U.S. v. Cevallos, 75-1669

• Decision Date: 17 September 1976
• Docket Number: No. 75-1669,75-1669
• Citation: 538 F.2d 1122
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesse Angel CEVALLOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1122

538 F.2d 1122

UNITED STATES of America, Plaintiff-Appellee, v. Jesse Angel CEVALLOS, Defendant-Appellant.

No. 75-1669.

United States Court of Appeals Fifth Circuit.

Sept. 17, 1976.

John T. Neal, Barbara L. Oliver, Houston, Tex., for defendant-appellant.

Mary L. Sinderson, Anna Stool, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, Chief Judge, and GOLDBERG and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Petitioner-appellant Cevallos appeals from the District Court's denial without a hearing of his F.R.Crim.P. 35 motion to correct his sentence, which had been enhanced pursuant to 21 U.S.C.A. § 851. Because the District Court in sentencing petitioner did not comply with the procedural prerequisites of § 851, we vacate petitioner's sentence and remand so that petitioner can be resentenced in full compliance with the enhancement statute.

Challenging The Enhanced Sentence

Petitioner pleaded guilty on February 5, 1973 to conspiracy to distribute heroin in violation of 21 U.S.C.A. § 846, and in return two other counts of the indictment were dismissed. On January 19, 1973 prior to petitioner's guilty plea the Government had filed an information of a previous drug-related conviction. Though the maximum sentence petitioner could normally have received for his conviction of conspiracy under § 846 was 15 years imprisonment (followed by a mandatory special parole term of three years) and a fine of $25,000, see 21 U.S.C.A. § 841(b)(1)(A), he was subject to a maximum sentence of 30 years imprisonment (followed by a mandatory special parole term of six years) and a $50,000 fine as a second narcotics offender.

On June 14, 1973 petitioner received an enhanced sentence of 25 years imprisonment and a special parole term of six years. There was no appeal.

On July 9, 1974 over a year later petitioner filed a motion to correct sentence pursuant to F.R.Crim.P. 35. He broadly asserted that his enhanced sentence was not imposed in compliance with 21 U.S.C.A. § 851. ¹ His motion then set out § 851 in its entirety, and petitioner's sole specification of the procedural violations complained of consisted of underlining the parts of the statute allegedly violated. ² In this way petitioner complained that (i) the record did not show that the United States Attorney had ever served a copy of the information of previous conviction on petitioner or his counsel, § 851(a)(1) and (ii) the District Court in sentencing petitioner never asked him whether he had been previously convicted as alleged in the information nor informed him that, unless then raised, he could not thereafter challenge the prior conviction. § 851(b). Petitioner's motion also asserted that the prior conviction relied on to enhance his sentence was invalid.

Failure In The District Court

The District Court denied the motion, on the basis of a recommendation by the Magistrate, on the grounds that F.R.Crim.P. 35 did not allow attacks on matters outside the record, namely the prior conviction, and that in addition petitioner was barred from attacking the prior conviction by 21 U.S.C.A. § 851(b).

The District Court apparently did not see or chose not to reach petitioner's contention that his enhanced sentence was procedurally deficient.

Although the District Court correctly ruled that petitioner's attack on his prior conviction is outside the scope of the present Rule 35 motion to correct sentence, the motion unmistakably if not prosaically challenged the procedures followed in enhancing petitioner's sentence, ³ a matter completely within the record.

Haphazard Service

Petitioner concedes that, as shown by the record, the United States Attorney filed an information of previous conviction prior to the guilty plea proceeding, but he argues that the record does not indicate that a copy of this information was ever served on him or his counsel. Petitioner contends that since there must be strict compliance with § 851(a)(1)'s requirement of a pre-trial information of previous conviction, United States v. Noland, 5 Cir., 1974, 495 F.2d 529, cert. denied, 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181, and the failure of the Government to file such an information deprives the District Court of jurisdiction to impose an enhanced sentence, id., the same strict compliance should be required of § 851(a)(1)'s requirement of service of the information on the defendant or his counsel and failure strictly to comply with the requirement of service likewise deprives the District Court of jurisdiction to impose an enhanced sentence. ⁴

