U.S. v. Jackson, 96-2604
| Decision Date | 14 August 1997 |
| Docket Number | No. 96-2604,96-2604 |
| Citation | 121 F.3d 316 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Miquel L. JACKSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Randy G. Massey (argued), Office of the U.S. Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.
Steven O. Ross (argued), Chicago, IL, for Defendant-Appellant.
Before BAUER, CUDAHY, and DIANE P. WOOD, Circuit Judges.
Miquel Jackson was charged in a three-count indictment on August 23, 1995. Count One charged Jackson with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1); Count Two charged him with using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); Count Three charged him with possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). Jackson had previously given a written statement admitting that he sold approximately three to five ounces of crack cocaine per week, and that crack, currency, and firearms found during a search of his home belonged to him.
On November 13, 1995, the government filed and served on Jackson's attorney an "Information Charging Prior Offenses" pursuant to 21 U.S.C. § 851. The Information informed the district court that Jackson had at least one prior felony drug conviction--Jackson was convicted on April 7, 1989 in St. Clair County for unlawfully possessing a controlled substance, a felony under Illinois law-which became final before Jackson committed the Count One drug offense. In light of this prior conviction, the Information indicated that Jackson would be subject to the enhanced penalty provisions of 21 U.S.C. § 841(b) if he were convicted on Count One.
Jackson initially entered a plea of not guilty and intended to proceed to trial, primarily to challenge the Count Two gun offense. However, on February 5, 1996, the government filed a motion to dismiss Count Two in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). On February 16, 1996, Jackson withdrew his initial plea of not guilty and instead entered a plea of guilty to Count One and Count Three. The plea agreement indicated that Jackson's sentence would be based upon the amount of crack the district court attributed to him as relevant conduct and would be affected by whether he had prior felony drug convictions. The plea agreement also acknowledged that Jackson accepted responsibility for his criminal conduct and the government would therefore recommend a three-level reduction of his base offense level pursuant to U.S.S.G. § 3E1.1(b).
Hearings on Jackson's sentencing took place on June 5 and June 25, 1996. The district court found Jackson's base offense level for Count One to be 35 with a Criminal History Category of I, which produced a sentencing range of 168 to 210 months. On June 25, 1996, the district court sentenced Jackson to concurrent sentences of 180 months on Count One and 120 months on Count Three, with concurrent eight-year terms of supervised release on each count to follow. Jackson appeals from his sentence, arguing that the district court erred when it enhanced Jackson's sentence pursuant to 21 U.S.C. § 841(b), that the district court wrongly calculated the amount of drugs attributable to Jackson's relevant conduct, and that the district court should have reduced his base offense level by two points because of his cooperation with the authorities.
Title 21 U.S.C. § 841(b) provides for enhanced penalties for drug-trafficking crimes if the defendant has prior felony drug convictions. However, the government can seek this enhancement only if it complies with the provision of 21 U.S.C. § 851, which provides:
No person who stands convicted of an offense under this part [21 U.S.C. § 841 et seq.] 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). This section was enacted long before the Sentencing Guidelines, and applies when the government seeks to enhance the penalty for a Title 21 offense under the recidivist provisions of the underlying offense. The section does not apply to the use of prior convictions for enhancing a sentence (which itself is within the statutory range) pursuant to the Guidelines. United States v. Belanger, 970 F.2d 416, 417 n. 1 (7th Cir.1992) (citing United States v. Marshall, 910 F.2d 1241, 1244-45 (5th Cir.1990), cert. denied, 498 U.S. 1092, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991)); see also United States v. Koller, 956 F.2d 1408, 1417 (7th Cir.1992).
It is true, of course, that due process requires Jackson to receive reasonable notice and an opportunity to be heard regarding the possibility of an enhanced sentence for recidivism. Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962) (cited in Belanger, 970 F.2d at 418). That is exactly why 21 U.S.C. § 851 was enacted--to insure that defendants are given reasonable notice and an opportunity to be heard, which includes the opportunity to contest the evidence or challenge a prior conviction if the defendant might be subject to a greater sentence than would otherwise be imposed. Belanger, 970 F.2d at 418 (citations omitted).
Strict compliance with the statute's procedural requirements is necessary, particularly as to the timing of the filing of the Information (it must be filed prior to trial or prior to the entry of a plea) and the service of notice on the defendant. Id. (citations omitted). The district court lacks jurisdiction to enter an enhanced sentence if the government fails to comply with 21 U.S.C. § 851's requirements for filing an Information. If the government complies with the requirements imposed upon it under § 851(a), § 851(b) states that, after conviction but before sentencing, the district court shall
inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.
In this case, both the government and the district court properly complied with these requirements. On November 13, 1995, approximately three months prior to the entry of the guilty plea, the government filed and served Jackson's attorney with an "Information Charging Prior Offenses" pursuant to the provisions of 21 U.S.C. § 851. Jackson himself does not dispute that the government timely and correctly filed the Information. Jackson also does not dispute the factual bases of the Information. In fact, at the time of the plea agreement, Jackson and the government agreed to a stipulation of facts regarding the charged drug offense, which contained the following sentence: "On April 7, 1989, the Defendant was convicted in the Circuit Court of St. Clair County, Illinois, of the felony offense of Unlawful Possession of a Controlled Substance." This stipulation, as well as the plea agreement, was read and signed by Jackson and his attorney, and both were dated February 9, 1996.
Jackson's argument, rather, is that the government played fast and loose with its ability to enhance Jackson's sentence with the filing of the § 851 Information. He contends that the government misled him into believing that it would not seek an enhancement if he pleaded guilty, and that he and the government had an informal agreement to that effect. Jackson asserts that even though the government filed the § 851 Information, he did not believe the government would continue to seek the enhancement after Jackson changed his plea to guilty and changed his intent to proceed to trial. He argues that the government never informed him during the review or execution of the plea, or during the court approval of the plea, that it still intended to seek an enhanced punishment even though Jackson was now entering a guilty plea.
The record, however, does not bolster Jackson's argument. Jackson has not cited...
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