United States v. Pritchett

II, merely grand jury, change Part unless the is paragraphs few of In the last of form. a matter any irreg- dismiss majority appears to by reasoning case ularity in this 749, 770, 1038, 8 369 U.S. 82 S.Ct. to the “proof’ presented “evidence” Bain, (citing L.Ed.2d 240 121 U.S. the same jury would have been grand Stirone, 781, 849, 7 S.Ct. 30 L.Ed. charged an the indictment had whether 252). 270, 4 361 U.S. 80 S.Ct. L.Ed.2d depri- Fourteenth Amendment Eighth or jury ever that Budd grand No concluded respectfully I Ante 526-27. vation. trial for more-serious lev- should stand actions by focusing on Budd’s suggest of force the government el excessive state, majority his mental ignoring prove jury, to the and this petit needed to jury never point. grand misses the the Fifth I re- contravenes Amendment. Budd trial for should stand decided spectfully dissent. or “unneces-

using “malicious sadistic” in- force on

sary and wanton” excessive 10-13, Bain, 121

mate Moore. See U.S. af- (discussing protection S.Ct. although grand jury). And

forded

widespread experience suggests tarry over jury unlikely

grand subtleties,9 Supreme rea mens America, UNITED of STATES forbidden from explicitly speculat- us Plaintiff-Appellee, subjects grand such ing on as whether would have indicted Budd for jury just as Eighth deprivation Amendment Christopher PRITCHETT, P. also actually indicted him a Fourteenth Jenkins, as known Wallace deprivation. As the Court

Amendment Defendant-Appellant. States, in Russell v. United said No. 06-3359. ... to make a To allow court [ ] Appeals, United States Court in the subsequent guess to what was as Sixth Circuit. they time grand jury minds of the at the deprive returned indictment 16, 2007. Argued: March protection defendant of a basic Aug. 2007. Decided Filed: guaranty intervention which the jury se- grand designed principle .... This is re- underlying cure by the settled rule the federal

flected may that an not be indictment except

amended resubmission grand in- Empirically, jury returns an pretrial "amounted to duct toward detainee majority overwhelming E.g., Coy, in the Phelps v. dictment punishment.” See, (6th Cir.2002) ("The e.g., Navarro- question United States v. cases. (9th Phelps’s rights & nn. 14-15 supplies Vargas, which amendment banc). academic, Cir.2005) (en grand Colloquially, “a merely for the standards E.g., id. liability vary significantly according jury would indict ham sandwich.” to which applies.”). amendment Amy Cleary, ARGUED: B. Federal Office, Cleveland, Ohio, Public Defender’s Arbeznik, Appellant. Gary for D. Assis- tant Attorney, Cleveland, United States Ohio, for Appellee. Amy ON BRIEF: B. Cleary, Hughes, Debra M. Federal Public Office, Cleveland, Ohio, Defender’s Ap- for Cramer, pellant. Marilyn A. Assistant Attorney, Cleveland, Ohio, United States Appellee. McKEAGUE, Before: COOK and EDGAR, Judges; Circuit Judge.* District McKEAGUE, J., delivered opinion court, EDGAR, D.J., in which joined. COOK, 550-52), (pp. J. delivered a separate dissenting opinion.

OPINION McKEAGUE, Judge. Circuit Appellant Christopher P. Pritchett en- tered into a plea agreement written government, agreeing plead guilty possession of cocaine with intent to dis- cocaine, tribute and to distribution of government agreed to dismiss a charge of conspiracy to distribute cocaine. The plea hearing began at 9:03 a.m. At 10:33 a.m., after Appellant signed agreement and the district court accepted Appellant’s guilty plea, filed an information pursuant to 21 U.S.C. * Tennessee, Edgar, Honorable Robert Allan sitting by Senior District designation. Judge United States District for the Eastern that, 841(b)(1)(B) 851(a), no- understands because of his providing §§ offense, felony adjudication guilt drug en- conviction for if an tice that maximum mandatory minimum and the Appellant, the against tered as felony possible penalties on each count are rely previous on Appellant’s ten mandatory in follows ... A minimum order to invoke section drug conviction (10) years incarceration, up to a maxi- sentencing provisions. Ap- enhanced 841’s possible mum term of objected imprisonment, enhanced sentence life to an pellant (8) by years at least of eight followed section 841 because under fine, release, $4,000,000.00 a supervised required file the information be- failed to and a plea. special The dis- assessment. guilty he entered his $100 fore had Appellant court held that notice trict plea provided The later that agreement filing would be an that that, [Appellant] pursu- understands and notice information that fulfilled 841(b)(1)(B), § 21 ant U.S.C. 851(a). Appellant of section 1(c)(2), 851, § § U.S.C. and USSG 5G1. claiming timely that appeal, filed however, [Ap- the Court cannot sentence jurisdiction to court was without pris- than 120 months in pellant] to less penalties under sec- impose enhanced on, by years super- at least of followed below, For the reasons stated tion 841. vised release. AFFIRM. we agree any parties The not to seek [ ] an on a agreement other was [there I. BACKGROUND reduction under U.S.S.G. three-point 2005, 5, Appellant 3El.l(a)-(b) accep- § October was Appellant’s On enhancements, in a indictment that responsibility] named twelve-count tance of 8, 9, 1, 6, 7, reductions, him in and 12. charged adjustments, Counts victim-related conspiracy to charged depar- him with upward departures, Count downward and to distribute more than 50 possess stipulated tures from the offense level base, cocaine in violation of 21 grams of total. (b)(1)(A). 6, 7, 841(a)(1), § Counts U.S.C. Appellant’s change plea proceeding of 8, charged distributing him with and began at 9:03 a.m. on December base, in violation of cocaine U.S.C. plea guilty he of to Counts and entered (b)(1)(A). 841(a)(1), 12 charged § Count 6, 7, 8, 9, hearing, Appel- At the and 12. intent to possessing

