United States v. Clarke , 237 F. App'x 831 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5017
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK ANTHONY CLARKE, a/k/a Jamacian Tony,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:04-cr-00069-1)
Submitted: June 27, 2007 Decided: July 30, 2007
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Krysia Carmel Nelson, NELSON & TUCKER, PLC, Charlottesville,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Jean B. Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick Anthony Clarke pled guilty to conspiracy to
distribute cocaine base (crack), 21 U.S.C. § 846 (2000) (Count
One), and possession of cocaine base (crack) with intent to
distribute, 21 U.S.C. § 841(a) (2000), 18 U.S.C. § 2 (2000) (Count
Three), and was sentenced to concurrent terms of life imprisonment.
Clarke appeals his sentence, contending that his mandatory life
sentence must be reversed because the government and district court
failed to comply with the procedural requirements of 21 U.S.C.
§ 851 (2000) and Fed. R. Crim. P. 32. We affirm Clarke’s
sentence.1 We deny the government’s motion to correct or modify
the record and remand for conformation of the record.
On the day Clarke entered his guilty plea, the government
filed a § 851 information alleging that Clarke had been convicted
of felony drug offenses in 1990 and 1993. Clarke’s plea agreement
also specified in bold type that he had been convicted of felony
drug offenses in 1990 and 1993, which subjected him to a mandatory
life sentence pursuant to 21 U.S.C.A. § 841(b)(1)(A) (West 1999 &
Supp. 2007). At the guilty plea hearing, the government stated
that Clarke had two prior felony drug convictions, and the
government notified him that he was subject to a mandatory minimum
1
In his plea agreement, Clarke waived his right to appeal his
sentence. However, because the government has not sought to
enforce the waiver in this appeal, we will not consider it. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
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sentence of life imprisonment. Clarke did not challenge the
information alleging his prior convictions. Immediately following
the guilty plea hearing, the district court met with opposing
counsel in chambers and stated that Clarke should waive his right
to have the § 851 information presented to a grand jury. After
some discussion, the government agreed instead to amend the
information to style it as a notice rather than an information.
However, the government did not subsequently amend the information.
The presentence report recommended a base offense level
of 34 under U.S. Sentencing Guidelines Manual § 2D1.1 (2004), a
four-level adjustment for leadership role, USSG § 3B1.1(a), and a
three-level adjustment for acceptance of responsibility under USSG
§ 3E1.1, which resulted in an offense level of 35. Clarke was in
criminal history category V. The presentence report, as revised on
August 9, 2004, stated that “[t]he mandatory minimum and maximum
terms for each of Counts One and Three are 20 years to life
imprisonment.” The recommended advisory guideline range was
262-327 months. The report failed to note that, under USSG
§ 5G1.1(b), when the “statutorily required minimum sentence is
greater than the maximum of the applicable guideline range, the
statutorily required minimum sentence shall be the guideline
sentence.”
At the sentencing hearing on August 18, 2006, Clarke and
his attorney assured the court that there were no issues in
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dispute. However, the government informed the court that it had
raised one matter with the probation officer and that the “most
recent edition of the presentence report” correctly stated that the
guideline sentence was life imprisonment. Defense counsel
acknowledged that Clarke had entered his guilty plea with the
understanding that he would be subject to a mandatory minimum
sentence of life in prison unless he could provide substantial
assistance, which he had been unable to do. In his allocution,
Clarke simply asked for mercy. The court responded that the
sentence was mandatory, leaving it no discretion, and then imposed
a life sentence.
On appeal, Clarke first maintains that the court was
without jurisdiction to impose an enhanced sentence of life
imprisonment because the district court rejected the § 851
information and the government failed to file a “notice” under
§ 851 as directed by the court. We discern no error. The
government complied with the requirements of § 851. When the
government seeks an enhanced sentence under § 841, it must file an
information pursuant to 21 U.S.C. § 851, before trial or entry of
a guilty plea, stating the prior convictions it will rely on to
justify the enhancement. 21 U.S.C. § 851(a). The purpose of the
information is to give the defendant notice and “an opportunity to
show that he is not the person previously convicted.” United
States v. Campbell, 980 F.2d 245, 252 (4th Cir. 1992) (internal
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quotation and citation omitted). Thus, although § 851(a) requires
that the government file “an information,” the document is often
referred to as a “notice.” See United States v. LaBonte, 520 U.S.
751, 754 n.1 (1997).
The district court’s desire that the information be
restyled as a notice may have been prompted by uncertainty over the
effect of the Supreme Court’s then-recent decision in Blakely v.
Washington, 542 U.S. 296 (2004). However, this Court has since
held that judicial factfinding under § 851 does not violate the
Sixth Amendment. United States v. Smith, 451 F.3d 209, 224 (4th
Cir. 2006) (holding that § 851 factfinding falls within the prior
conviction exception set out in Apprendi v. New Jersey, 530 U.S.
466, 490 (2000)). Clarke suggests that the district court violated
Fed. R. Crim. P. 32(h) by departing from the guideline range
without reasonable notice. This claim is baseless because the
district court did not depart.
Clarke also argues that the sentencing court erred in
failing to conduct the colloquy required under § 851(b) before
imposing sentence. Because Clarke did not raise this issue in the
district court, the plain error standard of review applies. United
States v. Ellis, 326 F.3d 593, 598 (4th Cir. 2003). Under
§ 851(b), once an information is filed, the district court must,
before imposing sentence, ask the defendant “whether he affirms or
denies that he has been previously convicted as alleged in the
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information.” Clarke is correct that the district court plainly
erred in failing to conduct the colloquy. However, like the
defendant in Ellis, Clarke did not challenge the allegations in the
information as required under § 851(c). Nor does he do so on
appeal.2 Instead, he acknowledged his prior convictions and
conceded at sentencing that he was subject to a mandatory life
sentence. Therefore, the error did not affect Clarke’s substantial
rights. Id. at 599.
Finally, the parties disagree about whether the
presentence report was revised on August 18, 2006, the date Clarke
was sentenced. The government maintains that it was, and has
submitted a revised version dated August 18, 2006, which shows the
guideline range as life, pursuant to USSG § 5G1.1(b). The
government maintains that the district court considered that
revised version at sentencing. The parties agree that the
August 9, 2006, revision of the presentence report was the latest
version that was made part of the official record. The government
has moved to correct or modify the record by making the presentence
report dated August 18, 2006, a part of the official record.
2
Clarke mentions that the information about his prior
convictions in the plea agreement differs from the information in
the presentence report. The dates for the imposition of sentence
are slightly different, but the indictment number for each prior
conviction is the same in the plea agreement and in the presentence
report.
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When there is a disagreement about what took place in the
district court, the proper procedure is for the difference to be
“submitted to and settled by that court and the record conformed
accordingly.” Fed. R. App. P. 10(e). Although this question need
not be resolved in order to affirm Clarke’s sentence, we conclude
that the best course of action is to remand this case to the
district court for the limited purpose of determining which version
of the presentence report was submitted to the sentencing court and
conforming the record if necessary.
We therefore affirm the sentence imposed by the district
court. We deny the government’s motion to correct or modify the
record and we remand the case for the limited purpose of
determining whether the presentence report was revised on
August 18, 2006, and conforming the record if necessary. 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 AND REMANDED
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