U.S. v. Severino

• Decision Date: 14 January 2003
• Docket Number: No. 00-30161.,00-30161.
• Citation: 316 F.3d 939
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felix SEVERINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

316 F.3d 939

UNITED STATES of America, Plaintiff-Appellee, v. Felix SEVERINO, Defendant-Appellant.

No. 00-30161.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 18, 2002.

Filed January 14, 2003.

COPYRIGHT MATERIAL OMITTED

Bruce L. Brown, Anchorage, AK, argued for the defendant-appellant.

Stephen Cooper, Assistant United States Attorney, Fairbanks, AK, argued for the plaintiff-appellee. Timothy M. Burgess, United States Attorney, Anchorage, AK, assisted on the brief.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CR-95-00065-f-JKS.

Before SCHROEDER, Chief Judge, REINHARDT, KOZINSKI, TROTT, RYMER, THOMAS, GOULD, PAEZ, BERZON, TALLMAN and RAWLINSON, Circuit Judges.

Opinion by Judge KOZINSKI; Dissent by Judge THOMAS

KOZINSKI, Circuit Judge.

Federal law imposes a mandatory minimum sentence for certain crimes, but only if the defendant has a felony drug prior. In order to render defendant eligible for the mandatory minimum, the government must allege the prior conviction in an information pursuant to 21 U.S.C. § 851. We consider what the government must do to comply with this provision.

I

The government charged Felix Severino for his role in a conspiracy to distribute cocaine and the related charges of possession and distribution. See 21 U.S.C. §§ 846, 841(a)(1). After Severino and the United States entered into a plea agreement, the district court held a plea hearing in Anchorage, Alaska, with the Assistant United States Attorney appearing by telephone from Fairbanks.

Earlier that day, the prosecutor had filed an information in the Fairbanks federal courthouse alleging that Severino had had a prior felony drug conviction in Massachusetts, for "[p]ossession of 1 ounce to 1 kilogram of cocaine[,] 1992-1993." Severino was, in fact, convicted in 1992 for felony possession of 1 ounce to 1 kilogram of cocaine, but in Rhode Island, not Massachusetts.

At the change-of-plea hearing, Severino's counsel was the first to raise the topic of prior convictions. He mentioned that Severino had a prior felony drug conviction "back East," and represented that he (the lawyer) had explained the sentencing consequences of that conviction to his client. Defense counsel also offered that the chances of challenging the validity of the conviction were "zero," and "really not an issue in the case."

The prosecutor explained that the expedited timing of the hearing — set to accommodate the vacation schedule of Severino's attorney — hadn't given him a chance to get the information into the hands of the defendant or his counsel before the hearing. He did, however, represent that the information had been filed and summarized its contents. Severino's counsel enthusiastically confirmed the existence of the prior in the prosecutor's information ("That's the one"), and Severino himself acknowledged the prior and the effect it would have on his sentence.

The judge accepted the guilty plea and sentenced Severino to the mandatory minimum of ten years in prison as a result of the prior. Neither at the change-of-plea hearing nor at sentencing did Severino object to the adequacy of the information filed — its substance, the timing or how it was served. Severino acknowledged, not once but three times, that he had a prior felony drug conviction. He said that he understood the sentencing effects of that conviction. And he did not then — nor does he now — suggest any way of challenging it.

Severino did not appeal but he eventually filed a petition pursuant to 28 U.S.C. § 2255.¹ Represented by a new lawyer, Severino challenged a number of errors. He made one successful trip to this court, where we vacated his sentence because the district court had failed to inform Severino of his right to appeal. See United States v. Severino, No. 99-35161, 1999 U.S.App. LEXIS 34564, 1999 WL 1278048 (9th Cir. Dec. 30, 1999). On remand, the district court reinstated the original sentence, though reluctantly — the court recognizing that Severino had made substantial progress in prison, but also noting its lack of discretion.

Severino appealed once again, and a divided panel affirmed on the ground that Severino had waived his rights under section 851(a) and that any deficiency not waived was harmless. See United States v. Severino, 268 F.3d 850 (9th Cir.2001). We subsequently took the case en banc. United States v. Severino, 284 F.3d 985 (9th Cir.2002).

II

Section 851 is a procedural statute; the facts and the law either exist to enhance defendant's sentence or they don't — section 851(a) doesn't change that.² The statute merely "ensures proper notice so a defendant is able to challenge the information [and] make an informed decision about whether or not to plead guilty." United States v. Hamilton, 208 F.3d 1165, 1168 (9th Cir.), cert. denied, 531 U.S. 867, 121 S.Ct. 164, 148 L.Ed.2d 111 (2000). These procedures take form in four requirements. The information must be in writing; it must be filed with the court and served on the defendant or his counsel; it must be filed and served before trial or before a guilty plea; and the substance of the information must identify the previous conviction(s).

Severino's principal claim is that the information did not satisfy the requirements of section 851 in two ways: the substance of the information, vague and naming the wrong state, failed to identify the prior conviction used at sentencing; and, even if the information was timely filed, it wasn't timely served because service must be received, not just mailed, before the plea hearing.

A. The Specificity Requirement

The text of section 851(a) is "silent on the specificity with which the government must identify prior convictions." United States v. Layne, 192 F.3d 556, 576 (6th Cir.1999). Obviously, the information need not include every known fact about the prior. The government, rather, must include sufficient facts so that a rational defendant can identify the prior conviction and make an informed decision about whether to challenge the substance of the information. See, e.g., id.; Kelly v. United States, 29 F.3d 1107, 1109 (7th Cir.1994), overruled on other grounds by United States v. Ceballos, 302 F.3d 679 (7th Cir. 2002). We must consider whether inclusion of some information that inaccurately describes the prior conviction defeats the statutory purpose of giving defendant notice.

We have confronted this question in the similar setting of indictments. Like informations, indictments "provide defendants with the notice necessary to allow them to challenge the contents" of the charge. United States v. Steen, 55 F.3d 1022, 1026 (5th Cir.1995). We have found indictments legally sufficient if, as a whole, they "adequately apprised the defendant of the charges against him." United States v. James, 980 F.2d 1314, 1316 (9th Cir. 1992). Because a defendant can be put on notice of a charge despite certain mistakes, "`minor or technical deficienc[ies] in the indictment'" will not reverse a conviction if there is no prejudice. Id. (quoting United States v. Normandeau, 800 F.2d 953, 958 (9th Cir.1986), overruled in part on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir.2000)); see also Fed.R.Crim.P. 7(c)(3). Only where defendant is misled to his prejudice about the charges against him will we find an indictment inadequate.

We adopt the same approach in testing the sufficiency of a section 851(a) information: If the defendant, reading the information in context, will have no trouble understanding which prior conviction the prosecutor means to identify, the information then has "stat[ed] ... the previous convictions," and the statutory purpose of providing defendant notice has been satisfied. Like the Fifth Circuit, we hold that errors in an information "negate[] the notice provided by the other listed data only if the discrepancy misled [the defendant] to his prejudice." Steen, 55 F.3d at 1028.

Other circuits have reached the same conclusion, allowing errors if the information, despite its mistakes, still definitively identified the prior conviction. Informations under section 851(a) have been deemed sufficient despite the fact that they contained the wrong date, see United States v. King, 127 F.3d 483, 489 (6th Cir.1997), the wrong offense, see Steen, 55 F.3d at 1025-28, and the wrong statutory section, see United States v. Campbell, 980 F.2d 245, 251-52 (4th Cir.1992), and even though the description of the prior was quite sketchy, see United States v. Gonzalez-Lerma, 14 F.3d 1479, 1485-86 (10th Cir.1994) (no docket number, specific location or correct date). Section 851(a) was satisfied in each of these cases because the information gave the defendant fair notice of which prior conviction the government had in mind for seeking a sentence enhancement. See, e.g., Steen, 55 F.3d at 1026-27.

This is already the law in our circuit. In Hamilton, we "addressed the substantive requirements of an information under section 851(a)." 208 F.3d at 1168. Careful not to "`elevat[e] form over substance,'" id. (quoting King, 127 F.3d at 489), we held that "[a]s long as the information provides clear notice to a defendant of the prior convictions (and the court gives an opportunity to attack [such] convictions...), then the statute has been satisfied." Id. at 1169. Applying that standard, Hamilton held that an information that misstates the date of conviction by five years can nonetheless satisfy section 851: Given the context, the defendant in Hamilton "could not have been confused about the prior conviction" and therefore had "sufficient notice that the government was aware of his prior conviction and would seek to enhance his sentence." Id. at 1168-69.

The clerical error provision,³ which allows the government to correct "clerical mistakes" in an information before sentencing, does not raise the inference that no other mistakes are permitted. The contrary view...