UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 01-4285
MORRIS MOODY,
                Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
            Richard L. Williams, Senior District Judge.
                           (CR-00-281)

                      Argued: January 25, 2002

                      Decided: February 19, 2002

   Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

ARGUED: Joseph William Kaestner, KAESTNER, PITNEY &
JONES, P.C., Richmond, Virginia, for Appellant. Laura C. Marshall,
Assistant United States Attorney, Richmond, Virginia, for Appellee.
ON BRIEF: Kenneth E. Melson, United States Attorney, Richmond,
Virginia, for Appellee.
2                     UNITED STATES v. MOODY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Morris Moody was convicted of violating 21 U.S.C.A. § 841 (West
1999) and received an enhanced sentence, pursuant to 21 U.S.C.A.
§ 851 (West 1999), based on the Government’s submission of proof
of three prior convictions. Moody challenges this sentence enhance-
ment, arguing that his prior convictions had to be set forth in the
indictment and that § 851 impermissibly delegates Congressional
authority to the Executive by allowing a prosecutor to alter the range
of penalties for an offense committed in violation of § 841. For the
reasons set forth below, we affirm.

                                  I.

   On July 7, 2000, Richmond police officer Kenneth Cornett exe-
cuted a search warrant for a vehicle operated by Moody, a 21-year-old
felon. The search warrant was obtained based on an informant’s tip
that Moody was transporting drugs and a firearm in the vehicle and
on Cornett’s surveillance of Moody in the days prior to the search.
The search yielded a fully loaded Glock .40 caliber pistol and two
boxes of ammunition. Officers then arrested Moody for unlawful pos-
session and transported him to the police station, where Moody turned
over, on threat of an impending body cavity search, 47 individually
wrapped "rocks" of crack cocaine located on his person.

   On August 21, 2000, a grand jury charged Moody in a five-count
indictment with two drug counts, two firearm possession counts, and
one forfeiture count. Moody entered a plea of not guilty, but waived
his right to a jury trial. The Government then filed a notice of
enhancement stating that, should Moody be convicted on any drug
counts, it intended to seek an increased minimum sentence pursuant
to § 851, based on Moody’s prior felony drug convictions.
                       UNITED STATES v. MOODY                         3
   At the stipulated bench trial, the district court dismissed three
counts against Moody, but found Moody guilty of the remaining two
counts: possession with intent to distribute cocaine base in excess of
five grams, in violation of § 841, and possession of a firearm by a
convicted felon, in violation of 18 U.S.C.A. § 922(g)(1) (West 2000).

   At sentencing, the Government, consistent with its pre-trial notice,
sought an enhanced mandatory minimum penalty on the drug count
based on Moody’s prior felony drug convictions. The Government
submitted proof of three prior drug convictions: a 1995 juvenile con-
viction for possession with intent to distribute cocaine, a 1998 convic-
tion for possession with intent to distribute cocaine, and a 1998
conviction for heroin possession. Accordingly, the court sentenced
Moody to the enhanced mandatory minimum sentence of 120 months,
as set forth in § 841(b)(1)(B), on the drug count. The court also sen-
tenced Moody to the maximum 120-month sentence on the felon-in-
possession count, sentences to run concurrently, followed by super-
vised release.

                                  II.

   Moody challenges the district court’s decision to impose an
enhanced statutory minimum sentence for violation of § 841 based on
his prior felony drug convictions.

   Moody first argues that a prior conviction is an element of the
crime charged against him because it operated to increase the sen-
tence to be imposed and, therefore, must be included in the indictment
in order to be used as a basis for sentencing. However, in Apprendi
v. New Jersey, 

(2000), the Supreme Court specifically
excepted prior convictions from its general rule. 

("Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.")
(emphasis added).

  The Supreme Court’s earlier decision in United States v. Jones, 

(1999), and our decision in United States v. Promise, 

(2001) (en banc), both relied on by Moody, provide no
escape from Apprendi’s exclusion of prior convictions from its man-
4                      UNITED STATES v. MOODY
date. Rather, both Jones and Promise recognize that the requirement
that sentencing "weight" factors be included in the indictment does
not extend to "prior conviction[s]." 

n.6; Prom-

(citation omitted). Accordingly, we must
reject Moody’s contention that his prior convictions could not be used
as the basis for a sentencing enhancement if not set forth in the indict-
ment.

   As his second ground for challenging the sentence enhancement,
Moody contends that Congress, in enacting § 851, unconstitutionally
delegated its legislative authority to the Executive Branch by allowing
a prosecutor to alter the range of penalties for an offense under 21
U.S.C.A. § 841. We review a determination as to constitutionality of
a statute de novo. See United States v. Mento, 

, 917 (4th
Cir. 2000).

