U.S. v. Cooper

• Decision Date: 23 August 2006
• Docket Number: No. 05-3607.,05-3607.
• Citation: 461 F.3d 850
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cortez COOPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

461 F.3d 850

UNITED STATES of America, Plaintiff-Appellee, v. Cortez COOPER, Defendant-Appellant.

No. 05-3607.

United States Court of Appeals, Seventh Circuit.

Argued June 1, 2006.

Decided August 23, 2006.

Eric Sussman (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Gregory T. Mitchell (argued), Homewood, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Cortez Cooper appeals his sentence after conviction for four offenses related to his participation in a conspiracy to distribute cocaine and cocaine base. In 2003, Cooper pled guilty to two counts of possession of cocaine, for which he received a sentence, enhanced on the basis on his prior narcotics conviction, of 120 months' imprisonment. This plea represented only a part of the conduct charged in the indictment, and the Government continued to pursue its prosecution of the rest of the indictment. In 2004, Cooper was convicted by a jury on four additional cocaine-related counts. After the conviction, the district court imposed a second enhanced sentence of 240 months to run concurrently with the 120-month sentence that he was already serving. In this appeal, Cooper claims that the district court erred in enhancing his second sentence pursuant to 21 U.S.C. § 851, and in denying his motion for a downward departure on the basis of vindictive prosecution. Because we agree with the district court that Cooper had notice of the Government's motion to enhance his second sentence and that there was no vindictive prosecution, we affirm the district court's ruling on both issues.

I. BACKGROUND

Cooper was a member of the Black P Stone Nation gang in Chicago and was involved in a conspiracy to distribute cocaine from 1995 to 2001. After a two-year undercover drug investigation, the Government filed a criminal complaint against Cooper and ten co-defendants, including Hugh Rogers, the leader of the conspiracy, in 2001. On December 12, 2001, federal agents arrested Cooper in his apartment, where they recovered a .357 caliber handgun, ammunition for a .22 caliber handgun, 32 grams of crack cocaine, and 111 grams of marijuana.

On February 14, 2002, Cooper entered into a proffer agreement with the Government. With his lawyer present, Cooper provided detailed information concerning his involvement with Hugh Rogers's drug operation. On April 18, 2002, a grand jury returned a 39-count indictment against Cooper and his ten co-defendants. The charges against Cooper included cocaine and cocaine base possession with intent to distribute, in violation of 21 U.S.C. § 841(a), and conspiracy to possess with the intent to distribute, in violation of 21 U.S.C. § 846.

Shortly after the indictment, the Government tendered a plea agreement to Cooper. The agreement required Cooper to plead guilty to both possession with intent to distribute and conspiracy with the intent to "distribute quantities . . . in excess of 50 grams of cocaine base." In exchange, the Government agreed to move for a downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(c), to the higher of either two-thirds of the low end of the applicable Guidelines range or the 10-year statutory minimum sentence. On May 3, 2002, Cooper pled not guilty to all counts in the indictment, but the Government continued to negotiate a possible plea resolution over the next ten months. Cooper ultimately rejected the Government's proposed plea agreement on November 22, 2002.

On March 18, 2003, pursuant to 21 U.S.C. § 851, the Government filed an information to give notice of its intention to seek an enhanced sentence based on Cooper's prior narcotics conviction. An identical information was filed against Cooper's co-defendant Quentin Daniels, the only other defendant who had not pled guilty. Cooper's attorney received a copy of the written notice.

Three weeks after the Government filed its notice of intention to seek an enhanced sentence, Cooper pled guilty, without the benefit of a plea agreement, to only counts Twelve and Thirteen of the indictment, which charged him with possession. He pled not guilty to the conspiracy count. On April 17, 2003, the Government filed a superseding indictment ("first superseding indictment"), which added two counts of using a telephone to facilitate a drug offense to the conspiracy and possession charges. The Government advised Cooper that it was unwilling to withdraw the Section 851 notice and would be seeking a mandatory minimum 20-year enhanced sentence. Cooper pled not guilty to the superseding indictment, and the court set a sentencing date for Counts Twelve and Thirteen of the original indictment.

