United States v. Arreola-Castillo, Je

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-4055

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JESUS A RREOLA-C ASTILLO,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. IP 05-64-CR-07-B/F—Sarah Evans Barker, Judge.

____________

A RGUED A PRIL 1, 2008—D ECIDED A UGUST 25, 2008

____________

Before C UDAHY, R IPPLE and R OVNER, Circuit Judges.

C UDAHY, Circuit Judge. After a three-day trial, a jury

convicted Jesus Arreola-Castillo of participating in a

conspiracy to distribute more than 1,000 kilograms of

marijuana. See 21 U.S.C. § § 841(a)(1), 846. Because he

had already been convicted of three previous felony

drug offenses, Arreola-Castillo received a mandatory

minimum sentence of life imprisonment pursuant to the

recidivism provisions of § 841(b)(1)(A). Arreola-Castillo

2 No. 06-4055

now appeals his sentence. He argues that the mandatory

minimum should not have been imposed because the

sentencing judge failed to properly apply § 841(b)(1)(A)

and because the government failed to comply with the

procedural requirements set out in § 851. We find, how-

ever, that Arreola-Castillo’s sentence was properly im-

posed.

I.

On December 13, 2005, Arreola-Castillo was indicted,

along with five other individuals, on one count of conspir-

acy to distribute in excess of 1,000 kilograms of marijuana.

See 21 U.S.C. § § 841(a)(1), 846. The charges stemmed from

an investigation into a marijuana distribution ring that

operated in Indianapolis, Indiana from early 2001 to

August 2004. One of the ring’s largest customers, Rodolfo

Reyes-Aranda, agreed to cooperate with government

officials, and he identified Arreola-Castillo as one of the

ring’s biggest suppliers. Reyes-Aranda estimated that

Arreola-Castillo delivered between 100 and 140 pounds of

marijuana, three or four times per month, for the duration

of the conspiracy. Arreola-Castillo maintained his inno-

cence, insisting that Reyes-Aranda was not telling the

truth. The case was set for trial.

On May 22, 2006, about three weeks before trial, the

government filed an information notifying Arreola-Castillo

of its intent to rely on a prior felony drug conviction

“pursuant to 21 U.S.C. § 851(A)(1)” (the First Information).

Attached to the First Information was a certified copy of

a conviction for distribution of a controlled substance

No. 06-4055 3

entered against “Jesus Arreola-Castillo” on May 6, 1996

in San Miguel County, New Mexico.1 On June 6, 2006,

about a week before trial, the government filed another

information, notifying the defendant of its intent to rely

on “a second prior felony drug-related conviction” (the

Second Information). Attached to the Second Information

was a certified copy of a conviction, on two counts, of

trafficking in a controlled substance (cocaine) entered

against “Jesus Arreola-Castillo” on February 21, 1996 in

Sante Fe County, New Mexico.

The jury returned a guilty verdict on June 14, 2006, and

the district court scheduled a sentencing hearing for

November 7, 2006. The criminal history section of the

presentence report (PSR) noted the two felony drug

convictions referenced in the Second Information, as

well as a conviction for residential entry and a few mis-

demeanors.2 According to the PSR, Arreola-Castillo’s

1

While the certified copy of the conviction makes clear that the

offense occurred in New Mexico, the first page of the First

Information erroneously stated that the San Miguel District

Court was in Arizona: “On or about April 29, 1996, JESUS

ARREOLA-CASTILLO was convicted in the San Miguel (Ari-

zona) District Court for Distribution of a Controlled Substance.

Judgment was entered on the conviction on or about May 6,

1996 and the conviction is a Fourth Degree Felony under New

Mexico law.”

2

The conviction referenced in the First Information, however,

was omitted from the PSR. The probation office later explained

that the conviction did not appear on the FBI’s criminal history

(continued...)

4 No. 06-4055

criminal history category was III. Because Arreola-Castillo

had been responsible for supplying between 3,000 and

10,000 kilograms of marijuana, his base offense level was

34. See U.S.S.G. § 2D1.1(c)(3) (2005). The probation office

recommended that the district court raise his base offense

level from 34 to 37 pursuant to the career offender provi-

sions of U.S.S.G. § 4B1.1. It then calculated the Guide-

lines range to be 360 months to life imprisonment. The

probation office also indicated, however, that the statutory

minimum was life imprisonment in accordance with

21 U.S.C. § 841(b)(1)(A) because the defendant had “two

prior felony convictions.”

