holding that the government’s failure to file a § 851 information before the guilty plea did not require resentencing where the defendant did “not dispute that he had notice” of a possible -11- No. 17-3468 United States v. Brown enhancement or “that he had an opportunity to challenge the validity of his prior convictions”
How later courts described this case
- holding that the government’s failure to file a § 851 information before the guilty plea did not require resentencing where the defendant did “not dispute that he had notice” of a possible -11- No. 17-3468 United States v. Brown enhancement or “that he had an opportunity to challenge the validity of his prior convictions”
- notice and opportunity to be heard cure failure to docket until after guilty plea
- reviewing cases and noting only the Eleventh Circuit Court of Appeals has held noncompliance with section 851 implicates a jurisdictional error
- “This Circuit now joins the majority of its sister circuits in holding that the section 851(a) requirements are not jurisdictional.”
Written by the judges who cited it.
The opinion
COOK, Circuit Judge,
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 *551 fore sentencing. I thus respectfully dissent.
I begin with the text of the statute, see Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 , 122 S.Ct. 941 , 151 L.Ed.2d 908 (2002), which reads:
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, 127 F.3d 483, 487 (6th Cir.1997); see also United States v. Levay, 76 F.3d 671, 674 (5th Cir.1996) (“Failure on the part of the government to file, before trial or before entry of a guilty plea, an information stating the previous convictions, prevents a count from enhancing a sentencing under the statute.”). This case should be an easy one. The government failed to meet the § 851 prerequisites and that failure deprived the district court of the authority to impose the enhanced sentence.
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, 192 F.3d 556, 576 (6th Cir.1999), and King, 127 F.3d at 489 ). Yet both cases to which the majority cites concern the substance of the information itself rather than when it was filed. On this point, I note that § 851 only requires that the information state “in writing the previous convictions to be relied upon,” rather than specifying the form for the information to take.
In King , the “government timely filed its information before ... trial.” 127 F.3d at 488 . During voir dire, the government updated its information to correct the date of the conviction (the first one was off by a month) and to add the Ohio state court case number and code section. The substance of the conviction was clear in the properly filed first information. Id. Looking to the text of § 851 itself, which permits “[cjlerical mistakes in the information [to] be amended at any time prior to the pronouncement of sentence,” 21 U.S.C. *552 § 851 (a)(1), we held that the government’s omission of some of the details in the first information were clerical mistakes and thus the amendment was permissible. King, 127 F.3d at 489 .
In Layne , the government filed an information prior to trial that did not “expressly reference!] § 851.” 192 F.3d at 575 . We observed “that the statute is silent on whether the government must actually cite the statute in the information it files.” Id. at 576 . We further noted the statute’s silence “on the specificity with which the government must identify prior convictions.” Id. Given that silence on the specific form the information must take, we looked to the substance of the information itself, and found that “the government did all that § 851(a)(1) requires.” Id.
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,” 1 courts must not substitute “wiser” judgment for that of Congress. Congress could amend § 851 to allow mere notice to suffice. But, as presently written, the language of § 851 is clear, as is the government’s failure to comply with it.
I respectfully dissent.
. Antonin Scalia, Common-Law Courts in a Civil Law System, in A Matter of Interpretation 3, 20 (1997)