United States v. Learley Goodwin , 452 F. App'x 239 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4059
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEARLEY REED GOODWIN, a/k/a Goodie, a/k/a Lonnie Ross,
Defendant - Appellant.
No. 07-4060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAULETTE MARTIN, a/k/a Paulette Murphy, a/k/a Paulette
Akuffo, a/k/a Paula Murphy, a/k/a Auntie,
Defendant - Appellant.
No. 07-4062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LANORA N. ALI, a/k/a La Nora Ali-Gardner,
Defendant - Appellant.
No. 07-4063
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REECE COLEMAN WHITING, JR., a/k/a Guy Counts, a/k/a Cups,
a/k/a Dino Whiting,
Defendant - Appellant.
No. 07-4080
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERREK LEWIS BYNUM, a/k/a Bo,
Defendant - Appellant.
No. 07-4115
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
2
LAVON DOBIE, a/k/a Becky Parker, a/k/a Theresa Waller, a/k/a
Dobie Parker,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:04-cr-00235-RWT-3; 8:04-cr-00235-RWT-1; 8:04-cr-00235-RWT-10;
8:04-cr-00235-RWT-6; 8:04-cr-00235-RWT-7; 8:04-cr-00235-RWT-9)
Argued: September 20, 2011 Decided: November 2, 2011
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded with
instructions by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Motz and Judge Gregory joined.
ARGUED: Marc Gregory Hall, HALL & CHO, PC, Rockville, Maryland;
Alan Dexter Bowman, Newark, New Jersey; G. Alan DuBois, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellants. Anthony William Vitarelli, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Michael
D. Montemarano, MICHAEL D. MONTEMARANO, PA, Elkridge, Maryland,
for Appellant Martin; Anthony D. Martin, ANTHONY D. MARTIN, PC,
Greenbelt, Maryland, for Appellant Goodwin; Timothy S. Mitchell,
LAW OFFICE OF TIMOTHY S. MITCHELL, Greenbelt, Maryland, for
Appellant Bynum. Rod J. Rosenstein, United States Attorney,
Deborah A. Johnston, Bonnie S. Greenberg, Stefan D. Cassella,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland; Lanny A. Breuer, Assistant
Attorney General, Greg D. Andres, Acting Deputy Assistant
Attorney General, Daniel Steven Goodman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
3
DUNCAN, Circuit Judge:
Learley Goodwin, Paulette Martin, Lanora Ali, Reece
Whiting, Jr., Derrek Bynum, and Lavon Dobie (collectively
“Appellants”) were tried together and convicted of conspiracy
and other offenses in relation to the distribution of narcotics.
On appeal, Appellants raise numerous claims, both collectively
and individually, challenging their convictions and sentences. 1
For the reasons that follow, we affirm the judgment of the
district court except as to Dobie’s sentence, which we vacate.
We remand the case to the district court for resentencing.
I.
This case, involving a large number of individuals over an
extended period of time, has produced a complex factual
background. While Appellants bring multiple claims on appeal,
oral argument focused on the claims of three appellants: Ali,
Whiting, and Dobie. One of these claims is a collective
challenge, whereas the rest are individual to Ali, Whiting, and
Dobie, respectively. We have considered Appellants’ remaining
1
Goodwin, Martin, Bynum, and Dobie also challenge the
forfeiture of their assets pursuant to 21 U.S.C. § 853. The
same appellants, sans Dobie, bring identical challenges to the
forfeiture in a subsequently filed appeal. We address these
challenges to the criminal forfeiture in a separately filed
opinion in Case No. 10-5301.
4
claims on appeal and conclude they lack merit. Therefore, for
ease of reference, we set forth the facts relative to Ali,
Whiting, and Dobie, who make the arguments warranting the most
extensive, individualized discussion. We provide additional
information as necessary.
A.
