UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4109

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LARRY FRANKLIN PHILLIPS, a/k/a Shag,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Bryson City. Lacy H. Thornburg,

District Judge. (CR-02-104)

Submitted: February 25, 2005 Decided: March 29, 2005

Before NIEMEYER, LUTTIG, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David G. Belser, BELSER & PARKE, P.A., Asheville, North Carolina,

for Appellant. Gretchen C. F. Shappert, United States Attorney,

Thomas R. Ascik, Assistant United States Attorney, Asheville, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Larry Franklin Phillips appeals his conviction after a

jury trial of one count of conspiracy to possess with intent to

distribute at least 1.5 kilograms of methamphetamine, in violation

of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2004), and his

sentence of life imprisonment. We affirm.

None of the arguments raised on appeal were presented to

the district court; therefore, this court reviews only for plain

error. In order to correct error not asserted in the district

court, Phillips must establish “that an error occurred, that the

error was plain, and that the error affected his substantial

rights.” United States v. Olano, 507 U.S. 725, 732 (1993).

Correction of plain error established by the appellant remains,

however, in the court’s discretion, which should only be exercised

if the error “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (quoting United States v.

Young, 470 U.S. 1, 15 (1985)).

Phillips first argues that the Government violated his

due process rights by presenting the false testimony of three

co-defendants. Such a claim requires that Phillips establish that:

“(1) the testimony was false; (2) the Government knew the testimony

was false; and (3) there is a reasonable probability that the false

testimony could have affected the verdict.” United States v.

Roane, 378 F.3d 382, 400 (4th Cir. 2004). Phillips asserts the
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co-defendants’ testimony was false because they testified to

transactions that involved quantities of methamphetamine in excess

of the quantities that they were held responsible for in their plea

agreements. Although he alleges the Government presented false

testimony, he disclaims any allegation of a failure to disclose

evidence or other personal misconduct on the part of the Assistant

United States Attorney. Our review of the record leads us to

conclude that Phillips has not established that the trial testimony

of the co-defendants was false, as the descriptions of drug

quantities attributable to Phillips were corroborated by other

witnesses.

In a related argument, Phillips asserts that the

Government violated his due process and jury trial rights when it

engaged in unconstitutional fact bargaining. He asserts that “if

the testimony of the co-defendants was in fact true, the state

engaged in unconstitutional fact bargaining by significantly

reducing the quantity of drugs attributable to those co-defendants

who were willing to testify against the defendant.” He asserts

that the Government also improperly offered to reduce the drug

quantity for which he would be held responsible at sentencing if he

agreed to plead guilty, but prosecuted him for the amount charged

in the indictment when he rejected the plea offer. We find this

argument meritless. The process of plea bargaining has long been

accepted as legitimate. Corbitt v. New Jersey, 439 U.S. 212,
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218-19 (1978). Moreover, to the extent Phillips has standing to

contest the Government’s decisions to offer plea agreements with

favorable terms to his co-defendants, the Supreme Court has

accorded wide discretion to prosecutors in reaching precisely these

types of decisions. Bordenkircher v. Hayes, 434 U.S. 357, 364

(1978). Phillips does not allege any improper motives in the

Government’s decision making with regard to plea offers in his

case, and our review of the record leads us to conclude that the

Government acted properly in its negotiations with Phillips and his

co-defendants.

In his remaining assertions of error, Phillips attacks

his life sentence. He does not contest that he was in fact

previously convicted of two felony drug offenses, or that those

convictions qualified to enhance his sentence to a mandatory life

term under 21 U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2004).

Phillips first argues that his mandatory life sentence violates the

separation of powers doctrine because the statutory provision

mandating a life sentence removes discretion from the sentencing

judge and transfers that discretion to the prosecutor.

To the extent Phillips seeks to challenge recent changes

enacted by Congress to the composition of the Sentencing

Commission, he cannot demonstrate any prejudice attributable to

this change. Although the district court calculated the applicable

range under the sentencing guidelines, it is undisputed that
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Phillips’s sentence was determined based upon straightforward

application of the terms of a statute to the facts of Phillips’s

instant conviction and his two prior felony drug offense

convictions. As his sentence was not determined under the

sentencing guidelines, the makeup of the Sentencing Commission is

irrelevant to Phillips’s sentence. We also conclude that

Phillips’s case does not present a legitimate separation of powers

issue. Phillips was sentenced in compliance with specific

statutory language. In light of the broad discretion accorded

prosecutors recognized by the Supreme Court in Bordenkircher,

Phillips cannot establish any constitutional infirmity in the

mandatory minimum provisions of § 841(b). Although the Supreme

Court has recognized criticisms of mandatory minimum sentencing

provisions, it has not held them unconstitutional. Harris v.

United States, 536 U.S. 545, 568-69 (2002).

Phillips next asserts that his sentence is cruel and

unusual punishment in violation of the Eighth Amendment. In

considering this argument, we apply the three-part test of Solem v.

Helm, 463 U.S. 277 (1983), which examines: “(1) the gravity of the

offense and the harshness of the penalty, (2) the sentences imposed

on other criminals in the same jurisdiction, and (3) the sentences

imposed for commission of the same crime in other jurisdictions.”

United States v. Kratsas, 45 F.3d 63, 66 (4th Cir. 1995). We

conclude that Phillips’s life sentence is not constitutionally
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disproportionate. First, his offense is extremely serious.

Phillips was not just a drug user, but a dealer who sold what can

only be described as massive quantities of methamphetamine over

several years to many different people. Also, Phillips is a repeat

drug offender. Applying the second prong of Solem, this court has

concluded that “it is clear that a life sentence for a major drug

violation is not disproportionate in comparison with other

sentences mandated by the Guidelines and other drug statutes.”

Kratsas, 45 F.3d at 68. Finally, applying the third prong reveals

similarly lengthy state penalties for crimes involving the

significant quantity of methamphetamine charged in Phillips’s

indictment and found by the jury. See N.C. Gen. Stat.

§ 90-95(h)(3b)(c) (2003) (range of 225 to 279 months imprisonment

for 400 grams or more of methamphetamine); S.C. Code Ann.

§ 44-53-375(C)(5) (Law. Co-op. 2002) (twenty-five to thirty years

imprisonment, mandatory minimum of twenty-five years without parole

for 400 grams or more); Va. Code Ann. § 18.2-248(H)(5) (Michie

2004) (twenty years to life with mandatory minimum of twenty years

for 200 grams or more).

Phillips’s final argument is that his mandatory life

sentence violates his due process rights. He specifically asserts

that “where a statute dictates life imprisonment such a sentence

cannot be consistent with due process without an individualized

determination of whether the defendant’s conduct and criminal
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history justify such a sentence.” We have squarely rejected this

argument in prior cases involving sentences virtually identical to

Phillips’s. Kratsas, 45 F.3d at 69; United States v. D’Anjou, 16

F.3d 604, 613-14 (4th Cir. 1994).

Accordingly, we affirm Phillips’s conviction and

sentence. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED