United States v. Boudreau

GIBBONS, Before CLAY and Circuit STAMP, Judges; Judge.* District J., GIBBONS, opinion delivered the STAMP, J., joined. D. in which CLAY, 439-42), J. (pp. delivered separate dissenting opinion.

OPINION GIBBONS, JULIA SMITH Circuit Judge. appeals

Defendant Alvin Boudreau from minimum 240-month sen- imposed upon tence the re- mand from court for resentencing light Supreme Court’s decision in Booker, United States v. 543 U.S. * Virginia, sitting by designa- Stamp, The Honorable Frederick P. Senior District of West Judge United States District tion. Northern (2005). Honor, Your with Mr. Boudreau’s rather 160 L.Ed.2d Bou- S.Ct. emphatic rejection government improp- dreau asserts that the previously provided offer I have him a erly enhance Bou- filed its information copy again and I will serve him in § now U.S.C. dreau’s sentence under copy of the open govern- court with a drug-offense con- prior because of his two ment’s Information for enhancement for victions, rendering inap- the enhancement penalties original I file the with and that and will hold under plicable. disagree law, the Court’s Clerk. govern- case our well-established information in filing open ment’s of the 8.) (Jury The district court Selection Tr. at coupled personal upon court with notice,” of that acknowledged “receipt as to trial the defendant satisfied the (Jury did Boudreau’s counsel. Selection statutory requirements. Consequently, we 8-9.) Tr. at of the judgment

affirm the district court. Boudreau’s commenced before the day;

district court and that same on Janu 28, 2002, I. ary jury found Boudreau guilty alleged in both counts the indict 19, 2000, July grand a federal jury On 26, 2002, ment. September On indictment superseding charg- returned a calculating after the sentencing conspiracy to possess Boudreau with range then-mandatory under the guide in with intent to distribute heroin violation lines, sentenced Boudreau concurrent § conspira- § of 21 and 846 and U.S.C. 841 terms of imprisonment 360 months on each cy with intent to import to manufacture count. appealed Boudreau both jury § of 21 heroin violation U.S.C. convictions and to this court. sentence On 952(a), 959(a)(l)-(2), § § 960. As 18, 2005, April we affirmed Boudreau’s reject prepared formally Boudreau convictions on both but counts vacated his government’s plea of a 196-month offer sentence and remanded to the district 17, 2002, January sentence on the Assis- light court for resentencing in of the Su (“AUSA”) Attorney tant United States preme intervening Court’s decision in made the statement following Fed.Appx. Makki, Booker. United States court: 185, 193 my I have in hand information for remand, Upon Boudreau’s new counsel statutory penalties pursuant enhanced challenged adequacy govern- to Title 21 United States Code Section filing ment’s 2002 of its Section 851, given history Mr. Boudreau’s notice. At July hearing, Bou- attorneys, matter his I change have alleged dreau did —and today’s until withheld date to dispute not notice ap- never —that opportunity accept offer him the peared on the district court’s docket sheet. offer. I plea will be ten- Boudreau also noted that the case file dering Court this to the however and original lacked an of the upon filing Mr. Boudreau will face a ment’s Section notice. Pointing to mandatory [sic ] ninimum 240 months the transcript, Boudreau recalled that the imprisonment.... AUSA had original said “I will file 3-4.) (Jury with Following (Jury Selection Tr. the Court’s Selection Clerk.” added).) rejection plea (emphasis Boudreau’s formal Tr. at 8 Boudreau ar- offer, gued again addressed the that this indicated that the AUSA AUSA’s court: actions in court constitute filing 31.) noted, Hearing Tr. at Beauchemin meaning of Section