This case involves a large drug trafficking organization
that supplied drugs throughout the District of Columbia,
Maryland, and Virginia. Paulette Martin was the key player in
this organization. Martin acted as a major drug supply
intermediary, connecting wholesale drug suppliers to street-
level retail dealers. From March until June 2004,
investigators, acting with court authorization, tapped Martin’s
phone lines. Based on information gathered from those
intercepts and ensuing investigations, authorities arrested over
thirty individuals and executed more than twenty search
warrants.
Ali, Whiting, and Dobie were connected to the organization
in different ways. Ali was a close friend and drug customer of
Martin’s. Over the period of the investigation, Ali contacted
Martin by phone an average of three times per day. Authorities
intercepted numerous phone calls during which Ali sought drugs
from Martin. Authorities also recorded Ali discussing with
Martin the arrests of other members of the conspiracy. During
5
the investigation, intercepted calls indicated that Martin was
becoming concerned that authorities would raid her residence and
that she had decided to relocate her drug business from her
residence to a performing arts school that she owned.
Subsequently, surveillance cameras captured Ali helping Martin
move bags from Martin’s residence to the performing arts school.
Ali also stored in her home a locked suitcase belonging to
Martin. Upon raiding Ali’s residence, inside the suitcase
authorities discovered $129,600 in currency and several papers
bearing Martin’s name.
Whiting was another drug customer of Martin’s. In addition
to buying drugs from Martin, Whiting also purchased drugs for
resale from another member of the conspiracy, Emilio Echarte,
one of Martin’s drug suppliers. To repay a debt owed to Echarte
relating to the resale of drugs, Whiting drove Echarte to pick
up drugs from a bus arriving in Virginia.
Dobie purchased heroin and cocaine from Martin for the
purpose of resale. Authorities recorded Dobie on multiple
occasions discussing with Martin the resale of drugs.
Authorities also recorded Dobie discussing with Martin the
arrest of another member of the conspiracy. Authorities raided
Dobie’s residence on June 1, 2004, and found 11.65 grams of
heroin, drug paraphernalia, and two handguns.
6
B.
Count One of the indictment on which they were tried
charged Ali, Whiting, and Dobie with violating 21 U.S.C. § 846by conspiring among themselves and with others to distribute and
possess with intent to distribute five kilograms or more of
cocaine, one kilogram or more of heroin, and fifty grams or more
of cocaine base, in violation of 21 U.S.C. § 841. Count Sixty-
One of the indictment charged Dobie with possession of a firearm
in furtherance of a drug trafficking conspiracy, in violation of
18 U.S.C. § 924(c). The indictment also charged Ali, Whiting,
and Dobie with multiple counts of using a communication facility
in the commission of a felony.
On August 31, 2006, after 42 days of trial and
deliberations, a jury convicted Ali, Whiting, and Dobie on
multiple counts related to the drug conspiracy. The jury
convicted each on Count One of the indictment, as well on
multiple counts of using a communication facility in the
commission of a felony. The jury also convicted Dobie on Count
Sixty-One.
The district court sentenced Ali to a total of 120 months’
imprisonment, Whiting to life imprisonment, and Dobie to 206
months’ imprisonment. This appeal followed.
7
II.
Ali, Whiting, and Dobie collectively challenge the
admission of expert testimony from government witnesses
regarding drug trafficking methods. Individually, Ali
challenges her § 841 conviction on Count One. Dobie
individually challenges her § 924(c) conviction on Count Sixty-
One as well as her sentence on Count One. Also individually,
Whiting challenges the adequacy of the notice provided to him
regarding the government’s intention to seek enhancement of his
sentence pursuant to 21 U.S.C. § 841, based on previous drug
offense convictions. We address each of these claims in turn.
A.
We first consider the collective argument that the district
court erred by allowing two government witnesses to testify both
as fact and expert witnesses without properly bifurcating their
testimony. We review a district court’s decisions regarding
expert testimony for abuse of discretion. United States v.
Baptiste, 596 F.3d 214, 222 (4th Cir. 2010).
