### The Honorable Ronald E. Longstaff, United States Distric t 1 

### Judge for the Southern District of Iowa. _____________ No. 96-2110

_____________ United States of America, * * Plaintiff-Appellee, * Appeal from the United States * District Court for the v. * Southern District of Iowa. * Reed Raymond Prior, * * Defendant-Appellant. *

_____________ Submitted: October 23, 1996 Filed: February 27, 1997

_____________ Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge.
Reed Raym ond Prior received a mandatory life sentence following his plea of g uilty to one count of possession with intent to distribut e methamp hetamine, in violation of 21 U.S.C. § 841(a)(1) (1994). Prio r appea ls his sentence and the district court's denial of his motion t o 1 withdraw his plea. We affirm.

I.
Acting up on information that Prior was dealing in narcotics, police made nume rous attempts to locate Prior. On May 2, 1995, police locate d Prior's vehicle at a Motel 6 in Des Moines, Iowa. They observed Prio r carrying bags to his car as he prepared to

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leave his room. Police officers followed Prior to a mini storage uni t where they saw him transferring items from his vehicle to the storage unit

. Police officers then obtained a search warrant for the storage unit an d Prior's vehicle. During the search, officers found a large quantity o f methamphetamine in a duffle bag on the floor of the storage unit. In all, the police seized 869 grams of methamphetamine from the vehicle and storag e unit

. The police also seized a scale, other drug paraphernalia, an d $17,690 in cash.

Prior was arrested and charged with possession of methamphetamin e with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Given the amount of cash and actual methamphetamine found in the search, Prior
co uld have been held responsible for a total of 1,147.6 grams o f methamphetamine. The government provided notice that it would request the
en hanced mandatory minimum sentence of life imprisonment without th e possibility of parole, pursuant to § 841(b)(1)(A)(viii), because Prior's offense involved over 100 grams of methamphetamine and he had three prior felony drug convictions.

Thr ee days after his arrest, Prior signed a written waiver o f indictment, a waiver of detention hearing, and a guilty plea agreement in which P rior agreed to fully cooperate with the government and provid e complete and truthful information concerning any criminal matters of which he has k nowledge. If the government determined Prior had provide d substan tial assistance in the investigation or prosecution of anothe r person, the government had the sole discretion u nder the agreement to move for a departure below the mandatory minimum life sentence. Prior' s attorney moved quickly with this agreement to preserve Prior's option of providi ng substantial assistance, which was the only way to avoid th e manda tory life sentence. (Plea Tr. at 23.) After a hearing on May 31 , 1995, the district court accepted Prior's plea of guilty and ordered the preparation of a presentence investigation report.

### 3 On November 30, 1995, before sentenc ing had taken place, Prior filed
a motion to withdraw his guilty plea. During a hearing on the motion , Prior presented testimony that he had been incompetent to enter the plea agreem ent because he was going through withdrawal from addiction t o controlled substances at the time he signed the agreement on May 5, 1995. Following a hearing, the district court filed a written order denying the motion. The court found that even if Prior had been incompetent at th e time he signed the agreement, he undoubtedly was competent to make a knowing a nd voluntary waiver of his rights at the plea hearing when th e district court accepted his plea of guilty.

On Ap ril 11, 1996, the district court entered judgment on Prior' s guilty plea. The government presented certified copies of Prior's previou s drug c onvictions and refused to make a substantial assistance motion , render ing the district court without authority to depart below th e statutory minimum life sentence. Accordingly, the district court sentence d Prior t o a mandatory life sentence without the possibility of parole

. Prior appeals.

II.

Prior first contends that the district court erred in denying hi s motion to withdraw hi s guilty plea. A guilty plea is a solemn act not to be set aside lightly. United States v. Morrison , 967 F.2d 264, 268 (8th Cir. 1992). We review the district court's deni al of a motion to withdraw a plea for an abuse o f discretion. United States v. Newson , 46 F.3d 730, 732 (8th Cir. 1995).

