The Honorable Ronald E. Longstaff, United States District

1

Judge for the Southern District of Iowa.

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No. 96-2110

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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

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Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

_____________

HANSEN, Circuit Judge.

Reed Raymond Prior received a mandatory life sentence following his

plea of guilty to one count of possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1994). Prior

appeals his sentence and the district court's denial of his motion to

1

withdraw his plea. We affirm. 

I.

Acting upon information that Prior was dealing in narcotics, police

made numerous attempts to locate Prior. On May 2, 1995, police located

Prior's vehicle at a Motel 6 in Des Moines, Iowa. They observed Prior

carrying bags to his car as he prepared to
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leave his room. Police officers followed Prior to a mini storage unit

where they saw him transferring items from his vehicle to the storage unit.

Police officers then obtained a search warrant for the storage unit and

Prior's vehicle. During the search, officers found a large quantity of

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 storage

unit. The police also seized a scale, other drug paraphernalia, and

$17,690 in cash. 

Prior was arrested and charged with possession of methamphetamine

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

could have been held responsible for a total of 1,147.6 grams of

methamphetamine. The government provided notice that it would request the

enhanced mandatory minimum sentence of life imprisonment without the

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. 

Three days after his arrest, Prior signed a written waiver of

indictment, a waiver of detention hearing, and a guilty plea agreement in

which Prior agreed to fully cooperate with the government and provide

complete and truthful information concerning any criminal matters of which

he has knowledge. If the government determined Prior had provided

substantial assistance in the investigation or prosecution of another

person, the government had the sole discretion under 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

providing substantial assistance, which was the only way to avoid the

mandatory 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 sentencing 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

agreement because he was going through withdrawal from addiction to

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 the

time he signed the agreement, he undoubtedly was competent to make a

knowing and voluntary waiver of his rights at the plea hearing when the

district court accepted his plea of guilty. 

On April 11, 1996, the district court entered judgment on Prior's

guilty plea. The government presented certified copies of Prior's previous

drug convictions and refused to make a substantial assistance motion,

rendering the district court without authority to depart below the

statutory minimum life sentence. Accordingly, the district court sentenced

Prior to a mandatory life sentence without the possibility of parole.

Prior appeals.

II.

Prior first contends that the district court erred in denying his

motion to withdraw his 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 denial of a motion to withdraw

a plea for an abuse of 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 withdraw a guilty plea prior to

sentencing upon a showing of "any fair and just reason," and we have held

that the defendant bears the burden of establishing such a justification.

United States v. Yell, 18 F.3d 581, 582 (8th Cir. 1994). While a defendant

seeking to withdraw a
4

plea before sentencing 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 to

allow or deny the motion remains within the sound discretion of the trial

court. 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 has

demonstrated a fair and just reason, whether the defendant has asserted his

innocence, the length of time between the guilty plea and the motion to

withdraw, and whether the government will be prejudiced. Id. at 1091-92.

The reasons offered by Prior for withdrawing his plea were that he

was mentally incompetent 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 testimony of a psychiatrist,

Dr. Mark Souza, who concluded that because Prior was undergoing withdrawal

from several controlled 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, his

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 cannot

seriously argue otherwise. Furthermore, the transcript of the plea hearing

indicates that Prior understood his rights. The Assistant United States

Attorney summarized the plea agreement in court, explaining that under the

agreement Prior is subject to a mandatory minimum term of life

imprisonment, he has agreed to cooperate with the government, and upon a

government motion, there
5

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 asked Prior if he was able to follow the government's summary

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 this

matter. The district court carefully explained to Prior his constitutional

rights, including the right to trial by a jury, to confront the witnesses

against him, and to put the government to its proof. Prior indicated that

he understood that he had the right to go to trial and have his case

decided by a jury if he so chose. (Id. at 25.) Prior indicated that he

understood and voluntarily waived all his trial-related constitutional

rights. Prior provided an adequate factual basis for the plea, admitting

to possessing 3 1/2 pounds of methamphetamine with intent to deliver.