him with distrib- alia, (1) admitted, inter that he read lant base, of 21 ute cocaine in violation U.S.C. (2) that he signed agreement; plea (b)(1)(B). 841(a)(1), in his gone great had over it detail with (3) nothing in the attorney; that there was plea agreement In a United (4) understand; Office, he did not Attorney’s Appellant agreed agreement that 8, 9, 6, 7, statutory pen- guilty to that he understood plead Counts alty for the counts to which he was government agreed to dismiss each of mandatory minimum plea pleading guilty 1. The lan- agreement Count included “admits, years by at least prison of ten followed Appellant acknowl- guage release, a years supervised eight $4 that on edges dispute” or does Novem- assessment; fíne, special 1, 2001, million and a Appellant was convicted of $100 ber (5) that he could again he understood drug trafficking, in violation Ohio Re- 120 months 2925.03, not be to less than Cuyahoga in the sentenced vised Code eight years prison followed least County Court of Common Pleas. release; plea his supervised Appellant also agreement stated own free voluntarily made and his have sentencing hearing. sentence will. hearing sentencing Appellant’s sentencing filed a en- was held a.m., February on in the United States information at 10:33 hancement if District Court for the Northern District of Appellant entered gave notice count, any hearing, judge on United Ohio. At the guilty previous following stated the rely Appellant’s States would felony order to invoke drug conviction did, [Appellant] The Court finds that sentencing provisions of 21 the enhanced fact, notice, had notice that the 841(b)(1)(B). pri- Because of this be filed offense, drug en- felony penalty Government. The finds that that Court provisions hancement of section is adequate. though notice So even 841(b)(1)(B) mandatory required a mini- technically, the information was filed on years mum of ten imprisonment sentence day, shortly plea the same but after the imprisonment, to a maximum of life to be entered, guilty of was the information is by eight years followed of supervised re- Therefore, not null and void. in accor- lease. indi- information, dance and more request cated that a for a sentence under in importantly, accordance with the plea agree- 120 months breach the would does, fact, agreement, the Court in find then imprisonment that the minimum term of be free to recommend a life sentence for is 120 months.

Appellant. judge The district later reiterated this pre- point, stating

The United States Probation that “I that I Office indicated pared Investigation Report a plea agreement, Presentence reviewed the and the (“PSR”) January adequate on 2006.1 The PSR Court finds that that was notice.” stated on a Finally, that based Total Offense Level noted that judge IV, History Category of 27 and Criminal Well, I pronounce will state I before range imprisonment of Guideline was sentence that issue that [the] was 100-25 The PSR months. also stated in [Appellant’s] Sentencing raised Mem- imprisonment per the minimum term of one, jurisdictional orandum is not a years count is 5 and the term maximum is ample there is indicating case law However, years. if stated that beyond the Court go specific must section 851 enhancement is found to be and determine if there was suffi- for[m] valid, statutory years sentence is 10 to So, sir, notice. why cient life, range and the Guideline is raised to feels compelled to determine that 120-25 months. you did fact of have notice the 851 information. February PSR was revised on 2006, taking into account Appellant’s Accordingly, Janu- the district court found that ary objection section the minimum term imprisonment of On February Ap- enhancement. 120 months. The asked the Memorandum, pellant Sentencing filed a impose range a sentence arguing months, that because the in- years enhancement with eight super- 120-25 formation not filed accordance vised release. The Appel- court sentenced 851(a), the district court would not lant to a term of imprisonment 120 months 1. The Office Sentencing Probation used the edition Guidelines. (a) of count, any person a who violates subsection concurrently, served each be assessment, and, this be follows upon Appel- section shall sentenced as special

$500 eight-year person ... such shall sentenced to prison, release from lant’s Appellant may ob- not be supervised imprisonment release. term of which term imposition of years the district court’s less than 5 and not more than 40 jected to ap- timely years.... any and filed If commits such penalties person enhanced for a of the sentence. violation after conviction peal final, felony drug offense become claims that appeal, Appellant On person such shall be sentenced to a term jurisdiction to court was without district imprisonment may not be less penalties the enhanced under years than 10 more than life 841(b)(1)(B) due to its “failure] U.S.C. imprisonment [ ]. 21of comply with the mandates U.S.C. 841(b)(1)(B). However, Appellant’s Accordingly, Br. § 851.” order avail itself these enhanced this court remand resentenc- he asks an in- penalties, must file ing, with instructions the court formation with and serve him without court sentence 841(b)(1)(B). defendant, previous the stating writing of penalties rely, it

