Lead Opinion
McKEAGUE, J., delivered the opinion of the court, in which EDGAR, D.J., joined. COOK, J. (pp. 550-52), delivered a separate dissenting opinion.
OPINION
Appellant Christopher P. Pritchett entered into a written plea agreement with the government, agreeing to plead guilty to possession of cocaine with intent to distribute and to distribution of cocaine, and the 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 the plea agreement and the district court accepted Appellant’s guilty plea, the government filed an information pursuant to 21 U.S.C.
I. BACKGROUND
On October 5, 2005, Appellant was named in a twelve-count indictment that charged him in Counts 1, 6, 7, 8, 9, and 12. Count 1 charged him with conspiracy to possess and to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Counts 6, 7, 8, and 9 charged him with distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Count 12 charged him with possessing with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B).
In a plea agreement with the United States Attorney’s Office, Appellant agreed to plead guilty to Counts 6, 7, 8, 9, and 12, and the government agreed to dismiss Count 1. The plea agreement included language that Appellant “admits, acknowledges or does not dispute” that on November 1, 2001, Appellant was convicted of drug trafficking, in violation of Ohio Revised Code § 2925.03, in the Cuyahoga County Court of Common Pleas. The agreement also stated that Appellant
understands that, because of his prior conviction for a felony drug offense, the mandatory minimum and the maximum possible penalties on each count are as follows ... A mandatory minimum ten (10) years incarceration, up to a maximum possible term of life imprisonment, followed by at least eight (8) years of supervised release, a $4,000,000.00 fine, and a $100 special assessment.
The plea agreement later provided that
[Appellant] understands that, pursuant to 21 U.S.C. § 841(b)(1)(B), 21 U.S.C. § 851, and USSG § 5G1. 1(c)(2), however, the Court cannot sentence [Appellant] to less than 120 months in prison, followed by at least 8 years of supervised release.
[ ] The parties agree not to seek any other [there was an agreement on a three-point reduction under U.S.S.G. § 3El.l(a)-(b) for Appellant’s acceptance of responsibility] enhancements, reductions, victim-related adjustments, upward departures, or downward departures from the stipulated offense level total.
Appellant’s change of plea proceeding began at 9:03 a.m. on December 8, 2005, and he entered a plea of guilty to Counts 6, 7, 8, 9, and 12. At the hearing, Appellant admitted, inter alia, (1) that he read and signed the plea agreement; (2) that he had gone over it in great detail with his attorney; (3) that there was nothing in the agreement that he did not understand; (4) that he understood that the statutory penalty for each of the counts to which he was pleading guilty was a mandatory minimum of ten years in prison followed by at least eight years of supervised release, a $4 million fíne, and a $100 special assessment; (5) that again he understood that he could not be sentenced to less than 120 months in prison followed by at least eight years of supervised release; and (6) that his plea
The government filed a sentencing enhancement information at 10:33 a.m., which gave notice that if Appellant entered a plea of guilty on any count, the United States would rely on Appellant’s previous felony drug conviction in order to invoke the enhanced sentencing provisions of 21 U.S.C. § 841(b)(1)(B). Because of this pri- or felony drug offense, the penalty enhancement provisions of section 841(b)(1)(B) required a mandatory minimum sentence of ten years imprisonment to a maximum of life imprisonment, to be followed by eight years of supervised release. The government’s information indicated that a request for a sentence under 120 months would breach the plea agreement and that the government would then be free to recommend a life sentence for Appellant.
The United States Probation Office prepared a Presentence Investigation Report (“PSR”) on January 18, 2006.
The PSR was revised on February 2, 2006, taking into account Appellant’s January 30, 2006 objection to the section 851 enhancement. On February 17, 2006, Appellant filed a Sentencing Memorandum, arguing that because the enhancement information was not filed in accordance with section 851(a), the district court would not have jurisdiction to impose an enhanced sentence at the sentencing hearing.
Appellant’s sentencing hearing was held on February 27, 2006, in the United States District Court for the Northern District of Ohio. At the hearing, the district judge stated the following
The Court finds that [Appellant] did, in fact, have notice, had notice that the 851 information would be filed by the Government. The Court finds that that notice is adequate. So even though technically, the information was filed on the same day, but shortly after the plea of guilty was entered, the information is not null and void. Therefore, in accordance with that information, and more importantly, in accordance with the plea agreement, the Court does, in fact, find that the minimum term of imprisonment is 120 months.
The district judge later reiterated this point, stating that “I indicated that I have reviewed the plea agreement, and the Court finds that that was adequate notice.” Finally, the district judge noted that
Well, I will state before I pronounce [the] sentence that the issue that was raised in [Appellant’s] Sentencing Memorandum is not a jurisdictional one, and there is ample case law indicating that the Court must go beyond specific for[m] and determine if there was sufficient notice. So, sir, that is why the Court feels compelled to determine that you did in fact have notice of the 851 information.