Detectives Christopher Sakala and Thomas Eveler were two of
three case agents who led the investigation that culminated in
the arrests of Appellants. Beyond the investigation related to
this case, at the time of trial, Sakala and Eveler had years of
experience investigating drug trafficking conspiracies, which,
combined, included engaging in thousands of drug transactions,
8
dealing with numerous informants, and participating in dozens of
wiretap investigations.
On June 13, 2006, Sakala testified for the government as a
fact witness. Sakala described, inter alia, the progression of
the investigation, the use of wiretaps, and the intercepted
phone conversations. Sakala returned to the stand a week later,
on June 20, 2006, and gave extensive expert testimony. Upon
returning to testify, the government walked Sakala through his
narcotics background and training to lay the foundation for his
expert testimony. The purpose of Sakala’s expert testimony was
to aid the jury in interpreting the intercepted calls presented
to it. Sakala gave his expert opinion, for example, as to the
true meaning of code words used by members of the conspiracy in
their recorded phone conversations.
While not entirely clear from the record, it appears that
Eveler first testified as a fact witness on July 19, 2006, and
then returned to the stand to testify as an expert witness on
July 25, 2006. Eveler’s testimony was very similar to that of
Sakala’s.
Appellants argue that the district court abused its
discretion in allowing the dual-role testimony because the
“factual testimony was not bifurcated or delineated in any
fashion from [the] expert/opinion testimony, and was not in any
9
way differentiated as to its sourcing or basis.” Appellants’
Br. 68.
In Baptiste, this court outlined four safeguards concerning
bifurcation and delineation that a district court should
consider in exercising its discretion to allow dual-role fact
and opinion testimony. 596 F.3d at 224. First, a district
court may give a cautionary instruction to the jury reminding
the jury that it is up to it to determine the weight given to
testimony. Id. Second, defense counsel may cross-examine the
agent about his expert opinion, enabling the defense to clarify
the role of the witness at that point in the trial. Id. Third,
the government is required to establish a proper foundation for
the witness’s expertise. Id. Fourth, the government may
distinguish expert opinion testimony from fact testimony by
prefacing a witness’s expert testimony with a request that he
base his answers on his expertise. Id. We also noted that, in
addition to these safeguards, a district court could reduce
juror confusion “by requiring the witness to take separate trips
to the stand in each capacity.” Id. at 225 n.9.
It is clear from the record and not disputed by appellants
that (1) the district court instructed the jury as to its
discretion in weighing testimony, (2) defense counsel cross-
examined Sakala and Eveler in both capacities, (3) the
government laid a proper foundation for Sakala and Eveler’s
10
expert testimony, and (4) the government prefaced its
questioning of Sakala and Eveler in their expert capacities by
asking them to base their answers on their expertise. The
district court and the government thus utilized each safeguard
enumerated in Baptiste. The government also took the additional
step of having Sakala and Eveler take separate trips to the
stand--in each instance approximately a week apart--to clearly
separate their fact testimony from their opinion. Accordingly,
we find no abuse of discretion in the admission of Sakala and
Eveler’s testimony.
B.
We now turn to the consideration of the individual
arguments on appeal. We begin with Ali’s challenge to her
conviction on Count One, for conspiracy to distribute narcotics.
Ali advances two arguments in support of this challenge. First,
Ali argues that there was insufficient evidence to support the
conviction. When reviewing a challenge to the sufficiency of
the evidence underlying a conviction, we are limited to
determining whether, viewing the evidence and the reasonable
inferences to be drawn therefrom in the light most favorable to
the government, the evidence adduced at trial could support any
rational determination of guilty beyond a reasonable doubt.
United States v. Young, 609 F.3d 348, 354-55 (4th Cir. 2010).