convictions on which intends to a and must do so before trial or before II. ANALYSIS guilty plea is entered: of review A. Standard person No who stands convicted of 21of requirements U.S.C. Whether part offense under this shall be sen- 851(a) jurisdictional question is a § are by rea- punishment tenced to increased subject question it is a Accordingly, law. convictions, son or more of one Cutter v. de novo review this Court. to trial, entry or of a unless before before (6th Wilkinson, 579, 423 583 Cir. F.3d plea of the United States attor- guilty, 2005). Similarly, this Court held ney the court files an information with sufficiency government’s filing (and copy a of such information serves pursuant to section of an information person) on the or counsel for the person 851(a) question is a of law this Court previous convic- writing stating King, States v. reviews de novo. United upon. relied tions to be Cir.1997). (6th 127 F.3d 487 851(a)(1); F.3d Layne, § 21 see 192 U.S.C. of a violation of at 575. A defendant convicted 841(a)(1), § un- 21 which makes it U.S.C. 851(a) requirements B. Whether any person knowingly or inten- lawful jurisdictional manufacture, distribute, or

tionally to intent manu- possess or with to dispense, gov facture, distribute, Appellant con- claims because dispense, a comply require with the substance, subject to a ernment failed trolled sentence 851(a), prior drug-related ments of section enhancement due to jurisdiction the enhanced 21 lacked convictions. See 841(b)(1)(B), 841(a)(1),(b); and there penalties of section Layne, States United (6th Cir.1999). statutory sentencing range In- fore that 192 F.3d 575 (b) imprisonment a term of deed, sec- should have been portion of subsection a release supervised years the instant case of 5 40 applicable tion than the years, rather term of at least provides range of 120 months to im ty years life of 5 to 40 as well as the applicable prisonment supervised range Guideline release term 100 to 125 months.2 years. Appellant of at least 8 relies on

this Circuit’s statement in United States v. “[sjection 851(a)(1) An imposes ju majority Hill that almost-unanimous of cir- cuits that have addressed requirement risdictional the issue have granting the dis 851(a) held that the section requirements jurisdiction trict court to enhance a defen jurisdictional. Indeed, are not only one only dant’s sentence when the United circuit has held contrary. This Cir- attorney files an information with cuit, however, has not established binding court, stating writing previous precedent that addresses question. convictions to be relied on.” Hill, this Court stated that “[s]ection (6th Cir.1998). Appellant also relies 851(a) imposes jurisdictional requirement heavily on a case from the Eleventh Cir granting the jurisdiction district court holding cuit that “a district court lacks enhance a only defendant’s sentence when to enhance sentence unless attorney United States files an infor- government strictly complies with the court, mation with the stating in writing 851(a).” procedural previous convictions to be relied on.” States, Harris v. United However, F.3d at 312. that statement (11th Cir.1998). Under prece this is dicta because in Hill dent, Appellant argues that it simply “is had filed an pursuant to sec- no consequence may that [he] have had 851(a), tion id. at question notice had both the presented was whether the sentence im- intent and the request discretion to en posed proper in light of govern- hanced statutory penalties prior to [his] ment’s failure to comply with section entry of a guilty plea.” 851(b), see id. at 312-13. if Even language dicta, in Hill were not argues in the Su- response that preme Court against has cautioned Appellant giving only not was afforded written precedential value to courts’ notice of statements of government’s intention to whether a requirement jurisdictional is seek penalties enhanced via plea when those unsupported by statements are agreement, but he also was apprised of any analysis, as was the case with the that intention during plea hearing. above statement in Hill. See Steel Co. v. Further, Appellant declined opportuni- his Env’t, 83, Citizens a Better 91, 523 U.S. ty conviction, to contest the prior for and he 1003, (1998) 118 S.Ct. 140 L.Ed.2d 210 actually agreed to applicability (“[D]rive-by jurisdictional rulings ... have penalties orally plea at the hear- effect.”). precedential no ing and in writing in the agreement. Finally, Ap- contends that cases, In two recent Supreme Court pellant’s argument is moot because the 120 clarified the difference jurisdic- between month imposed by sentence tional rules and “inflexible claim-process- court was within both statutory penal- ing States, Eberhart rule[s].” v. United outset, 2. At the it should be imposed months, noted that the she a sentence of 120 she argument mootness is meritless. might have Appellant sentenced to fewer than Indeed, it sentencing is clear from the tran- 120 months if she had felt that she were free script judge that the district court believed Hamm, to do so. See United States v. 400 imprisonment minimum term of (6th Cir.2005). 340 120 Accordingly, months. to the extent that