Rule 32(d ) of the Federal Rules of Criminal Procedure provides that a district court may permit a defendant to withd raw a guilty plea prior to sentencing upon a sho wing of "any fair and just reason," and we have held that the defendant be ars the burden of establishing such a justification. United States v. Yell , 18 F.3d 581, 582 (8th Cir. 1994). While a defendan t seeking to withdraw a

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plea before sentencin g is given a more liberal consideration than someone seeking to withdraw a plea after sentencing, "a defendant has no absolute right to withdraw a guilty plea before sentencing," and the decision t o allow or deny the mot ion remains within the sound discretion of the trial
cou rt. United States v. Boone , 869 F.2d 1089, 1091 (8th Cir.), cert
. denied , 493 U.S. 822 (1989). Factors to consider in determining whether to set aside a plea of guilty include whether the defendant ha s demonstrated a fair and just reason, whether the defendant has asserted hi s innocence , the length of time between the guilty plea and the motion t o withdraw, and whether the government will be prejudiced. Id. at 1091-92.

The rea sons offered by Prior for withdrawing his plea were that h e was mentally incompet ent due to substance abuse at the time he signed the plea agreement and that he did not knowingly and intelligently waive his constitutional rights. At the December 22, 1995 , hearing on his motion to withdraw his guilty plea, Prior presented the te stimony of a psychiatrist, Dr. Mark Souza, who concluded that because Prior was undergoing withdrawal from several controll ed substances, he was unable to fully comprehend the agreement or appreciate its implications at the time he signed it on May 5, 1995. Dr. Souza further testified that Prior would have been competent by the time of the plea hearing on May 31, 1995, when the court accepted Prior's guilty plea. Prior asserts that because he had been incompetent when he signed the plea agreement and when it was explained to him, hi s plea was not knowing and voluntary at the May 31, 1995, plea hearing.

Prior was competent at the time of the plea hearing, and he canno t seriously argue otherwise. Furthermore, the transcript of the plea hearin g indicates that Prior understood his rights. The Assistant United States Attorney summarized the plea agreement in court, explaining that under the agreem ent Prior is subject to a mandatory minimum term of lif e imprisonment, he has agreed to cooperate with the government, and upon a government motion, there

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may be a possibility of reducing his sentence below the mandatory minimum if he provides substantial assistance. (Plea Tr . at 11-12.) The district court ask ed Prior if he was able to follow the government's summar y description of the plea agreement. Prior replied, "Yeah, I was, because I've read it a couple of times myself." ( Id. at 13.) Prior also stated that he had understood its terms at the time he signed the agreement and that he had been given a full opportunity to confer with counsel about thi s matter. The district court carefully explained to Prior his constitutiona l rights, including the right to trial by a jury, to confront the witnesses against him, and to put the government to its pr oof. Prior indicated that he understood that he had the right to go to trial and have his cas e decided by a jury if he so chose. ( Id. at 25.) Prior indicated that he unde rstood and voluntarily waived all his trial-related constitutiona l rights. Prior provid ed an adequate factual basis for the plea, admitting to poss essing 3 1/2 pounds of methamphetamine with intent to deliver

. Addit ionally, at the hearing on his motion to withdraw the plea, Prio r testified that he had told the truth at the May 31, 1995, plea hearing.
We agree with the district court's c onclusion that Prior, who at all times was represented by counsel, knowingly and voluntarily waived hi s rights and pled guilt y to the charge at the plea hearing on May 31, 1995. Thus, Prior's asserted fair and just reason to withdraw his plea canno t carry the day. Additionally, he did not assert his innocence of th e charges and he waited approximately five months before seeking to withdraw his plea. We conclude that the district court did not abuse its discretio n in denying Prior's motion to withdraw his guilty plea.

III.

Prior raises several constitutional challenges to his sentence

. Speci fically, he contends that the mandatory life sentence, impose d pursuant to 21 U.S.C. § 841(b)(1)(A)(viii),

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violates his rights to due process and equal protection under the Fift h Amendment, his right to be free from cruel and unusual punishment under th e Eighth Amendment, and the doctrine of separationof powers. "The question of whet her a statute is constitutional is a question of law and must b e reviewed de novo." United States v. Wesley , 990 F.2d 360, 363 (8th Cir. 1993).

