United States v. Felix Severino

now have the statutes we Based on poses. commercial enhancement these place, Congress’s directly contravene

activities Refuge

mandates the Wilderness

Acts, interests and allow commercial of the wilderness

trump preservation I Area. Kenai Wilderness

conditions inor its acquiesce in this result

cannot I therefore dissent.

reasoning. America,

UNITED STATES

Plaintiff-Appellee, SEVERINO, Defendant-

Felix

Appellant.

No. 00-30161. Appeals, Court of

Ninth Circuit. 18, 2002. and Submitted June

Argued 14, 2003.

Filed Jan. Brown, AK, argued Anchorage,

Bruce L. defendant-appellant. for Stephen Cooper, Assistant United Fairbanks, AK, argued Attorney, Timothy M. plaintiff-appellee. Attorney, Anchor- Burgess, United States AK, assisted on the brief. age, SCHROEDER, Judge, Before Chief KOZINSKI, TROTT, REINHARDT, THOMAS, GOULD, PAEZ, RYMER, BERZON, TALLMAN and RAWLINSON, Judges. Circuit KOZINSKI; Dissent by Judge Opinion by Judge THOMAS KOZINSKI, Judge. Circuit mini- mandatory imposes Federal law crimes, but for certain mum sentence felony drug prior. defendant has eligible for to render defendant In order minimum, mandatory in an in- conviction allege must to 21 U.S.C. 851. pursuant formation must do what the We consider comply provision. with this I one”), and Severino himself acknowl- edged and the effect it would government charged Felix Severino have on his sentence. for his role in a conspiracy distribute cocaine and the charges posses- related judge accepted guilty plea sion and distribution. See U.S.C. sentenced mandatory Severino to the mini- 841(a)(1). §§ After Severino and mum years prison of ten as a result of plea agree- States entered into a the prior. Neither at the change-of-plea ment, the district court held a hearing nor at sentencing did Severino Alaska, in Anchorage, with the Assistant object adequacy of the information Attorney appearing tele- substance, timing filed—its how phone from Fairbanks. was served. acknowledged, Severino that day, prosecutor Earlier had times, once but three that prior he had a filed an in information the Fairbanks fed- felony drug conviction. He said that he eral alleging courthouse that Severino had understood sentencing effects of that had a prior felony drug conviction in Mas- conviction. And he did not then —nor does sachusetts, “[possession 1of ounce to suggest any he way of it. challenging now— cocaine[,] 1 kñogram of 1992-1993.” Sev- was, fact, in erino in convicted 1992 for appeal Severino did not but he eventual- felony possession 1of ounce to 1 kilogram ly petition filed a pursuant to 28 U.S.C. cocaine, Island, but Rhode not Massa- Represented 2255.1 lawyer, a new chusetts. Severino challenged a number of errors. At the change-of-plea hearing, court, Severi- He made one trip successful to this no’s counsel was the first to topic raise the where we vacated his sentence because the convictions. He that mentioned district court had failed to inform Severino Severino had a felony drug conviction right of his to appeal. See United States East,” (the “back represented and that he Severino, 99-35161, v. No. 1999 U.S.App. lawyer) explained had sentencing con- 34564, (9th LEXIS 1999 WL 1278048 Cir. sequences of that conviction to his client. 1999). 30, remand, Dec. On the district Defense counsel also offered that sentence, original reinstated the chances of challenging validity though reluctantly' court recognizing —the “zero,” conviction were “really and not an that Severino had made prog- substantial issue in the case.” prison, ress in noting but also its lack of prosecutor explained that expe- discretion. timing dited to accom- —set Severino appealed again, once and a di- modate the vacation schedule of Severino’s panel vided ground affirmed on the attorney' given him get a chance to —hadn’t rights Severino had waived his under sec- the information into the hands of the de- 851(a) tion and that deficiency not fendant or his counsel before the hearing. waived was harmless. See United States did, however, He represent that the infor- Severino, (9th Cir.2001). v. 268 F.3d 850 mation had been filed and summarized its subsequently contents. We took case Severino’s counsel en banc. enthusiasti- cally Severino, confirmed the United existence of the States v. 284 F.3d 985 (“That’s (9th the prosecutor’s Cir.2002). sentence, By failing 1. appeal gument by failing Severino to raise it. See United might Severino, 99-35161, have been deemed to have defaulted No. however, 34564, these appeal, claims. In an earlier U.S.App. LEXIS at *2 n. 1999 WL (9th we held 1999). that the waived this ar- Cir. Dec. decision about make an informed and II substance of the challenge whether statute; 851 is Section See, id.; Kelly v. e.g., United information. to enhance either exist the law facts Cir.1994), States, don’t—sec they sentence or defendant’s by United grounds on other overruled The stat that.2 change doesn’t tion Ceballos, F.3d 679 Cir. States so a notice proper “ensures merely ute 2002). whether inclu must We consider the informa challenge is able defendant inaccurately of some information sion about decision make an informed [and] tion conviction defeats the describes plead guilty.” or not whether defendant no purpose of statutory giving Hamilton, 1165, 1168 tice. denied, (9th Cir.), cert. (2000). These 148 L.Ed.2d S.Ct. question We have confronted require in four take form procedures indictments. Like setting the similar in writ must be The information

