novo review to that issue.

                                             III.

                                             A.

       Harris first contends that the imposition of a mandatory life sentence under

§ 3559(c) based on prior conviction facts set out in the government’s § 851




to prove them (or enough of them to support the enhancement) beyond a reasonable doubt to the
court.
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information is inconsistent with the United States Constitution, as interpreted by

the Supreme Court in Alleyne. He relies on the statement in Alleyne that “[a]ny

fact that, by law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.” 

(citation omitted). Because “[m]andatory minimum sentences increase the

penalty for a crime,” the Court concluded that “any fact that increases the

mandatory minimum is an ‘element’ that must be submitted to the jury.” 

for that reason the Court in Alleyne overruled Harris v. United States, 

, 

(2002), which had held that the Sixth Amendment

permits judicial factfinding that increases the mandatory minimum sentence for a

crime.

         The Alleyne Court’s decision to overrule Harris was based largely on its

reading of its earlier opinion in Apprendi v. New Jersey, 

, 

(2000). It concluded that the distinction made in Harris between facts that

increase the statutory maximum and facts that increase only the mandatory

minimum was “inconsistent with our decision in Apprendi.” 

. Notably, however, Apprendi itself drew a distinction between “normal”

judicial factfinding and the use of prior convictions as a factual basis for sentence

enhancement. The Apprendi Court held that: “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed


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statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 

, 120 S.Ct. at 2362–63 (emphasis added).

Nothing in the facts or holding of Alleyne indicates that it eliminated Apprendi’s

exception for judicial findings of prior convictions that increase a criminal penalty.

      As in this case, the sentence at issue in Alleyne was for the armed robbery of

a store manager. And Alleyne, like Harris, was charged with a Hobbs Act robbery

under 18 U.S.C. § 1951(a) and with using or carrying a firearm to commit a crime

of violence under 18 U.S.C. § 924(c)(1)(A). 

. Section

924(c)(1)(A) provides for a minimum sentence of 5 years imprisonment for anyone

who “uses or carries a firearm” in relation to a “crime of violence” and increases

that mandatory minimum sentence to 7 years “if the firearm is brandished.” The

jury convicted Alleyne but indicated on the jury form only that he had “[u]sed or

carried a firearm during and in relation to a crime of violence.” 

The

district court went further, finding that Alleyne had also brandished the firearm.

The court believed, as it had every right to do under Harris, that it could make that

additional finding without violating the Sixth Amendment. 

Supreme

Court, which had every right to overrule Harris, did so and held that the “fact of

brandishing” constituted “an element of a separate, aggravated offense that must be

found by the jury.” 

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      As this discussion indicates, Alleyne did not address the specific question at

issue in this case, which is whether a sentence can be increased because of prior

convictions without a jury finding the fact of those convictions. That question

continues to be governed by Almendarez-Torres v. United States, 

,

226–27, 

, 1222 (1998), where the Court determined that the fact of a

prior conviction is not an “element” that must be found by a jury. Indeed, the

Alleyne Court specifically recognized that, under Almendarez-Torres, prior

convictions are excepted from the general rule that a jury must find any fact that

will increase the penalty for an offense. 

n.1. The

Alleyne Court declined to “revisit [Almendarez-Torres] for purposes of our

decision today” because “the parties d[id] not contest that decision’s vitality.” Id.;

see also Descamps v. United States, 

, 2288 (2013) (observing that

an increase in the maximum statutory sentence based on judicial factfinding that

“went beyond merely identifying a prior conviction” would “raise serious Sixth

Amendment concerns”).

      We recognize that there is some tension between Almendarez-Torres on the

one hand and Alleyne and Apprendi on the other. However, we are not free to do

what the Supreme Court declined to do in Alleyne, which is overrule Almendarez-

Torres. As we have said before, we are “bound to follow Almendarez-Torres

unless and until the Supreme Court itself overrules that decision.” United States v.


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Thomas, 

, 1035 (11th Cir. 2001). Applying that rule to this case,

Harris’ Alleyne challenge to his § 3559(c) mandatory life sentence fails. The

district court did not commit error, much less plain error, in imposing a mandatory

life sentence under § 3559(c) without any jury findings about the existence of

Harris’ prior convictions. 3

                                               B.