   A defendant convicted of a drug felony in violation of 21 U.S.C.A.
§ 841(a), in excess of certain designated amounts set forth in
§ 841(b)(1)(B), "shall be sentenced to a term of imprisonment which
may not be less than 10 years" if the defendant "commit[ted] such a
violation after a prior conviction for a felony drug offense has become
final." 21 U.S.C.A. § 841(b)(1)(B). Pursuant to § 851, entitled "Pro-
ceedings to establish prior convictions," a prosecutor may file an
information identifying a defendant’s prior convictions for purposes
of seeking an enhanced sentence under § 841(b)(1)(B). See 21
U.S.C.A. § 851(a). The prosecutor must give notice before trial or
before entry of a plea of guilty, however, that the Government will
seek an enhanced mandatory minimum sentence based on such prior
convictions. 

been given, a defendant has an
opportunity to challenge the prior conviction before sentencing,
unless the conviction occurred more than five years before the date
of the information alleging such prior conviction. 21 U.S.C.A.
§ 851(b)-(c), (e). The court is then required to impose an enhanced
sentence on the defendant either if the defendant fails to challenge the
prior conviction or if the court determines "that the person is subject
to increased punishment by reason of prior convictions." 21 U.S.C.A.
§ 851(d).

   Moody asserts that § 851 must be interpreted, consistent with Cus-
tis v. United States, 

(1994), solely to provide a means
                       UNITED STATES v. MOODY                         5
for defendants to collaterally attack their prior convictions before
those convictions are used as a basis for imposing an enhanced sen-
tence. According to Moody, any reading of § 851 that permits a pros-
ecutor to use the statute to increase the range of punishment
applicable to a drug offense committed in violation of § 841 consti-
tutes an impermissible delegation of legislative authority to the prose-
cutor.

   We reject Moody’s argument and instead hold that a prosecutor’s
use of § 851 to obtain an enhanced sentence for a defendant convicted
of violating § 841 accords with the language of both statutes and does
not constitute an unconstitutional delegation of authority from the
Legislative Branch to the Executive Branch. First, we note that
Moody has acknowledged that his argument regarding the prosecu-
tor’s reach under § 851 is tethered to his earlier argument regarding
the requirement that prior convictions be set forth in the indictment,
namely that a prosecutor can serve notice of the intent to seek a sen-
tence enhancement pursuant to § 851 only if the prior convictions
have been alleged in the indictment. Because we have held that
Apprendi forecloses the contention that the prior convictions be
included in the indictment, we must likewise reject Moody’s constitu-
tional challenge to § 851.

   In addition, Moody mistakenly relies on Custis, 

, as
support for his argument that § 851 should be read only as a vehicle
for defendants to collaterally attack prior convictions used as a basis
for sentencing. In Custis, the petitioner challenged an enhanced sen-
tence imposed pursuant to the Armed Career Criminal Act (ACCA).
See 18 U.S.C.A. § 924(e) (West 2000). Custis discussed § 851 only
insofar as it noted that certain provisions of § 851 afford a defendant
an opportunity "to challenge the validity of a prior conviction used to
enhance the sentence for a federal drug offense," whereas the subject
statute, the ACCA, did not. 

does not support the
conclusion posited by Moody that collateral attack of prior convic-
tions is the sole purpose of § 851. Therefore Custis has no bearing on
whether § 851 is an appropriate means for the Government to seek a
sentence enhancement based on prior convictions.

   Finally, after a careful review of § 851, and the interplay between
that statute and § 841, we hold that a prosecutor is acting within his
6                      UNITED STATES v. MOODY
prosecutorial discretion when seeking an enhanced sentence pursuant
to § 851. As the Supreme Court stated in United States v. LaBonte,
520 U.S. § 751, 761 (1997), in discussing whether the Government’s
use of § 851 in seeking an enhanced penalty results in "unwarranted
disparity":

    Insofar as prosecutors, as a practical matter, may be able to
    determine whether a defendant will be subject to the
    enhanced statutory maximum, any such discretion would be
    similar to the prosecutorial 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 on improper factors.

omitted); see also United States v. Cespedes, 

, 1334 (11th Cir. 1998) ("In short, the power of the prosecu-
tor under § 851 to increase the mandatory minimum sentence facing
the defendant is not greater than the classic power of the executive to
choose between charges carrying different mandatory minimums.").
Moreover, because the language of § 851 shows that Congress
"plainly demarcate[d] the range of penalties that prosecutors and
judges may seek and impose," United States v. Batchelder, 

, 126 (1979), the prosecutor’s discretion is sufficiently circum-
scribed. Section 851 therefore does not constitute an impermissible
delegation of legislative authority.

                                 III.

   Given Apprendi, we must reject Moody’s argument that the prior
convictions used as a basis for his enhanced sentence had to be set
forth in the indictment. We also must reject Moody’s argument that
§ 851 constitutes an unconstitutional delegation of legislative author-
ity to the Executive Branch. The district court’s judgment imposing
an enhanced sentence on Moody pursuant to 21 U.S.C.A. § 841 and
§ 851 is

                                                          AFFIRMED.