ments. informations, “provide defen indictments the court be filed it must ing; necessary allow with the notice dants counsel; it or his the defendant served on contents” of challenge them trial or and served before filed must be Steen, v. 55 F.3d charge. of the substance and guilty plea; a before (5th Cir.1995). have found We 1026 identify previous the must the information whole, if, sufficient legally indictments conviction(s). the defendant they “adequately apprised in- that the claim is principal Severino’s States against him.” United charges the requirements the satisfy not did formation (9th James, 1316 Cir. 980 F.2d v. ways: the substance 851 in two of section 1992). put can on Because defendant the information, naming vague the mistakes, certain charge despite of a notice state, identify prior the failed to wrong defieiencpes] in the or technical “‘minor and, if sentencing; even at ” used conviction a conviction not reverse will indictment’ filed, it wasn’t timely information was the (quoting Id. Unit prejudice. there is no if must be re- timely served because service Normandeau, 800 F.2d v. States ed mailed, ceived, plea just before not (9th Cir.1986), part in on overruled hearing. Nordby, States grounds United other (9th Cir.2000)); also see Requirement Specificity The A. 7(c)(3). Only where defen Fed.R.Crim.P. 851(a) “silent The text of section about the prejudice to his is misled dant govern with which specificity on the an indict him we find charges against will convictions.” identify prior must ment inadequate. ment 556, 576 Layne, F.3d approach in same adopt We Cir.1999). (6th the information Obviously, 851(a) sufficiency of a section testing the about every known fact include need defendant, reading the If the rather, information: must government, The prior. context, have no trouble in will rational information facts so that a include sufficient prior which conviction understanding identify prior conviction can defendant trial, entry of a before 851(a) before or part: unless provides relevant in 2. Section attorney files an guilty, the United States an of- convicted of person who No stands (and serves with the information seq.] §§ et shall fense under U.S.C. person [21 on the copy of such information writing stating punishment person) in for the be sentenced increased counsel upon. convictions, relied to be previous convictions more of one or reason prosecutor identify, means to the informa- misstates the date of conviction by five tion then has ... previous “stat[ed] years satisfy can nonetheless section 851: convictions,” the statutory purpose context, Given the the defendant Hamil- providing defendant notice been has satis- ton “could not have been confused about Circuit, fied. Like Fifth we hold that conviction” and therefore had errors in an “negate[ the no- ] “sufficient notice that the was provided tice by the other listed data aware of his conviction and would discrepancy [the misled defendant] seek to enhance his sentence.” Id. at Steen, prejudice.” to his 55 F.3d at 1028. 1168-69. Other circuits have reached the same provision,3 The clerical error which conclusion, allowing errors if the informa- allows the government to correct “clerical tion, mistakes, despite its definitively still mistakes” an information before sen identified the conviction. Informa- tencing, does not raise the inference that 851(a) tions under section have been no other permitted. mistakes are deemed sufficient despite the fact contrary view has been implicitly rejected date, they contained the wrong see United ours) by the circuits (including that have King, compliance found with section Cir.1997), de offense, Steen, wrong see spite a number of non-clerical 1025-28, errors. See F.3d at wrong statutory and the section, p. supra. see Nor is the clerical United States v. error Campbell, 980 fact, Cir.1992), provision, 251-52 and even inconsistent with our though the description of the prior analysis. provision functions as a safe quite sketchy, see United States v. Gonza- harbor for certain minor If errors. lez-Lerma, 1485-86 clerical, error is deemed to be govern the Cir.1994) (no number, specific docket loca- may ment simply by correct it filing an date). tion or correct Section was amended information without showing that in satisfied each of these cases because the defendant was not misled. If the error is gave information the defendant fair notice non-clerical, however, the information is prior of which conviction government the deemed defective government unless the had in mind for seeking a sentence en- shows that defendant could reasonably not See, Steen, hancement. e.g., 55 F.3d at have been prejudice misled to his as to the 1026-27. identity of the prior conviction. This is already the law in our circuit. In Here, the information left no doubt Hamilton, we “addressed the substantive about prior which conviction the govern requirements of an information under sec- ment in had mind predicate as the for the 851(a).” tion 208 F.3d at 1168. Careful “ ” sentence enhancement. The defendant not to substance,’ ‘elevat[e] form over a prior drug has conviction—a single prior id. (quoting King, 489), 127 F.3d at we drug conviction. The information correct held that long “[a]s as the information ly identified the (possession), crime provides clear notice to a defendant of the (1 type (cocaine), of drug (and quantity prior convictions the court gives an ounce to 1 kilogram) and opportunity year of con attack [such] convictions (1992-1993). ...), then viction the statute It did err has been satisfied.” as to the state, Id. at standard, 1169. Applying that but the error was no more serious Hamilton held that an information that than five-year discrepancy we allowed 3. "Clerical mistakes may in the information nouncement sentence.” 21 U.S.C. be amended at pro- 851(a)(1). time to the a well-known which had at time Hamilton; have ute possibly it could in one of or in the law of meaning about which at common law in doubt put Severino was have country they presumed convictions the Indeed, information. in the referencing in that unless the context been used sense the infor- that agreed counsel ”) Severino’s contrary.’ Stan- (quoting compels (“That’s stated, mation, was correct States, v. United U.S. dard Oil Co. when I said back referring to I was one (1911)); L.Ed. 619 see 31 S.Ct. Honor.”). himself East, Severino Your States, 1, 21, also Neder v. United correct. that the information agreed (1999) (not- 1827, 144 L.Ed.2d 35 that even volunteered counsel Severino’s terms with Congress that where uses ing up “kick sen- [the would Severino’s infer, un- meanings, “a must settled mandatory years.” Sev- to that tence] dictates, less the statute otherwise too, that his erino, acknowledged estab- incorporate means to Congress In minimum. in a 10-year result would (internal these terms” meaning lished than fact, it more once. acknowledged he omitted)). quotation marks not, not, suggest that and does he did And 49(b) provides that service “shall Rule challenge validity. its any way to has he provided civil be made the manner told, reasonably as All Severino cannot which, turn, that, actions,” declares govern blindsided that he was sert complete mailing.” on by mail is “[s]ervice reasonably assert Nor can Severino ment. added). 5(b)(2)(B) (emphasis Fed.R.Civ.P. any expecting plea entered his that he what Congress has defined Because mini mandatory 10-year than a thing less service, authority we have no means all put sentence. mum fact, In to do so here would require more. acknowledged during clearly parties' —as two other circuits create a conflict with the “It page. same —on held question confronted that have have would [Severino] inconceivable 851(a)’s that, service re- satisfy section if the [infor a different defense presented James, need quirement, had been corrected.” mation] information, in it “mailed the information at 1319. Because show that context, adequately counsel, identified that defense light and not [defense] conviction, complied it Severino’s actually [it].” counsel received 851(a), requirements of section F.3d Kennedy, 133 well. See Gonzal process with due as and (D.C.Cir.1998); see also ez-Lerma, 14 F.3d at 1485. Cir.1992) (2d White, n. 8 even 851 is satisfied (holding that section Requirement B. The Service tri- service after defendant received where that the in requires Section mailed long service was began, al so before trial be filed and served formation trial). before statute does not hearing. The plea or Here, attached However, Fed.R.Crim.P. service. define infor original to its of service certificate 49(b) in criminal defines service generally that mation; does not contest Severino Congress is that presume We cases. before the start were filed both documents means to incor provision of this aware who person The plea hearing. provides it for byit reference porate when un of service stated the certificate signed the means. specify but does not service copy of the that he mailed der oath 575, 583, Pons, Lorillard See to counsel (1978) to defense 55 L.Ed.2d in- whether the questions (“ filing. in a Severino employed stat- words ‘[W]here formation was in fact specifies mailed before the less by service mail is com- hearing, but casting offers no evidence plete upon mailing. Obviously, the service government’s doubt on the certificate. requirement designed is provide timely to The certificate thus remains the evi- circumstances, in ordinary notice but not dence in the record of when the served guarantee to adequate every notice in copy was mailed defendant. Had case.4 Severino offered evidence that contested sure, To be when the statutory require- service, the declaration in the certificate of satisfied, ment of service is this does not may he have been entitled to an evidentia- always mean that independent consti- ry hearing on this point, but he did not. tutional requirement adequate notice unchallenged certificate is therefore has been satisfied as well. In most in- sufficient to establish the information but, stances two will coincide where placed