Accordingly, the district court found that the minimum term of imprisonment was 120 months. The government asked the court to impose a sentence in the range of 120-25 months, with eight years of supervised release. The court sentenced Appellant to a term of 120 months imprisonment
On appeal, Appellant claims that the district court was without jurisdiction to impose the enhanced penalties under 21 U.S.C. § 841(b)(1)(B) due to its “failure] to comply with the mandates of 21 U.S.C. § 851.” Appellant’s Br. 12. Accordingly, he asks this court to remand for resentenc-ing, with instructions that the district court sentence him without the enhanced penalties of section 841(b)(1)(B).
II. ANALYSIS
A. Standard of review
Whether the requirements of 21 U.S.C. § 851(a) are jurisdictional is a question of law. Accordingly, it is a question subject to de novo review by this Court. Cutter v. Wilkinson,
A defendant convicted of a violation of 21 U.S.C. § 841(a)(1), which makes it unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance, is subject to a sentence enhancement due to prior drug-related convictions. See 21 U.S.C. § 841(a)(1),(b); United States v. Layne,
any person who violates subsection (a) of this section shall be sentenced as follows ... such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years.... If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment [ ].
21 U.S.C. § 841(b)(1)(B). However, in order to avail itself of these enhanced penalties, the government must file an information with the court and serve the defendant, stating in writing the previous convictions on which it intends to rely, and it must do so before trial or before a guilty plea is entered:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1); see Layne,
B. Whether the § 851(a) requirements are jurisdictional
1.
Appellant claims that because the government failed to comply with the requirements of section 851(a), the district court lacked jurisdiction to impose the enhanced penalties of section 841(b)(1)(B), and therefore that the statutory sentencing range should have been a term of imprisonment of 5 to 40 years with a supervised release term of at least 4 years, rather than the
The government argues in response that Appellant not only was afforded written notice of the government’s intention to seek enhanced penalties via the plea agreement, but he also was apprised of that intention during the plea hearing. Further, Appellant declined his opportunity to contest the prior conviction, and he actually agreed to the applicability of the enhanced penalties orally at the plea hearing and in writing in the plea agreement. Finally, the government contends that Appellant’s argument is moot because the 120 month sentence imposed by the district court was within both the statutory penalty of 5 to 40 years as well as the applicable Guideline range of 100 to 125 months.
2.
An almost-unanimous majority of circuits that have addressed the issue have held that the section 851(a) requirements are not jurisdictional. Indeed, only one circuit has held to the contrary. This Circuit, however, has not established binding precedent that addresses the question. In Hill, this Court stated that “[s]ection 851(a) imposes a jurisdictional requirement granting the district court jurisdiction to enhance a defendant’s sentence only when the United States attorney files an information with the court, stating in writing the previous convictions to be relied on.”
In two recent cases, the Supreme Court clarified the difference between jurisdictional rules and “inflexible claim-processing rule[s].” Eberhart v. United States,
In Kontrick, the rule at issue was Federal Rule of Bankruptcy Procedure 4004(a), which provides that in Chapter 7 proceedings, a creditor has a certain period of time, after the first date set for the meeting of creditors, to file a complaint objecting to the debtor’s discharge, and under certain circumstances, that period may be extended if a motion is filed before that time has expired.
The Court held that the rule at issue was not jurisdictional. Kontrick,
In Eberhart, the Court considered whether a federal rule of criminal procedure is jurisdictional.
These Supreme Court cases either ratify or provide the foundation for several cases from our sister circuits that have held that the requirements of section 851(a) are non-jurisdictional. The most recent case to address the issue" is United States v. Flowers,
The Flowers Court discussed Eberhart and Kontrick, and it concluded that “[s]eetion 851(a) and its requirements fall neatly within the category of a claim-processing rule,” holding that “[w]e now expressly overrule our previous decisions that have improperly designated § 851(a)’s requirements as jurisdictional.” Flowers,
A case decided by the First Circuit prior to Eberhart and Kontrick provides the most thorough treatment of the issue and is therefore the case on which several later eases rely in support of the proposition that the section 851(a) requirements are not jurisdictional. Prou v. United States,
The Prou Court began its analysis by noting that the language of section 851(a) “leave[s] no doubt” that its requirements “are to be strictly enforced.”
In holding that the section 851(a) requirements are nonjurisdictional, the court reasoned that whether or not the prosecution files a timely information pursuant to section 851(a), 18 U.S.C. § 3231 plainly vests in federal district courts subject matter jurisdiction over “all offenses against the laws of the United States.” Prou,
Accordingly, the Prou Court concluded, “the only question that legitimately arises from the prosecution’s late filing of a section 851(a)(1) information concerns the court’s authority to impose an enhanced sentence,” and “[t]his is simply not a question of subject-matter jurisdiction.”
