USA. v. Severino
| Decision Date | 28 September 2001 |
| Docket Number | DEFENDANT-APPELLANT,No. 00-30161,PLAINTIFF-APPELLEE,00-30161 |
| Citation | 268 F.3d 850 |
| Parties | (9th Cir. 2001) UNITED STATES OF AMERICA,, v. FELIX SEVERINO, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bruce L. Brown, Anchorage, Alaska, for the defendant-appellant.
Stephen Cooper, Assistant United States Attorney, Fairbanks, Alaska, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief District Judge, Presiding. D.C. No. CR-95-00065-F-JKS
Before: Rymer, Thomas and McKeown, Circuit Judges.
Opinion by Judge Rymer; Dissent by Judge Thomas
Felix Severino appeals his sentence for one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846, and seven counts of distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to a mandatory minimum term of 120 months as a recidivist under 21 U.S.C. § 841(b)(1)(B). Severino argues that his sentence was improperly enhanced without the due process required by 21 U.S.C. § 851 because the information was defectively filed and served. We disagree, and affirm.
Severino and 17 others were charged in a Superseding Indictment filed December 13, 1995 with conspiracy to distribute cocaine and related charges of distribution and possession in violation of 21 U.S.C. § § 846 and 841(a)(1). He and the United States entered into a written plea agreement under Fed. R. Crim. P. 11(e)(1)(C) on January 9, 1996. Severino admitted guilt on the eight drug counts for which he had been indicted. Among other things, the agreement provides that "[a]ny prior record including any drug convictions will be brought to the attention of the court"; and it acknowledges that "[i]f a defendant has a prior felony drug conviction the penalties are from 10 years to life imprisonment, a maximum fine of $4,000,000, and at least 8 years of supervised release." The agreement also waives the right to appeal or collaterally attack Severino's conviction or sentence on any ground "unless the court imposes a sentence in excess of the statutory maximum or a sentence that is contrary to the sentencing guidelines or a sentence that violates this plea agreement."
A plea hearing was held on January 9. As it turned out, Severino, his counsel and the district judge were physically present in court in Anchorage; the Assistant United States Attorney (AUSA) was in Fairbanks, and participated by telephone. As the court was discussing possible guidelines calculations during the plea colloquy, Severino's counsel stated: The following dialogue then occurred:
THE COURT: Okay. So he is going into this with eyes open and facing a mandatory minimum of 10 years -
MR. DAYAN [Severino's counsel]: Yes, Your Honor.
Later in the colloquy Severino again indicated that the fact that the penalties for a prior felony drug conviction anywhere in a state or federal court would be a mandatory minimum 10 years had been explained to him, and that he understood how the penalties applied to him and his situation. In response to advice from the court about the importance of telling counsel everything about his past, Severino replied: "I told him everything, yes, sir."
The AUSA explained that he was having difficulty with the requirement in 21 U.S.C. § 851 to file an information listing all of the prior convictions to be relied on in sentencing. He said that he was not confident that he had all the information that should be in that type of information, "[b]ut I have filed an information today, and I guess the shortness of getting these proceedings on has prevented me from getting this into the hands of the Court and counsel before this proceeding." The AUSA expressed his belief that the conviction in the information is the same case that counsel talked about, possession of cocaine in Massachusetts in 1992 and 1993, to which Severino's counsel agreed "that's the one " and added: "This was set on in a hurry as an accommodation to me so I could go out on vacation, and so we would not object to the fact that we weren't served in time or that it was filed perhaps a day later since this -the U.S. Attorney's Office was accommodating me." Further questioning from the court elicited from defense counsel that he was fully aware of the Massachusetts conviction and he reiterated that it was the same one he had mentioned before. The court also verified from Severino personally that he knew about it and knew that it might trigger a 10-year minimum sentence. All of this took place prior to entry of the guilty plea.