was the mail to the hearing. not, they do the party who properly event, any In principal Severino’s con- yet served received inadequate notice tention is that service isn’t complete when (such as where the document is lost the document is mailed. If the purpose of mail) will be entitled to an accommodation notice, provide the statute is to Severino up to make prejudice resulting argues, then it doesn’t make much sense to from the failure of notice. have the document reach him after it’s too Here, the statutory requirement any good. late to do him Congress there- fore service was satisfied when a copy must have intended that of the service is not complete until actually placed defendant information was in the receives mail to it. hearing. Obviously, this was too late give Severino advance notice of its con argument proves This too much. The tents, much less time for him and his possibility that a may mailed document lawyer prepare a challenge to the of reach recipient the intended until it’s too changed Indeed, fense therein. had Sev situation; late is not unique our it arises erino and his counsel been unaware whenever a document is served mail. possibility that the prior conviction would party being served will not benefit enhancement, be raised as an even physi from the service the document is mailed cal service fax messenger on too close to the date of morning hearing may which it still pertains, delayed have transit or is provided altogether. inadequate lost notice. Even if the But Severino document opposing does reach the his counsel were well party before aware of the hearing, may drug get prior, fully nonetheless there and were expecting too late give recipient sufficient time to have it raised at the change-of-plea hear 49(b) prepare response. a Rule ing. They neverthe- obviously had discussed the doubt, 4. No the rule complete ing that service party is would seldom be able to declare upon mailing large part is based in on consid- under oath that a document has been received erations of administrative by opposing convenience. A party. Most routine docu- party must file a certificate of service at the by personal ments would have to be served document, and, then, time it files the served and it is courier even could not be filed fairly easy certify to that service has process been until and unless the server confirms completed by placing copy a thereof in the that the actually document had been received. 49(b) mail. It would be a far more difficult matter The drafters of Rule no doubt believed certify to service if it complete only were that the requiring additional benefit from ac- upon receipt. by Service mail receipt would tual wasn't worth the then additional in- virtually impossible become because the send- convenience.