[W]e hold that noncompliance with the procedural regime established by section 851(a)(1) deprives the sentencing court of authority to impose an enhanced sentence-no more and no less. Here, then, the lower court was empowered to render a binding judgment concerning a federal crime, and the fact that the judgment actually entered embodied a sentence that surpassed the level authorized by Congress did not divest the court of jurisdiction over the subject matter.
Id. at 46.
The Seventh Circuit employed similar reasoning in holding that the section 851(a) requirements are not jurisdictional. United States v. Ceballos,
The Seventh Circuit’s reasoning paralleled that of Prou. The court stated that the district court “clearly” had subject matter jurisdiction over the prosecution pursuant to 18 U.S.C. § 3231. Ceballos,
Cases from the Eighth Circuit, United States v. Mooring,
The only circuit holding that the section 851(a)(1) requirements are jurisdictional is the Eleventh. Harris,
3.
This Circuit now joins the majority of its sister circuits in holding that the section 851(a) requirements are not jurisdictional. First, the post -Eberhart and Kontrick case from the Tenth Circuit addressing this question demonstrates a proper application of those recent Supreme Court cases. Indeed, in Kontrick, the Court emphasized that the label “jurisdictional” should be reserved “only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.”
Second, even the pve-Eberhart and Kon-trick cases holding that the section 851(a) requirements are nonjurisdietional utilize reasoning that is consistent with those later Supreme Court cases. The reasoning in Prou essentially is that (1) 18 U.S.C. § 3231 plainly vests in federal district courts subject matter jurisdiction over all offenses against the laws of the United States; (2) that jurisdiction necessarily includes the imposition of criminal penalties;
Third, there are several reasons why the Eleventh Circuit decision in Harris should not be followed. It stands alone as the sole circuit holding that the section 851(a) requirements are jurisdictional. Furthermore, as explained in Flowers, its holding is undermined by the recent Supreme Court cases of Eberhart and Kontrick. Additionally, although Harris states that four other circuits-the First in United States v. Romero-Carrion,
Fourth, holding that the section 851(a) requirements are nonjurisdictional is consistent with existing Sixth Circuit precedent. Indeed, this Circuit has held that the requirements delineated in section 851(a)(1) are mandatory and that a district court cannot enhance a defendant’s sentence based on a prior conviction unless the government satisfies them. King,
C. Whether the government complied with § 851(a)
We next address whether the government has complied with section 851(a). We hold that it has. Although noncompliance does not divest the district court of subject matter jurisdiction, it still could deprive the court of authority to impose an enhanced sentence under the majority rule that we adopt today. The question is at least implicit in Appellant’s brief. Although his main argument is that the district court was “without jurisdiction” to impose enhanced penalties, he supports that contention by arguing that “the government failed to comply with the mandates of 21 U.S.C. § 851.” He largely relies on the Eleventh Circuit’s decision in Harris, in which that court held that even if a defendant receives actual notice that the government intends to file an information to enhance his sentence, the government has not complied with section 851
This Court has held that the requirements delineated in section 851(a)(1) are mandatory and that a district court cannot enhance a defendant’s sentence based on a prior conviction unless the government satisfies them. King,
This precedent compels the result that the government satisfied the section 851(a) requirements and hence that the district court did not err. Appellant clearly had “reasonable notice and an opportunity to be heard regarding the possibility of an enhanced sentence for recidivism.” Indeed, as cited thoroughly above, several paragraphs of the plea agreement expressly provided written notice to Appellant that he was subject to the enhancements. Additionally, the plea hearing certainly provided Appellant an opportunity to be heard, as there he admitted, on the record and under oath, inter alia, (1) that he read and signed the plea agreement; (2) that he had gone over it in great detail with his attorney; (3) that there was nothing in the agreement that he did not understand; (4) that he understood that the statutory penalty for each of the counts to which he was pleading guilty was a mandatory minimum of ten years in prison followed by at least eight years of supervised release, a $4 million fine, and a $100 special assessment; (5) that again he understood that he could not be sentenced to less than 120 months in prison followed by at least eight years of supervised release; and (6) that his plea was voluntarily made and of his own free will. Even Appellant does not dispute that he had notice that the government intended to file an information for purposes of sentence enhancement and that he had an opportunity to challenge the validity of his prior convictions. Accordingly, to accept Appellant’s argument here would “ele-vat[e] form over substance,” which this Court has consistently emphasized the importance of avoiding. Layne,
Our conclusion today finds support in our cases and in the cases of our sister circuits. Indeed, “courts occasionally have excused untimely filings [under § 851(a)] as long as the defendant has been made aware before the trial or entry of a guilty plea of both the government’s intent to seek an enhancement and the particular prior convietion(s) upon which the government aspires to rely,” Prou,
The Eleventh Circuit’s decision in United States v. Weaver,
Our conclusion is further substantiated, and the dissent’s approach is further undercut, by still other decisions of our sister circuits. For example, in United States v. Lawuary,
Because the defendant has two prior felony drug convictions in Sangamon County, Illinois case numbers 93-CF-789 and 95-CF-413 at the time of the offense, the potential penalties are:
—mandatory life in prison
—up to an eight million dollar fine
—a mandatory period of supervised release of 10 years, and
—a $100 special assessment.