In the alternative, Ali argues--for the first time on appeal--
11
that there was a fatal variance between the conduct charged in
Count One, the evidence introduced at trial as to Count One, and
the district court’s jury instruction on Count One. Because Ali
did not raise this argument in the district court, it is subject
to plain error review. See United States v. Jeffers, 570 F.3d
557, 567 (4th Cir. 2009). To show plain error, Ali must
“identify an error that is plain and that substantially affects
[her] rights.” Id. We consider each argument in turn.
1.
Ali first argues that the evidence presented to the jury
showed only that she and Martin had a buyer/seller relationship.
She contends the evidence was insufficient to connect her to the
conspiracy and thus was insufficient to support her conviction
on Count One.
In United States v. Strickland, 245 F.3d 368 (4th Cir.
2001), this court laid out what the government must prove to
connect an individual to a drug conspiracy. First, the
government must prove the existence of the drug conspiracy. Id.
at 385. “Once a conspiracy has been proved, the evidence need
only establish a slight connection between any given defendant
and the conspiracy to support conviction.” Id. The government
can establish such a connection by showing that a defendant had
knowledge of the conspiracy and knowingly and voluntarily
participated in the conspiracy. Id. This connection need only
12
be “slight” because “a defendant need not have knowledge of all
of . . . the details of the conspiracy, and . . . may be
convicted despite having played only a minor role.” Id.Ali does not contend that the government failed to prove
the existence of the drug conspiracy described in Count One. We
therefore focus on Ali’s connection to that conspiracy. The
evidence, when viewed in the light most favorable to the
government, showed that Ali had frequent contact with Martin, on
the order of several times daily, and discussed with Martin the
arrests of other coconspirators. It was reasonable to infer
from this evidence that Ali had knowledge of the conspiracy.
The evidence also showed that Ali held drug proceeds for
Martin and aided in the relocation of Martin’s drug business
when Martin feared detection. From this evidence, it was
reasonable to infer that Ali knowingly and voluntarily played at
least a minor role in the drug conspiracy. See United States v.
Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984) (holding that
knowing and voluntary participation in a conspiracy “can be
shown by circumstantial evidence such as [a defendant’s]
relationship with other members of the conspiracy, the length of
this association, [the defendant’s] attitude, conduct, and the
nature of the conspiracy”). Accordingly, we conclude that the
evidence presented at trial was sufficient to support the jury’s
13
conclusion that Ali was involved in the drug distribution
conspiracy as more than a mere purchaser of drugs.
2.
Ali alternatively argues that, although she was charged in
Count One for participating in a single, large conspiracy, the
evidence established two separate conspiracies: one uncharged
conspiracy between only Ali and Martin, and a larger conspiracy
charged in Count One between Martin and the other co-defendants.
Ali contends that this created a fatal variance between the
indictment and the proof at trial and that the district court
compounded this variance by failing to instruct the jury that it
must acquit her if it found two distinct conspiracies.
A fatal variance occurs “[w]hen the government, through its
presentation of evidence and/or its argument, or the district
court, through its instructions to the jury, or both, broadens
the bases for conviction beyond those charged in the
indictment.” United States v. Randall, 171 F.3d 195, 203 (4th
Cir. 1999). To determine if a variance occurred between Count
One and the evidence as it relates to Ali, we must compare that
evidence to what is necessary to prove a single conspiracy.
In United States v. Johnson, 54 F.3d 1150 (4th Cir. 1995),
this court explained that “[a] single conspiracy exists when the
conspiracy had the same objective, it had the same goal, the
same nature, the same geographic spread, the same results, and
14
the same product.” Id. at 1154 (internal quotations omitted);
see also Jeffers, 570 F.3d at 568 (“[A] drug conspiracy may
‘result[] in only a loosely-knit association of members linked
only by their mutual interest in sustaining the overall
enterprise of catering to the ultimate demands of a particular
drug consumption market.’” (quoting United States v. Banks, 10
F.3d 1044, 1054 (4th Cir. 1993)).