947 851(b).6 21 U.S.C. attack the sentence.” hearing and concluded before matter object, chal- did not we con way to Because Severino legitimate was no there that Moreover, the Assis- the error affected his “sub the conviction. sider whether lenge Attorney recited the United States United States v. Ola rights.” tant stantial See 1770, information over no, 725, 734-35, substance 507 U.S. 113 S.Ct. or his Severino hearing. (1993); at the Had phone see also Fed. 123 L.Ed.2d 508 objection pro- to raised an 52(b).7 then counsel R.Crim.P. change-of-plea with the ceeding that Supreme Court has made clear notice, they would inadequate

because the stat the default rule —assumed unless postpone- to a have been entitled probably otherwise—is that expressly provides ute did lawyer and his But Severino ment. waived, in can be both the affirma rights They quite made it opposite: precise , waiver) by (explicit failing and tive sense issue, they aware of the they were clear (default forfeiture). or object to to error and had had any way surprised were held, principle As “No is Olano what to do about time to consider adequate to this Court than that more familiar a continuance, or They did not it. ask sort, any right, right constitutional or recess, the matter. We to discuss even may in criminal as well as civil be forfeited that notice was conclude therefore must 731, at 113 1770 cases ....” 507 U.S. S.Ct. and, was com- because service adequate States, Yakus v. United 321 U.S. (quoting hearing in accordance pleted before (1944) 414, 444, 660, L.Ed. 834 64 S.Ct. 49(b), statutory requirement Rule (internal omitted)); quotation marks cf. well.5 was satisfied as of service Mezzanatto, 196, U.S. III (1995) 797, 130 L.Ed.2d 697 (“[A]bsent some affirmative indication correctly points out A. Severino waiver, preclude to Congress’ intent we to by failing the district court erred that statutory provisions presumed have that previ affirmed denied his him he ask waiver.”). subject It follows that to conviction, failing to “inform by ous presumed ap to harmless error review challenge to a convic that him States, See Jones United U.S. ply. sentence is which is not made before tion 388-89, L.Ed.2d be raised S.Ct. may not thereafter imposed all, if the an admonition. After defen- whether a section him need not decide 5. We object, by a he doesn’t need the be waived or forfeited dant knows error can defendant, open question place; it’s defen- so it remains admonition in first compli- required object strict Hamilton that needs the admo- circuit. dant who fails our statute, Nevertheless, nothing satisfy but said we feel bound ance nition most. forfeiture, Vonn, the defendant waiver or about S.Ct. adequacy actually objected (2002), there where Su- 152 L.Ed.2d information, that and we found government’s argument rejected preme the same Court the statute. complied with the information See 122 S.Ct. at 1054 n. the Rule 11 context. is, 208 F.3d at 1167-69. See (noting burden the defen- it “fair to obligation” lawyer’s to under- with his dant raising preserved it in issue 6. Severino admonition, failings object in the stand appeal; we address at first didn't although uncounseled defendant and that "an we his sentence on oth- time because vacated not, fact, spot enough to a Rule may know in Severino, U.S.App. grounds. See 1999 er error, defendant chooses self- ... when a 11 34564, at *3. LEXIS warning from representation after a entails, Rule 11 silence one perils strange that a defendant require to 7. It’s a bit (citation omitted)). perils he assumes” give of the failure to object to the district court’s (1999) (applying default forfeiture tent that it relies on counsel’s failure to information, “explicitly object rules where the statute does not necessarily fails: review”); exception plain-error announce an object There can be in failing no error no, 731, 507 U.S. at 113 S.Ct. to an adequate information. Other claims Ola holding 1770. Even those courts that sec of ineffective possi- assistance we leave for 851(a)’s requirements “jurisdic tion are exploration petition ble a future accept tional” that harmless error doctrine collateral review.8 851(b). See, applies to section e.g., United AFFIRMED. Gonzalez-Lerma, (10th Cir.1995) (Gonzalez- 1540-41 & n. 4 THOMAS, Judge, Circuit with whom II). Lerma REINHARDT, BERZON, Judges Circuit join, dissenting: and RAWLINSON Here, Severino admitted —more way than once—that he no Congress govern- had to chal has mandated that the 851(a) lenge validity comply § conviction. ment must with 21 U.S.C. He plea walked into the agreement may volun before a court increase the sentence tarily, aware that he certainly was almost on the basis of a conviction. Because going subject be mandatory to a mini case, did not do so in this mum on account of the prior. Severino the district court erred in imposing the plausibly argue cannot that he would have mandatory Therefore, minimum sentence. done anything differently, had the district I respectfully dissent.

court properly asked him to affirm deny I conviction, or had the district court informed him that he would lose the 851(a) requirements of 21 U.S.C. right to challenge that conviction upon ac unambiguous specific: Before a cepting plea. The error was harmless. enhanced, sentence is must file an “stating in writing

B. Finally, Severino claims that the previous conviction upon or convictions prejudiced he was by his counsel’s failure which it rely.”1 intends to Id. The conse object to the adequacy of the informa quences for neglecting to adhere to the tion. a claim—in reality Such a charge statutory requirements are also clear: “If that counsel was usually ineffective—is satisfied, the requirement is not a court review, better reserved for collateral may not enhance a sentence even where the facts and record can be appro defendant priately prior felony has developed. drug convic See United States v. Karterman, Hamilton, tions.” United States v. Cir. 1995). facts, however, Cir.2000), On these we can cert. at de nied, say least this: Because we hold that U.S. 851(a), (2000).