First, Pr ior contends that the mandatory life sentence violates his due process rights, arguing that the statute deprives the district court of dis cretion to impose an individualized sentence. Where capita l punish ment is not involved, however, an individualized sentencin g determ ination is not a constitutional imperative. United States v

. Goodface , 835 F.2d 12 33, 1236, 1237 n.4 (8th Cir. 1987). See Harmelin v. Michig an , 501 U.S. 957, 995 (1991) (plurality) (recognizing the Court' s repeat ed holding that there is no requirement comparable to th e "individualized capital sentencing doctrine" outside the capital context due to "the qualitative difference between death and all other penalties")

. "[D]ue process is not violated merely because a statute divests the trial judge of discretion to sentence as he might wish," even if the resulting eff ect is to place wide discretion in the hands of the prosecutor

. Goodface , 835 F.2d at 1236. In noncapital cases, "Congress has the power to def ine criminal punishments without giving the courts any sentencin g discretion." Chapman v. United States , 500 U.S. 453, 467 (1991); United States v. Hammer , 3 F .3d 266, 269 (8th Cir. 1993), cert. denied , 510 U.S. 1139 (1994). Consist ent with its authority to do so, Congress has merely made a legislative choice in section 841(b) to deprive the courts o f sentencing discretion.

Prior argues that the statute is overinclusive and violates du e process because it does not differentiate between drug kingpins, who run lar ge drug trafficking operations, and drug addicts, who may traffic i n controlled substances only to make enough money to buy more drugs to feed their habit. We find no due

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pro cess violation. "Absent classifications based on race or some othe r forbidden or suspect ground, legislative decisions of the sort here i n question -- how sever ely to punish a particular class of drug-trafficking crimes -- need only have a rational basis to survive" a due proces s challenge. United States v. Frieberger , 28 F.2d916, 921 (8th Cir. 1994), cert. denied , 115 S. Ct. 765 (1995). Section 841(b) rationally serves to di scourage illegal drug trafficking activity by imposing a mandator y minimum life sentence upon any defendant convicted of violating section 84 1 who was criminally responsible for a certain quantity of drugs and who als o has a re cord of two or more felony drug convictions. Drug addicts wh o traffic in illegal su bstances contribute to the same problem addressed by the statute as do so-called drug kingpins who engage in drug trafficking solely for profit. "That distributors of varying degrees of culpability might be subject to the same sentence does not mean that the penalty syste m . . . is unconstitutional." Chapman , 500 U.S. at 467.

Prior con tends that the unbridled prosecutorial discretion to allow some, but not all, defendants to avoid life in prison in exchange for thei r cooperation offends the Equal Protection Clause. We disagree. Defendants convicted of section 841(a) are not all similarly situated with regard to their ability to provide substantial assistance to aid the government in fur ther prosecutions. Allowing prosecutors to provide the benefit of a motion fo r a sentence below the mandatory minimum only to those who ar e capable of providing substantial assistance to the government is rationall y related to the legitimate government interest in prosecuting crimina l conduct

. We have previously determined that a sentencing scheme tha t removes discretion from the courts but builds ina safety-valve adjustment "predicated on the reasonable assumption that the government is in the bes t position to supply the court with an accurate report of the extent an d effectiveness of the defendant's assistance," does not violate due process

. United States v. Grant , 886 F.2d 1513, 1514 (8th Cir. 1989)

### At the sentencing hearing, the district court clearl y 2 

### expressed to Prior that he is, in effect, needlessly confinin g himself to life imprisonment by his refusal to provide substantial assistance. Judge Longstaff explicitly told Prior the following:
You're m aking me do something I hate doing today . .