After noting that the government supplemented its written notice at the time of the plea hearing by orally advising the defendant of the enhancement and that the district judge “engaged in an extensive colloquy with [the defendant at the plea hearing], ensuring that [he] was well aware” that his prior convictions would result in a mandatory life sentence, the Seventh Circuit held that the government had satisfied the requirements of section 851, affirming the defendant’s conviction and sentence. Id. The Lawuary Court so held notwithstanding the fact that the government failed to file a written information stating that it was it was relying on the defendant’s two prior convictions to impose a life sentence. Id. at 374. The degree of similarity between the facts of Lawuary and the instant case, evidenced particularly by, inter alia, the written, plea agreements and the extensive colloquies between the district judges and the defendants, further validates our conclusion and provides another example of our sister circuits’ rejection of the approach that the dissent employs today.
We conclude by noting that our holding finds additional corroboration in the precedent of our sister circuits. See, e.g., Mooring,
III. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court.
Notes
. The Probation Office used the 2005 edition of the Sentencing Guidelines.
. At the outset, it should be noted that the government’s mootness argument is meritless. Indeed, it is clear from the sentencing transcript that the district court judge believed that the minimum term of imprisonment was 120 months. Accordingly, to the extent that she imposed a sentence of 120 months, she might have sentenced Appellant to fewer than 120 months if she had felt that she were free to do so. See United States v. Hamm,
. That language was as follows: "[The defendant] may seek to have one or more convictions vacated, and so does not by this agreement, admit that they are valid. He does, however, acknowledge that by his guilty plea, the Court will be required to impose a sentence of life imprisonment." Lawuary,
Dissenting Opinion
dissenting.
I agree with the majority that a district court’s failure to comply with § 851 neither deprives the district court of jurisdiction to impose an enhanced penalty under § 841 nor deprives it of subject matter jurisdiction under 18 U.S.C. § 3231. But distinguishing jurisdiction from statutory authority leads me to conclude that the plain language of § 851 deprived the district court of authority to enhance Pritch-ett’s sentence because the government failed to file the requisite information be
I begin with the text of the statute, see Barnhart v. Sigmon Coal Co.,
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1) (emphases added). Congress requires the United States Attorney to complete two simple tasks before the entry of a guilty plea in order to give the district court the authority to enhance a sentence. First, the government must file an information with the court. File means to “deliver a legal document to the court clerk or record custodian for placement into the official record.” Blaok’S Law DICTIONARY 642 (7th ed.1999). Second, not at issue here, the government must serve the defendant with a copy of that information.
No one denies that the United States Attorney did not deliver the § 851 information to the Northern District of Ohio court clerk until after the district court entered Pritchett’s guilty plea. That circumstance forecloses enhancement; “[t]he requirements delineated in § 851 are mandatory, and a district court cannot enhance a defendant’s sentence based on a prior conviction unless the government satisfies them.” United States v. King,
The majority reasons past the government’s failure to meet the notice requirement by looking to whether, despite the government’s non-compliance, the statute’s purposes nevertheless were met: Pritchett had reasonable notice that his sentence could be enhanced. But given § 851’s rigid requirements, courts must respect the explicit text rather than speculate about what circumstances may suffice to disregard that clear command.
The majority also finds that interpreting the statute according to its plain language would effectively “elevate form over substance.” Ante at 541 (citing United States v. Layne,
In King, the “government timely filed its information before ... trial.”
In Layne, the government filed an information prior to trial that did not “expressly reference!] § 851.”
It seems, then, that the majority extracts a general principle from King and Layne, decisions grounded in the text of the statute, and uses that principle to rewrite § 851 so as to avoid its distasteful result.
Were the issue here about general concepts of fairness, the majority probably has it right; Pritchett likely had all the notice fairness would require. But since “Congress can enact foolish statutes as well as wise ones,”
I respectfully dissent.
. Antonin Scalia, Common-Law Courts in a Civil Law System, in A Matter of Interpretation 3, 20 (1997)