information satisfied section Hamilton, Severi L.Ed.2d 111 In we re claim, no’s ineffective assistance to the ex- stated the rule our circuit that may 8. Severino have waived these claims punishment sentenced to increased .shall failing convictions, to raise petition, them in his first reason of one or more trial, where claim of ineffective assistance was unless before entry or before of a limited to a claim that counsel had failed guilty, attorney files an in- right appeal advise him of his (and sentence. copy formation with the court serves a question day. We leave this for another person such information on the or counsel for person) stating writing previous person 1. The statute reads in full: "No who upon.” convictions to be relied 21 U.S.C. 851(a). part stands convicted offense under this with the information to proce- were served compliance with the strict “requires hearing, required by as change plea of Id. at 1169. aspects.” dural 851(a). finding a Absent district determining difficulty with primary The hearing, occurred that service complied with government that statutory authority the court without is of requirements impose to the enhanced sentence. Hamil- it acknowledges that didn’t. everyone that ton, (noting at 1169 the service clear that the United quite The is record statute). requirements infor- the amended to serve States failed However, the matter. That should end change plea of mation to Severino’s produce posi- could Indeed, even the specifi- government the district court hearing. § 851 proof tive that it filed the informa- denying in its order cally this fact found before motion, copy tion and a to Severino stating plainly mailed Severino’s hearing, such service attorney] plea his 10 a.m. “Cooper government [the that: comport process with due re- would not Dayan [Severino’s have was not able purpose “The of notice under copies quirements. with of served lawyer] or Severino apprise the Due Process Clause is to prior to commence- the information of, adequate permit affected individual and plea hearing.” (empha- ment of Rule ” for, added). ‘hearing.’ an preparation impending sis Div. v. Memphis Light, Gas and Water Further, At- the Assistant United States 1, 14, 1554, 56 Craft, 436 U.S. of change at the torney admitted (1978). comport with due L.Ed.2d 30 To difficul- “having he was some hearing that notice must be of such na- process, “[t]he §of He requirements 851. ty” with the reasonably convey required ture as that he had filed an information stated that information.” Mullane Cent. Hanover very “I not confi- am day, but remarked 306, 314, Co., Bank & Trust that that I have all the information dent (1950). 652, L.Ed. 865 S.Ct. information,” and of type be in that should enacted, ful- part, 851 was pro- these Section getting “the shortness of that process requirement. get- me fill this due prevented from ceedings on has so defen- proper notice a and statute “ensures the hands of ting this into Court Thus, the information” challenge dant is able proceeding.” counsel before in- a an defendant make nor his “allows undisputed that neither Severino is not to about whether or formed decision copy of the information counsel received Hamilton, 208 at plead guilty.” change plea hearing. prior to the plan a defendant “to permits 1168. It also the ser- now relies on knowledge full strategy trial his 49(b) rule. See Fed.R.Crim.P. vice mail guilty ver- potential of a consequences 5(b)). It did (incorporating Fed.R.Civ.P. Johnson, dict.” argument to the district present that (8th Cir.1991). 396, 407 court, the record devoid subject- fact, is to be was, If a criminal defendant the information evidence that decades— years perhaps to additional The best the ed hearing. mailed before — convictions, he prison because can offer is the form certifi- opportunity meaningful must be afforded filing; attached to its how- cate of service entitled A defendant is ever, to contest them. that the informa- indicates notice, hearing. Slipping well as a hearing. mailed the date of the tion was mailbox seconds into a before envelope aside setting to warrant This is insufficient no- constitutionally adequate hearing is not factual find- the district court’s appeal on tice. lawyer nor Severino ing neither that, course,

II Severino could not know because he had not been served with the case, In the context of this the obvious hearing. all, question why is this matters. After attorney appear any His did not to be Severino’s counsel at the time seemed to enlightened, indicating only more that he doing everything be he could to ensure knew of conviction “back East.” Severino that Severino would receive the sentence by was not asked the district court wheth- enhancement, and Severino didn’t seem to right er he understood he had a to chal- any objection. voicing personal lenge the attorney information. When his First, answer is twofold. the information questioned by was the district court as to filed incorrect whether he had right discussed the with could not have served as a basis for sen- Severino, he'responded only that he had and, upon tence enhancement a careful informed Severino that record, examination of the it appar- is not needed a conviction. ent at all that making Severino was There is no doubt that Severino and his informed choice to forfeit right to chal- attorney having difficulty were communi- Second, lenge the information. because of Indeed, cating. previously we vacated 851(a), peculiar § limitations of Severino’s sentence and remanded for re- district court did not authority have sentencing because neither the district impose the sentence enhancement absent court nor Severino’s counsel had informed compliance procedural predicates. with the right Severino of his to appeal his sen- Thus, plain it was error for the court to Severino, tence. United No. 99- impose sentence in of statutory excess 1999 WL 1278048 Dec. Cir. authority. 1999). Severino’s counsel acknowledged at plea hearing that he had encountered A difficulty in explaining the Sentencing government’s information was not Guidelines, not because Severino served, only untimely but it was inaccu- speak could not English, but because “he rate. The information filed on the had never seen a graph before.” Howev- date predicate stated the er, conviction as: represented his counsel to the court “Possession of 1 kilogram ounce to 1 that Severino “seemed to understand” how cocaine, Massachusetts, 1992-1993.” How- the Guidelines interpret- worked after the ever, explained er Severino had not been to him. There is convicted of no indica- tion in the record interpreter that the only alleged crime. His had criminal ac- explained to Severino that a statutory tivity in Massachusetts was Operating a mandatory minimum sentence would be Motor Vehicle Without License and Op- imposed lieu of the Guideline calcula- erating an Uninsured Motor Vehicle—and tion. he not been had convicted of those traffic Thus,

