United States v. Charlie Lawuary

EASTERBROOK, Circuit Judges. COFFEY, Judge. Circuit On November grand federal jury sitting in the Central District of Illi- nois returned a two-count indictment charging Charlie with possession cocaine, with intent to distribute crack §§ violation of 841(b)(1)(B). 2, 1998, February On Lawu- ary quash moved to his sup- arrest and press the evidence drug possession. of his The district court denied mo- tion, finding that arresting officer had probable cause to believe pos- sessed a substance. Lawuary, controlled thereafter, entered conditional guilty to count number two of the two- (the count indictment agreed one), count reserving dismiss the right appeal the district court’s denial of his suppress motion to any and to contest finding that criminal record sub- jected him mandatory to a life sentence.1 (“If 841(b)(1)(A) any person See U.S.C. shall be sentenced to a subparagraph commits a violation of ... imprisonment term of without re- two or after more convictions for a ...”). lease. final, felony drug offense have become such instead, instructions; that, the officer’s spite argues appeal, On the front door and ran toward turned notice that that he had actual of the fact and Officer Russell mandatory, the trial his residence. Officer life sentence Lewis, arrived on the just had Jason who judge did not Russell, observed to scene Officer the assist because life sentence he ran. baggie as Lawuary throw plastic 21 U.S.C. a satisfy to failed and re- apprehended Russell stating Officer written information failing to file a Lewis re- Lawuary Officer while relying strained it was convictions the two baggie.3 the discarded Lawuary trieved impose a life sentence. upon to court erred that the district argues also Lawu- entering plea guilty, Before suppress because to denying his motion sup- and quash to the arrest ary moved cause to probable did not have police the grounds on the drug the evidence press affirm. arrest. We did not arresting officer that him. The trial arrest probable cause to I. BACKGROUND motion and deter- Lawuary’s court denied 24, 1997, August p.m., 4:30 on At about plastic search of mined that the SPD’s Springfield, Russell of Chris Officer once because Officer baggie justified was (“SPD”) Illinois, ob- Department Police a violation Russell observed of the Illinois traveling Bonneville gray Pontiac disregarded served Offi- traffic code dangling by hands, one plate license with its order to raise his cer Russell’s Comp. Ill. Stat. in violation of 625 bib screw the crotch area reached into of his 413(b)- violation, observing scene, overalls, After Officer and fled from the 5/3— stop, initiated a traffic arrest La- cause to probable' Officer Russell had Russell driveway Furthermore, of a judge into the ruled pulled wuary. the Pontiac justi- La- baggie the officer knew was plastic the search of the residence legal ar- search incident to wuary’s home. fied as a rest. occupants exited the vehi- After all three his conditional

cle, Russell, Lawuary’s entry maintain in order to After Officer 1998, presen- guilty and ensure his on March the situation control of (“PSR”) was investigation report everyone back tence safety, immediately ordered Lawuary’s two filed which concluded get did not back into the car. sub- rather, felony drug instructed; Illinois state convictions he reached the car as mandatory life sentence. jected him to a where crotch of his bib overalls into the PSR, Lawuary object- Recog- reviewing After carried. weapons frequently are it, he was arguing although ed to danger Lawuary’s repre- actions nizing the in Illi- offenses separate of two Lawuary had convicted knowing sented court, out of the same they arose a nois state recently possessing arrested for were combined for cocaine,2 of conduct and course quantity of crack Officer large Thus, according to sentencing purposes.4 Lawuary to “raise his ordered Russell prior convictions should Lawuary, the two comply refused to Lawuary again hands.” felony Lawuary pled guilty to one May on 4.In SPD arrested The Illinois, grams County, possession drug Sangamon crack of 21.3 offense charge count one constituted probation. cocaine. This In placed 18 months' and was on indictment. Be- of the November probation, pled Lawuary, on while count, this cause the district court dismissed drug felony offense in Illi- guilty another appeal. it is not of this concurrent was then sentenced to nois. He drug and 1995 two-year terms for his 1994 Police Forensic Laborato- 3. The Illinois State convictions. baggie analyzed plastic and determined ry cocaine, grams 64.3 of crack that it contained cocaine, undeter- grams powder and an marijuana. amount of mined are purposes cognizant We fact that be treated as one conviction 841(b), inherently and he traffic stops dangerous. of 21 should Wilson, subjected Maryland sentence. See and, 414, (1997). rejected Lawuary’s position The court 117 S.Ct. L.Ed.2d 41 two state felo- relying on In an effort to this known danger, control him ny drug sentenced to life occupants Officer Russell ordered back him to imprisonment pay and also ordered however, Lawuary, into the vehicle. made special assessment. $100 stop dangerous by refusing even more comply with the officer’s directions and II. ISSUES reaching into area the crotch of his over alls where many criminals are known to (1) argues: On appeal, Lawuary carry weapons. concealed Minnesota in denying district court erred his motion Cf. Dickerson, 366, 382, v. 508 113 U.S. S.Ct. the suppress because officer did not (1993) 2130, (Scalia, J., 124 (2) L.Ed.2d 334 him; arrest probable have cause to concurring) Moynahan, not, (citing J. Police that the district court did because the (1963)). Searching Recogniz Procedures government requisite did not file writ- 851, ing Lawuary’s the danger repre 21 actions ten information under sented, jurisdiction have a life Lawuary sentence. Officer Russell ordered hands,