At the sentencing hearing, Arreola-Castillo insisted that

he was not the subject of the conviction referenced in the

First Information. He argued that he could not have

committed the offense because he lived in New Mexico

at the time; he never left New Mexico, he argued, because

remaining in New Mexico was a term of his probation. The

government admitted that there was an error on the

First Information; it mistakenly referred to San Miguel

County as being in Arizona rather than New Mexico. The

government asked the district court for permission to

2

(...continued)

printout. It appears that counsel for the government discovered

the conviction after contacting the jurisdiction directly. While

the government did not object to the PSR, it did alert the

district judge to the omission at the sentencing hearing. Arreola-

Castillo never argued that the government was precluded from

relying on the conviction referenced in the First Information

because it had been omitted from the PSR.

No. 06-4055 5

correct the error, and Arreola-Castillo made no objection.

Undeterred, Arreola-Castillo argued that the crime must

have been committed by some other “Jesus Arreola-

Castillo” because the conviction would have violated

his probation and that violation would have shown up

on his record. The district court rejected this argument.

The district judge explained that the probation violation

could have been absorbed in a plea agreement or even

waived. The district judge noted that the government

had presented solid evidence that the offense was com-

mitted by the defendant: a certified copy of the conviction,

a copy of the plea agreement with a signature that

matched the defendant’s own signature, and a docket entry

listing the same date of birth as the defendant. This was

sufficient, in the district court’s eyes, to establish that

the prior conviction was, in fact, attributable to the defen-

dant.

Arreola-Castillo also argued that the two convictions

referenced in the Second Information only counted as one

conviction for sentencing enhancement purposes. See

21 U.S.C. § 841(b)(1)(A). The government, however,

produced a certified copy of the plea agreement in which

Arreola-Castillo pleaded guilty to two counts of felony

distribution. The judgment stated that the sentences for

the two counts would run concurrently. For convictions

to run concurrently, the district judge reasoned, there

must be at least two convictions. While the district court

refused to apply the career offender sections of U.S.S.G.

§ 4B1.1, it sentenced Arreola-Castillo to life imprisonment

pursuant to the mandatory minimum provisions of

§ 841(b)(1)(A).

6 No. 06-4055

II.

When a defendant is convicted of a drug-related offense,

the existence of prior felony drug convictions may signifi-

cantly enhance the mandatory minimum sentence that

he or she receives. See 21 U.S.C. § 841(b)(1)(A). Under

§ 841(b)(1)(A), one prior felony drug conviction raises

the mandatory minimum sentence to twenty years in

prison, while two or more prior felony drug convictions

raise the mandatory minimum to life imprisonment. See 21

U.S.C. § 841(b)(1)(A). The effect of prior convictions on

a defendant’s sentence under § 841(b)(1)(A) can be so

significant that Congress felt the need to provide special

protections before the enhanced minimum can be imposed.

See United States v. Belanger, 970 F.2d 416, 418 (7th Cir.

1992). These protections are embodied in § 851, which

was enacted by Congress to satisfy “the due process

requirements of reasonable notice and opportunity to be

heard with regard to the prior conviction.” United States v.

Gonzalez-Lerma, 14 F.3d 1479, 1485 (10th Cir. 1994). The

defendant must receive clear notice of the government’s

intent to use the prior conviction at sentencing, and the

defendant must have an opportunity both to deny the

existence or validity of the prior conviction and to be

heard on the issue. See United States v. Jackson, 121 F.3d

316, 319 (7th Cir. 1997); Belanger, 970 F.2d at 418.

Under § 851(a)(1), the government must file an informa-

tion before trial indicating its intent to rely on a prior

conviction for sentencing purposes. See 21 U.S.C.

§ 851(a)(1). This information must be served upon defense

counsel, and it must identify the particular convictions

No. 06-4055 7

on which the government intends to rely. See 21 U.S.C.

§ 851(a)(1). If the defendant denies the existence or

validity of a prior conviction, the court must hold a

hearing, and the government must prove the prior con-

viction beyond a reasonable doubt. See 21 U.S.C.

§ 851(c)(1). If the prior conviction is so proven, the court

may impose the enhanced minimums. See 21 U.S.C.