       Harris’ other contention is that the combination of 18 U.S.C. § 3559(c) and

21 U.S.C. § 851, which resulted in his mandatory life sentence, violates “the

Nondelegation Doctrine, Separation of Powers principles, and the U.S.

Constitution” by impermissibly giving the executive branch “the power to

prosecute and the power to sentence.” His argument is based on the fact that the

mandatory life sentence that § 3559(c) provides is applied only if the government

chooses to file a notice of prior convictions under § 851. Although Harris

concedes that Congress can impose mandatory minimum sentences for certain

crimes, he argues that it cannot constitutionally delegate the authority to decide
       3
          “[T]he relevant time period for assessing whether an error is plain is at the time of
appellate consideration.” United States v. McKinley, 

, 1295 (11th Cir. 2013)
(quoting United States v. Bane, 

, 830 (11th Cir. 2013)). Therefore, for the purposes
of Harris’s direct appeal, we consider the law announced by the Supreme Court in Alleyne. Our
doing so is not intended to suggest that Alleyne applies retroactively to cases on collateral
review. Alleyne was decided in the context of a direct appeal, and the Supreme Court itself has
not expressly declared Alleyne to be retroactive on collateral review. See generally 

; Tyler v. Cain, 

, 662-63, 

, 2482 (2001). And
Alleyne has not been made retroactive through any combination of cases that necessarily dictate
retroactivity. See 

, 121 S. Ct. at 2484 (“Multiple cases can render a new
rule retroactive only if the holdings in those cases necessarily dictate retroactivity of the new
rule.”); In re Holladay, 

, 1172-73 (11th Cir. 2003).
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whether to impose such sentences to the executive branch without providing an

“intelligible principle” to constrain that branch’s discretion.

      We have rejected claims that mandatory minimum sentences violate the

United States Constitution in general, see United States v. Holmes, 

(11th Cir. 1988), and have held that they do not violate the separation-of-powers

doctrine in particular, 

Our decision in United States v. Cespedes, 

(11th Cir. 1998), which involved § 851, forecloses Harris’ position.

      In that case, the government filed a § 851 information averring a prior

conviction that had the effect of enhancing the statutory range of sentences for

drug crimes punishable under 21 U.S.C. § 841(b)(1)(A) so that a range of ten years

to life became a range of twenty years to life, effectively doubling the statutory

minimum. See 

. The defendant challenged the

combination of those two statutes on separation-of-powers grounds, arguing that

they gave the executive branch the power to fix statutory sentence ranges, which is

more properly a legislative power. 

In rejecting that argument and

upholding the constitutionality of the statutory scheme, we concluded that “the

power of the prosecutor under § 851 is no greater than the classic power of the

executive to choose between charges carrying different mandatory penalties.” 

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      Harris argues that Cespedes does not control the issue here because the

enhancement triggered by the § 851 information the government filed in that case

merely restricted the range of sentences from which the district court could choose

(as opposed to requiring the court to impose a mandatory minimum sentence of life

imprisonment). His reasoning is flawed because, when it comes to separation of

powers principles, there is no analytical difference between an increase that

doubles the minimum term of years and one that increases the minimum from a

term of years to life imprisonment. The reasoning and holding of Cespedes applies

in both circumstances.

      Even if we were not convinced that Cespedes forecloses Harris’ challenge,

the decisions of our sister circuits addressing the constitutionality of § 3559(c)

would persuade us to reach the same conclusion. See United States v. Gonzalez,

, 203 (2d Cir. 2012) (“The authority that § 3559 delegates to

prosecutors . . . does not unconstitutionally delegate the judiciary’s power to the

executive branch.”); United States v. Gurule, 

, 1246–47 (10th Cir.

2006) (holding that § 3559 does not violate separation of powers principles);

United States v. Kaluna, 

, 1199 (9th Cir. 1999) (en banc) (same);

United States v. Rasco, 

, 226 (5th Cir. 1997) (same); United States v.

Washington, 

, 338 (7th Cir. 1997) (“The prosecutor’s power to pursue




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an enhancement under § 3559(c)(1) is no more problematic than the power to

choose between offenses with different maximum sentences.”).

                                      IV.

      The sentence imposed by the district court is AFFIRMED.




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