Additionally, at the hearing on his motion to withdraw the plea, Prior

testified that he had told the truth at the May 31, 1995, plea hearing. 

We agree with the district court's conclusion that Prior, who at all

times was represented by counsel, knowingly and voluntarily waived his

rights and pled guilty to the charge at the plea hearing on May 31, 1995.

Thus, Prior's asserted fair and just reason to withdraw his plea cannot

carry the day. Additionally, he did not assert his innocence of the

charges and he waited approximately five months before seeking to withdraw

his plea. We conclude that the district court did not abuse its discretion

in denying Prior's motion to withdraw his guilty plea. 

III.

Prior raises several constitutional challenges to his sentence.

Specifically, he contends that the mandatory life sentence, imposed

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 Fifth

Amendment, his right to be free from cruel and unusual punishment under the

Eighth Amendment, and the doctrine of separation of powers. "The question

of whether a statute is constitutional is a question of law and must be

reviewed de novo." United States v. Wesley, 990 F.2d 360, 363 (8th Cir.

1993).

First, Prior contends that the mandatory life sentence violates his

due process rights, arguing that the statute deprives the district court

of discretion to impose an individualized sentence. Where capital

punishment is not involved, however, an individualized sentencing

determination is not a constitutional imperative. United States v.

Goodface, 835 F.2d 1233, 1236, 1237 n.4 (8th Cir. 1987). See Harmelin v.

Michigan, 501 U.S. 957, 995 (1991) (plurality) (recognizing the Court's

repeated holding that there is no requirement comparable to the

"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

effect 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 define criminal punishments without giving the courts any sentencing

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). Consistent with its authority to do so, Congress has merely

made a legislative choice in section 841(b) to deprive the courts of

sentencing discretion. 

Prior argues that the statute is overinclusive and violates due

process because it does not differentiate between drug kingpins, who run

large drug trafficking operations, and drug addicts, who may traffic in

controlled substances only to make enough money to buy more drugs to feed

their habit. We find no due
7

process violation. "Absent classifications based on race or some other

forbidden or suspect ground, legislative decisions of the sort here in

question -- how severely to punish a particular class of drug-trafficking

crimes -- need only have a rational basis to survive" a due process

challenge. United States v. Frieberger, 28 F.2d 916, 921 (8th Cir. 1994),

cert. denied, 115 S. Ct. 765 (1995). Section 841(b) rationally serves to

discourage illegal drug trafficking activity by imposing a mandatory

minimum life sentence upon any defendant convicted of violating section 841

who was criminally responsible for a certain quantity of drugs and who also

has a record of two or more felony drug convictions. Drug addicts who

traffic in illegal substances 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 system

. . . is unconstitutional." Chapman, 500 U.S. at 467. 

Prior contends that the unbridled prosecutorial discretion to allow

some, but not all, defendants to avoid life in prison in exchange for their

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

further prosecutions. Allowing prosecutors to provide the benefit of a

motion for a sentence below the mandatory minimum only to those who are

capable of providing substantial assistance to the government is rationally

related to the legitimate government interest in prosecuting criminal

conduct. We have previously determined that a sentencing scheme that

removes discretion from the courts but builds in a safety-valve adjustment

"predicated on the reasonable assumption that the government is in the best

position to supply the court with an accurate report of the extent and

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 clearly

2

expressed to Prior that he is, in effect, needlessly confining

himself to life imprisonment by his refusal to provide substantial

assistance. Judge Longstaff explicitly told Prior the following:

You're making me do something I hate doing today . . .

you're making me send you to jail for life, and I don't

want to do that, and I hope someday that in the next

approximately 365 days I have a chance to revisit this

sentence and give you a just sentence and prove to you

that the system works; but unfortunately, Reed, under the

law, right or wrong, you're the only person right now

that holds the key to unlock the handcuffs that bind me

right now, and I hope someday in the next year you'd make

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 scheme

does not offend equal protection rights. Accord United States v. Van

Winrow, 951 F.2d 1069, 1073 (9th Cir. 1991). 