within however, thirty years in her of work- copy in the the absence of office, clerk’s she had witnessed ing for the conten- Boudreau’s supported file clerk’s inadver- where office staff had filed the occasions never a document. tently misplaced Boudreau Consequently, notice. required without court was that the district argued testimony, the district hearing this After to a twen- authority to sentence prop- ruled that the minimum sentence. ty-year 851(a) information. erly filed the Section the recollection court credited Bou- The district prosecuted who AUSA The same the informa- that he had filed of the AUSA gov- original appeared case dreau’s open clerk in court. deputy with the gov- The July hearing. at the ernment why original docu- the issue of was As to transcript argued ernment court con- missing, the district dis- ment was noting that both the ambiguous, not first and I’m sure that “it isn’t the at the cluded counsel trict court Boudreau’s has not time that a document not the last acknowledged receipt of the Section time Further, included in the court file.” ultimately court. been open 27.) (Motion Tr. at United States Hearing that the AUSA had revealed transcript Steeh, George who had also Judge the District original with he was said 17, January clerk, presided over office with not clerk’s “Court’s issue, (Motion 2002, found that proceeding at also Hearing Tr. at clerk.” Court’s 12.) “is consistent with having per- the AUSA’s recollection then recalled The AUSA my Judge own recollection.” Id. .Steeh dep- handed the information to sonally clearly he remembered the AUSA’s court- said in the district uty clerk stationed a to the clerk.” Id. “handing document The asserted day. room that filing within proper this constituted on resentencing place took The formal meaning of the statute. 4, The district court September in its than an error had occurred Boudreau to found district court allowed The calculation and that duty original sentencing who had been on deputy call the clerk 17, 2002, longer be sentenced as to Boudreau could no January in the courtroom Beauchemin, The error occurred clerk, a career offender. testify. Marcia The had incor- probation officer been unable because that she had indeed testified of Boudreau’s Michi- rectly classified one original copy of the Section to find the delivery charge convictions as a gan further state information. Beauchemin charge. See possession rather than a origi- received such an stated that had she 4Bl.l~1.2(b) a (stating §§ have U.S.S.G. open court she would nal must have “two felo- the clerk’s office career offender walked it to “[plhysieally (Motion of either a crime of violence Hearing ny Tr. at convictions filing.” ... offense,” 25.) cross-examination, where or a controlled substance Upon later offense” is defined handwritten “a controlled substance revealed that Beauchemin simple possession). exclude With con- so as to kept during proceedings notes she en- of the career-offender the removal accepted firmed that she had hancement, advisory Boudreau’s new from the information in much reduced 188- clarified, me, range was a “To I—if Guidelines further AUSA. She However, be- down, imprisonment. months to me that was I wrote it that means filed, ruling court’s it cause of the district it was but filed. I don’t know how (Motion properly filed the Section government had to be filed.” suppose [sic] was 851(a) information, minimum mandatory any underlying a view determination facts clearly under the required. of 240 erroneous standard months was sentence review, make a de novo determination depart upward court declined to legal those facts minimum, despite whether constitute from “A finding clearly waiver.” Id. errone- inclination to do so because court’s initial reviewing ous when the court on the entire past violent nature of Boudreau’s left with the firm evidence is definite and a con- Boudreau thus received offenses. a conviction that mistake has been commit- each 240-month sentence on count current Gilpatrick, ted.” States v. 10-year terms of followed concurrent (6th Cir.2008) F.3d 484-85 (quoting timely filed release. Boudreau supervised Cmty. Heights Cong. Hilltop Realty, appeal. (6th Cir.1985)). Inc., 774 F.2d II. have held that “as with other argument, can forfeit a A. argument by waiver it in failing to raise merits of Before we can reach the States, timely fashion.” Hunter v. United claims, we must first address Boudreau’s 1109, (6th Cir.1998); 160 1113 F.3d see Boudreau assertion that government’s also States v. Canady, United 126 F.3d right propri appeal has his to waived (2d Cir.1997). 