to raise his once again but III. ANALYSIS failed to comply. further suspicions aroused Officer Russell’s when A. for Arrest Probable Cause scene, suddenly he ran tossing from Initially, Lawuary argues that the dis- away plastic baggie process. in the The denying trict court erred in his motion to Lawuary’s threatening combination of ges suppress police because officer lacked tures, comply his with failure to the law probable cause to arrest him. Because orders, flight, enforcement officer’s involves a challenge mixed baggie away, his throwing the created fact, question of law and we review the probable cause for Russell to Officer ar district de novo. court’s decision See Voida, rest Tom v. Lawuary. See 963 States, 690, Ornelas v. 517 U.S. (7th Cir.1992). 952, F.2d Illi Cf. 1657, 696-97, 116 S.Ct. 134 L.Ed.2d 911 — Wardlow, U.S. -, nois v. 120 S.Ct. (1996). 673, (2000); Kelly 145 L.Ed.2d v. 570 (8th Bender, 1328, Cir.1994), matter, 1330 general “As a the deci abrogated stop grounds, sion to an on other automobile reasonable (1995). probable 115 police where the cause to S.Ct. 132 L.Ed.2d 238 Therefore, subsequent believe that a traffic violation has oc the officer’s retriev curred.” v. United inspection plastic baggie See Whren 517 al and 806, 810, U.S. 135 justified 116 S.Ct. L.Ed.2d to a lawful as a search incident (1996). case, stop Robinson, 89 In the traffic v. arrest. See United States 218, 224, was reasonable because officer ob 414 38 U.S. 94 S.Ct. L.Ed.2d (1973).5 plate served the rear license Pontiac’s dan 427 screw, gling only one attached

obvious infraction of Illinois state law. See B. The District Jurisdiction to Court’s 5/3—413(b). Comp. 625 Ill. Stat. After Offi Impose an Enhanced Sentence however, cer stop, Russell made the traffic the district occupants, including Lawuary, argues immedi ately court did not have the exited the vehicle. Cir.1996). baggie

