United States v. Houser ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4551
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARRIE B. HOUSER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-00-211)
Submitted: July 29, 2005 Decided: September 14, 2005
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Robert
James Conrad, Jr., C. Nicks Williams, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A federal grand jury indicted Carrie B. Houser on one
count of conspiracy to possess with intent to distribute two
kilograms or more of cocaine after having been convicted previously
of felony possession of opium on or about November 19, 1987, in
violation of 21 U.S.C. §§ 846, 841, and 851 (2000), and one count
of conspiracy to import into the United States two kilograms or
more of cocaine after having been previously convicted of felony
possession of opium on or about November 19, 1987, in violation of
21 U.S.C. §§ 963 and 960 (2000). The government filed an
information pursuant to 21 U.S.C. § 851, stating that on
November 19, 1987, Houser was convicted in the Superior Court of
Essex County, New Jersey, of possession of opium. On July 3, 2001,
Houser pled guilty without a plea agreement to both counts of the
indictment.
The district court sentenced Houser to 120 months in
prison. Houser timely appealed. Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), stating
that, in his opinion, there are no meritorious grounds for appeal,
but arguing that the district court erred in imposing an enhanced
sentence pursuant to 21 U.S.C. § 851. Counsel and Houser have
filed supplemental briefs addressing the impact of United States v.
Booker, 125 S. Ct. 738 (2005), on Houser’s sentence. We affirm
Houser’s convictions and sentence.
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Under 21 U.S.C. §§ 841(b)(1) and 960(b)(2)(B), the
statutory sentence for possession of more than 500 grams of cocaine
is a minimum of five years and a maximum of forty years. If the
defendant has a prior felony drug conviction, however, the
mandatory minimum sentence is ten years and the statutory maximum
sentence is life imprisonment. Id. The indictment, to which
Houser pled guilty, charged her with conspiracy to possess with
intent to distribute and to import two kilograms or more of
cocaine. The district court, finding that Houser was responsible
for more than 500 grams but less than two kilograms of cocaine for
sentencing purposes, concluded that Houser was subject to the
enhancement based on her November 1987 conviction for possession
with intent to distribute a controlled substance.
Houser argues that she is not subject to the enhanced
penalty for a prior felony conviction because the pretrial notice
she received pursuant to 21 U.S.C. § 851 was inadequate to support
an enhanced sentence in that it cited a charge that had been
dismissed rather than the offense for which she had been convicted.
Because Houser failed to challenge the § 851 enhancement in the
district court, it is reviewed for plain error. Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993).
Section 851(a)(1) states in relevant part:
No person . . . 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
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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.
Id. The purpose of § 851 is to allow the defendant an opportunity
to contest the validity of the prior convictions used to enhance
his sentence. United States v. King, 127 F.3d 483, 489 (6th Cir.
1997); United States v. Gonzalez-Lerma, 71 F.3d 1537, 1541 (10th
Cir. 1995); United States v. Williams, 59 F.3d 1180, 1185 (11th
Cir. 1995); United States v. Steen, 55 F.3d 1022, 1026 (5th Cir.
1995); United States v. Campbell, 980 F.2d 245, 252 (4th Cir.
1992). The § 851 notice must contain sufficient information to
enable the defendant to identify the prior conviction upon which
enhancement is based and make an informed decision regarding
whether to challenge the information. United States v. Severino,
316 F.3d 939, 943 (9th Cir.), cert. denied, 540 U.S. 827 (2003);
United States v. Layne, 192 F.3d 556, 576 (6th Cir. 1999). Even if
there are errors in the § 851 information, “[i]f 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.” Severino, 316 F.3d at 943-44 (internal
citation and quotation omitted); Steen, 55 F.3d at 1028.
In this case, the § 851 notice identified Houser’s prior
felony drug offense as a November 19, 1987 conviction for
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possession of opium. (R. 12). In fact, Houser’s November 19, 1987
conviction was for possession with intent to distribute a
controlled substance; the possession charge had been dismissed.
Although the government incorrectly identified the conviction as
for “possession” instead of for “possession with intent to
distribute,” the information correctly identified the date of the
drug conviction and the court in which the conviction occurred.
Under these circumstances, we conclude that the § 851 notice
provided Houser with sufficient notice to identify the conviction
upon which the government relied in seeking the enhancement.
Houser also argues that her sentence could not be
enhanced because the district court failed to comply with the
requirements of § 851(b). This provision states:
If the United States attorney files an information under
this section, the court shall after conviction but before
pronouncement of sentence 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.
Id. However, the district court failed to conduct such a colloquy
in this case.
In United States v. Ellis, 326 F.3d 593 (4th Cir.), cert.
denied, 540 U.S. 907 (2003), the defendant challenged the district
court’s failure to conduct a § 851(b) colloquy. The government
notified the defendant that it was seeking an enhanced sentence
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based on prior convictions. Id. at 596. The presentence report
(“PSR”) again also advised the defendant of the aggravating effect
of the prior convictions. The defendant did not object to that
portion of the PSR and acknowledged the aggravating effect of the
prior convictions at the sentencing hearing. Id. at 599. This
court concluded that the district court’s failure to comply with
the notification requirement of § 851(b) was plain error. Id.
Nonetheless, the court held that, because the defendant apparently
was on notice of the enhancement and failed to object to it, the
error did not affect his substantial rights. Id. (applying plain
error analysis).
Similarly, in this case, Houser received § 851 notice
which, as stated above, adequately notified her of the prior felony
drug offense upon which the government sought to enhance her
sentence. The prior felony drug offense was included in the PSR,
both in the career offender section and in the discussion of
Houser’s criminal history, yet Houser made no objection to the
validity of this conviction. Finally, the court made clear at
sentencing that Houser faced a statutory mandatory minimum sentence
and gave Houser an opportunity to speak before pronouncing
sentence. Even so, Houser did not object to the use of her prior
conviction to enhance her sentence. Because it is clear from the
record that Houser would not have challenged her prior conviction
even if the district court had conducted the § 851 colloquy, we
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find that the court’s failure to comply with the § 851(b)
requirements did not affect Houser’s substantial rights.
In addition, Houser argues that her sentence is invalid
under Booker. The Supreme Court held in Booker that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
Booker, 125 S. Ct. at 750. The Court remedied the constitutional
violation by severing two statutory provisions, 18 U.S.C. §
3553(b)(1) (2000) (requiring courts to impose a sentence within the
applicable guideline range), and 18 U.S.C. § 3742(e) (2000)
(setting forth appellate standards of review for guideline issues),
thereby making the guidelines advisory. Id. at 756-57. Houser’s
sentence did not implicate Booker because it was based on facts she
admitted in her guilty plea and the fact of a prior conviction.
See id. at 756.
As required by Anders, we have examined the entire
record in this case and found no error. Accordingly, we affirm
Houser’s convictions and sentence. This court requires that
counsel inform his client in writing of her right to petition the
Supreme Court of the United States for further review. If Houser
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
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state that a copy thereof was served on Houser. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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