offenses. very legiti- Severino had a The record reflects confusion at both the mate challenge basis on which to pro- change and sentencing hearing on posed However, sentence enhancement. part everyone.2 of almost Both hear- notes, However, majority properly 851(a), 2. As the § district Congress contrast to informing court also erred in this judicial case not sentencing power did not condition Severino, 851(b), required by § 851(b). procedural compliance "that on with Therefore, challenge defects, to a conviction which is not unlike imposed made before sentence may is a claim that the comply district court failed to 851(b) thereafter be raised to subject attack the sentence.” plain error review. Honor,” one, your and later affirmed that about long colloquies with ings proceeded I Guidelines, referring than the the one I was to when “[t]hat’s rather Sentencing the East, course, sen- mandatory your minimum Honor.” Of of a said back imposition now, there was no Massachu- as we know tence. setts conviction. exam- hearing, for change-of-plea At the the noted that sum, the district court ple, change-of-plea hearing In be- parties’ set out the “does not agreement with an extensive discussion of how gan understanding of how the prediction history imposi- criminal would affect the beyond agree- an would work guidelines Sentencing tion of a sentence under the drugs.” gov- quantity of ment Guidelines, everyone with and concluded agreed that statement prosecutor ernment mandatory that a minimum sen- agreeing asked “essentially correct.” When was proper tence was based on a non-existent estimate government’s court what the circumstances, it conviction. Under these history category criminal of Severino’s Span- conclude that quite is difficult to be, responded: counsel would defendant, illiterate who had ish-speaking, criminal there is a “I have some indication before, graph making seen a an never really adequately do not feel history, but I informed decision. history what his criminal say advised to sentencing hearing, confusion At explained the court Thereupon, is.” The district court once again prevailed. history criminal detail how Severino’s thorough Sentencing again conducted cal- Sentencing affect the Guideline would a de- analysis, and entertained Guideline culation, responsibility of acceptance how adjust- argument for downward fense calculation, and how his affect the might ments, in a all of which would be irrelevant might affect a sen- participation level minimum case. After consider- mandatory tence under Guidelines. counsel, district ing arguments Indeed, change-of-plea hearing just beginning impose a sen- court was without well have concluded might 70-87 range the Guideline tence within mini- mandatory a potential mention of months, interrupted when defense counsel mum had defense counsel sentence the sentence explain thought that he point out interrupted proceedings mandatory longer, based on should conviction “back East” that there was a colloquy is requirement. minimum mandatory in a minimum. might bring that instructive: Later, informed the prosecutor when the will (continuing) That THE COURT: difficul- having court it was “some district history him in a criminal put therefore he identified the erroneous ty” with level, total and a offense category of 3 as the sole basis Massachusetts conviction him level of which makes offense enhancement. When sentence to 87 to a sentence of 70 vulnerable court whether the asked the district agreed have not parties months. The referenced the same conviction particular on a sentence. earli- defense counsel had mentioned that ATT.: Your Honor. DEF. er, “I it prosecutor replied, believe Yes. THE COURT: then does.” The district court probably He sorry interrupt. DEF. ATT.: I’m counsel inquired of defense whether conviction, Iso previous does have a had earlier refer- was the conviction he enced, think— stated: “That’s defense counsel information, However, be entitled to relief he would still could have main- because Severino 851(b) errors. challenge the erroneous on account

tained successful [colloquy interpreter change-of-plea sentencing, omitted] and the difficult to believe that Severino was Yeah, THE COURT: he was a crimi- making change- informed choice at his history nal category of 3? of-plea hearing, which is the central point No, DEF. ATT.: I’m thinking it’s 851(a). requirements of the notice mandatory years— Indeed, if plain fact is that the man- Oh, THE it? COURT: is datory minimum sentence had not been DEF. ATT: I think it— case, required in this the district court PROSECUTOR: We’d—I’d have to likely imposed lighter would have a sen- statute, tence. The initially

check the but there would be district court had been poised impose a sentence within the 70 statutory a minimum due to the exis- range, 87 months and also noted at re- prior. tence of the sentencing: THE the prior COURT: And was a Now, I ago, as mentioned a moment drug prior? Severino, fairness to Mr. if I did have Yes, DEÍ1 ATT.: it was. discretion, 10-year mandatory Yes, PROSECUTOR: and we filed an effect, minimum was not in then there’s that, information on Your Honor. no question give the Court would him a Okay, THE so COURT: it’s the better then sentence.