352, transcript 359 of The government’s filing the Sec ety of the of 20, 2007, court’s July hearing the district 851(a) government information. The tion instance reveals no where the government that Boudreau should have raised argues objection lodged an to the district court’s filing to the objections his consideration Boudreau’s motion to during prior appeal. the information government’s filing strike the of the Sec- not, govern Boudreau Because did 851(a) noting information. Instead of reasons, principles ment traditional waiver objection, government its remained si- asserting from the is bar Boudreau now participated lent and in an hear- extensive it is responds sue. Boudreau that calling that included and witnesses right that to government has waived the multiple rounds cross examination. The gov this issue. that Noting contest government obviously made could have object did not district ernment to the objection and allowed the argu court’s consideration of Boudreau’s opportunity court the to it before rule on 851(a) concerning filing ments Section successful, hearing commenced. If remand, argues gov Boudreau that the government’s objection obviat- would have argument. has ernment waived its waiver ed the need further consideration of argument. question of waiver is mixed Boudreau’s therefore hold “[T]he We Sage- of law and fact.” v. that has waiver question government Karam waived its Inc., 421, Consulting, argument, 426 and we will mark 383 F.3d next turn will Consequently, appeal.1 we “re- merits of Boudreau’s initially only logically 1. We note that even if the or issue became following argument, the district remand. v. not waived waiver relevant United States Cir.1996) Hebeka, 279, (6th (de by considering not err Boudreau’s F.3d 284 court did cl sentencing gov objections ining allowing on remand. waiver and In to find "reasonably appeals, parties change we have allowed to address ernment direction” during pursue argument during a new on remand not addressed a subse issues sentencing moving party argument appeal quent appeal presenting when initial if the original appeal had been either unable to issue in the would not have been assert (11th Cir.1990), 1466, 1481 F.2d B. construe the proposition courts should procedural requirements of Section alternative asserts two Boudreau without a strictly. argues Boudreau why the explain in his effort arguments court was without proper filing the district holding that erred in its district court subject him to the 240-month authority to filed the Section properly mandatory minimum informa sentencing enhancement sufficiency govern “The contention address each tion. We will pursuant of an information ment’s First, that while argues turn. Boudreau that this question is a of law section tendered United, v. reviews de novo.” States Court him in notice to Cir.2007) Pritchett, 496 F.3d contents, fact him aware of its made King, v. (citing United States on the appeared information never that the (6th Cir.1997)). faced a simi matter of law as a precludes court’s docket raises lar issue to that Boudreau holding govern the district court’s Pritchett, argued where the defendant support his filed information. To ment by Section both that the failure to abide 851(a)2 Eleventh juris cites the court of argument, deprived Weaver, a defendant and that diction to sentence case of Circuit raising object again to Boudreau’s logical). government therefore is correct generally the issue before the district court. See the “law-of-the-case doctrine Makki, previ- Fed.Appx. at With the challenges at a 129 190-92. to a decision made bars removed, Bou- stage litigation which could have career-offender enhancement ous of the advisory range challenged appeal dreau’s now Guidelines was prior in a but were been Adesida, only 188-235 months—less than the manda- not.” United States required by government tory of 240 months What the minimum 850 851(a). The Section en- a narrow Section misses is that Hebeka established relevant in a exception general principal. In Hebe- hancement therefore became to this ka, prior government way that it at the time of the exception allowed the to was not Hebeka, concerning appeal. F.3d at 284-85. an the district court's 89 raise issue Cf. govern- application of the Guidelines that the 851(a)(1) provides: § 2. The text of 21 U.S.C. prior appeal. in ment had failed to raise the Here, exception F.3d at the al- 89 284-85. person convicted of an of- No who stands Boudreau to raise his Section lows part §§ U.S.C. 841 et [21 fense under this issue. seq.] pun- to increased shall be sentenced prior reason of one or more ishment challenged Boudreau could have While trial, convictions, or before unless before during initial of the information his entry plea guilty, a the United States of of logically appeal, rele- it would not have been attorney with the court files information originally vant because the district (and offender, information on serves a of such re- Boudreau as a career sentenced person person) stat- or counsel for the sulting a months to life im- in term of 360 Thus, ing writing previous to be in convictions mandatory prisonment. the then upon. Upon showing by United relied range greater Guidelines was much than prior attorney regarding that facts sentence of 240 minimum 851(a). diligence could not with due be required by When convictions months Section entry prior of a original appeal to obtained to trial or before we remanded Boudreau's may postpone resentencing light plea guilty, the court in of of district court Booker, taking plea guilty for a trial or the of the district court recalculated Bou- period purpose of obtain- and determined that it had reasonable dreau’s sentence applying facts. Clerical mistakes in the enhancement. Bou- such erred may amended at time propriety of the en- information be dreau had raised the prior pronouncement appeal; government of sentence. hancement on and the

