U.S. v. Steen

Decision Date13 June 1995
Docket NumberNo. 93-8857,93-8857
Citation55 F.3d 1022
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Sandy STEEN, Jr. and Bernel Ruiz, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Nancy B. Barohn, San Antonio, TX, for Steen.

Bernel Ruiz, pro se.

Anthony Nicholas, Sharon S. Brown, San Antonio, TX, for Ruiz.

Richard L. Durbin, Jr., Diane D. Kirstein, Asst. U.S. Atty., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

Appeals from the United States District Court For the Western District of Texas.

Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Sandy Steen, Jr., was convicted of possession with intent to distribute cocaine base. See 21 U.S.C. Sec. 841(a)(1) (1988). Bernel Ruiz was convicted of felony possession of cocaine base. See 21 U.S.C. Sec. 844(a) (1988). Steen and Ruiz appeal their convictions and sentences. We affirm Steen's conviction and sentence. Concerning Ruiz, we reverse in part, affirm in part, and remand for resentencing.

I

On the day of the events surrounding this case, Officer Cook of the San Antonio Police Department's Repeat Offender Program received word that Steen, whom the police wanted on two outstanding warrants, was on his way to Ruiz' girlfriend's apartment. Cook observed Steen and Ruiz arrive at the apartment. Steen carried a beige bag upstairs into the apartment.

A backup SWAT team arrived shortly thereafter; one officer went to the back of the apartment building and two went to the front door. The officers knocked on the door, observed a curtain in the window move, and announced their presence. The officer in the rear of the building radioed that "they" were throwing what appeared to be containers of cocaine out of the apartment and into a nearby drainage ditch.

The officers attempted to enter the apartment through the front door, but they could not do so because a couch had been pushed against the door. An officer asked one of the occupants to move the couch, and he did so. The officers took both Steen and Ruiz into custody. Steen had white powder on his hands that later tested positive for cocaine base. Ruiz also had white powder on his arms, but he had cut his right wrist badly, and was transported to a hospital for treatment. Because the white powder on Ruiz was washed away during treatment, it was not tested.

The officers found cocaine base on the apartment's carpet, patio, and microwave oven. A broken beaker containing cocaine base lay in the sink, and there was blood on the sides of the sink. The officers found a triple-beam scale next to the sink. In the living room, an officer found a loaded Llama 0.9 mm semi-automatic handgun in a beige bag.

A federal grand jury indicted Steen and Ruiz, charging both with conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988), and possession with intent to distribute cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1). Steen was also charged with using or carrying a firearm during the commission of a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c)(1).

Steen was found guilty of possession with intent to distribute cocaine base, but he was found not guilty on the conspiracy and firearm counts. Ruiz was found not guilty of both the conspiracy and possession with intent to distribute counts, but the jury found him guilty of a lesser-included offense of felony possession of cocaine base in violation of 21 U.S.C. Sec. 844(a).

Based on his prior felony drug convictions, Steen was sentenced as a recidivist to life imprisonment. Ruiz was sentenced to five years' imprisonment and three years' supervised release. Steen and Ruiz each appeal from their conviction and sentence.

II
A

Steen argues that the district court should not have enhanced his sentence under 21 U.S.C. Sec. 841 1 because the Government failed to comply with the notice procedures of 21 U.S.C. Sec. 851(a). Section 851(a) states that:

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 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.... Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.

21 U.S.C. Sec. 851(a)(1) (1988). The sufficiency of a Sec. 851(a) information is a question of law; therefore, we review the adequacy of the Government's compliance with Sec. 851(a) de novo. See United States v. Wylie, 919 F.2d 969, 972 (5th Cir.1990) (reviewing sufficiency of indictment or information de novo); see also infra text accompanying note 5 (noting functional similarity of Sec. 851(a) information and indictment).

The Government acknowledges that the information that it filed prior to trial misstated the number of the court in which Steen had previously been convicted and incorrectly stated that one of the convictions was for delivery rather than possession of cocaine. However, the Government argues that these inaccuracies amount to no more than clerical errors that it properly corrected by amendment prior to sentencing. Steen concedes in his reply brief that the incorrect court number was a clerical error, but he argues that the misstated identification of the offense renders the information insufficient.

If the prosecution fails to comply with Sec. 851's procedural requirements, a district court cannot enhance a defendant's sentence. See United States v. Noland, 495 F.2d 529, 533 (5th Cir.) (stating that filing requirement is "a strict condition on [Sec. 851's] exercise"), cert. denied, 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974). 2 We assume, without holding, that the incorrect description was not a clerical error. 3 Therefore, if there were any material defect in the original information, the Government's correction was untimely and would not cure such a defect. 4 Accordingly, we limit our evaluation of the Government's compliance with Sec. 851(a) to the information filed prior to trial. The question, therefore, is whether the Government's identification of Steen's prior conviction, even with its inaccuracy, was nonetheless sufficient to satisfy Sec. 851(a).

This court has never specifically addressed the sufficiency of notice in a Sec. 851 information. However, we can look for guidance to our evaluation of the sufficiency of notice in an indictment, because "an enhancement information performs a function in sentencing analogous to the function an indictment or information performs in bringing the initial charges." United States v. Garcia, 954 F.2d 273, 276 (5th Cir.1992). That purpose, as we have already stated, is to provide defendants with the notice necessary to allow them to challenge the contents of the indictment or information. 5 "Practical rather than technical considerations govern resolution of [indictment] challenges and we will not reverse for minor deficiencies which do not prejudice the accused." Chappell, 6 F.3d at 1099.

Steen argues that Sec. 851 establishes a notice standard higher than that which is merely constitutionally sufficient. The plain language of Sec. 851(a) requires that an information "stat[e] in writing the previous convictions to be relied upon." Nowhere in the statute, however, did Congress prescribe the form that such a statement must take or what data would suffice. Accordingly, we look to the statute's legislative history for further guidance.

In the Comprehensive Drug Abuse Prevention and Control Act of 1970, 6 Congress substantially altered the criminal penalty provisions for drug offenses, rejecting the former, rigid mandatory sentencing scheme in favor of one with more flexibility and judicial discretion. 7 In the Act, Congress expressed its concern that the mandatory minimum sentence scheme had overpunished first offenders and had not achieved the desired deterrent effect. 8 Accordingly, Congress eliminated mandatory minimum sentences for all except the "professional" drug offenders. Id. The congressional discussions concerning the sentencing enhancement provisions of the Act are scant, but one principle does emerge: Because repeat drug offenders face significantly harsher sentences than do first offenders, Congress intended that defendants receive notice of the prior convictions on which the court is relying in time for the defendants to challenge the use of those convictions. 9 In order to facilitate this intent, Congress included in the Act a requirement that the notice be given before trial, rather than before sentencing as the previous statute had provided. 10 Other than specifying the required timing, however, Congress did not prescribe any other element of the notice. We therefore conclude that a district court may enhance a defendant's sentence, as long as the Government provides constitutionally sufficient notice of the previous convictions through an information filed prior to trial. 11

The information filed by the Government stated the date of conviction, the venue, and the cause number of the case for each of Steen's prior convictions. The error occurred because the Government described what it believed to be the charged offense, not that to which Steen had pled guilty. This error, however, negates the notice provided by the other listed data only if the discrepancy misled Steen to his prejudice. 12

Although Steen did not file his Sec. 851(c) challenge to the Government's information until after the start of the trial, 13 the record indicates that Steen challenged the admissibility of the prior convictions in a pretrial motion. In that motion, Steen stated that because both prior convictions were for possession only, they were not sufficiently similar to the...

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