Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MICHAEL and Judge GREGORY joined.
OPINION
A jury convicted Curtis Beasley of conspiracy to distribute at least 5 grams, but less than 50 grams, of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1)(B), and possession of 5 grams or more of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(b)(1)(B). Based on the fact that Beasley had twice before been convicted of felony drug offenses, the district court sentenced him to 408 months’ imprisonment on each count, to run concurrently. See 21 U.S.C. § 841(b)(1)(B); U.S.S.G. § 4B1.1.
On appeal, Beasley contends for the first time that the district court was not authorized to rely on the enhanced penalties provided by § 841(b)(1)(B) for repeat drug offenders because the government did not file an “information” “before trial,” as required by 21 U.S.C. § 851(a), and therefore did not provide him with timely notice of its intent to rely on his prior convictions to request increased punishment. The government filed a § 851 information one *146 week after the jury had been selected but two weeks before the jury was sworn and opening statements were made. Beasley contends that because “before trial” requires the filing to be made before jury selection begins, the government did not comply with the procedural requirements of § 851, and therefore his sentence could not be increased based on his prior felony drug convictions. He argues that the § 851 process is not only a condition precedent to an increased punishment but also jurisdictional, entitling him to raise the issue for the first time on appeal.
We conclude that 21 U.S.C. § 851 is not jurisdictional and therefore is subject to the usual rules of procedural default. Because Beasley failed to object to the § 851 information below, he forfeited his claim, and we therefore conduct our review under - the plain error standard of Federal Rules of Criminal Procedure 52(b). As Beasley failed to satisfy the criteria for noticing plain error, we reject Beasley’s challenge based on an untimely filing of the § 851 information. We also reject Beasley’s two challenges to the district court’s evidentia-ry rulings. Accordingly, we affirm.
I
Beasley’s convictions for violating § 841(b)(1)(B) subjected him to an increased statutory penalty because he had a “prior conviction for a felony drug offense.” 21 U.S.C. § 841(b)(1)(B). Without a prior conviction, Beasley faced a sentence of 5 to 40 years’ imprisonment; with a prior conviction, however, he faced a sentence of 10 years’ to life imprisonment, so long as the government elected to pursue the increased punishment by filing a § 851 information.
On January 12, 2004, more than two weeks before the jury was sworn and opening statements were made, the government filed and served a § 851 information indicating that it intended to rely on Beasley’s two prior felony drug convictions to seek an enhanced sentence under § 841(b)(1)(B). By then, however, the jury had already been selected. Under the practice that the district court employed, the jury was selected on January 6, 2004, three weeks before swearing the jury and beginning with opening statements.
After receiving the § 851 information, Beasley filed several pre-trial motions, including a motion to dismiss, a motion to suppress, and a motion in limine, but he did not file any paper contesting the substance contained in the § 851 information or the information’s timeliness.
After conviction and during sentencing, the district court assumed that the § 851 information had been timely filed, and, based on Beasley’s prior felony drug convictions, enhanced Beasley’s sentence. Thus, Beasley was subject to a maximum of life imprisonment under § 841(b)(1)(B), and his offense level, as determined by U.S.S.G. § 4B1.1, was 37, yielding a recommended sentencing range of 360 months’ to life imprisonment. The district court sentenced Beasley to 408 months’ imprisonment and, as mandated by § 841(b)(1)(B), to 8 years of supervised release. In the absence of an increased statutory sentence, the Sentencing Guidelines would have recommended a sentence in the range of 262 to 327 months’ imprisonment and 5 years’ supervised release.
On appeal, Beasley contends for the first time that the § 851 information was filed untimely because it was not filed before the jury was selected. He also challenges two evidentiary rulings made by the district court at trial.
II
Beasley’s challenge to the timeliness of the government’s § 851 filing is
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raised for the first time here on appeal, and therefore we would ordinarily review the issue for plain error, unless § 851 were jurisdictional. If the procedural requirements of § 851 were jurisdictional, Beasley’s challenge could be raised for the first time on appeal because any jurisdictional défect would “require correction regardless of whether the error was raised in the district court.”
United States v. Cotton,
Beasley appears to be arguing that the requirements of § 851 were indeed jurisdictional, relying on
Harris v. United States,
Subject matter jurisdiction concerns a court’s very power to hear a case, and because “a court’s power to hear a case can never be forfeited or waived,” the lack of subject matter jurisdiction can be raised at any time.
Cotton,
Section 851(a) reads in pertinent part:
No person who stands convicted of an offense under this part [21 U.S.C. § 841 et seq.] shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the-United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1). On its face, this language does not confer jurisdiction or limit it, nor does it make the court’s jurisdiction conditional. Rather, it imposes a condition on
“increased punishment
by reason of one or more prior convictions.”
Id.
(emphasis added). Regardless of whether the condition is met, a district court derives its jurisdiction to determine the issue of increased punishment from 18 U.S.C. § 3231, which provides that the federal district courts “have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” It follows that “this jurisdiction necessarily includes the imposition of criminal penalties.”