121 months. B short, In the district court did pro- not govern- The second reason that ceed at sentencing though mandatory ment’s failure to impor- serve Severino is minimum sentence applied, appeared 851(a) § tant in this case is that is not surprised interrupt- when defense counsel merely statute, a procedural the violation suggest ed to client should do might of which lend itself to an examina- more time than the district court was con- See, tion under a plain analysis. e.g., error templating. mandatory Asked whether a Vonn, 55, United States v. 122 minimum might applicable, govern- 1043, (2002). 1054, S.Ct. 152 L.Ed.2d 90 ment’s counsel’s said he would “have to Rather, Congress specifically crafted check the statute.” 851(a) § deny the federal courts the Given general confusion even among power to enhance a sentence unless the counsel and the district court at both procedural requirements were met.3 Not majority 3. The vast of circuits have concluded jurisdiction held that a district court lacks absolute, Congress has established an government enhance a sentence unless the non-waivable mandate that bars courts from strictly complies procedural require with the 851(a) enhancing § sentences under unless 851(a).”); ments of United States v. Kenne complied has require with its 53, dy, (D.C.Cir.1998) ("Put 133 F.3d 59 suc See, e.g., Layne, ments. United v. States 192 cinctly, prosecutor's compliance ‘[a] 556, (6th denied, Cir.1999), F.3d 575 cert. 529 851(a)(1) simply necessary is condition to 1029, 1443, U.S. 146 L.Ed.2d 330 judge’s imposing an enhanced sentence on (2000) ("The requirement mandatory, and a basis of a defendant’s convic district court cannot enhance a defendant's ") Vanness, (quoting tions.' United States v. 85 sentence based on a conviction unless 661, (D.C.Cir.1996)); 663 n. 2 requirement.”) satisfies the Steen, (5th States v. 55 F.3d Cir. Williams, (citing United v. 899 F.2d 1995) ("If prosecution comply fails to (6th Cir.1990)); Harris v. United procedural requirements, §with 851’s a dis States, (11th Cir.1998) 149 F.3d trict court cannot enhance a defendant's sen ("The predecessor Eleventh Circuit and its tence.”); Gonzalez-Lerma, United States v. unambiguously court have repeatedly prosecutor or sen or not power impose lack only do courts authority, statutory thought enhancement was desirable excess of tences in Doe, 1081, 1083- 53 F.3d necessary. United States (9th Cir.1995), imposition of a but the Noland, authority statutory excess sentence Cir.1974). error. United plain constitutes Guzman-Bruno, Cir. statute, prosecutors had Under 1994). Thus, require if the deciding whether to en- no choice seek satisfied, the ments of based on convic- hanced sentences authority impose has no district court the courts to required the statute tions: sentence, imposition and the an enhanced enhancement. Accord- impose sentence plain sentence would constitute of such a notifying prose- the defendant of ingly, error.4 superfluous. would have been cutor’s intent history legislative A review of the brief theory of with -the mandato Consistent 851(a) § pro- The point. underscores mínimums, the was also ry prior statute prescribed penalty cedure—and non- consequences ... “silent contrast” “sharp follow it—is failure to prior imposi information to filing of the United statute. predecessor with its States v. tion of sentence.” United (11th 850, Olson, F.2d 853 716 Cir.1992) (2d White, 836, 980 F.2d 846 Cir.1983). 1970, law re- Prior to federal (Kearse, J., “in this dissenting). It was Attorney, in a quired the United States man ordained congressionally context of case, after convic- to advise the court drug up datory enhancement cases sentencing tion but before whether despite proce held sentences enhanced recidivist and therefore was a defendant not infringe which did dural defects sentence. mandatory a enhanced subject to deny litigate right to defendant’s 7237(c)(2) (1964). § The 26 U.S.C. Noland, Ac F.2d at 533. 495 status.” mandatory minimum based on a law was circuits held under cordingly, a number of prosecuto- scheme under which sentencing government’s fail that the prior law As the play did not a rial discretion role. seeking information timely to file an ure it: Fifth described Circuit er was harmless enhancement sentence law, required which thrust of The States, See, 346 King v. United e.g., ror. sentences, mandatory was en- minimum (1st 123, Cir.1965); F.2d 124 attorney The United hancement. States (7th Bell, 354, 345 F.2d 357 Cir. v. wheth- required was to advise Duhart, 1965); F.2d v. 269 United States offender. defendant was first er the 116 (2d Cir.1959); 113, Knight v. United required was to enhance The court (9th Cir.1955). States, 55, offender, 57 whether multiple sentence 851(a) 1479, Cir.1994) ("Failure does de- (10th timely information file 1485 F.3d subject-matter jurisdic- prive court of deprives the district to trial file the tion). jurisdiction impose an en district court sentence.") (quoting hanced 868, Cir.1991)); reason, Wright, question F.2d 882 occu- 4. For this has U.S., 563, require- Neary Cir. pied F.2d circuits—whether few 1993) ("the jurisdictional in na- prohibits sen ments of are statute enhanced imposes by point. a court seeks it If tence first ture —is beside unless authority granted filing prior to trial a sentence outside an information properly States, plain error and ”); Congress, committed F.3d has .... but see Prou v. United Cir.1999) required. (1st (prosecution's reversal is failure Comprehensive Pre- The new Drug Abuse restrictions vention and Control Act of 21 U.S.C. Act, firmly theory rooted in the (“the 801-971, Act”) §§ radically altered responsibility which judges shifted from existing procedure. law and The “one ma- impose Congressionally-mandated' sen jor goal of the Act was to make more prosecutors tences to who were to decide penalty drug flexible the structure for of- whether seek enhanced sentences. Un Noland, fenses.” at 532-33. scheme, statutory der the new “the district purpose “The was to eliminate ‘the difficul- authority court has no pre to exercise or prosecutors ties and courts have had in the termit” the exercise of executive discre past mandatory out of minimum arising Olson, tion. United States v. ” Rep. Id. at 533 H. (quoting sentences.’ (11th Cir.1983). Therefore, “[u]n- 91-1444, Cong. No. & Ad- Code less and until prosecutorial discretion is 4576). News, theory min. pp. invoked and the files and mandatory the Act was to eliminate sen- serves an information as required prosecutors and to tences invest with dis- the district court power has no to whether cretion as to seek enhanced respect sentence; act with to an enhanced sentences and which prior convictions to it can no more enhance the sentence than Thus, statutory invoke. Id. scheme impose imprisonment it could under a stat completely everted: Rather than re- only ute that prescribes a fine.” Id. quiring impose mandatory courts to míni- “Harmless' error give cannot district desire, regardless prosecutorial mums of authority possess.” court it does not Id. prohibited courts were from enhancing the government sentences unless had time- judicial The Act’s limitations on authori ly an information in- stating filed that it ty are separation powers founded on the of an tended to seek enhanced sentence (1) respects: two power Congress of prior based on specific convictions. sentences; (2) to define criminal In contrast to the statute’s silence power of the executive branch to control error, about the Act specifically prosecutions. power As to the of Con addressed the issue. provides Section 851 gress, “indisputable” it is that “the author mistakes,” remedy a for “clerical which ity to define and fix punishment for may corrected filing an amended legislative.” crime is parte Ex United pronouncement information of States, 27, 42, S.Ct. U.S. 851(a)(1). § sentence. 21 U.S.C. Howev- (1916). L.Ed. 129 by legislative It is ac er, significantly, the Act did not allow the tion that crimes and criminal procedure court to excuse or to allow waiver of a are defined: a court power has no to im failure timely to file an pose statutory a sentence in excess of au identifying information the crimes. The thority. See United States v. Doe 53 F.3d only Act allows the court to “postpone the (9th 1081, 1083-84 Cir.1995). taking trial or the of plea guilty of By granting the executive branch discre- period” reasonable “[u]pon then tion to decide whether a sentence enhance- a showing by the United attorney ment sought, should be the Act concomi- that facts regarding prior convictions could tantly authority removed that from the diligence not with due be obtained to judiciary. Just courts cannot commit entry trial or guilty.” before of a of an person prison, unindicted courts can- Thus, case, Id. in this when uncertainties not enhance a sentence until under arose about the content and service of the the government formally proceed. information at the elects change-of-plea hearing, Olson, context, the remedy postpone was to the hearing. 716 F.2d at 853. In this' law, import judicial without and the impose a sentence construc- allow courts to tion, of executive discretion the valid exercise Congress there is no doubt As we have separation powers. violates in providing meant what it said that no observed, “separation powers previously person subjected could be to enhanced reviewing us from prohibit concerns penalties based on convictions unless charging decisions absent a prosecutor’s government timely filed and served showing that it rested on an prima facie identifying the convictions basis, gender, such as race impermissible upon rely. which intended to For this right.” or denial of a constitutional United reason, procedures a violation of the re- Palmer, States v. 851(a) quired by cannot be treated as Cir.1993). Indeed, showing, absent such a subject procedural aberrations to a Vonn jurisdiction prosecu- “we have no to review analysis. ” decisions .... charging tors’ case, In government’s failure to Oakes, comply with the provisions service Cir.1993). Until the executive branch val- deprived the district of the idly option exercises its under the Act to authority impose an enhanced sentence. enhancement, a sentence the courts seek In impose exceeding statutory sentencing pow- one. its powerless er, necessarily the district court committed Thus, statutory as a matter of construc- plain error and vacation sentence is tion, Congress it is clear that intended required. prior procedures impose alter the and to