543 403, 403, only Congress may 163 determine a fed- 126 S.Ct. lower 546 U.S. subject jurisdiction, court’s matter (quoting 14 Kontrick v. eral L.Ed.2d 906,157 it did so 443, 456, respect bankruptcy 124 540 S.Ct. Ryan, U.S. 452-53, in Title at courts 124 (2004)). S.Ct. Court Id. Kontrick L.Ed.2d 157(b)(1) (citing 28 U.S.C. other “have that it and courts remarked (b)(2)(I)-(J)). emphasized The Court “they less than meticulous” in that been over, jurisdiction provision conferring occasionally term more used the than objections to discharge contains no timeli- time ‘jurisdictional’ emphatic to describe condition; rather, only ness instructs Kontrick, in rules of court.” prescriptions objections proceedings are core within at 124 S.Ct. The Kon- 540 U.S. bankruptcy jurisdiction. courts’ Kon- “[cjlarity trick Court further stated that trick, 453, 124 (citing 540 U.S. at S.Ct. 906 litigants if courts and facilitated 157(b)(2)(J)). It 28 U.S.C. further noted for claim- ‘jurisdictional’ used the label not the time applicable constraints to ob- rules, only prescrip- but processing jections discharge part are of the Bank- (sub- delineating the classes cases tions Rules, ruptcy Bankruptcy Rule 9030 jurisdiction) persons and the ject-matter “shall con- states those rules not be jurisdiction) falling within (personal limit the strued extend or at adjudicatory authority.” Id. court’s Kontrick, the courts.” 540 U.S. at added). In (emphasis 124 S.Ct. 906 Fed. Bankr.P. (quoting S.Ct. R. contrast, held that the claim- 9030). Accordingly, Court held at issue in were processing rules Kontrick prescribed in Rule the deadline 4004 was “that cases [ ] those do not delineate what “claim-processing rule[] do[es] adjudicate.” are competent courts what bankruptcy delineate cases 454,124 S.Ct. 906. Kontrick, competent adjudicate.” Kontrick, In rule at Fed- issue was 454,124 S.Ct. 906. U.S. Bankruptcy Rule Procedure eral Eberhart, the Court considered 4004(a), Chapter that in provides proce- whether federal rule criminal peri- a creditor a certain proceedings, jurisdictional. at 403. dure S.Ct. time, od of after the first date set for permits The rule issue federal district creditors, meeting complaint of to file a any judgment grant to vacate and to court objecting discharge, debtor’s and the trial if of justice a new the interest re- circumstances, period under certain that a a new quires, but motion for trial based may be if a motion filed before extended is newly any reason than discovered on other time at expired. that U.S. days must within evidence be filed seven case, the 124 S.Ct. 906. Under facts of the finding guilty, the verdict or of or after to the dis- objected a creditor debtor’s such further time as the court sets within objection charge, the was not although day the during period. (quoting seven Id. debtor, however, not timely. Id. did The 33(b)(2)). Eberhart Fed.R.Crim.P. The creditor’s promptly move to dismiss the analogized that rule to the bank- Court rather, late; objection as impermissibly Kontrick, at in and held ruptcy rule issue only bankrupt- after the debtor did so is that Rules implausible that “[i]t court on the that cy decided merits nonjurisdic- can be considered Kontrick refused. discharge should be Id. rules, virtual- claim-processing tional while provisions that at issue of Rules of ly The Court held rule identical Kontrick, deprive jurisdictional. not 540 U.S. can federal was Criminal Procedure subject-matter jurisdiction,” and It 906. S.Ct. reasoned it held that the must also is the case accordingly rule therefore on which several later Eberhart, nonjurisdictional. rely in support proposition 126 S.Ct. eases 851(a) requirements 407. section are States, jurisdictional. not Prou v. United ratify Supreme These Court cases either (1st Cir.1999). Prou, In F.3d provide or the foundation for several cases 22, 1995, jury empaneled on June and from our sister circuits that have held that August year. was sworn on 21 of that 851(a) requirements section non- However, Id. at 41. filed jurisdictional. The case to most recent 851(a) July information 11. address the issue" United States Flow- Accordingly, after the unsuc- defendant (10th Cir.2006). ers, 464 cessfully pursued appeal, he direct filed a Flowers, filed a section pro motion pursuant se 28 U.S.C. 851(a) information the district court part claiming ineffective assis- prior guilty plea to the defendant’s and counsel attorneys’ tance of due to his fail- copy attorney. faxed a to the defendant’s object untimely filing ure to of the Id. at argued defendant government. Id. The jurisdiction the district to im- court lacked granted First ap- Circuit certificate of pose an enhanced sentence because pealability question on the of whether the government failed to serve the information court district was without properly. Id. at 1129. impose an enhanced sentence when the Flowers discussed Eberhart information was jury filed after the Kontrick, concluded that “[s]ee- empaneled. Id. at 42. 851(a)

tion its requirements neatly fall category began analysis within The Prou Court claim-processing of a 851(a) rule,” noting language of section holding expressly now “[w]e no overrule our doubt” that its previous “leave[s] decisions that have 851(a)’s strictly “are to be improperly designated require- enforced.” 199 F.3d at However, Flowers, jurisdictional.” recognized ments the court as “[ejnforcement strict, F.3d at The court has been but 1129-30. reasoned that not just rigid,” occasionally as the and that rule issue Eberhart con- “courts untimely cerns in which excused post-trial filings long the time motions as as the filed, must be defendant has been pow- hence controls the made aware before entry er trial guilty of a to entertain mo- both the tion govern “but un- intent does the court’s seek enhance- conviction(s) derlying authority particular ment and the type to hear that upon case-it restrict which the aspires does not court’s (citations omitted). subject-matter jurisdiction,” rely.” Id. at 44 n. 3 too section so 851(a)(1) “directs the district im- court in 851(a) holding that the section re- sentence, a posing but it does not limit the quirements nonjurisdictional, the court subject-matter district jurisdiction court’s reasoned that whether prosecu- or not the over sentencing.” (citing Id. at 1130 18 timely pursuant tion files to § U.S.C. which confers original sub- 851(a), § section 18 3231 plainly U.S.C. ject jurisdiction matter over all offenses in federal subject vests district courts mat- States). against the laws of the United jurisdiction ter over “all against offenses