On January 20, 2004, the district court sentenced Cooper to ten years' imprisonment for Counts Twelve and Thirteen. This was the mandatory minimum for the quantities involved in Counts Twelve and Thirteen, after the Section 851 enhancement. The mandatory minimum for the quantities involved in the remaining counts was twenty years' imprisonment. The district court did not consider the conspiracy count as relevant conduct at the sentencing. The court scheduled a trial on the conspiracy count and on the other pending counts in the first superseding indictment.

Before trial, on June 17, 2004, the Government filed a second superseding indictment against Cooper, which added one count of possession of a firearm in furtherance of a drug trafficking crime to the distribution and conspiracy counts. On August 9, 2004, Cooper entered a plea of not guilty to the second superseding indictment. Four days later, on August 13, 2004, the jury found Cooper guilty on four counts (including the conspiracy count) and not guilty on two counts. Importantly, the jury found that it was foreseeable that the conspiracy "involved 50 grams or more . . . of cocaine base."

On August 2, 2005, the district court sentenced Cooper to 240 months' imprisonment for his convictions resulting from the second superseding indictment, to run concurrently with his 120-month sentence from the original indictment. Cooper now appeals.

II. ANALYSIS

A. Enhancement under 21 U.S.C. § 851

Cooper argues that the Government was required to file a second Section 851 notice prior to the second sentencing in order to subject him to an enhanced penalty. In sentencing appeals, this court reviews the district court's findings of fact for clear error and the legal conclusions de novo. See United States v. Chamness, 435 F.3d 724, 726 (7th Cir.2006).

Cooper was indicted under 21 U.S.C. § 841(a), which states that a person who has a prior felony drug offense, "shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment" when more than 50 grams of cocaine base are involved. 21 U.S.C. § 841(b)(1)(A) (emphasis added). A defendant's sentence may not be enhanced based on a prior conviction unless the Government complies with the requirements of 21 U.S.C. § 851, which states:

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 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.

Cooper concedes that the Government complied with the requirements of this section as it pertains to his first sentencing. But he argues that the superseding indictment, the intervening sentencing, and trial required the Government to file a second information before he could be subjected to a second enhanced sentence.

The plain language of the statute does not require the Government to file a second notice in this situation. The statute only requires that the Government file the information "before trial or before entry of a plea of guilty." The Government filed the Section 851 notice on March 18, 2003, which was before Cooper's trial (on August 9, 2004).

The Eighth, Ninth, Tenth, and Eleventh Circuits have all concluded that a second information is not required in situations similar to this one. See, e.g., United States v. Mayfield, 418 F.3d 1017, 1020 (9th Cir.2005) ("filing the information and giving the section 851(a) notice before [the defendant's] first trial obviated any need to refile the information and regive that notice before his second trial"); United States v. Kamerud, 326 F.3d 1008, 1014 (8th Cir.2003) ("the government is not required to re-file a notice of enhanced sentence under 21 U.S.C. § 851 after the return of the superseding indictment") (citing United States v. Wright, 932 F.2d 868, 882 (10th Cir.1991)); United States v. Williams, 59 F.3d 1180, 1185 (11th Cir.1995) (the government is not required to file a new Section 851 information for multiple trials in the same case). We have not addressed this issue before, but we agree with the circuits that have addressed this issue that, where the Government files a timely Section 851 notice, it is not required to file a second notice after an intervening event, such as a trial or a superseding indictment, in the same case.

Cooper argues that his case differs from the cases cited above in that new charges were added to his superceding indictments. He also argues that his case differs in that he was sentenced twice, whereas the cases above address retrials and superseding indictments. Neither of these distinctions is relevant, however, when viewed in light of the two purposes of the Section 851 notice provision.

The two purposes of the Section 851 notice provision are: (1) to allow the defendant to contest the accuracy of the prior conviction upon which the Government relies, and (2) to ensure the defendant has full knowledge of a potential guilty verdict. See Williams, 59 F.3d at 1185 (citing United States v. Johnson, 944 F.2d 396 (8th Cir.1991)); ...