§ 851(d)(1). But the sentencing judge “cannot . . . enhance

the sentence of a defendant convicted of a drug offense

under 21 U.S.C. § 841(a) . . . unless the government com-

plies with the requirements of 21 U.S.C. § 851(a).” See

United States v. Mayfield, 418 F.3d 1017, 1020 (9th Cir. 2005).

Section 851 also requires the district court to “enter find-

ings of fact and conclusions of law” regarding contested

issues. 21 U.S.C. § 851(c)(1). We review the district

court’s factual findings for clear error and its legal con-

clusions de novo. See Belanger, 970 F.2d at 418; United

States v. Denberg, 212 F.3d 987, 991 (7th Cir. 2000).

On appeal, Arreola-Castillo makes three basic arguments.

First, he argues that the district court erred in finding

that the First Information and Second Information com-

plied with the notice provisions of § 851(a)(1). Second, he

argues that the district court committed clear error in

concluding that there was sufficient evidence to prove

the prior felony drug conviction outlined in the First

Information beyond a reasonable doubt. Finally, he argues

that the district court committed clear error in concluding

that the convictions referenced in the Second Information

constituted separate convictions for the purposes of

§ 841(b)(1)(A).

8 No. 06-4055

The mandatory minimum life sentence is triggered when

the defendant has two or more prior felony drug con-

victions. 21 U.S.C. § 841(b)(1)(A). For Arreola-Castillo

to succeed in this appeal, he must establish both that he

was never convicted of the offense referred to in the

First Information and that the two convictions referred to

in the Second Information should count as a single con-

viction for sentencing purposes. If he loses on either issue,

the mandatory minimum sentence is life imprisonment.

Although we find that his second argument does have

some merit, Arreola-Castillo cannot escape the mandatory

minimum life sentence under § 851(a)(1) because his

first argument fails.

A.

Arreola-Castillo first contends that the government failed

to comply with the notice requirements of § 851(a)(1). He

correctly notes that the first page of the First Information

mistakenly lists Arizona as the jurisdiction where the

conviction was entered. But, as we have explained, the

government moved to correct the error before sentenc-

ing. While Arreola-Castillo argues, rather surprisingly, that

§ 851 makes no provision for “amendments,” the statute

clearly states that “clerical errors” may be corrected at “any

time prior to the pronouncement of sentence.” 21 U.S.C.

851(a)(1). It is clear that the accidental reference to Arizona

was a clerical error. See, e.g., United States v. Curiale, 390

F.3d 1075 (8th Cir. 2004) (identifying the crime as a “sale”

rather than as “possession”of drugs was a clerical error);

United States v. Weaver, 267 F.3d 231 (3d Cir. 2001) (identify-

No. 06-4055 9

ing the crime as “involuntary” rather than as “voluntary”

manslaughter was a clerical error); United States v. Hamil-

ton, 208 F.3d 1165, 1169 (9th Cir. 2000) (listing an incorrect

year of conviction was a clerical error); United States v.

King, 127 F.3d 483, 489 (6th Cir. 1997) (listing an incorrect

date of conviction was a clerical error). Even a cursory

reading of the First Information reveals that the reference

to Arizona was a mistake. The sentence that follows the

mistaken reference to Arizona states that the offense was

a felony “under New Mexico law.” The certified copy of

the conviction, attached to the information and incorpo-

rated by reference, states that the conviction was entered

in New Mexico. Indeed, all of the other relevant informa-

tion in the government’s filing referred to New Mexico. As

the district court noted, the certified copy of the conviction

adequately apprised Arreola-Castillo of the date, the

jurisdiction and the sentence received.

Arreola-Castillo also argues that both the First Informa-

tion and the Second Information failed to comply with the

notice requirements because neither he nor his counsel

knew that a mandatory minimum sentence of life impris-

onment would apply upon conviction. Both the First

Information and the Second Information, however,

clearly stated that they were being filed “pursuant to 21

U.S.C. § 851(A)(1),” so the implications should have been

clear. More importantly, the record shows that Arreola-

Castillo was advised of the possibility of a mandatory

10 No. 06-4055

minimum life sentence before the trial began.3

B.

Arreola-Castillo next argues that the government failed

to prove that he had committed the crime alleged in the

First Information beyond a reasonable doubt. See 21 U.S.C.

§ 851(c)(1). At the sentencing hearing, however, the

government presented a certified copy of the conviction, a

copy of the plea agreement and the docketing record for

the conviction. The certified records established that the

conviction involved an individual named “Jesus Arreola-

Castillo” with the same date of birth as the defendant.

