United States v. Michael Francis DiFalco
2016 U.S. App. LEXIS 17191
11th Cir.2016Background
- DiFalco pled guilty to one-count federal conspiracy to distribute 50+ grams of methamphetamine; plea reduced exposure from potential life to a mandatory 20-year minimum via a § 851 enhancement the government agreed to pursue only once.
- His written plea agreement included an explicit waiver of the right to appeal his sentence (with three limited exceptions); DiFalco initialed each page and confirmed the waiver at a Rule 11 plea colloquy.
- The government filed a § 851 "Information and Notice of Prior Conviction" electronically the same day as the change-of-plea hearing; the information contained inaccuracies (wrong year, court phrasing, and slight variance in offense description) but identified a specific case number.
- At sentencing the district court calculated a Guidelines range of 262–327 months, varied downward, and imposed the 240-month mandatory minimum; defense counsel raised no contemporaneous objection.
- After a § 2255 remand to permit a late appeal, DiFalco challenged the § 851 notice on appeal, arguing the notice was legally insufficient, was untimely/unserved, the Rule 11 colloquy was deficient, and the court failed to conduct the § 851(b) inquiry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 851's notice requirements are jurisdictional (i.e., nonwaivable) | § 851 is jurisdictional; failure to comply strips court of power to impose enhancement | § 851 is not jurisdictional and thus may be waived | § 851 is not jurisdictional; it is a claim-processing rule and therefore waivable |
| Whether DiFalco knowingly and voluntarily waived his right to challenge the § 851 notice | Waiver invalid because plea colloquy didn’t expressly confirm understanding of the enhancement details | Waiver valid: plea agreement explained waiver; magistrate judge reviewed it and DiFalco acknowledged understanding | Waiver was knowing and voluntary; appeal waiver bars § 851 challenge |
| Sufficiency of the § 851 information (inaccuracies) | Information was unreliable and materially inaccurate, so enhancement invalid | Information unambiguously identified the prior conviction despite scrivener errors; defendant had notice and did not contest below | Notice was sufficient; errors were nonfatal and not plain error affecting substantial rights |
| Procedural defects (timeliness/service; Rule 11 colloquy; § 851(b) inquiry) | Info filed/served improperly; Rule 11 failed to explain enhancement; court did not ask defendant to affirm/deny prior conviction per § 851(b) | Notice was filed before plea and served electronically; magistrate explained enhancement; § 851(e) barred collateral attack so § 851(b) inquiry unnecessary | No plain error: filing was timely, colloquy sufficiently informed defendant, and § 851(b) inquiry not required because § 851(e) precluded challenge |
Key Cases Cited
- Kontrick v. Ryan, 540 U.S. 443 (distinguishes jurisdictional rules from claim-processing rules)
- Eberhart v. United States, 546 U.S. 12 (clarifies that timing rules may be forfeitable claim-processing rules)
- United States v. Ladson, 643 F.3d 1335 (11th Cir.) (§ 851 requirements mandatory but Court discusses timeliness/compliance)
- United States v. Harris, 149 F.3d 1304 (11th Cir.) (prior panel held § 851 jurisdictional — court overruled that aspect)
- United States v. Perez, 249 F.3d 1261 (11th Cir.) (scrivener errors in § 851 notice do not necessarily render notice insufficient)
- United States v. Bushert, 997 F.2d 1343 (11th Cir.) (standards for enforcing appellate-waiver provisions)
- United States v. Ramirez, 501 F.3d 1237 (11th Cir.) (purpose of § 851 notice and right to contest prior conviction)
- United States v. Weaver, 905 F.2d 1466 (11th Cir.) (when § 851(b) rituals can be excused due to § 851(e) time bar)