Olbel Cannot Mount a Facial Challenge to Fla. Stat. § 893.13 Even if Olbel were attempting to mount his current challenge at his sentencing hearing under 21 U.S.C. §851(c)(2) – which he of course failed to do – his argument would fail. Where, as here, a party mounts a facial challenge to a statute, it is incumbent upon the challenger to “establish that no set circumstances exists under which the Act would be valid.”

Foremost, if made and granted, the government would have been able to file the Section 851 enhancements that had been time-barred because Petitioner had been able to conceal his criminal history until after his plea. See 21 U.S.C. §851 (requiring that §851 notice be filed before verdict or plea). As a result, withdrawal would have exposed Petitioner to a mandatory life sentence.

United States v. Jones, 482 F.3d 60, 76 (2d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A reviewing court must indulge a strong presumption that counsel’s [performance] falls within the wide range of reasonably professional 1The life sentences were mandatory because the government filed a prior felony information pursuant to 21 U.S.C. § 851 based on Wright’s multiple prior narcotics convictions. 2 Case 1:10-cv-05694-FB Document 11 Filed 10/03/14 Page 2 of 11 PageID #: 104 assistance.”