437 jurisdiction, rationally if the district court had claim not to have received even notice filed the im- government opportunity heard. be We con- properly deprive so as to the district court sequently government concluded that the ability to enhance the defendant’s of requirements had satisfied the of Section 496 F.3d at 538. The defen- 851(a). Id. at 550. pled guilty in Pritchett to several dant Indeed, regularly we have held that ac hearing. plea at a Id. The drug charges requirements tual notice satisfies agreement unambiguously provided 851(a). Butler, Section In States v. subject sentencing the defendant was to a Cir.2005), Fed.Appx. upon prior based convic- enhancement government prior filed “in court” that he would receive a manda- tions such information. De of 120 tory minimum sentence months. fense counsel received service that same objected Id. at 539. The defendant day, appear but the information did not not file the because did the district court’s docket until after the change plea, information until after trial had argued, commenced. Id. Butler plain language in violation of the Boudreau, though like that even gov statute, could not seek the ernment “tendered” the information to mandatory minimum sentence. Cf. trial, prior him the fact that it was not 851(a)(1) (requiring U.S.C. ” actually until began after the trial “filed trial, ment to file its notice or “before precluded the district court from being entry plea guilty”). of a before able to enhance Butler’s sentence. Id. district court found defendant was (emphasis original). We found that aware of the terms of the enhancement personal because Butler received actual rejected plea to his and therefore in open Pritchett, defendant’s contention. complied with the section. Id. F.3d at 540. Our agreed sister circuits have with our finding After failure to follow Sec- interpretation of what Section re- tion cannot divest a district court of quires. of frequently One the most cited jurisdiction, we in moved Pritchett examples exactly the case Boudreau whether, the issue of under the facts of the cites—the Eleventh Circuit’s decision in case, the satisfied re- The defendant in Weaver. Weaver re- quirements of the at section. Id. 547. We personal ceived in open court of the that requirements noted of Section government’s Section information. however, mandatory; are the statu- 905 F.2d at 1481. The information was not tory requirements “designed were to satis- placed on the docket until after the trial fy requirements process of due and began, and the information itself had a provide the defendant with reasonable no- filing days date four after the trial com- opportunity tice and an to be heard re- noting menced. Id. that “[t]his While cir- possibility garding the of enhanced sen- upon compliance cuit has insisted strict (quoting tence for recidivism.” Id. at 548 mandatory language proce- with the King, United States v. 127 F.3d (6th Cir.1997)). 851(a),” requirements dural of section id. in The district court (citation omitted), the Eleventh Circuit key Pritchett had reviewed the portions “[b]y personally in nonetheless held that plea agreement open the defendant’s serving and his counsel with a including covering those terms Sikes trial, mandatory minimum at of the information Id. 539. and this, advising orally Because of the defendant could not the court that it was appeared upon or when the notice whether of sentence purposes an information See, e.g., enhancement, complied court’s docket sheet. the district (notice of sec- heard mandatory requirements opportunity and to be with the id. 851(a).” Circuit The Eleventh guilty Id. failure to docket until after cure fact that neither (ten- note of the special made Butler, Fed.Appx. at 816 plea); objected counsel had nor his the defendant open in dering notice to defendant government’s form of the timing or “to 851(a) even when notice Section satisfies Id. open court. notice” until after upon the docket appear did not trial). progeny and its find that Pritchett transcript The case. control Boudreau’s 17, 2002, hearing reveals that January upon notice Bou- government served dis challenges Boudreau also government spe- open court.