. you're making me send you to jail for life, and I don't wa nt to do that, and I hope someday that in the nex t app roximately 365 days I have a chance to revisit thi s sentence and give you a just sentence and prove to yo u that the system works; but unfortunately, Reed, under th e law, r ight or wrong, you're the only person right no w that holds the key to unlock the handcuffs that bind me right now, and I hope someday in the next year you'd mak e a decision to give me a chance to do what's right. (Sent. Tr. at 43-44.)
8 (internal quotations omitted). Likewise, we now determine that this schem e does not o ffend equal protection rights. Accord United States v. Va n Winrow , 951 F.2d 1069, 1073 (9th Cir. 1991).

We note that there is no assertion h ere that the prosecutor acted in bad faith by denying Prior a motion for substantial assistance. In fact, the go vernment offered Prior the opportunity to benefit from thi s "prosecutorial grace," as Prior calls it (Appellant's Br. at 27), but he refuses to provide the government with any assistance at all. Prior flatl y asserts that he will not aid the government in arresting any more people. ( See Sent. Tr. at 45. ) Unfortunately, his steadfast refusal to offer any help renders the courts unable to provide him with any relief from th e congressionally mandated life sentence to which he is subject. 2

Next, Pri or asserts that his sentence violates his right to be free fromcruel and unusual punishment because the life sentence is grossl y dispr oportionate to his crime. Prior argues that his sentence i s disproportionate because he is an addict and, un til the time of his arrest on this charge at the age of 45, he had never spent a day in jail because his three previous fe lony drug convictions yielded no more than suspended sentences and fines.

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Prior asserts that he is capable of leading a pr oductive life as he was an excellent student who completed a Bachelor of Arts degree in history and
a Maste r of Arts degree in education. Thus, Prior claims that his lif e sentence is disproportionate to his crime.

The Eighth Amendment "forbids only extreme sentences that ar e `grossl y disproportionate' to the crime." Harmelin , 501 U.S. at 100 1 (opinion of Kennedy, J., concurring in part and concurring in the judgment ) (quoting Solem v. Helm , 463 U.S. 277, 288, 303 ( 1983)); accord Frieberger , 28 F.d a t 920; United States v. Jones , 965 F.2d 1507, 1518 (8th Cir.) , cer t. denied , 506 U.S. 924 (1992). Our review to determine whether a sentence is grossly disproportionate is quite na rrow. Frieberger , 28 F.3d at 920.

While Pri or's sentence is harsh, we conclude that it is not grossly disp roportionate given the equally serious nature of his crime. Th e Supreme Court concluded in Harmelinthat a state sentence of mandatory lif e imprisonment without the possibility of parole f or possessing 672 grams of cocaine did not violate the Eighth Amendment, despite the fact that th e defendant had no prior felony convictions. 501 U.S at 994 (plurality)

. In this case, Prior has a record of three prior drug felony convictions, and he was held responsible for possessing with intent to distribut e 1,147.6 grams of methamphetamine. Comparing this case with the facts of Harmelin leads us to conclude that Prior's sentence does not violate the Eighth Amendment's ban on cruel and unusual punishments.

Prior s eems to assert that because he is an addict, he is not a s deserving of a life s entence as so-called drug kingpins. A comparison of his conduct with that of even larger-scale distributors, however, is not relevant to our analysis. Such a proportional analysis is only appropriat e after an initial comparison of the crime to the sentence for which it is imposed leads to an i nference of gross disproportionality. United States

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v. Johnson , 944 F.2d 396, 409 (8th Cir.) (relying on Harmelin ), cert
. denied , 5 02 U.S. 1008 (1991). We have noted that the possession o f narcotics with the intent to distribute is an of fense "at the root of some of the gravest problems facing our country. The `fruit' of the drug plagu e is everyw here; it fills our jails, our courts, our streets, and ou r
nurse ries." United States v. Meirovitz , 918 F.2d 1376, 1381 (8th Cir