A case the Prou, decided First Circuit the laws the United States.” 199 to Eberhart and provides Kontrick the 45. jurisdiction F.3d at That necessarily thorough most treatment imposition of the issue and the penal- includes of criminal Furthermore, mat- informed the defendant’s counsel subject once ernment ties. Id. attached, may jurisdiction has “courts filed ter that it had the information had authority err their or otherwise exceed Id. copy mailed a his counsel. jurisdiction.” (quoting Id. loss of without counsel not receive defendant’s did the Wey, v. United States days information until June two after Cir.1990) (7th proposition for the result, began. Id. the the trial As a defen- “[cjourts err, may even offend the Consti- claimed that court dant the district lacked tution, juris- losing subject-matter without jurisdiction impose an enhanced sen- diction,” citing Perry, Blackledge argued to what tence due the defendant 21, 30, 40 L.Ed.2d 94 S.Ct. U.S. satisfy the failure to the only the proposition 851(a) Id. requirements. section After very the go power claims that it, circuits, including noting that some had into court to bring the defendant State 851(a)’srequirements section characterized him charge brought against answer “jurisdictional” that “all of as subject matter implicate jurisdiction). analysis courts that offered concluded, the Prou Accordingly, 851(a)’s have held that notice re- issue “the arises only question legitimately jurisdictional,” are not quirements Sev- filing of a sec- prosecution’s from the late appropriate enth Circuit stated that it was 851(a)(1) tion information concerns position to reexamine section authority to impose court’s 851(a) jurisdictional require- imposes sentence,” ques- simply “[t]his ment. Id. at 690-91. subject-matter jurisdiction.” tion of reasoning paral- The Seventh Circuit’s 45. The court summarized with F.3d at that of Prou. The court stated that leled the following: subject court “clearly” had noncompliance hold that [W]e jurisdiction prosecution matter over by section procedural regime established Ceballos, to 18 pursuant 3231. 851(a)(1) court deprives sentencing Prou, at 691 199 F.3d at (citing sen- authority an enhanced 45). then, point It then Prou’s Here, reiterated and no tence-no more less. attached, subject jurisdiction to ren- once matter empowered the lower court judgment concerning authority binding may der a exceed their without crime, Ceballos, judg- and the federal fact losing jurisdiction. 302 F.3d at actually entered a sen- embodied if It therefore held that even 691. surpassed the level author- tence satisfy require- failed to by Congress did not divest ized 851(a) and thus dis- ments of subject jurisdiction court of over the erred the enhanced imposing trict court matter. sentence, affect such error could not Id. subject court’s matter in it vested 18 U.S.C. employed Circuit similar The Seventh concluded that Accordingly, 851(a) holding that the section reasoning 851(a) “[sjection length sen- affects jurisdictional. requirements are not Unit- merely and ... affects district (7th tences Ceballos, ed F.3d 679 States v. power impose penalties after Cir.2002). Ceballos, courts’ 851(a) violations occurred. substantive three filed a section 851(a) Therefore, nothing § to do trial, days at 690. on June 11. Id. before conference, jurisdiction, as the gov- subject-matter Su- pre-trial At a June preme clearly Court has defined that term have more purpose” [ ].” evinced its in at 692. providing for enhanced pursuant sentences only to section 851 when the government Circuit, Eighth Cases from the United seeks such enhancement filing an infor 725, Mooring, 287 F.3d 726-28 mation before trial plea. Id. at 1307. (8th Cir.2002), Circuit, and the Second Sa- States, pia v. 433 F.3d United 216-17 (2d Cir.2005), have also held that the sec- 851(a) jurisdic- joins majority This Circuit now

tion are not of its tional, sister in largely employing reasoning holding set circuits that the section 851(a) requirements Similarly, jurisdictional. forth in Prou and Ceballos. are not First, agree post Fifth Circuit stated in dicta that “we -Eberhart and Kontrick case that whether or not the from the Tenth Circuit addressing files this § timely question information under demonstrates a proper application the dis- subject jurisdiction trict court had of those recent Supreme matter Court In- cases. deed, Kontrick, over in [the case under emphasized defendant’s] Dodson, “jurisdictional” 3231.” United States v. the label should be (5th Cir.2002) “only (noting prescriptions 159-60 reserved delineat- “[although ing also that in (subject-matter certain cases this classes of cases jurisdiction) circuit persons and others have referred and the (personal ju- risdiction) requirement ‘jurisdictional,’ falling in 851 as within a adjudica- we court’s tory read referring authority.” those cases as not to sub- U.S. at 124 S.Ct. ject jurisdiction matter analogized by but rather to the As Flow- ers, authority just district court’s as the rule at spe- issue in Eberhart cific sentence.... A court with proper concerns the time in which post-trial mo- subject jurisdiction filed, matter can exceed tions must be hence controls the authority power or commit other error of the district without court to entertain a jurisdiction”). loss of motion “but govern does not the court’s underlying authority to hear that type of only circuit holding that the section case-it does not restrict the district court’s 851(a)(1) requirements jurisdictional subject-matter jurisdiction,” Harris, the Eleventh. 149 F.3d at 1306. 851(a)(1) also “directs the district court in The Harris Court reasoned sentence, imposing a but it does not limit special sentences are prescribed remedies subject-matter district court’s jurisdic- by Congress, prosecutorial and because Flowers, tion over sentencing.” discretion is vested the executive branch at 1130. government, district courts “ha[ve] authority no pretermit Second, exercise it or it.” pve-Eberhart even the and Kon- is, Id. That prosecutorial 851(a) “Unless and until trick cases holding that the section discretion is invoked and the requirements are nonjurisdietional utilize files and serves an required information as reasoning that is consistent with those la- Sec. power district court has no Supreme ter Court cases. reasoning to act respect (1) to an enhanced essentially sen Prou is that 18 U.S.C. tence; it can no more enhance the sen plainly vests federal district tence than it could impose imprisonment subject jurisdiction matter over all under a only prescribes statute that against a offenses the laws of the United fine.” Id. Accordingly, States; the Eleventh Cir necessarily in- cuit concluded that Congress imposition “could not cludes the of criminal penalties;