dreau findings factual trict court’s that the information allowed cifically noted notice with AUSA filed mini- to seek clerk in court and that The district mum sentence of 240 months. original copy misplaced if he understood office clerk’s court asked agreement formally by rejecting plea thereby enter subject to trial he would now be going to review the fac notice on the docket. We jury if the convict- this enhanced sentence underpinning the dis tual determinations un- responded that he ed him. Boudreau clear er legal trict court’s conclusions for faced “an extra 10 derstood that he now Green, States v. 532 F.3d ror. See United (Jury years prison.” or more in Selection Boudreau can 4.) Boudreau’s trial counsel acknowl- Tr. at no facts to refute the district point no edged service of the notice and raised finding that the AUSA tendered court’s Weaver, 905 F.2d at 1481 objections. Cf. transcript court. The the notice object to (noting that trial counsel did not hearing clearly indicates notice). open-court Bou- with intended to “file the AUSA process thus received all that due dreau (Jury Tr. at the Court’s Clerk.” Selection 851(a) require: “reasonable and Section 8.) recalled the AUSA’s Judge Steeh also opportunity to be heard re- notice and pres passing the information to the clerk of an enhanced sen- garding possibility factual ent in court.3 The district court’s (inter- Pritchett, tence.” findings clearly are not erroneous. omitted). quotation nal marks and citation regarding As to Boudreau’s contention therefore hold that the court clerk’s office whether open notice in court com- on-the-record information and actually lost the personal upon service the de- bined with docket, notice on the we failed to enter the require- prior fendant to satisfied 851(a) by our hold- regardless of note that this issue is mooted ments of Section assertions, judge presided judge Contrary there different where the same 3. to the dissent's is attack nothing improper judge's over both the trial and the collateral about a district re- entirely ap- upon conviction because it is calling past that occurred in relevant events rely propriate "judge his or her ruling pending [to] a on own courtroom when long judge memory when relevant to the also has of the trial motion as as the district Furthermore, review). argue neither parties adequate issues" on allowed both time to appeal positions. Compare party to this raises the fact their Dissent at 439 with States, memory judge cited his own as district to Smith v. United Cir.2003) (refusing a to remand the case to error. judge that Boudreau received all the who could have viewed the events in ing above requires. question with the of a that Section benefit fresh set of notice mistakenly eyes.1 the clerk’s office for- Whether to the formal docket