We note that there is no assertion here that the prosecutor acted in

bad faith by denying Prior a motion for substantial assistance. In fact,

the government offered Prior the opportunity to benefit from this

"prosecutorial grace," as Prior calls it (Appellant's Br. at 27), but he

refuses to provide the government with any assistance at all. Prior flatly

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 the

congressionally mandated life sentence to which he is subject. 

2

Next, Prior asserts that his sentence violates his right to be free

from cruel and unusual punishment because the life sentence is grossly

disproportionate to his crime. Prior argues that his sentence is

disproportionate because he is an addict and, until 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 felony drug convictions yielded no more than suspended

sentences and fines. 
9

Prior asserts that he is capable of leading a productive life as he was an

excellent student who completed a Bachelor of Arts degree in history and

a Master of Arts degree in education. Thus, Prior claims that his life

sentence is disproportionate to his crime. 

The Eighth Amendment "forbids only extreme sentences that are

`grossly disproportionate' to the crime." Harmelin, 501 U.S. at 1001

(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 at 920; United States v. Jones, 965 F.2d 1507, 1518 (8th Cir.),

cert. denied, 506 U.S. 924 (1992). Our review to determine whether a

sentence is grossly disproportionate is quite narrow. Frieberger, 28 F.3d

at 920. 

While Prior's sentence is harsh, we conclude that it is not grossly

disproportionate given the equally serious nature of his crime. The

Supreme Court concluded in Harmelin that a state sentence of mandatory life

imprisonment without the possibility of parole for possessing 672 grams of

cocaine did not violate the Eighth Amendment, despite the fact that the

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 distribute

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 seems to assert that because he is an addict, he is not as

deserving of a life sentence 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 appropriate

after an initial comparison of the crime to the sentence for which it is

imposed leads to an inference of gross disproportionality. United States
10

v. Johnson, 944 F.2d 396, 409 (8th Cir.) (relying on Harmelin), cert.

denied, 502 U.S. 1008 (1991). We have noted that the possession of

narcotics with the intent to distribute is an offense "at the root of some

of the gravest problems facing our country. The `fruit' of the drug plague

is everywhere; it fills our jails, our courts, our streets, and our

nurseries." United States v. Meirovitz, 918 F.2d 1376, 1381 (8th Cir.

1990), cert. denied, 502 U.S. 829 (1991). Prior's three previous

convictions indicate that he has been involved in drug distribution for

many years, and his actions have furthered the spread of this plague. Life

imprisonment without the possibility of parole in 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, and

he steadfastly refuses to do so. 

Finally, Prior argues that section 841(b) is unconstitutional under

the doctrine of separation of powers. The district court can depart from

the mandatory minimum sentence only if the prosecution makes a motion for

departure on the basis that the defendant has provided substantial

assistance, and Prior argues that this usurps the function of the

judiciary. We have previously rejected this argument, see United States

v. Mason, 902 F.2d 1314, 1316 (8th Cir. 1990), and one panel is not at

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 without

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

challenging "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
 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 permit Prior to attack their

validity. Prior contends that section 851(e) provides an arbitrary and

irrational classification that violates due process and equal protection.

We disagree. 

While we have not previously addressed this question, several of our

sister circuits have squarely reached the issue. They have determined

that, except for the limited circumstance where a prior conviction was

obtained in violation of the right to have counsel appointed, a defendant

has no constitutional right to challenge a prior conviction used to enhance

a current sentence, and accordingly, section 851(e) does not violate due

process. See United States v. Gonzales, 79 F.3d 413, 426-27 (5th Cir.),

117 S. Ct. 183 (1996); United States v. Arango-Montoya, 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, 954

F.2d 668, 673 (11th Cir. 1992). Several courts have also rejected an equal

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 has

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 applies

equally to all recidivists to whom the statute applies, rationally serves

the legitimate purpose of avoiding the costs and other 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
12

require court documents to be preserved without the requirement becoming

overly burdensome. Any cutoff point for the right to collaterally

challenge a prior conviction will sound somewhat arbitrary, but we conclude

that the five-year mark is rationally related to the goals of the statute.