547 ... rulings precedential have no subject dictional matter and once Env’t, au- attached, may a court exceed its effect.” a Better 523 has Citizens for thority 91,118 err without loss of or otherwise at S.Ct. 1003. U.S. Prou, 199 at 45. As set

jurisdiction. F.3d Fourth, holding that section above, supported by reasoning this is forth 851(a) nonjurisdictional requirements are precedent, Court and Supreme statute and existing is consistent with Sixth Circuit entirely labeling it is consistent with Indeed, 851(a) precedent. this Circuit has held requirements claim-pro- as section rules, requirements that in Kontrick delineated section cessing which the 851(a)(1) that mandatory “that do not delineate are and a district stated are those competent what cases are court cannot [] enhance defendant’s sen 454, 124 adjudicate.” 540 U.S. at S.Ct. prior tence based on conviction unless them. King, satisfies F.3d at This is proposition consistent Third, why the there are several reasons holding with circuits other that non Eleventh decision in Harris should Circuit compliance the procedures with of section It stands alone as the not followed. 851(a) deprives sentencing, court 851(a) holding that the section sole circuit sentence, authority impose an enhanced jurisdictional. Further subject but not divest court of does Flowers, more, holding in explained as jurisdiction. Accordingly, matter this Cir Supreme is undermined the recent joins majority cuit now its sister and Kontrick. Court cases of Eberhart holding. circuits in so although states that Additionally, Harris in four circuits-the First United other Romero-Carrion, F.3d 17- complied C. Whether (1st Hill, Cir.1995); Sixth in F.3d at 851(a) §with 305; in v. Belanger, Seventh United States gov next address whether the We (7th Cir.1992); 416, 418 and 970 F.2d 851(a). section complied ernment has Wright, in 932 F.2d Tenth United States v. Although noncompli it We hold that has. (10th Cir.1991)-“have 868, 882 likewise ance does not divest the court 851(a) imposes jurisdiction found that subject jurisdiction, matter still could 4,n. requirement,” al at 1307 that F.3d authority an deprive impose the court years. over the contention has been eroded majority rule sentence under the enhanced Indeed, Prou, in in the First Seventh Ce- question at adopt today. we ballos, in have all and Tenth Flowers ruled in Al least brief. implicit Appellant’s contrary since Harris was decided though argument main is that the dis his 1998; in the Seventh Cebal- Circuit jurisdiction” to trict was “without court

los, Tenth Circuit in 302 F.3d he penalties, supports Flowers, they stated that by arguing gov that “the contention expressly overruling were their deci man comply failed with the ernment Moreover, Harris sions which relied. largely He dates of 851.” this Circuit’s statement in Hill 851(a) relies on the Eleventh Circuit’s decision jurisdictional imposes require Harris, held that even ment, Finally, is dicta. if a actual notice defendant receives in Hill this Circuit’s statement to file informa intends were First Circuit’s Romero-Carrion sentence, govern his tion to enhance analysis, Supreme made without section 851 “drive-by complied juris Court has cautioned 548

