United States v. Brown, Eddie

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed October 22, 1999

No. 99-3015

United States,

Appellee

v.

Eddie Brown

Appellant

_______

Appeal from the United States District Court

for the District of Columbia

(No. 90CR00177)

_______

Before: Ginsburg, Henderson, and Garland, Circuit

Judges.

J U D G M E N T

PER CURIAM:

This appeal was considered on the record from the United

States District Court for the District of Columbia and on the

briefs of the parties. The court has determined that the

issues presented occasion no need for oral argument. See

D.C. Cir. Rule 34(j). It is

ORDERED AND ADJUDGED that the district court's

order denying Brown's Motion to Vacate, Set Aside, or Cor-

rect Sentence pursuant to 28 U.S.C. s 2255 be affirmed.

The district court granted a certificate of appealability

pursuant to 28 U.S.C. s 2253(c)(1) on a single issue: whether

Brown's trial counsel rendered ineffective assistance at his

sentencing. On appeal, Brown argues that his trial counsel

was ineffective in failing to assert that Brown's sentence

could not be enhanced under 21 U.S.C. s 841 because of

ambiguity in the notice provision of 21 U.S.C. s 851. In

order to seek an enhanced sentence under s 841, the United

States Attorney is required to file an information under

s 851. Section 851(a)(2) provides, however, that "[a]n infor-

mation may not be filed under this section if the increased

punishment which may be imposed is imprisonment for a

term in excess of three years unless the person either waived

or was afforded prosecution by indictment for the offense for

which such increased punishment may be imposed." Brown

claims that the requirement of an indictment applies to the

predicate convictions rather than to the present conviction;

alternatively, he argues that the proper application of this

requirement is so ambiguous that the rule of lenity would

have barred enhancement of his sentence. Brown claims that

his counsel's failure to raise these arguments during sentenc-

ing fell below an objective standard of reasonableness, and

that he was prejudiced because this court would have re-

versed the district court on the sentence enhancement either

by adopting Brown's interpretation of the statute or by

applying the rule of lenity. See Strickland v. Washington,

466 U.S. 668, 687 (1984) (holding that a claim of ineffective

assistance of counsel requires both objective deficiency by

counsel and prejudice to the defendant).

We reject Brown's appeal because he has failed to demon-

strate prejudice. We join the nine other circuits that have

considered this issue and hold that the requirement of an

indictment in 21 U.S.C. s 851(a)(2) applies to the present

conviction. See United States v. Ortiz, 143 F.3d 728, 732 (2d

Cir. 1998), overruling United States v. Collado, 106 F.3d 1097

(2d Cir. 1997); United States v. Lynch, 158 F.3d 195, 199 (3d

Cir. 1998); United States v. Lampton, 158 F.3d 251, 256 (5th

Cir. 1998); United States v. Gaitan-Acevedo, 148 F.3d 577,

594 (6th Cir. 1998); United States v. Burrell, 963 F.2d 976,

993 (7th Cir. 1992); United States v. Trevino-Rodriguez, 994

F.2d 533, 536 (8th Cir. 1993); United States v. Espinosa, 827

F.2d 604, 617 (9th Cir. 1987); United States v. Adams, 914

F.2d 1404, 1407 (10th Cir. 1990); United States v. Harden, 37

F.3d 595, 601 (11th Cir. 1994). Nor is this section ambiguous

such that the rule of lenity would preclude the enhancement

of Brown's sentence. See Ortiz, 143 F.3d at 731-32.

The clerk is directed to withhold issuance of the mandate

herein until seven days after disposition of any timely petition

for rehearing. See D.C. Cir. Rule 41.