Sapia v. U.S.

• Decision Date: 28 December 2005
• Docket Number: Docket No. 03-2087.
• Citation: 433 F.3d 212
• Parties: Joseph SAPIA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

433 F.3d 212

Joseph SAPIA, Petitioner-Appellant, v.UNITED STATES of America, Respondent-Appellee.

Docket No. 03-2087.

United States Court of Appeals, Second Circuit.

Argued: May 18, 2004.

Appeal Reinstated June 6, 2005.

Decided: December 28, 2005.

Georgia J. Hinde, New York, NY, for Petitioner-Appellant.

Brian R. Michael, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, Celeste L. Koeleveld, Assistant United States Attorney, on the brief), New York, NY, for Respondent-Appellee.

Before: WINTER, STRAUB, and LAY^* Circuit Judges.

STRAUB, Circuit Judge.

Petitioner-AppellantJoseph Sapia appeals from the final judgment of the United States District Court for the Southern District of New York(Allen G. Schwartz, Judge) denying a motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence.The motion is based on the government's failure to comply with 21 U.S.C. § 851(a)(1), which provides that, in order to sentence a defendant to an enhanced sentence based on a prior felony conviction, the government must file an information with the court before trial or the entry of a guilty plea.¹

As reflected in the certificate of appealability, this case raises four issues:

(1) Whether the requirements of § 851 are jurisdictional;

(2) Whether the § 2255 claim is procedurally barred by Sapia's failure to raise the issue on direct appeal;

(3) Whether a waiver provision in Sapia's plea agreement forecloses the current challenge to his sentence; and

(4) Whether § 851 requires strict compliance, or whether substantial compliance — e.g., actual notice to the defendant but not filing with the court — is sufficient.

We hold, first, that the requirements of § 851 are not "jurisdictional" and that a claim for failure to comply with § 851 is thus subject to procedural default.Second, we find that, under the particular circumstances of this case, Sapia cannot show prejudice, which is necessary to excuse his failure to raise the issue on direct appeal.The sentencing court imposed a term of imprisonment well above the mandatory minimum triggered by the prior felony conviction, and there is no indication that the presumed existence of the mandatory minimum had any effect on the sentence.Because Sapia's § 2255 claim is procedurally barred, we need not address whether the claim is also barred by the waiver provision in his plea agreement or whether § 851 requires strict compliance.

BACKGROUND

On September 20, 2000, pursuant to the terms of a plea agreement, Sapia pleaded guilty in the United States District Court for the Southern District of New York(Allen G. Schwartz, Judge) to one count of conspiracy to distribute and to possess with the intent to distribute five kilograms or more of mixtures and substances containing cocaine in violation of 21 U.S.C. § 846.In the plea agreement Sapia stipulated to a sentencing range of 240 to 293 months' imprisonment.That range reflected a Sentencing Guidelines range of 235 to 293 months² combined with a 240-month enhanced statutory minimum due to Sapia's prior felony conviction, pursuant to 21 U.S.C. § 841(b)(1)(A).³The plea agreement also contained a standard clause in which Sapia agreed neither to appeal nor to litigate under 28 U.S.C. § 2255 any sentence at or below the stipulated sentencing range of 240 to 293 months.

A sentencing hearing was held on January 3, 2001.As will be explained in greater depth below, the District Court calculated the Guidelines range to be 235 to 293 months' imprisonment but found that there was a statutory minimum of 240 months' imprisonment.Weighing various factors urged by the government and defendant, the District Court ultimately imposed a sentence of 270 months' imprisonment, to be followed by ten years' supervised release, and a $100 special assessment.Judgment was entered January 4, 2001.

On February 22, 2001, Sapia moved for an extension of time to file an appeal and filed a notice of appeal.The District Court, however, denied the motion for an extension of time on the grounds that it was untimely and that Sapia had failed to show cause or excusable neglect.Sapia then moved for reconsideration of the District Court's decision, but that motion was also denied.Thereafter, we dismissed Sapia's appeal to this Court for lack of appellate jurisdiction because Sapia failed to file a notice of appeal within ten days of the entry of judgment.