Prou v. United States,
Thus, when a district court imposes a sentence for a federal offense outside of the statutory range or when it ignores statutory mandates for sentencing, such as are contained in 18 U.S.C. § 3553(a), it is not acting without power; it is exercising its power erroneously, which is subject to correction on review by appellate courts.
See Steel Co. v. Citizens for a Better Environment,
Section 851 simply specifies “remedial powers” of the court, regulating the level of a sentence that may be imposed in a federal criminal case, over which the district court otherwise has subject matter jurisdiction pursuant to 18 U.S.C. § 3231, and the district court is not stripped of jurisdiction when the government fails to comply with the provision’s procedural requirements. Moreover, the requirements of § 851 can be waived by defendants, unlike genuine jurisdictional limits. While § 851 uses mandatory language, so do numerous other statutory and constitutional guarantees that are waivable.
See United States v. Mezzanatto,
We conclude that the government’s alleged failure to comply with the procedural requirements of § 851(a) renders erroneous a court’s reliance' on § 841(b)(1)(B) to enhance a sentence for repeat drug offenders, nothing more.
See United States v. LaBonte,
III
Plain error review of Beasley’s sentence is conducted pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure, which provides that “a plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Before an appellate court can notice and correct an error not raised at trial, the defendant must show that there is “(1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Johnson v. United States,
In this case, Beasley contends that the district court erred in imposing increased punishment based on an untimely filed § 851 information. He argues that when § 851(a) provides that the information must be filed “before trial,” it requires that the information be filed before jury selection begins, which' occurred in this case on January 6, 2004. The government *149 argues that “before trial” means before the jury was sworn, which was on January 28, 2004. In this case, because of the practice followed by the district court, the jury was selected three weeks before it was sworn, and the government filed the § 851 information one week after jury selection and two weeks before the jury was sworn. Applying the criteria of Rule 52(b), we address whether the timing of the government’s filing was plain error.
The operative language of § 851(a) directs that no person “shall be sentenced to increased punishment by reason of one or more prior convictions, unless
before trial
... the United States attorney files an information,” identifying the convictions to be relied on. (Emphasis added). The primary purpose of this provision is to give the defendant notice of the government’s intention to seek an enhanced sentence based on the defendant’s prior convictions, giving the defendant an opportunity to challenge the use of the prior convictions and to prevent sentencing errors.
See United States v. Campbell,
In this case, the government filed the § 851 information two weeks before the jury was sworn but after the jury had been selected. While Beasley filed three pretrial motions during the two weeks following his receipt of the § 851 information and before the jury was sworn, he did not file a motion challenging the § 851 information. Of course, he need not have filed such a motion if he had concluded that the government’s § 851 information was filed “before trial.”
The term “before trial” is surely ambiguous. We have observed that the beginning of trial may be defined differently in different contexts:
As a general matter, it cannot be disputed that a “trial” is the judicial proceeding during which the law and the facts are examined to determine the issues between the parties. Accordingly, the beginning of this proceeding must be the first meaningful act in actually conducting the proceeding. And depending on the issue for determining what the first meaningful act is, the beginning of trial may be when the court calls the proceeding to order; or when the court calls the proceeding to order and all of the actors are present in the courtroom, including the jury venire; or when the process for the selection of jury begins; or when the jury is impaneled; or when the opening statements are made; or when the first witness is called.
DeLoach v. Lorillard Tobacco Co.,
Because there is no controlling precedent — either in the Supreme Court or in our court — on the issue of when a trial begins for purposes of defining “before trial” in § 851(a), we cannot say that it- was error for the district court to assume that a § 851 information filed after the jury was selected but before it was sworn was timely filed.
See United States v. Lejarde-Rada,
IV
Somewhat distinct from his § 851 argument, Beasley also contends that the district court violated his Sixth Amendment jury trial right when the court found the fact of his previous felony drug convictions, but this contention is directly foreclosed by
Almendarez-Torres v. United States,
Accordingly, we affirm Beasley’s sentence.
V
Beasley also challenges two of the district court’s evidentiary rulings, and we reject both challenges.
He contends first that the district court abused its discretion in allowing the government’s expert witness, Investigator Lyle Kirian of the Greenville County, South Carolina Vice and Narcotics Agency, to testify as an expert witness about the process of converting powder cocaine into crack cocaine without first testing the reliability of his testimony by conducting a hearing pursuant to
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
Finally, Beasley contends that the district court abused its discretion in denying his request for a contemporaneous limiting instruction under Federal Rule of Evidence 105 to instruct the jury when evidence was admissible against one party, but not another. Rule 105 provides that “the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly,” and we have held that the timing of such an instruction is left to the discretion of the trial court.
See Klein v. Sears, Roebuck & Co.,
For the reasons given, we affirm the judgment of the district court.
AFFIRMED