The information filed January 9 to which the AUSA referred alleges:
The prior conviction of the defendant herein, to be relied upon for purposes of sentencing in this case are as follows:
Possession of 1 ounce to 1 kilogram of cocaine, Massachusetts, 1992-1993.
The attached certificate of service represents that a copy of the information was served by deposit in the United States Post Office on Severino's counsel.
On the same day, the government filed an amended information. It alleges:
The above defendant's prior conviction to be relied upon for sentencing purposes is as follows:
Possession of 1 ounce to 1 kilogram of cocaine, Rhode Island, 1992-1993.
It, too, was served by mail January 9.
The presentence report, which had been translated into Spanish and given to Severino, and which he reviewed several times with counsel, indicates that the minimum term of imprisonment was ten years, which included the enhanced penalty for Severino's prior felony drug conviction in Rhode Island. The report states that Severino served approximately eight months of his term of imprisonment, then was deported from the United States to the Dominican Republic for being convicted of an aggravated felony. No objections were made to this part of the presentence report, although Severino did object to the recommended two-level enhancement for obstruction of justice and to the presentence report's failure to provide a decrease in the offense level for acceptance of responsibility.
The district court sentenced Severino to imprisonment for ten years, but did not advise him of the right to appeal because of the waiver in the plea agreement. Severino brought no appeal, but one year later, on July 7, 1997, filed a motion under 28 U.S.C. § 2255 to vacate the sentence. Counsel was appointed. The motion challenged the validity of the § 851 information and the lack of advisement of a right to appeal. It was denied, Severino appealed, and a panel of this court remanded for advising Severino of his right to appeal and for resentencing. At resentencing, Severino argued that the information was in error and could not be corrected by the amended information, and that both informations were vague and neither had been served before the plea was taken. The district court rejected these challenges, noting that counsel waived any timing problem with Severino's concurrence, and that Severino went into the plea agreement expecting a 10-year sentence; Severino admitted he sustained the conviction; there was substantial compliance with § 851; and he was not prejudiced by the information's failure to specify the proper place of conviction. Accordingly, the court reinstated the original judgment. Severino timely appealed.1
At the outset, the government urges us to dismiss the appeal because it is barred by Severino's waiver of appeal. It submits that the limited exceptions to the waiver do not apply because the 10-year sentence was well below the 40-year maximum, his appellate issues are not guideline issues, and the sentence was within both the plea agreement and the expectation of the parties. However, Severino's appeal is not so constrained; he challenges the court's authority to enhance his sentence. His appeal waiver, while broad, does not preclude this kind of attack. United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996).
Severino makes several related arguments leading to the point that the procedural safeguards established by Congress in § 851 must be strictly adhered to or the defendant is not afforded procedural due process. He faults the district court for failing to ask him whether he affirmed or denied the Rhode Island conviction, and to inform him of his right to challenge it. He argues that the court erred in relying on an untimely and inaccurate information of a prior conviction in Massachusetts to enhance the sentence. He notes that neither he nor his counsel actually received a copy of the information before the plea was taken. Counsel's failure to object should make no difference, he submits, because these are jurisdictional defects that cannot be cured or waived.2 Finally, Severino maintains that even if the information were timely filed and that the amended information corrected only a clerical error, which he contends it did not, still the information was inadequate because it did not provide a number, date...
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U.S. v. Severino
...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 Section 851 is a procedural statut......
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U.S. v. Dodson, 00-60884.
...under § 851, the district court had subject matter jurisdiction over his case under 18 U.S.C. § 3231. See also United States v. Severino, 268 F.3d 850, 856-57 (9th Cir.2001).9 Rather his position is that the requirements in § 851 are not waivable or subject to forfeiture as a result of his ......
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...an information stating that it intended to seek an enhanced sentence based on specific prior convictions.” United States v. Severino, 268 F.3d 850, 863 (9th Cir.2001). So, the Congressional motivation for the injection of prosecutorial discretion for the sentencing enhancement was to overco......