The record is sufficient to show that Ali knew of the
existence of the larger conspiracy and knowingly participated in
it. As noted above, Ali’s discussion with Martin of the arrests
of other members of the conspiracy demonstrated her knowledge of
the larger conspiracy in which Martin was involved. As also
noted above, Ali assisted Martin by helping Martin relocate her
drug business and by safeguarding Martin’s drug proceeds.
In sum, the evidence showed Ali knew of the larger
conspiracy in which Martin was involved and helped Martin in her
attempt to avoid detection--and thus aided that larger
conspiracy--by relocating the drug business. Given the
inferences to be drawn in favor of the government, this evidence
was sufficient to demonstrate that Ali was knowingly pursuing
the same objective as all other members of the drug trafficking
conspiracy charged in Count One: aiding drug distribution in the
Washington, DC, area. Thus, there was no variance between
15
either the proof at trial or the jury instruction and the
conduct charged in Count One.
C.
We next consider Dobie’s challenge to the sufficiency of
the evidence supporting her conviction on Count Sixty-One for
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c). As we have set out,
on a sufficiency challenge, our review is limited to determining
whether the evidence, viewed in the light most favorable to the
government and with all reasonable inferences drawn in favor of
the government, supports a rational determination of guilty
beyond a reasonable doubt.
Dobie begins by correctly noting that Count Sixty-One lists
the conspiracy charged in Count One as the predicate offense for
the violation of § 924(c). Dobie does not challenge her
conviction on Count One and does not dispute that her possession
of the firearms was contemporaneous with the drug conspiracy
charged in Count One. Dobie insists, however, that the
government failed to put forward proof to show that her
possession of the firearms was in furtherance of the conspiracy
charged in Count One. Because authorities found the firearms
near drugs, viz. 11.65 grams of heroin, Dobie assumes that to
show that her possession of the firearms was in furtherance of
the conspiracy charged in Count One, the government was required
16
to prove that the drugs found with the firearms were connected
to that drug conspiracy. Proceeding from this assumption, Dobie
claims that she was involved in multiple drug conspiracies
beyond the one charged in Count One and that the government
failed to provide sufficient evidence to show the heroin found
with the firearms was a part of the predicate conspiracy charged
in Count One rather than one of the other conspiracies. Without
this connection, Dobie argues, the government could not show
that her possession of the firearms was in furtherance of the
conspiracy charged in Count One.
The government responds to Dobie’s argument by proceeding
from the same assumption that the nexus between the firearms and
the conspiracy charged in Count One must be established by
connecting the heroin found in proximity to the firearms to the
drug conspiracy charged in Count One. To do this, the
government relies on a recording of a phone call between Dobie
and Martin--the leader of the conspiracy charged in Count One--
that took place three weeks before the firearms and heroin were
seized. In this phone call, Martin sought heroin for another
person and inquired whether Dobie had any in her possession.
Dobie responded that while she recently had as much as 50 grams
of heroin in her possession, she had sold some and at the time
of the call had only “10 or 15” grams remaining. J.A. 1052.
Dobie and Martin then negotiated over the price. The government
17
argues that because the amount of heroin seized at Dobie’s
residence was 11.65 grams, and three weeks prior to this seizure
Dobie was discussing selling through Martin “10 or 15” grams of
heroin, a reasonable finder of fact could rationally conclude
that the heroin found at Dobie’s residence was the same heroin
discussed in the phone call. The finder of fact could thus
connect the heroin to the conspiracy charged in Count One. With
this connection made, it is argued, a sufficient nexus exists
between the firearms found in proximity to the heroin and the
conspiracy charged in Count One.
Dobie does not challenge the possible existence of this
connection but instead argues that to find such a connection
would require a jury to pile inference upon inference, and thus,
such a connection is insufficient to support a finding of guilty
beyond a reasonable doubt.