5. We search of the F.3d Because we also note that the proper, may justified as a search have concluded that search was have been of aban- theory. property. doned v. United we need not address abandonment See Bond decisions, regard to flexible with to U.S.C. pursuant a life sentence pose in order to 841(b)(1)(A) because, must do though even he what the See United comply that a with had actual notice section govern- imposed, Tringali, v. sentence would be States Cir.1995). require- with the comply ment failed to 851(a)(1).6 We review of section ments purpose 851’s the idea that section With de a section 851 information sufficiency of adequate the defendant provide is to Jackson, F.3d at 661. novo. See notice, that the sec this court has stated 21 U.S.C. 851: Under through provided can be tion 851 notice of an who stands convicted the defendant long No methods as as various be sen- under this shall notice contain offense written receives sufficient by rea- punishment to increased necessary tenced information before ing one more son of or to trial. guilty plea goes or enters into trial, entry or 1382; unless e.g., Tringali, 71 F.3d at See before before attor- the United States guilty, Belanger, with the court ney Jackson, files an information (7th Cir.1992); (and of such information copy (7th Cir.1997). serves In Trin person) or counsel for the person on the the at we held that gali 71 F.3d writing previous the convic- stating in when read 851 notice was sufficient section upon. relied tions to be sepa conjunction government’s in with the 404(b) added).7 Similarly, Rule notice.8 rately filed (emphasis 21 U.S.C. filed a section Belanger, government in the be- requirements are clear: Section 851’s government the reciting life im- 851 notice that Lawuary can sentenced to fore enhancement, the notice did sought an but by prior of his two fel- prisonment reason identify the convictions to be relied must not ony government the convictions, however, were Those identifying upon. the two written provide notice filing, govern in the separate detailed relying upon. it is See prior convictions 851(a)(1). itself, and Intent to Offer Evi statute ment’s “Notice 21 The dence,” the defendant’s however, the filed to establish specify the form take, have, marijuana and for past intent to distribute filing and we must provided safeguards for legislature The requirements of sec 6.We have held that the facing enhancement. the defendant sentence in nature. See tion 851 are safeguards that the defendant These ensure Jackson, 189 F.3d penalties that faces severe understands he 1999). (7th Consequently, that the fact Cir. make a “better informed order that he can argument at sen did not raise this proceed to trial.” Kel ] whether to decision[ Kelly tencing waiver. See does not constitute ly, 29 F.3d at 1109. States, (7th 29 F.3d v. United 1994); Kennedy, States v. Cir. see also United 404(b) Evi- of the Federal Rules of 8. Rule (D.C.Cir.1998); Harris v. 133 F.3d provides that: dence crimes, wrongs, or acts is Evidence of other Gonzalez-Lerma, Cir.1998); United States v. prove the of a not admissible to character 1994); Cir. but see action in conformi- in order to show (1st Prou v. United however, ty may, It be admissi- therewith. 1999). Although Cir. we do not proof purposes, such as ble for other approach to section the concurrence’s intent, motive, preparation, opportunity, did, the we we do not believe this is even if identity, plan, knowledge, or absence precedent. Circuit time to revisit established accident, provided upon mistake or especially light of the fact that accused, This is true in by prosecution in a request La- not affect the outcome of the issue does no- provide reasonable criminal case shall trial, government conceded wuary's appeal during and the if the or trial tice in advance of good "jurisdictional” pretrial and we cause that section 851 is notice on court excuses therefore, shown, are, general any such ad nature of without the benefit of oral at it to introduce evidence intends trial. vocacy on this issue. held that al note that the peachment purposes. sup- We We also though initially plemented the section 851 notice was its written orally notice ad- defective, filing vising contained “all the defendant at the time of plea second hearing, that: required Belanger, information.” 419; Jackson, 121 at F.2d at see also concerning information [T]he two ... (noting plea agreement that “the prior felony convictions that the Defen- clearly contingencies indicate^] dant has referred to is contained within sentencing possible [the were if defendant] plea agreement the written in accor- convictions.”). prior felony drug had dance with U.S.C. Section 851. And I think appropriate it would be to make case, Lawuary In this entered a sure that the Defendant acknowledges, plea guilty conditional so section 851 knows, understands; because we’re talk- requires government provide that the writ ing about a sentence ten notice to that he faced a life here; alleging the Government is pled guilty. sentence We are of before prior felony drug he has two convic- opinion requisite that all the section Namely, tions. in Sangamon those printed 851 information was on the first Illinois, County, case numbers 93-CF- page agreement: written 95-CF-413, 798 and as indicated Because defendant has two Paragraph 1 of the plea agree- written felony drug Sangamon convictions ment. County, Illinois case numbers 93-CF- Furthermore, at plea hearing, 789 and time of the 95-CF^413 judge engaged the district in an extensive offense, potential are: penalties him, colloquy with ensuring —mandatory life in prison aware that well his two Illinois drug state convictions would result in a —up eight to an million dollar fine mandatory life sentence. —a period supervised of given requi- Because years, release of 10 and site notice under section 851 before —a special assessment $100 plea guilty, entered his we hold that the of Furthermore, Lawuary’s plea agreement require- satisfied the notice recited that he “may seek to have one or 851(a)(1). § Lawuary’s ment of U.S.C. vacated, more convictions and does not so conviction and sentence are they by agreement, admit AFFIRMED. does, however, acknowledge He valid. by guilty be plea, his Court will EASTERBROOK, Judge, Circuit required a sentence of life concurring in the concurring prisonment.” language clearly pro- This judgment. notice, in writing, vided with spe- join majority’s opinion except he faced a life sentence based on his I all of the cifically prior felony drug My identified state for III.B. concern is footnote Part fact, In Lawuary signed requirements convictions. the which states that “the of sec- plea agreement jurisdictional which contained this lan- 851 are in nature. See tion Jackson, guage acknowledged, by signature, United States v. (7th Cir.1999). the fact plea agreement Consequently,