. 1990) , cert. denied , 502 U.S. 829 (1991). Prior's three previou s
con victions indicate that he has been involved in drug distribution fo r many years, and his actions have furthered the spread of this plague. Lif e imprisonment without the possibility of parole i n this circumstance is not grossly disproportionate to the offense. As an aside, it is again worth noting that Prior has been given the opportunity to attempt to reduce this sentence himself by providing substantial assistance to the government, an d he steadfastly refuses to do so.
Finally, Prior argues that section 841(b) is unconstitutional under the doctrine of separ ation of powers. The district court can depart from the mandatory minimum sentence only if the prosecution makes a motion for depart ure on the basis that the defendant has provided substantia l assis tance, and Prior argues that this usurps the function of th e judiciary. We have previously rejected this argument, see United States

v. M ason , 902 F.2d 1314, 1316 (8th Cir. 1990), and one panel is not a t liberty to overrule a decision of another panel. Mack v. Caspari , 92 F.3d 637, 641 n.6 (8th Cir. 1996). Accordingly, we reject this argument withou t further discussion.

IV.

Prior also challenges the constitutionality of 21 U.S.C. § 851(e) , which is a statute of limitations provision that prohibits defendants from challe nging "the validity of any prior conviction alleged under thi s
sec tion which occurred more than five years before the date of th e information alleging such prior

### Prior does not claim that his prior convictions were secured 3 

### without the benefit of counsel.
11 conviction." Two of Prior's previous convictions occurred more than five years earlier, and the district court did not pe rmit Prior to attack their val idity. Prior contends that section 851(e) provides an arbitrary an d irrational classifica tion that violates due process and equal protection. We disagree.
While we have not previously address ed this question, several of our sister circuits have squarely reached the issue. They have determine d that, except for the limited circumstance where a prior conviction wa s obtained in violationof the right to have counsel appointed, a defendant has no constitutional right to challenge a prior conviction used to enhanc e
a current sentence, and accordingly, section 851(e) does not violate due process. See UnitedStates v. Gonzales , 79 F.3d 413, 426-27 (5th Cir.), 117 S. Ct. 183 (1996); United States v. Arango-M ontoya , 61 F.3d 1331, 1338 (7th Cir. 1995); United States v. Davis , 36 F.3d 1424, 1438-39 (9th Cir. 1994), cert. denied , 115 S. Ct. 1147 (1995); United States v. Williams , 95 4 F.2d 668, 673 (11th Cir. 1992). Several courts have also rejected an equa l protection challenge to section 851(e). See Gonzales , 79 F.3d at 426-27; Davis , 36 F.3d at 1438-39; Williams , 954 F.2d 668, 673. No court ha s sustained a constitutional attack against this provision.

Because no suspect class or fundamental right is at issue, the ban 3 against challenging convictions over five years old need only be supported by a rational legislative purpose. The five-year ban, which applie s equally to all recidi vists to whom the statute applies, rationally serves the legitimate purpose of avoiding the costs andother problems associated with keeping court records indefinitely. Davis , 36 F.3d at 1438. Prior argues that a five-year cutoff point is arbitrary, but we do not find it to be unconstitutional. Five years is a reasonable amount of time to

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require court documents to be preserved without the requirement becoming overly b urdensome. Any cutoff point for the right to collaterall y challenge a prior conviction will sound somewhat arbitrary, but we conclud e that the five-year mark is rationally related to the goals of the statute. We agree with the conclusion of our sister circu its that "[s]ection 851(e) is who lly reasonable, both to effectuate the legitimate purposes o f enhanced sentencing f or recidivists, and to eliminate a host of practical problems with respect to ancient records absent such a provision." Arango

Montoya , 61 F.3d at 1338 (internal quotations omitted); accord Davis , 36 F.3d at 1 438-39; Williams , 954 F.2d at 673. Accordingly, we join thos e circuits that have held that section 851(e) does not violate due process
or equa l protection, and we conclude that the district court properl y applied it to preclude Prior from challenging the validity of two of his previous convictions.

V.
Finally, Prior contends that his conviction should be set asid e because he was denied the effective assistance of counsel. Claims o f ineffective assistanc e are ordinarily reserved for collateral attack, but we may consider such a claim where the record is established and there is
no need to develop additional facts. United States v. Martin , 62 F.3 d 1009, 1012 (8th Cir. 1995), cert. denied , 116 S. Ct. 1556 (1996). We will consider Prior's claim because his argument does not incorporate or depend upon the development of facts outside the original record. See id.