Although the government’s argument is tenable, we need not
reach it to find the evidence underlying Dobie’s 924(c)
conviction to be sufficient. We have held that, in making the
factual determination whether a defendant’s possession of a
firearm was “in furtherance” of the predicate drug trafficking
crime, under § 924(c), “the fact finder is free to consider the
numerous ways in which a firearm might further or advance” the
conspiracy, including by providing security during drug
transactions and helping defend turf. United States v. Lomax,
18
293 F.3d 701, 705 (4th Cir. 2002). 2 Indeed, in Jeffers, we found
sufficient evidence to uphold a § 924(c) conviction where no
firearms or drugs were seized from the defendant, let alone
together. 570 F.3d at 565-66. We upheld the conviction because
the evidence showed that the defendant possessed various
firearms at different points during the time he participated in
the conspiracy and also showed that the defendant was willing to
use a firearm in self-defense should it become necessary. Id.
at 565-66.
Applying our precedent, we conclude that the evidence
presented by the government is sufficient to sustain Dobie’s §
924(c) conviction. Dobie does not deny that she possessed the
firearms, or that she was involved in the conspiracy charged in
Count One, or that she possessed the firearms during that
conspiracy. Once these facts were established, the jury was
“free to consider the numerous ways in which” Dobie’s firearms
could have furthered this conspiracy. It would be rational for
a juror to conclude, for example, that the possession of
firearms by some of its members made the conspiracy, as a whole,
2
As Lomax relates to Dobie’s and the government’s
arguments, it stands for the proposition that while evidence
showing that a firearm possessed by a defendant was found near
drugs involved in the predicate offense may be sufficient to
sustain a § 924(c) conviction, 293 F.3d at 705, it is not
necessary.
19
more secure. In addition, the evidence showed that Dobie
participated in the conspiracy as a retail dealer of drugs.
Given the dangers facing a street-level drug dealer, it is
rational to believe that her possession of the firearms aided
her in this enterprise. Under the deferential standard of
review we accord jury findings, there was sufficient evidence
that Dobie’s possession of the firearms furthered the goals of
the conspiracy as necessary to support a § 924(c) conviction.
D.
We next consider Dobie’s challenge to her sentence for her
conviction on Count One. Review of any sentence proceeds in two
steps. First, we must determine whether the district court
committed any procedural error, such as improperly calculating
the guidelines range or failing to adequately explain the chosen
sentence. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). If we conclude that the district court has not committed
procedural error, “we consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.”
Id. (internal quotations omitted).
As relevant to this appeal, at her sentencing hearing,
Dobie requested two downward adjustments to her offense level
for Count One. Dobie requested a “minimal role” reduction of
four points or, alternatively, a “minor role” reduction of two
20
points. 3 The relevant portion of the sentencing hearing begins
with the district court stating, “In this case I conclude that
[Dobie] is not entitled to a reduction [f]or a mitigating role.” 4
J.A. 2954. The district court proceeds from this general
statement to reject Dobie’s “argument in support of a four level
reduction” because “it is clear that Ms. Dobie obtained drugs
from Ms. Martin . . . for resale, and I conclude that she’s not
entitled to a reduction for a minimal role.” J.A. 2954-55.
Thus, the district court rejected Dobie’s request for a minimal
role adjustment but at no point specifically addressed or
rejected Dobie’s request for a minor role adjustment. The
district court went on to calculate an offense level of 28 for
Count One. This, combined with a criminal history category of
V, yielded a guidelines range of 130 to 162 months. The
district court sentenced Dobie to 146 months’ imprisonment on
Count One.
3
Section 3B1.2 of the United States Sentencing Guidelines
describes these adjustments.
4
The court reporter transcribed the district court as
saying, “not entitled to a reduction or a mitigating role”
(emphasis added). Based on the context of the district court’s
consideration, we believe this to be a scrivener’s error. See,
e.g., J.A. 2953-54 (quoting the district court as saying Dobie
“also contends there should be an adjustment for a mitigating
role” (emphasis added)).
21
Dobie argues that the district court committed procedural
error by failing to consider her request for a minor role
adjustment in calculating her sentencing guidelines range.