that he “read this entire carefully fully argument and have discussed it with did not raise this fully sentencing I waiver.” my attorney. understand this constitute § agreement, voluntarily to it I do not think that 21 U.S.C. ..., my of own free will even if it means affects the of district courts, impris- that I will receive a sentence of life so we should review only to whether the onment.” contention determine Olano, 725, 113 S.Ct. v. error— States plain court committed district (1993); Fed. 123 L.Ed.2d not. which it did 851(a) 52(b). really But if is R.Crim.P. re- procedures for specifies Section 851 nor for- jurisdictional, then neither waiver drug-control sentencing under the cidivist Indeed, ap- of matters. court feiture 851(a) reads: laws. Subsection subject of its own must examine peals (1) of person No who stands convicted case, if none of the every even volition this part [21 under offense does that complains. What sense parties to in- §§ shall be sentenced 841-63] Why the omission or mis- make? should of one or punishment creased reason of the offense be statement of an element tri- prior unless before more subject analysis, as Johnson plain-error al, plea guilty, a entry or before of of holds, respect with to sen- but an error attorney files an informa- jurisdictional? as tencing be treated (and copy with the court serves tion opinions saying to find easy It is or coun- information on the such 851(a) rule. Our cir is a stating writing person) sel cuit has at least three. United States relied upon. convictions to be previous Jackson, Cir.1999); by the Upon showing United States Kelly v. attorney regarding prior that facts con- (7th Cir.1994); v. Belan with be diligence victions could not due (7th Cir.1992). It is ger, 970 F.2d entry to trial or obtained before considerably explanation harder to find an guilty, may postpone the court plea just Be for this assertion. Jackson cites taking the trial or the which cites United States langer, guilty period for a reasonable Cir.1991), Wright, 932 F.2d obtaining such facts. Cleri- purpose which cites a chain of cases back to United may cal mistakes the information be Cevallos, States v. any pro- time to the amended at (5th Cir.1976), support which does not of sentence. nouncement Wright for which used it. Cev proposition (2) may An information not be filed un- allos, 851(b), said in which concerned if punish- der this section the increased dictum, 1126, that the fifth 538 F.2d at may imposed imprison- ment which requires compliance” circuit “strict years ment for term excess of three 851(a). § court much the Another said either waived or was unless Kennedy, in thing same by indictment for prosecution afforded (D.C.Cir.1998). 53, A demand the offense for which such increased jur compliance” for “strict is unrelated to punishment may imposed. be in the isdiction. our circuit’s cases rest So language purports of this to affect None no misreading end on a of and Cevallos of the district courts. statutory text. None reading at all of the no more than establish a The statute does independent opinions offers reason Subject-matter jur- precedent. condition precedent jurisdictional for a character § 8231. isdiction comes from 18 U.S.C. I ization. Nor can think of a reason. 851(a) § does not Because violation fall into two jurisdiction, problems the normal “Jurisdictional” deprive a court shadings. applica- categories, plus many waiver and forfeiture are broad rules of Service, Food Inc. v. Canteen Lawuary did not waive his entitle- See Szabo ble. 851(a), § F.2d Cir. Corp., ments under but neither did 1987). them, forfeited, or is One concerns constitutional position so his assert authority. statutory adjudicatory if committed limits of only and the district court arise under feder may questions error we reverse. Johnson v. All of the here plain law, however, III not so Article does 117 S.Ct. al United 520 U.S. limit, (1997); autho- Congress L.Ed.2d 718 United adjudicate. ‘jurisdictional’, ... nothing rized federal courts turned on the § category 3231. The other in choice 199 F.3d at Con- phrase.” by cludes rules that cannot waived be appeals, fined to direct as may Prou have loosely called-“juris and which parties, intended, true, but this is there is at least they because have this feature in dictional” one exception when we consider collateral genuine common with the attacks too: opinion this circuit’s in Kelly. permitting limits. Yet defendants make rejected The district court Kelly’s argu- in choices is norm federal criminal 851(a) ment under because it had not procedure, right question even when the fashion; in a timely raised we re- See, expressed e.g., is absolute terms. versed, 851(a) holding that because —Hill, U.S. -, New York v. 120 S.Ct. jurisdictional, the defendant did not have (2000) (Interstate 145 L.Ed.2d 560 all, point to raise the at let alone on time. Detainers, Agreement provides on which 29 F.3d at 1112-14. Thus we have a con- that a defendant transferred to another flict among the circuits: this circuit is on state “shall be to trial brought within one (and joined one side may be Harris eighty days,” hundred does not preclude forfeiture); waiver or United States v. (11th Cir.1998)); Prou and Baueum are on Mezzanatto, 115 S.Ct. other; remaining circuits have (1995) (Fed. 130 L.Ed.2d 697 R. Evid. 410 holdings. dicta but not 11(e)(6), provide Fed.R.Crim.P. during plea that statements bargaining are asking Instead of us to reexamine the inadmissible, not preclude does waiver or Prou, subject, here as forfeiture). unqualified That 851 is States has juris embraced the distinguish many not it from other entitle characterization; pro dictional Its brief possess may ments that defendants jurisdic “[n]on-eompliance is a claims that in exchange surrender —often for valuable tional Obviously defect.” the United plea bargains. concessions as A Attorney Central District of indictment, defendant who may waive de Illinois and Attorney the United States spite the fifth amendment’s unqualified the District of Rhode Island are not (“No language person shall be held to an close communication. I could appreciate capital, swer for a or otherwise infamous subject reluctance to revisit a that does not crime, presentment unless on a indict or Lawuary, affect the outcome for when the ment of Jury”) may a Grand waive parties presen made adversarial filing listing prior of an information convic tations, my but instead colleagues say 851(a) tions. Section therefore cannot “we do not with the concurrence’s properly placed this second class of (211 approach to section 851” F.3d at 376 “jurisdictional” rules. n.6) though they not give do reasons be — Only two appeals courts of have ad yond citing cases that themselves contain subject dressed this independent rea none, that, plus (Kennedy) another case soning, as opposed to citations. Prou v. while citing Kelly, Kelly’s does not endorse States, (1st United 199 F.3d 42-46 jurisdictional assertion about the status of Cir.1999), 851(a) § juris holds that is not (or all). jurisdiction § 851 mention dictional, Baucum, and United v. States 80 Martin, years ago, Two v. (D.C.Cir.1996), 543-44 a resolves Cir.1998), 860(a) tack- § similar issue under 21 U.S.C. argument led an that to against jurisdictional failure establish classification. Judge Selya’s the interstate-commerce element of an of- opinion Prou is well out, jurisdictional thought passage may Recognizing but one fense is a flaw. mislead. “[wjithout says Prou exception, panels some earlier had used the word [in] ... “jurisdiction” the cases that have called proce way a loose to denote 851(a)(1) “unauthorized,” dural requirements of section we held Martin that the right approach error. If this is the plain element only genuine death, certainly the subject- it is prosecution criminal for sentence federal § for a of life right approach under sentence matter 3231. Once established, received. prisonment, has been Martin conclud- 851(a) explicitly an- ed, “does subject are to normal rules Section other issues Accord, review”. exception plain-error nounce an to and forfeiture. of waiver Martin, Jones, Co., Prou, Krilich, Steel v. Given Cir.2000); ought we to hold that the rules waiver Hugi v. 851(a)(1). (7th Cir.1999). § apply forfeiture to These cases 851(a). concerning § equally instructive 851(a)(1) affects the maximum