On January 28, 2002, Sapia filed a motion to vacate pursuant to 28 U.S.C. § 2254.The motion was presented to, and decided by, the same District Court that accepted the guilty plea and imposed the sentence.In pertinent part, Sapia claimed that he should not have been subject to the enhanced mandatory minimum because the government failed to comply with 26 U.S.C. § 851(a)(1).This claim was based on the fact that a prior felony information was not docketed as filed until the day after Sapia entered his guilty plea, whereas the statute requires filing of an information before the entry of a guilty plea.While the District Court accepted that the prior felony information had not been timely filed, it found that Sapia's due process rights were not violated.The court reasoned that, based on both the plea agreement and plea colloquy, Sapia had actual notice that the government intended to introduce his prior felony conviction to make him eligible for enhanced sentencing.The District Court thus denied the motion.⁴

Sapia timely appealed the denial of his § 2255 motion, and on May 22, 2003, we granted Sapia's motion for a certificate of appealability with respect to the four issues described above.On appeal, Sapia primarily argued that § 851's requirements are jurisdictional or, in the alternative, demand strict compliance.He thus asked us to reject the reasoning of the District Court that notice to the defendant about the intent to file and use a prior felony information could alleviate the failure to comply with § 851.By summary order dated August 4, 2004, we declined to address the legal issues at that time, finding that there was an open factual issue as to whether the government actually complied with § 851.SeeSapia v. United States,108 Fed.Appx. 661, 662-63(2d Cir.2004)(unpublished summary order).That is, the government admitted that the prior felony information was stamped "filed" the day after the guilty plea, but the government asserted that it had handed the information to the judge at the plea proceeding.We noted that, under the Federal Rules of Criminal(and Civil) Procedure, a judge may permit papers to be filed directly with the judge, but we found that the court transcript was not sufficiently clear to determine whether such a filing in fact occurred.Seeid. at 662 & n. * * *.We thus invoked the procedure outlined in United States v. Jacobson,15 F.3d 19, 22(2d Cir.1994), and remanded the case to the District Court"for a finding as to whether the government gave the prior felony information to Judge Schwartz prior to the entry of Sapia's guilty plea," and also for "a finding regarding whether Sapia or his counsel was served with a copy of the prior felony information prior to the entry of his guilty plea."Sapia,108 Fed.Appx. at 663.

Because Judge Schwartz, regrettably, had passed away, the case was assigned upon remand to the Honorable Shira A. Scheindlin, United States District Judge for the Southern District of New York.After accepting affidavits from individuals present at the plea proceeding, by order dated May 10, 2005, the District Court found that the government could not establish that the prior felony information was actually filed with the court before Sapia's guilty plea.(It did not reach the issue of whether Sapia had been timely served with the information.)In light of the District Court's order, this appeal was reinstated on June 6, 2005.

DISCUSSION

On an appeal from the denial of a § 2255 motion, we review a district court's conclusions of law de novo but will accept its factual findings unless they are clearly erroneous.Rosario v. United States,164 F.3d 729, 735(2d Cir.1998), cert. denied,527 U.S. 1012, 119 S.Ct. 2355, 144 L.Ed.2d 250(1999).The government has not challenged the District Court's factual finding that the prior felony information was not timely filed, and we accept that the government failed to comply with § 851, as least in the strict sense.The issues presented in the certificate of appealability, as identified above, are thus before us.

I.

The initial question is whether the government's failure to comply with § 851 deprives a court of "jurisdiction" to impose an enhanced sentence.The significance of the issue is that "jurisdictional" defects cannot be waived and are not subject to procedural default.SeeProu v. United States,199 F.3d 37, 44-46(1st Cir.1999)(addressing whether § 851's requirements are jurisdictional to determine whether normal rules of waiver and procedural default would apply);see alsoIns. Corp. of Ireland v. Compagnie des Bauxites de Guinee,456 U.S. 694, 702-03, 102 S.Ct. 2099, 72 L.Ed.2d 492(1982)(noting that subject matter jurisdiction is not subject to parties' consent or doctrines of estoppel and procedural default);United States v. Calderon,243 F.3d 587, 590(2d Cir.2001)("[J]urisdictional errors are not waived [by a plea agreement], because they affect the basic authority of a court to hear and decide a case.").If § 851's requirements are jurisdictional, Sapia could maintain his claim regardless of any potential procedural default or waiver of his right to appeal in his plea agreement.

This Court has not addressed the nature of § 851's requirements.It is true, as the defendant points out, that a number of courts have referred to § 851 as involving the "jurisdiction" to impose an enhanced sentence.See, e.g., Harris v. United States,149 F.3d 1304, 1306(11th Cir.1998)(stating that "a district court lacks...