In Carter, this court held that a district court commits
procedural error requiring remand when it fails to justify an
aspect of a defendant’s sentence “with an individualized
rationale.” 564 F.3d at 328-29. Here, the district court
failed to provide an individualized rationale for rejecting
Dobie’s request for a minor role adjustment. Therefore, we
vacate Dobie’s sentence as to Count One and remand to the
district court for resentencing for the purpose of considering
Dobie’s request for a minor role adjustment.
E.
We next consider Whiting’s argument that the information
filed by the government advising Whiting that it would be
pursuing an enhanced sentence pursuant to 21 U.S.C. § 841 failed
to provide him adequate notice as required by 21 U.S.C. § 851.
We review de novo questions regarding the adequacy of a 21
U.S.C. § 851 notice. See United States v. Ladson, 643 F.3d
1335, 1341 (11th Cir. 2011).
As it relates to Whiting’s sentence for his conviction on
Count One, 21 U.S.C § 841 provides that anyone so convicted
after “two or more prior convictions for a felony drug offense
have become final, . . . shall be sentenced to a mandatory term
22
of life imprisonment.” 21 U.S.C. § 841(b)(1)(A). A “felony
drug offense” is “an offense that is punishable by imprisonment
for more than one year under any law of the United States or of
a State or foreign country that prohibits or restricts conduct
relating to narcotic drugs.” Id. at § 802(44). Section 851
establishes a prerequisite for such enhancement, requiring the
government, prior to trial, to file an information “stating in
writing the previous convictions to be relied upon.” Id. at §
851(a)(1).
Here, the government filed an information prior to trial
informing Whiting that it intended to rely on five prior
convictions to enhance his sentence pursuant to § 841. Because
the relevant part of § 841 requires proof of two convictions, we
focus on only two of the five convictions listed in the
information. The information noticed a “[c]onviction for a
heroin offense for which [Whiting] was sentenced to 186 months’
incarceration, which was later reduced pursuant via a Rule 35
[sic] to 72 months’ incarceration, in the Eastern District of
Virginia, Docket No. 94CR00108-101 (Ellis, J.)” (“Virginia
conviction”). J.A. 506. The information also noticed a
“[c]onviction for possession of cocaine in Mexico, Docket Number
153/84 (Chavez, J[.]), on or about February 1, 1986, for which
[Whiting] received a sentence of eight years, three months [sic]
incarceration” (“Mexico conviction”). Id. Attached to the
23
information was an uncertified copy of the final judgment from
the Virginia conviction.
Whiting argues that the information filed by the government
failed to provide him adequate notice of these convictions
because the information did not come with certified copies of
the records of convictions attached.
For an information to provide adequate notice as required
by § 851, it must contain sufficient information to allow a
defendant an opportunity “to identify [each] prior conviction
and make an informed decision about whether to challenge the
substance of the information.” United States v. Severino, 316
F.3d 939, 943 (9th Cir. 2003); accord United States v. Beasley,
495 F.3d 142, 149 (4th Cir. 2007) (noting that the purpose of
such an information is to give “the defendant an opportunity to
challenge the use of the prior convictions and to prevent
sentencing errors”). We have found no authority for the
suggestion that adequate notice requires the provision of
certified copies of the judgment.
The information filed by the government contained the date,
docket number, judge, and sentence for both the Mexico and
Virginia convictions. We conclude that these data were adequate
to allow Whiting to identify the convictions and make an
informed decision about whether to challenge their existence.
Thus, the notice provided by the government satisfied § 851.
24
III.
For the foregoing reasons, we affirm the district court in
all respects except as to the denial of Dobie’s request for a
minor role adjustment in calculating her sentence for her
conviction on Count One. We vacate Dobie’s sentence on Count
One and remand to the district court for further proceedings
consistent with this opinion.
AFFIRMED IN PART,
VACATED IN PART, AND
REMANDED WITH INSTRUCTIONS
25