Section of similar lim

length of sentences. Oodles (including minimum and maximum

its exist application

sentences and the of the Sen Guidelines);

tencing these are unrelated to jurisdiction. v.

subject-matter Steel Co. Environment, 523 a Better Citizens America, UNITED STATES 1003, 140 88-93, 118 L.Ed.2d U.S. S.Ct. Plaintiff-Appellee, (1998), clearly. The point makes that specifies limits on the statute Steel Co. HASSAN, Emad Defendant- Jamal even remedy, Congress extent of Appellant. “jurisdiction” used the word to describe 11046(c). those limits. But U.S.C. No. 99-2423. that rules of law cur Court concluded Appeals, United States Court tailing judges’ powers remedial do not af Seventh Circuit. “jurisdiction” in the strong fect sense— is, require judges disregard do not Argued Feb. forfeiture, rules of waiver and do not re 1,May Decided quire judges even if to address issue parties are content with the district judge’s disposition. equally That is true of 851(a)(1). 373, 119

Jones United U.S. 2090, 2102-03,

S.Ct. 144 L.Ed.2d 370

(1999), subject puts the to rest. Jones

contended that he had been sentenced to

death without observance of some statutes capital safeguards

that create extra

cases, his failure argued timely objection

make excused 3595(c)(2)(A), which can be read give appeals independent the court of in preventing arbitrary

role sentences. Supreme replied

But the Court that be explicitly statute an “[t]he

cause exception review” plain-error

nounce

the normal rules of waiver and forfeiture

apply. 119 at 2102. The Court went S.Ct.

on to hold that Jones had not established

Case Details

Case Name: United States v. Charlie Lawuary

Court Name: Court of Appeals for the Seventh Circuit

Date Published: May 1, 2000

Citation: 211 F.3d 372

Docket Number: 98-3003

Court Abbreviation: 7th Cir.