United States v. Lee Hal Tobey

12 F.3d 1103, 1993 U.S. App. LEXIS 36760, 1993 WL 503250

• Court: Court of Appeals for the Eighth Circuit
• Decided: December 9, 1993
• Docket: 93-2339
• Status: Unpublished

Opinion

12 F.3d 1103

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.
UNITED STATES of America, Appellee,
v.
Lee Hal TOBEY, Appellant.

No. 93-2339.

United States Court of Appeals,
Eighth Circuit.

Submitted: November 3, 1993.
Filed: December 9, 1993.

Before JOHN R. GIBSON, MAGILL, and BEAM, Circuit Judges.

PER CURIAM.

Lee Hal Tobey appeals his 120-month sentence imposed by the district court1 after he pleaded guilty to possessing with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846. On appeal, Tobey argues for the first time that requiring a government motion under 18 U.S.C. Sec. 3553(e) before a court may impose a sentence below a statutory mandatory minimum unconstitutionally impedes the court's exercise of its judicial power.

We will not ordinarily consider issues not properly preserved at the district court level and presented for the first time on appeal, unless there is plain error resulting in a miscarriage of justice. Fritz v. United States, 995 F.2d 136, 137 (8th Cir.), petition for cert. filed, No. 93-6102 (U.S. Sept. 7, 1993). Tobey was apprised at the guilty plea hearing, in the presentence report, and at sentencing that the government would not make a section 3553(e) motion and the court could not depart below the mandatory minimum without such a motion, and Tobey did not once object. We have previously upheld the constitutionality of section 3553(e), United States v. Spees, 911 F.2d 126, 127 (8th Cir. 1990) (per curiam), and have particularly held that section 3553(e) does not violate the doctrine of separation of powers and does not usurp the judicial function. United States v. Mason, 902 F.2d 1314, 1316 (8th Cir. 1990).

Accordingly, the judgment is affirmed.

1 The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota