United States v. Cash , 297 F. App'x 251 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4362
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD CASH, a/k/a Eddie, a/k/a Ed,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:07-cr-01254-CMC-1)
Submitted: October 2, 2008 Decided: October 27, 2008
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
H. Wayne Floyd, WAYNE FLOYD LAW OFFICE, West Columbia, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, William K. Witherspoon, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Cash pled guilty pursuant to a plea agreement to
conspiracy to possess with the intent to distribute 500 grams or
more of methamphetamine, in violation of 21 U.S.C. §§ 841, 846
(2000), and was sentenced to 235 months in prison. Cash’s sole
contention on appeal is that it was error for the district court to
enhance his sentence under 21 U.S.C. § 841(b)(1)(A) (2000) when no
21 U.S.C. § 851 (2000) information was filed by the Government.
Finding no reversible error, we affirm.
Cash explicitly agreed in his plea agreement that the
Government complied with § 851's notice requirements and that he
would not challenge the qualifying nature of his prior convictions.
He also attested at his plea hearing that he read his plea
agreement, was familiar with and understood this provision, and
entered the plea agreement knowingly and voluntarily. Despite the
seemingly mandatory phrasing of § 851, we have recently recognized
that its formal requirements can be waived. United States v.
Beasley, 495 F.3d 142, 148 (4th Cir. 2007), cert. denied, 128 S.
Ct. 1471 (2008). In light of the particular facts revealed by the
record in this appeal, we conclude that Cash waived his right to
challenge the Government’s technical noncompliance with § 851. See
United States v. Mooring, 287 F.3d 725, 728 (8th Cir. 2002)
(finding § 851's notice requirements waived by the defendant where:
(i) the defendant stipulated in his plea agreement that he received
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proper § 851 notice, even though he had not; (ii) admitted the
prior conviction to the district court; and (iii) indicated that he
was aware of the enhanced sentence).
Accordingly, we affirm the district court’s judgment. 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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