[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 28, 2005
No. 05-12044 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00075-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLAND WILLIS FREDERICK MARPOE, II,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 28, 2005)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Roland Willis Frederick Marpoe, II, appeals his conviction for conspiracy to
manufacture and possess with intent to distribute 100 or more marijuana plants, in
violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B). On appeal, Marpoe argues that
§ 841 is facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its progeny. He contends that,
prior to the Supreme Court’s decisions in Jones v. United States, 526 U.S. 227, 119
S. Ct. 1215, 143 L. Ed. 2d 311 (1999), Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi, we considered the provisions
in § 841(b) to be sentencing factors and not elements of the offense. He argues
that our approach in United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en
banc), abrogated in part, United States v. Duncan, 400 F.3d 1297, 1308 (11th Cir.
2005), where we limited the scope of Apprendi to when judge-decided facts
increase a sentence above the statutory maximum, would not survive a
constitutional challenge, and contends that it is unclear whether, under Sanchez, §
841(b) contains elements or sentencing factors. He further argues that, in light of
Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63, which held that “[o]ther 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,” there are only three ways to preserve the constitutionality of §
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841: (1) sever the unconstitutional section - § 841(b); (2) reinterpet the § 841(b)
factors as elements of the offense; or (3) declare § 841 and § 846 unconstitutional
in their entirety. Marpoe argues that only the third option is appropriate, and
therefore, his conviction should be reversed.
Ordinarily, we review constitutional issues de novo. United States v. Wright,
392 F.3d 1269, 1280 (11th Cir. 2004), cert. denied, 125 S. Ct. 1751 (2005).
However, because Marpoe did not assert his constitutional claim in the district
court, it is within our discretion whether to address the issue. Id. Where a
defendant fails to raise his constitutional claim in the district court, we review his
claim only for plain error. United States v. Walker, 59 F.3d 1196, 1198 (11th Cir.
1995).
In United States v. Tinoco, 304 F.3d 1088, 1098-99 (11th Cir. 2002), we
relied on Sanchez in rejecting a facial challenge to 21 U.S.C. § 960 similar to the
one that Marpoe now makes to § 841. In Sanchez, we held that § 841 “is impacted
by Apprendi but only to the limited extent that judge-decided facts actually
increase a defendant’s sentence above the prescribed statutory maximum.” 269
F.3d at 1268. As a result of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738,
756, 160 L. Ed. 2d 621 (2005), the requirements for a successful Apprendi facial
challenge have changed since Sanchez and Tinoco, but Marpoe still must satisfy
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the requirements as they exist currently. Therefore, in the words of Booker,
Sanchez now stands for the proposition that Apprendi does not apply where a
defendant’s actual sentence falls within the range “authorized by the facts
established by a plea of guilty . . . [which] must be admitted by the defendant.”
See Booker, 543 U.S. at ___, 125 S.Ct. at 756; Sanchez, 269 F.3d at 1268.
In this case, Marpoe’s sentence fell within the maximum authorized by the
facts established by his guilty plea. Marpoe signed a written plea agreement,
admitting that the 125 marijuana plants recovered on his property belonged to him,
and during the plea colloquy, he admitted that the government’s proffer - namely,
possession with intent to distribute 125 marijuana plants with his wife - was true.
Furthermore, Marpoe did not object to the Presentence Investigation Report, which
stated that he possessed, with intent to distribute, 125 marijuana plants with his
wife. Pursuant to § 841, and given these admitted facts, the minimum sentence
that he could have received was five years’ imprisonment, and the maximum was
40 years’ imprisonment. Because Marpoe’s sentence fell within the range
authorized by the facts established by a plea of guilty, Apprendi does not apply.
Booker, 543 U.S. at ___, 125 S. Ct. at 756; Sanchez, 269 F.3d at 1268.
Accordingly, Marpoe’s facial challenge fails because he “cannot demonstrate that
no set of circumstances exist under which [§ 841] would be valid,” primarily
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because, under the circumstances of his own case, § 841 (b) is constitutionally
valid. See Tinoco, 304 F.3d at 1101 (internal quotation omitted). Therefore, the
district court did not plainly err in not finding that § 841 facially violates the
Constitution, and we affirm Marpoe’s conviction.
Upon review of the record, and upon consideration of the briefs of the
parties, we discern no reversible error. Accordingly, we affirm.
AFFIRMED.
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