#### UNITED STATES of America, v. Nathaniel PARKER, Nathaniel Parker, Sr., Appellant.

No. 02-1227.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) Dec. 20, 2002.

Decided Jan. 15, 2003.

*887Before NYGAARD, ALITO and RENDELL, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Nathaniel Parker appeals his conviction and sentence for twelve counts of possession with intent to distribute cocaine and marijuana. Parker raises three issues under *Apprendi v. New Jersey,*530 U.S. 466, 120 S.Ct. 2348,147 L.Ed.2d 435 (2000), and also claims that the government encouraged false testimony and violated *Brady v. Maryland,*373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to inform him of dealings it had with the government informant who testified at trial. We will affirm.

The District Court had jurisdiction under 18 U.S.C. § 3231 (2001), and we exercise jurisdiction pursuant to 28 U.S.C. § 1291 (2002). We exercise plenary review over questions -of law, including the District Court’s interpretation of *Apprendi. United States v. Barbosa,*271 F.3d 438, 452 (3d Cir.2001). Because Parker did not raise the government misconduct arguments at trial, we review his *Brady*and false testimony challenges for plain error. *United States v. Olano,*507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Plain error requires an error, that is plain, and that substantially affects Parker’s substantial rights. *Id.*

In February 2000, Parker sold cocaine to Andrew Scott, a government informant, in a videotaped undercover operation. Parker was indicted in a superseding indictment for violations of 21 U.S.C. § 841(a)(l)(2000) (possession with intent to deliver) and 21 U.S.C. § 860(a) (distribution of drugs within 1,000 feet of a school). The indictment provided notice of a prior conviction. In December 2000, a jury found Parker guilty on twelve counts, made specific findings concerning the quantity and type of drugs involved, and found that Parker had two prior felony convictions involving crimes of violence or drugs. These prior convictions qualified Parker as a career offender under U.S.S.G. § 4B1.1 (2000).

Parker’s Presentence Investigation Report (“PSR”) indicates that the drug quantities involved in his offenses resulted in a base offense level of 30. USSG § 2Dl.l(c)(5) (2000). The probation officer then added a two-level enhancement because the criminal activity was near a protected location. USSG § 2D1.2(a)(l) (2000). Finally, the probation officer added a four-level enhancement because Parker was a career offender. Parker’s offense level as recommended by the PSR was 37, with a criminal history category VI, which carries a guideline range of 360 months to life. Parker sought numerous downward departures. After a hearing, the District Court rejected most of Parker’s claims but found that the career offender status significantly overrepresented his criminal history. The Court granted a downward departure of two criminal history categories and five offense levels, resulting in a guideline range of 168-210 months. Parker was sentenced to 180 months on all counts, to be served concurrently.

*888Parker poses three challenges to his sentence under *Apprendi:*that he was found to be a career offender without having each of his prior convictions listed in the indictment and submitted to a jury, that enhancements used to increase his sentence were not proven beyond a reasonable doubt, and that section 841 is unconstitutional. Parker’s first two *Apprendi*arguments fail because he was sentenced to 180 months, a sentence well within the statutory maximum of life imprisonment.1 A sentencing judge “may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from [the jury] — and without contradicting Apprendi” *Harris v. United States,*536 U.S. 545, 122 S.Ct. 2406, 2418, 153 L.Ed.2d 524 (2002). Parker’s constitutionality argument also fails because we have already squarely rejected the contention that section 841 is unconstitutional in light of *Apprendi. United States v. Kelly,*272 F.3d 622, 624 (3d Cir.2001).

Parker’s claims of government misconduct also fail. Parker alleges that Scott’s testimony identifying Parker as the drug supplier should have been excluded because the government “knew it was a lie.” However, Parker’s allegations are mere conjectures based on Scott’s attempt at trial to recant his prior statements identifying Parker as the drug supplier. And, Scott’s recantation as to Parker’s role is plainly contradicted by the police surveillance tape. Further, in the end, Scott admitted that Parker was the supplier. Scott waivered because he was afraid that Parker would know he was the one who set him up, not because the government told him to lie. One could conclude that any lies Scott told were his own.

Parker also alleges that the government failed to disclose the full extent of any benefits the government had promised Scott in return for testifying. This allegation is based on nothing more than Parker’s belief that Scott “must have had some deal on the table.” At trial, the government provided detailed information on financial benefits that Scott received. Furthermore, Parker was given a full opportunity to cross-examine Scott on this matter. We find no *Brady*violation nor any prejudice.

For the foregoing reasons, we will affirm the judgment of the District Court.

1

. Because we decide that Parker’s first two *Apprendi*challenges fail on the grounds that his sentence fell within the statutory maximum, it is unnecessary for us to address his argument that his prior convictions ought to have been included in the indictment and submitted to the jury. We note, however, that the government filed an information to establish prior convictions, Docket No. 48, and that the District Court appears to have submitted the question of prior convictions to the jury. Furthermore, although Parker questions the continuing validity of the Supreme Court’s decision in *Almendarez-Torres*v. *United States,*523 U.S. 224, 228-35, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Court held that prior commission of a crime is a sentencing factor that need not be alleged in an indictment, whatever its eventual fate, *Almendarez-Torres*remains binding precedent and forecloses this challenge. Acknowledging the dicta in *Apprendi*contemplating an eventual reversal of *Almendarez-Torres*does not permit this court to treat that reversal as a fait accompli. *See, e.g., United States v. Martinez-Villalva,*232 F.3d 1329, 1332 (10th Cir.2000) (holding that because "the *Apprendi*Court specifically declined to revisit or overrule *Almendarez-Torres ...*[w]e are bound by that case to hold that the fact of defendant’s prior felony conviction is not an element of the offense with which he [need be] charged by indictment, but is, instead, a sentencing factor”).