To make o ut a claim of ineffective assistance of counsel during the plea process, a defendant must first demonstrate that counsel's performanc e was deficient, which requires a showing that the representation fell below
an obj ective standard of reasonableness. Strickland v. Washington , 46 6 U.S. 668, 687-88 (1984); see also Hill v. Lockha rt , 474 U.S. 52, 57 (1985) (holding Strickland's two-part standard applies to ineffective assistance

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clai ms arising out of the plea process). Second, the defendant mus t demons trate prejudice, that is, that "there is a reasonable probabilit y that, but for counsel's errors, he would not hav e pleaded guilty and would have insis ted on going to trial." Hill v. Lockhart , 474 U.S. 52, 5 9 (1985); see Strickland , 466 U.S. at 687.

Prior contends that he received ineffective assistance of counse l when he signed the plea agreement on May 5, 1995, while incompetent, and at the plea hearing on May 31, 1995. At the plea hearing, Prior's attorne y stated th at he moved quickly with the plea agreement in order to timel y preserve for Prior the possibility of avoiding a life sentence by providin g substantial assistance. Prior's attorney statedthat it was apparent very early on that Prior would be subject to a mandatory life sentence, given the quantity of methamphetamine in his possessio n when he was arrested and his three prior felony convictions. (Plea Tr. at 22-23.) Counse l acknowledged that he had considered the strength of the government's case and asserted that while he had explored the possible defenses that might be a vailable, none were feasible. ( Id. at 23-25.) Prior's attorne y stated, "we determined that Mr. Prior, who had cooperated with th e government initially and, faced with the overwhelmingly severe sentenc e tha t he was looking at, needed to provide the government with som e substantial assistance in order to have any hope of avoiding the mandatory life imprisonment." ( Id. at 22-23.) Although Prior now refuses to provid e any as sistance to the government, counsel's strategy was reasonable an d prudent, and Prior consented to it. The fact that this strategy has now proven unsuccessful because Prior refuses to cooperate does not rende r counsel's performance deficient. See James v. State of Iowa , 100 F.3d 586 , 590 (8 th Cir. 1996) ("Reasonable trial strategy does not constitut e ineffective assistance simply because it is not successful.") We conclude that, in the face of a very strong case against Prior, counsel provide d objectively reasonable representation by timely securing an opportunity fo r Prior to provide substantial assistance in the

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hope of securing a sentence of less than life imprisonment. We rejec t Pri or's attempt to lay off on his experienced and able counsel th e conseq uences of his own criminal conduct and the statutorily mandate d result of his adamant refusal to help himself.

Even if c ounsel's performance could be considered deficient because of P rior's withdrawal from substance abuse at the time he signed th e agreem ent, a conclusion we specifically reject, there is no credibl e evidence that Prior would not have pleaded guilty had he been competen t when he signed the ag reement. As noted above, Prior was competent at the plea he aring on May 31, 1995. The government had a strong case agains t Prior that would send him to prison for life absent a government motion fo r departure based on substantial assistance. Prio r provided a factual basis for the plea and was advised of all his rights. Prior testified that he knew he faced a life sentence. During the plea hearing, the Assistan t United States Attorne y recited a summary of the plea agreement, including the provision allowing Prior an opportunity to provide substantia l assistance to the government in order to avoid the life sentence. Prior indicated that he understood because he had readthe agreement a couple of times himself. He in dicated that this was a correct statement of what he had agreed to and that it included nothing that he did not agree to. (Ple a Tr. at 13-14.) Also, the district court carefully informed Prior of his right to a trial and that "if I accept this plea of guilty today, ther e will be no trial." ( Id. at 27.) Prior indicated that he understood and waived his rights. T here simply is no credible evidence to indicate that Prior would have insisted upon going to trial had he not signed the plea agreement while in withdrawal. Thus, Prior was not prejudiced by hi s counsel's conduct.

### 15 VI.

We concl ude that the trial court committed no reversible error an d that Prior received t he effective assistance of counsel. Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.