We agree with the conclusion of our sister circuits that "[s]ection 851(e)

is wholly reasonable, both to effectuate the legitimate purposes of

enhanced sentencing for recidivists, and to eliminate a host of practical

problems with respect to ancient records absent such a provision." ArangoMontoya, 61 F.3d at 1338 (internal quotations omitted); accord Davis, 36

F.3d at 1438-39; Williams, 954 F.2d at 673. Accordingly, we join those

circuits that have held that section 851(e) does not violate due process

or equal protection, and we conclude that the district court properly

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 aside

because he was denied the effective assistance of counsel. Claims of

ineffective assistance 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.3d

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 out a claim of ineffective assistance of counsel during the

plea process, a defendant must first demonstrate that counsel's performance

was deficient, which requires a showing that the representation fell below

an objective standard of reasonableness. Strickland v. Washington, 466

U.S. 668, 687-88 (1984); see also Hill v. Lockhart, 474 U.S. 52, 57 (1985)

(holding Strickland's two-part standard applies to ineffective assistance
13

claims arising out of the plea process). Second, the defendant must

demonstrate prejudice, that is, that "there is a reasonable probability

that, but for counsel's errors, he would not have pleaded guilty and would

have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59

(1985); see Strickland, 466 U.S. at 687. 

Prior contends that he received ineffective assistance of counsel

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 attorney

stated that he moved quickly with the plea agreement in order to timely

preserve for Prior the possibility of avoiding a life sentence by providing

substantial assistance. Prior's attorney stated that it was apparent very

early on that Prior would be subject to a mandatory life sentence, given

the quantity of methamphetamine in his possession when he was arrested and

his three prior felony convictions. (Plea Tr. at 22-23.) Counsel

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 available, none were feasible. (Id. at 23-25.) Prior's attorney

stated, "we determined that Mr. Prior, who had cooperated with the

government initially and, faced with the overwhelmingly severe sentence

that he was looking at, needed to provide the government with some

substantial assistance in order to have any hope of avoiding the mandatory

life imprisonment." (Id. at 22-23.) Although Prior now refuses to provide

any assistance to the government, counsel's strategy was reasonable and

prudent, and Prior consented to it. The fact that this strategy has now

proven unsuccessful because Prior refuses to cooperate does not render

counsel's performance deficient. See James v. State of Iowa, 100 F.3d 586,

590 (8th Cir. 1996) ("Reasonable trial strategy does not constitute

ineffective assistance simply because it is not successful.") We conclude

that, in the face of a very strong case against Prior, counsel provided

objectively reasonable representation by timely securing an opportunity for

Prior to provide substantial assistance in the
14

hope of securing a sentence of less than life imprisonment. We reject

Prior's attempt to lay off on his experienced and able counsel the

consequences of his own criminal conduct and the statutorily mandated

result of his adamant refusal to help himself.

Even if counsel's performance could be considered deficient because

of Prior's withdrawal from substance abuse at the time he signed the

agreement, a conclusion we specifically reject, there is no credible

evidence that Prior would not have pleaded guilty had he been competent

when he signed the agreement. As noted above, Prior was competent at the

plea hearing on May 31, 1995. The government had a strong case against

Prior that would send him to prison for life absent a government motion for

departure based on substantial assistance. Prior 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 Assistant

United States Attorney recited a summary of the plea agreement, including

the provision allowing Prior an opportunity to provide substantial

assistance to the government in order to avoid the life sentence. Prior

indicated that he understood because he had read the agreement a couple of

times himself. He indicated that this was a correct statement of what he

had agreed to and that it included nothing that he did not agree to. (Plea

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, there

will be no trial." (Id. at 27.) Prior indicated that he understood and

waived his rights. There 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 his

counsel's conduct.
15

VI.

We conclude that the trial court committed no reversible error and

that Prior received the 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.