non-waivable, mandatory requirements. reasons, I respectfully For these dissent. statute, Congress “When acts to amend presume we it intends its amendment to

have real and substantial effect.” Stone v.

INS, 386, 397, 1537, 115 S.Ct. U.S. (1995). presume

L.Ed.2d 465 also We statute, amends a it is Congress

when judicial in-

knowledgeable about decisions terpreting legislation. United America, UNITED STATES of Hunter, 82, v. Plaintiff-Appellee, Cir.1996). Further, particular statutory “a v. in context with a provision must read place statutory view to its scheme.” Craig IVESTER, Defendant-Appellant. Reno, 1087, v. Gorbach No. 01-10260. Cir.2000). im- Finally, perhaps most portantly, generally presume we Appeals, United States Court “Congress ‘says a statute what it means Ninth Circuit. says and means in a statute what ” 9,May 2002. Argued Submitted there.’ Underwriters Ins. Co. Hartford Bank, N.A., Planters Union Filed Jan. 2003. (2000) 147 L.Ed.2d Germain, Nat. (quoting Conn. Bank 249, 254, 117 L.Ed.2d

U.S. S.Ct. (1992)). plain language Given the 851(a), (namely, specific its structure provided

remedies viola-

tions), pri- the substantive alteration from

Case Details

Case Name: United States v. Felix Severino

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 14, 2003

Citation: 316 F.3d 939

Docket Number: 00-30161

Court Abbreviation: 9th Cir.