got to add the notice appeal The sole issue on is whether the irrelevant. is finding district court erred in information, government “filed” the as III. requires U.S.C. to do before the court can a enhance de- reasons, foregoing we affirm the For prior fendant’s sentence based on a drug of the district court and hold judgment conviction. Notwithstanding the narrow that on-the-record notice presented, majority issue devotes upon the personal combined with opinion much of its to a discussion of unre- defendant to trial satisfies the re- very lated cases that involve facts different quirements regardless of Section presented from those in this case. Fur- appeared upon or when the notice whether ther, analysis issue, in its of the central district court’s docket sheet. majority only a conclusory makes assertion filed the information. CLAY, Judge, dissenting. Circuit Despite majority’s unsupported conclu- It should be noted the outset that this sions, the record indicates that the unusual in that the dis- case is somewhat information, ment failed to file the and the judge both as a trict court below acted finding contrary district court’s to the was question to the events in and as witness clearly erroneous. Because the district the factfinder assessed his credi- who own authority impose court lacked to the sen- bility reliability memory and the of his own tencing question, enhancement I re- (after lapse years)— more than five spectfully majority dissent from the opin- notwithstanding any impartial observ- affirming ion Boudreau’s sentence. likely judge’s er would describe the district entirely majority version of events as In- baseless. first makes the erroneous deed, troubling aspect assumption there is a that because Boudreau had ac- judge’s willingness engage district in tual notice of the information and its con- tent, certainty government complied factual assertions with such with “all the complete process absence of indication that that due and Section re- However, quire.” Maj. Op. the events he describes ever occurred. It at as “[ejven judge recognized, is unfortunate that the district did other courts have when surprised by not refer this matter to another district the defendant is not the en- opinion, inappropriate judge majority rely 1. In footnote 3 of its for a on his own argument regard- misconstrues dissent's memory, but that there was no basis for the inappropriateness the rather judge —under under the do so circumstances of this unusual circumstances of this case—of the Similarly, majority's case. reliance on judge's Although actions. it not is States, (6th Smith v. United 348 F.3d 545 judge even clear from the record that the Cir.2003), misplaced. is Smith noted that a pertinent during at the the looked document rely judge may memory her "habeas on his or hearing question, judge in the nonetheless the when relevant the issues on a acted as factfinder on the issue of whether However, Id. at collateral review.” being specific remembered a he document nothing a in Smith or similar cases allows during hearing deputy handed to a clerk a rely upon judge to his own recollec- district years conducted in his courtroom over five Thus, when there is no factual foundation for ago. contrary majority’s to the asser- tions, point being the made here is not that it that recollection. 440 the defendant had reason- cient because aware from the was [and]