Arreola-Castillo conceded that he was living in New

Mexico at the time; he also conceded that the signature

on the plea agreement matched his own. His argument

rests largely on the fact that eight other individuals living

in New Mexico at the time were also named “Jesus

Arreola-Castillo.” But none of the other individuals

named “Jesus Arreola-Castillo” had the same date of birth

as the defendant. Nor, presumably, would their signatures

have matched the one on the plea agreement. The argu-

3

At his initial appearance, counsel for the government stated,

“Your Honor, the only thing I wanted to note for the record was

it appears that Mr. Arreola has two prior felony drug convic-

tions. If an information were filed, that would trigger him for

a life sentence.” The district judge then turned to Arreola-

Castillo and said, “If you suffered two or more qualifying state

or federal controlled substance felonies, it is life imprisonment

without any supervised release.”

No. 06-4055 11

ment that other people “could be out there” was properly

dismissed by the district judge as speculative. The exis-

tence and validity of these convictions were proved

beyond a reasonable doubt. See 21 U.S.C. § 851(c)(1).

C.

Finally, Arreola-Castillo argues that the district court

erred in finding that the two counts referenced in the

Second Information constituted separate convictions under

§ 841(b)(1)(A). Of course, the two counts are, technically,

two different convictions. But courts have generally

assumed that a sentencing judge may only consider prior

convictions for purposes of enhancement under

§ 841(b)(1)(A) if they constitute separate “criminal epi-

sodes,” as opposed to a single act of criminality or a

single transaction. See United States v. Garcia, 32 F.3d 1017,

1018 (7th Cir. 1994); United States v. Blackwood, 913 F.2d 139

(4th Cir. 1990). To be treated as separate criminal episodes,

the offenses must be “distinct in time” and require “sepa-

rate planning.” United States v. Gray, 152 F.3d 816, 821 (8th

Cir. 1998).

Frankly, it is difficult to determine whether the two

convictions involved separate criminal episodes because

we know very little about the facts underlying those

convictions. We know that both involved trafficking in

cocaine; one took place on January 24, 1995 in Rio Arriba

County, while the other took place on January 18, 1995

in San Miguel County. No case narrative was available,

so we know nothing further. The government argues that

the two convictions were separate criminal episodes

12 No. 06-4055

because they involved separate deliveries of cocaine. While

the two offenses were certainly “distinct in time” because

they took place six days apart and in different locations,

see, e.g., United States v. Barr, 130 F.3d 711, 712 (5th Cir.

1997), it is unclear whether they involved separate plan-

ning, separate customers and so forth. This is enough to

give us pause.

Our skepticism deepens when we consider a related

argument raised by Arreola-Castillo. Arreola-Castillo

also contends that the conviction alleged in the Second

Information was represented to him to be a single con-

viction at the commencement of trial. This is, in essence,

an estoppel argument, although it also bears on the issue

of whether Arreola-Castillo received clear notice of the

government’s intent to use all three prior convictions.

There is some weight to this argument. At his initial

appearance, counsel for the government stated that

Arreola-Castillo had “two prior felony drug convictions.”

The Second Information notified Arreola-Castillo of the

government’s intent to rely on “a second prior felony drug-

related conviction.” When the issue came up on the first

day of trial, the government was not clear about whether

the two counts referenced in the Second Information

counted as one conviction or two. Finally, the PSR refer-

enced only two of three possible prior felony drug

offenses and stated that the mandatory minimum

applied because Arreola-Castillo had “two prior felony

convictions.” It was only at the sentencing hearing that

it became clear that the Second Information itself con-

tained two convictions for the purposes of § 841(b)(1)(A).

No. 06-4055 13

We doubt whether this constitutes clear notice of the

government’s intent to use all three prior convictions.

The point, however, is academic. Arreola-Castillo

concedes that he was convicted on the two counts in the

Second Information. Thus, he agrees that at least one

conviction is contained there. When that conviction is

combined with the conviction referenced in the First

Information, Arreola-Castillo becomes subject to the

enhanced sentencing provisions of § 841(b)(1)(A), which

are triggered when the defendant has “two or more” prior

felony drug convictions. 21 U.S.C. § 841(b)(1)(A). The

district judge had no choice but to apply the mandatory

minimum life sentence.

III.

For the foregoing reasons, the decision of the district

court is A FFIRMED.

8-25-08