until it an files information. 149 F.3d at paragraphs plea agreement express- ly provided Appellant written notice to subject that he was to the enhancements. This Court has held that require- Additionally, plea hearing certainly 851(a)(1) ments delineated section provided Appellant an opportunity to be mandatory and that a district court cannot heard, admitted, as there he on the record enhance a defendant’s sentence based on a (1) oath, alia, and under inter that he read prior conviction unless (2) signed and plea agreement; that he satisfies them. 127 F.3d at 487. King, gone had great over it in detail with his However, it is precedent also well-settled (3) attorney; that there was nothing in this Circuit and sister circuits that agreement (4) understand; that he did not designed satisfy section 851 “was that he understood statutory pen- requirements process of due provide alty for each of the counts to which he was the defendant with reasonable notice and pleading guilty mandatory was a minimum opportunity to be heard regarding the years of ten in prison followed at least possibility of an enhanced sentence for re- eight years release, of supervised a $4 (internal cidivism.” Id. at quotation 489 fine, million special assessment; a $100 n omitted); Layne, 576; see 192 F.3d at (5) that again he understood that he could Jackson, United States v. not be sentenced to less than 120 months (7th Cir.1997) (“21 319 851 was prison followed at eight years least enacted ... to insure that defendants are supervised release; and his given reasonable notice and an opportunity voluntarily and of made his own free heard, to be opportuni- includes the will. Even Appellant does not dispute that ty to contest the challenge evidence or a he had notice that the intend- if prior conviction the might defendant ed to file an information for purposes of subject greater to a sentence than would sentence enhancement and that he had an imposed.”); otherwise be United States v. opportunity challenge validity of his Grooms, (6th 194 Fed.Appx. 365 Cir. prior Accordingly, convictions. to accept 2006); Soto, United States v. 8 Fed.Appx. Appellant’s argument here would “ele- (6th Cir.2001) 539 (referring to the substance,” form vat[e] over which this fulfillment of process due requirements as consistently Court has emphasized the im- 851). “the central purpose” of section portance of Layne, avoiding. 192 F.3d Consequently, this Court repeatedly 576; 489; King, Grooms, 127 F.3d emphasized importance “the of interpret- Fed.Appx. at 365. ing 851’s notice so as to Our today conclusion support finds avoid elevating form over substance.” our cases and in the cases of our sister Layne, 192 F.3d at 576 (quoting King, 127 Indeed, circuits. occasionally “courts 489); Grooms, F.3d at see Fed.Appx. untimely 851(a)] excused filings [under at 365. as long as the defendant has been made precedent This compels the result that aware before the or entry trial of a guilty 851(a) satisfied the section plea of both the government’s intent requirements and hence that seek an particular enhancement court did not err. Appellant clearly had convietion(s) upon govern- which the “reasonable notice an opportunity aspires Prou, rely,” regarding be heard possibility of an n. a recognition explicitly under- enhanced sentence for recidivism.” In- mines the dissent’s conclusion today. For deed, as above, cited thoroughly example, several Butler, in United States v. an enhanced sen- “prohibits Cir.2005), (6th gov- 813, 815 Fed.Appx. it first seeks government a revised unless the court” tence open “in filed ernment prior conference pre-trial filing information during by properly information 2002, that 13, stating analy- grounds its September held on Id. thus trial.” Weaver just conforms “basically notice, information the had the defendant in whether sis re- that was indictment superceding the jury [prior that emphasizing “[n]either was information The returned.” cently sentenc- any prior time nor selection] attorney Sep- on defendant’s on the served any objection note defendant] ing [the did the on entered but it was not tember govern- of the timing or form as to the 18, and the September until docket court’s notice,” id., our which corroborates ment’s Id. This 17. September began on trial in the today that conclusion govern- held nevertheless with section complied case instant the Id. In so 851. with section complied the dis- and undercuts 851’s the solely relied on analysis holding, the the requiring that rigid approach sent’s pre- of the transcript the that fact “both under all to trial prior be filed information of ser- the certificate and trial conference validity of Weaver The circumstances. that indicate information the vice on is instant case applicability and on Butler’s actually served notice that this Court by the fact underscored 2002”; there- September on counsel reasoning of adopted quoted and has was not entered fore, information “that the Butler, Fed.Appx. ease. See 18 is September until docket on the court’s added). (emphasis at 816 immaterial.” case, the facts instant Similarly, in the substantiated, further conclusion Our not indicate, does and Appellant clearly un- is further approach and the dissent’s to Appel- provided notice was dispute, dercut, of our sister other decisions by still hearing during prior to lant v. in example, United For circuits. to be heard opportunity had an that he (7th Cir.2000), Lawuary, hearing. at that Cehallos, 302 grounds, other overruled decision Unit- Eleventh Circuit’s noted Circuit the Seventh F.3d at Weaver, ed States provide is to purpose 851’s “section (11th Cir.1990), with this Court’s coupled adequate notice.” with defendant case, our validates further approval requisite “all provided had Weaver, the defen- today. decision in the written information” served personally counsel dant’s stated: plea agreement, 13, 1988, but on June information prior until filed two it that was the defendant Because record reflected Id. The began. Sangamon the trial days after felony drug four convictions reasoned nevertheless Eleventh Circuit 93-CF- numbers Illinois case County, serving defen- personally [the “[b]y time 95-CF-413 789 and copy counsel with and his dant] are: offense, penalties potential trial, by advising prior —mandatory prison life filing an infor- orally that was the court sentencing en- fine purposes of million dollar —up eight mation for to an complied hancement, supervised period mandatory —a of section mandatory requirements years, 10of release held not- so Id. The Weaver Court 851.” assessment. special —a recognition $100 explicit withstanding its Lawuary, 211 F.3d at Citing still enhancement, sentence though even language other plea agreement,3 from the government did not file an timely informa- Lawuary tion, Court concluded that part because as plea agree- his agreement “clearly provided ment, [the defen- the defendant stipulated that notice, writing, dant] with that he faced given defendant had been proper notice a life sentence based on his specifically under section 851 and that the enhance- felony identified state drug convic- ment increased mandatory his minimum tions” and that the signed sentence, noted defendant and because the defendant plea the agreement and acknowledged that “knew of specific the earlier conviction re- it, he read discussed it with attorney, his lied on support enhancement, the ad- it, agreed understood to it. mitted his court, conviction to the district and knew of the sentence”; enhanced [] noting After government that the sup- thus, “the substantive aims the plemented statute its written notice at the time of satisfied,” were as the defendant “received plea the hearing by orally advising the protections the by statute”); intended the defendant of the enhancement the Brown, United States v. judge district “engaged in an extensive (D.C.Cir.1990) 1308-09 (upholding a sen- colloquy with [the defendant at plea the tence enhancement where the hearing], ensuring that well [he] was “orally notified defense counsel of its in- aware” that prior his convictions would 851,” § tentions under notwithstanding result in mandatory sentence, life the the fact the Seventh information was “not filed Circuit held that the with the clerk before day trial”; had satisfied the of section rather, it was day filed on the of the trial affirming the defendant’s conviction court). when judge accepted sentence. Id. The Lawuary Court so held notwithstanding the fact gov- III. CONCLUSION

ernment failed to file a written information stating that it was it was on the relying For reasons, the foregoing we AFFIRM prior defendant’s two im- convictions to the decision of the district court. pose a life sentence. Id. at 374. The degree of similarity COOK, between the Judge, facts of Circuit dissenting. Lawuary case, and the instant evidenced I agree majority that a district written, particularly by, alia, inter court’s failure to comply §with 851 nei- agreements and the extensive colloquies ther deprives the jurisdic- district court of between the judges and the defen- tion to impose an penalty under dants, further validates our conclusion and deprives 841 nor it of subject matter provides example another of our sister cir- under 18 U.S.C. 3231. But rejection cuits’ of the approach that distinguishing jurisdiction statutory from dissent employs today. authority leads me to conclude that by