hanced sentence of an regarding possibility could the conviction able notice previous that his outset sentence, ... the stat Id. at 489. to an enhanced enhanced sentence. lead sentence unless an enhanced prohibits ute However, reasoning employed the by properly it government first seeks the to the King inapplicable in the court ” v. United States filing an information.... in this case. presented circumstances (11th 1466, Weaver, Cir. F.2d 1481 905 argue Boudreau does not 1990). ma contrary to the Consequently, was deficient based on ment’s information had even if Boudreau jority’s suggestion, content, failed or that the information intent to government’s of the actual notice specificity the to set forth with sufficient enhancement, gov sentencing the seek a invoked to enhance his prior conviction § un comply did not with ernment Instead, challenges it “filed” the information. less entirely requirement set forth separate an mistaken na- demonstrating the Further government § the “file” the in —that majority’s analysis, the cases ture of the whether the Consequently, information. involve a majority relies on do not the government provided Boudreau with “rea- in- concerning whether an dispute “proper inquiry” sonable notice” is not “filed,” do not and therefore formation was determining government in whether at in specific question issue address 851(a). §with complied government “filed” this case—whether in example, For the information. majority’s The reliance on United States (6th Cir.1997), 127 King, States v. F.3d 483 (6th Pritchett, Cir.2007), v. 496 F.3d 537 information, but government filed In misplaced. is also both Weaver date the information set forth incorrect Pritchett, the court excused Weaver con- respect of conviction with on untimely filing of an information based sought to government viction on which the actual the fact that the defendants had rely. addressing Id. at 488. In whether case, In neither notice of the information. § de- government complied with however, dispute concerning a was there error, conducted a spite this had, fact, government whether circuit cases ad- detailed review of two Similarly, in “filed” the information. Unit- speci- lack of dressing defective content —a Butler, Fed.Appx. ed States v. ficity prior conviction in United Cir.2005), although Gonzalez-Lerma, v. 14 F.3d day file the information until the after (10th Cir.1994), and a failure to iden- started, appeared trial had the information tify provision the correct enhancement docket, party on the court’s and neither Campbell, United States “filed” contested that the reasoned The court Accordingly, the information. Id. at 815. that, circumstances, “prop- under such majority’s invocation of these cases is inquiry er is whether inappropriate support and does not the defendant ‘rea- provided government complied conclusion that rely intent to [its] sonable notice 851(a)’s requirements in this case. with meaningful op- conviction and a particular ” majority blithely significantly, More King, 127 F.3d portunity to be heard.’ (alteration support the lack of for the district ignores original) (quoting at 488-89 1485). Gonzalez-Lerma, court’s conclusion F.3d reviewing the information. In “filed” King court in determined hearing, it transcript pretrial of the is finding court erred in the information defi- finding evident that the district court’s testimony is nor the Beauchemin, of Ms. clearly deputy erroneous. the clerk present during pre- the trial hearing, provide any factual support does not define the term alleged recollection of the AUSA “file.” Federal Rule of Criminal Proce judge that the AUSA 49(d), however, filing pur dure defines for handed original dep- information to the United, poses of criminal cases. States Cf. uty clerk in court. Severino, Cir. 2003) that (noting does not define Although the transcript from pre- service, assuming but that the definition of trial hearing reveals that pro- the AUSA 49(b) controlled). in Rule copy Rule vided a of the information to Bou- 49(d) that filing dreau, states criminal actions it does not indicate that the AUSA must “be provided made a manner for in provided in fact original an information to 49(d). a civil action.” Fed.R.Crim.P. deputy Un present clerk in the courtroom. time, der the civil rules relevant at the The AUSA’s statements during pre- 5(e) provided Rule filing papers hearing do not indicate gov- “shall be made ... filing with the clerk presented ernment original court, except that the judge may permit deputy fact, to the clerk. In only papers to be filed judge, with the relevant facts direct a finding that judge which event the shall note thereon AUSA’s during pretrial actions hearing filing date and forthwith transmit them did not “filing” constitute a of the informa- ” to the office of the clerk.... Fed.R.Civ.P. tion. that, Ms. Beauchemin testified had 5(e). 5(e), Relying on govern Rule provided the AUSA her with original argued ment that it “filed” the information information during pretrial hearing, by providing an original deputy she would have delivered it to the clerk’s in open clerk court. Boudreau acknowl filing. office for She also stated that if the edges that “tendering original § only AUSA handed her rather Notice to the deputy [sic] courtroom or original than an document, of the she might district court have been sufficient would not have believed that govern- (Def.’s 8.) filing.” Reply However, Br. ment intended for the copy to be filed. It appropriately argues, and I undisputed that the clerk’s office never agree, that “there is no evidence that the filing information, docketed the of the Government original tendered the notice to the court’s file did not contain an the courtroom clerk or the district information. Accordingly, the rec- (Id. 5.) at all.” ord cannot support the finding that government filed the information through Contrary to majority’s unsupported during pretrial actions hearing. conclusion, there is no factual basis for the finding district court’s that the information Perhaps recognizing any the lack of evi- was filed. To govern- conclude that the dence that would corroborate the information, ment filed the the district ment’s assertion that the information was judge purported rely filed, on his own recol- the district court relied on the ab- lection and that of the assistant sence evidence of filing to conclude (“AUSA”)' Attorney than filed the information. —more years pretrial five after the hearing The district court emphasized that Bou- —re- garding the AUSA’s actions and intentions dreau could not show that the during pretrial However, hearing. provide deputy clerk with an neither the transcript pretrial addition, hear- original information. In the dis- are that documents judge

trict noted by deputy clerks or lost

sometimes thereby speculating such the cause of the might have been

error case.

missing original lacks evidence be- the record

Because unsupported as-

yond the district court’s government provided

sumption that clerk, deputy information to the finding clearly erred the informa- “filed” obviously failed to

tion. The 851(a)’s requirements,

comply with

meaning that the district court lacked sen-

authority impose the enhanced respectfully dissent

tence. I therefore majority’s affirming decision

from the

Boudreau’s

Sammy TERRELL, Lee Petitioner-

Appellee, America,

UNITED STATES

Respondent-Appellant.

No. 07-2546. Appeals,

United States Court of

Sixth Circuit.

Argued: Jan. 2009.

Decided and Filed: March

Case Details

Case Name: United States v. Boudreau

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 23, 2009

Citation: 564 F.3d 431

Docket Number: 07-2143

Court Abbreviation: 6th Cir.