Assuming that a failure by the Government strictly to comply with § 851(a)(1)' § requirement of service of the information of previous conviction does deprive the District Court of jurisdiction to impose an enhanced sentence, cf. United States v. Noland, supra, the uncontroverted evidence more than supports the District Judge's implied finding that petitioner's counsel was in fact served with a copy of the information of previous conviction prior to the guilty plea proceeding and petitioner was so advised by his counsel. ⁵ This is so even though no certificate of service of the information appears in the record (which is the sole basis of petitioner's contention that a copy was never served on petitioner or his trial counsel). The colloquy in note 5, shows that both petitioner and his counsel knew that the information of previous conviction had been filed. Other circumstances corroborate actual knowledge on the part of petitioner ⁶ that the Government had filed an information as a second offender and would seek an enhanced sentence.

With such positive statutory direction "and serves a copy of such information on the person or counsel for the person," see note 5, supra it is difficult to understand how the Government could have pursued such a lax system, or more accurately, lax non-system ⁷ for serving the information of previous conviction. But since we sit to review error rather than to administer the government counsel's operation, our function goes to substance only. In that regard, the uncontroverted evidence in the record before us leaves no doubt that the District Judge could conclude that service of the information was made and petitioner and his counsel were fully aware that the Government intended to seek an enhanced sentence.

Sentencing Ritual Ignored

Concerning petitioner's second allegation of error, the Government concedes (and the transcript of the sentencing hearing, A. at 66-83, confirms) that the District Court at sentencing never asked petitioner whether he had been previously convicted as alleged in the information and never informed him that he could not challenge the prior conviction after sentencing, even though both tasks are required by § 851(b) prior to imposing an enhanced sentence. The Government urges, however, that unlike the strict compliance which we require for the filing portion of the enhancement statute (§ 851(a)(1)), see United States v. Noland, supra, substantial compliance with the requirements of § 851(b) should be sufficient. ⁸

In United States v. Garcia, 5 Cir., 1976, 526 F.2d 958, decided after oral argument in this case, we held that it was doubtful that substantial rather than strict compliance with § 851(b)'s statutory ritual would suffice. In Garcia the non-compliance with § 851(b) was much less egregious ⁹ than the complete failure to comply with § 851(b) in the case before us. On the doubtful possibility that substantial compliance with § 851(b) would suffice, there was no such compliance here. In sentencing petitioner the District Court completely failed to comply with § 851(b), which is a prerequisite to the imposition of an enhanced sentence.

In Legalese, An Illegal Sentence

The Government further argues, however, that petitioner's allegation of non-compliance with § 851(b) is not properly within the scope of his F.R.Crim.P. 35 ¹⁰ motion to correct sentence because non-compliance with § 851(b) constitutes imposition of sentence "in an illegal manner" rather than "an illegal sentence," and thus the motion which was filed more than a year after imposition of sentence was not timely filed within Rule 35's time limitation of 120 days.

In Hill v. United States, 1962, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417, the Supreme Court considered whether a motion to vacate sentence under 28 U.S.C.A. § 2255 could be brought to complain of the failure of the sentencing Court to comply with F.R.Crim.P. 32(a), which requires the Court before imposing sentence to afford the defendant an opportunity to speak in his own behalf and present information in mitigation of punishment. The Supreme Court held that, in the absence of other aggravating circumstances, the sentencing Court's failure to comply with Rule 32(a) was not an error of either jurisdictional or constitutional dimensions and therefore was not cognizable in a § 2255 motion. ¹¹

The Supreme Court continued:

It is suggested that although the petitioner denominated his motion as one brought under 28 U.S.C. § 2255, we may consider it as a motion to correct an illegal sentence under Rule 35 of the Federal Rules of Criminal Procedure. This is correct. Heflin v. United States, 358 U.S. 415, 418, 422, 79 S.Ct. 451, 453, 3 L.Ed.2d 407. But, as the Rule's language and history make clear, the narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence. The sentence in this case was not illegal. The punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect.

Id. at 430, 82 S.Ct. at 472, 7 L.Ed.2d at 422 (footnotes omitted).

Thus, to be...