We noting conclude holding our plain language of deprived the dis- finds additional corroboration in prece- trict authority court of to enhance Pritch- dent of our See, sister circuits. e.g., ett’s sentence because Mooring, 287 F.3d at 727-28 (upholding a failed file the requisite information be- language 3. That however, was as follows: "[The defen- acknowledge by guilty plea, his may dant] seek to have one or convic- more will required impose be a sen- vacated, tions and so does agree- this imprisonment." tence of life Lawuary, 211 ment, does, they admit that are valid. He F.3d at 377. stating plea, an guilty of a dis- respectfully thus I sentencing. fore convictions, a count prevents previous sent. under the sentencing enhancing a from statute, see text of begin I statute.”). easy This should case Co., U.S. Coal Sigmon Barnhart to meet government failed one. The L.Ed.2d 122 S.Ct. de- and that failure prerequisites § 851 (2002), reads: authority to district court prived the anof convicted stands who No person sentence. the enhanced sen- shall be part this under offense govern- past majority reasons by rea- punishment to increased tenced require- the notice to meet ment’s failure convictions, more or of one son whether, despite looking entry trial, before unless before the statute’s non-compliance, attor- the United guilty, plea of Pritchett met: were nevertheless purposes with the an information ney files his sentence notice had reasonable information (and copy of such serves rig- § given But 851’s enhanced. could be person) for the counsel person the on the respect must requirements, id convic- writing previous the stating about speculate rather than text explicit upon. to be relied tions may suffice disre- circumstances what added). 851(a)(1) (emphases § 21 U.S.C. command. that clear gard At- States the United requires Congress interpreting finds majority also simple tasks two torney complete before language plain to its according the statute give in order guilty plea entry of a the over sub- effectively “elevate form authority to enhance the court (citing United States at Ante stance.” must First, government the a sentence. (6th Cir.1999), 556, 576 Layne, 192 F.3d v. File the court. information file 489). Yet both 127 F.3d King, legal document to “deliver means concern majority cites to which the cases place- custodian or record clerk court itself information the of the substance official record.” the Blaok’S into this On filed. it was than when rather ed.1999). (7th Sec- DICTIONARY Law only requires § I note point, here, government the ond, issue the writing previ- “in state the information copy awith defendant the must serve rather upon,” relied to be ous convictions information. for the informa- the form specifying than States United the denies No one to take. tion § infor- the Attorney not deliver did timely filed King, “government In Ohio District of to the Northern mation ... trial.” before information court after the until court clerk dire, government During voir cir- at 488. That plea. guilty Pritchett’s entered the date to correct its information enhancement; updated “[t]he forecloses cumstance (the was off first one the conviction man- § 851 are delineated month) state the Ohio to add court cannot enhance datory, and a district sub- section. and code number case prior based on sentence a defendant’s clear in conviction stance government satisfies unless conviction Id. Look- information. first filed properly F.3d King, 127 v. States United them.” itself, per- § text of ing to Cir.1997); (6th also United see 483, 487 “[cjlerical in the (5th mistakes mits 671, 674 Levay, 76 v. any time amended gov- [to] Cir.1996) (“Failure part on sentence,” 21 U.S.C. entry pronouncement file, or before before trial ernment 851(a)(1), we held that omission of some of the in the CORPORATION, details first RSR Plaintiff- information were clerical mistakes Appellant, thus the amendment permissible. King, 127 F.3d at 489. CO., COMMERCIAL METALS Layne, filed an infor- Defendant-Appellee.

mation prior to trial that not “express- did ly reference!] 851.” 192 F.3d at 575. No. 06-3840. We observed “that the statute is silent on United States Court of Appeals,

whether the actually must cite Sixth Circuit. in the statute information it files.” Id. at 576. We further noted statute’s Argued: April silence specificity “on the with which the Decided July and Filed: government must identify prior convic- tions.” Given that spe- silence Rehearing and Rehearing En Banc cific form the take, information must we Denied Oct. 2007.* looked to the substance of the information

itself, and found that “the did 851(a)(1)

all that requires.” Id. seems, then,

It majority ex-

tracts a general principle from King and

Layne, grounded decisions in the text of statute, and uses that principle to re-

write 851 so as to avoid distasteful

result.

Were the issue general here about con-

cepts fairness, majority probably

has it right; likely Pritchett had all the

notice fairness require. would But since

“Congress can enact foolish statutes as ones,”1

well as wise must not sub-

stitute judgment “wiser” for that of Con-

gress. Congress could amend 851 to

allow But, mere notice to suffice. as pres-

ently written, the language of 851 is

clear, as is failure to

comply with it.

I respectfully dissent. *Judge Common-Law Courts in a Clay Scalia, Antonin grant rehearing for the rea System, Civil Law in A Interpreta- Matter sons stated in his dissent. tion 3, 20

Case Details

Case Name: United States v. Pritchett

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 13, 2007

Citation: 496 F.3d 537

Docket Number: 06-3359

Court Abbreviation: 6th Cir.