United States v. Kelly , 64 F. App'x 361 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4339
DANIEL EDWARD KELLY, II, a/k/a
Danial Edward Kelly,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4360
STEVEN GEORGE KELLY,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-96-33-V)
Submitted: March 31, 2003
Decided: April 21, 2003
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. KELLY
COUNSEL
Lyle J. Yurko, Charlotte, North Carolina; Aaron E. Michel, Charlotte,
North Carolina, for Appellants. Robert J. Conrad, Jr., United States
Attorney, Gretchen C.F. Shappert, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Steven and Daniel Kelly appeal their sentences of 262 months and
168 months imprisonment, respectively, which were imposed after
resentencing on remand from this court. We affirm the judgment of
the district court, grant Steven’s motion to file supplemental materials
under seal, and affirm the district court’s ex parte order in Steven’s
case.
The Kellys were convicted in 1997 of conspiracy to possess with
intent to distribute and distribute a quantity of cocaine and cocaine
base (crack) in violation of 21 U.S.C. § 841(a), (b)(1)(A) (2000).
Each of them was initially sentenced as a career offender to a term
of 360 months imprisonment. In their first appeal, the Kellys chal-
lenged their convictions and sentences on multiple grounds.1 We
affirmed the convictions, but vacated the sentences and remanded for
1
In their first appeal, the Kellys raised the following issues: sufficiency
of the evidence; district court’s refusal to recuse; admission of evidence
concerning Louisiana marijuana case; denial of motion for mistrial alleg-
ing prosecution’s use of conversations protected by attorney-client privi-
lege; prosecutor’s threats to indict witnesses if they did not testify;
district court’s failure to instruct that showing of illegal agreement with
government witness insufficient for conviction; calculation of drug quan-
tity attributable to each defendant.
UNITED STATES v. KELLY 3
resentencing in accordance with Apprendi v. New Jersey, 530 U.S.
466 (2000), noting that, on remand, the district court could consider
the timeliness of the government’s pre-trial notices filed pursuant to
21 U.S.C. § 851 (2000), seeking the enhanced statutory maximum
sentence of thirty years under § 841(b)(1)(C) by reason of a prior drug
conviction. United States v. Kelly, Nos. 98-4522/4527, 2001 WL
866970 (4th Cir. Aug. 1, 2001) (unpublished).2
During resentencing, Daniel produced evidence that he no longer
qualified for sentencing as a career offender because one of his prior
Florida drug convictions had recently been reduced to a conviction for
simple possession of a controlled substance. He then argued that the
three of his remaining prior felony convictions should be counted as
one because the sentences were imposed on the same day. The district
court correctly determined that, because the offenses were separated
by intervening arrests, the cases were not related, see U.S. Sentencing
Guidelines Manual § 4A1.2(a)(2), comment. (n.3), and the sentences
were properly counted separately to determine Daniel’s criminal his-
tory score. On appeal, Daniel argues that, because the definition of
"common scheme or plan" or "same course of conduct" in USSG
§ 1B1.3 (Relevant Conduct) does not take into account intervening
arrests, the sentencing philosophy in § 1B1.3 conflicts with that in
§ 4A1.2 and the rule of lenity requires that the provision that benefits
him most should be applied. Daniel did not make this argument in the
district court. Consequently, our review is for plain error. United
States v. Olano, 507 U.S. 725, 732-37 (1993) (unpreserved error may
be corrected only if error occurred, that was plain, and that affects
substantial rights, and if failure to correct error would seriously affect
the fairness, integrity, or public reputation of judicial proceedings).
The claim is meritless. Section 1B1.3 applies to the calculation of a
defendant’s offense level, not to the determination of his criminal his-
tory. The district court did not plainly err in determining that Daniel’s
prior sentences should be counted separately.
2
Shortly after the Kellys were resentenced, the Supreme Court held
that, when the indictment failed to allege a drug quantity that increased
the statutory maximum sentence under § 841(b), such a sentence is plain
error, but not an error that need be corrected by the appeals court if the
evidence for the drug quantity is overwhelming and essentially uncontro-
verted. United States v. Cotton, 122 S. Ct. 1781, 1785-86 (2002) (internal
quotation omitted). We note that the Kellys contested the drug quantity.
4 UNITED STATES v. KELLY
At the Kellys’ original sentencing, the timeliness of the govern-
ment’s § 851 notices was disputed. The district court did not resolve
the issue because the Kellys’ career offender sentences under
§ 841(b)(1)(A) mooted it. An enhanced statutory maximum sentence
under § 841 based on a prior drug conviction applies only when,
before the trial or entry of a guilty plea, the government has filed an
information stating in writing the prior convictions to be relied on and
served the information on the defendant. 21 U.S.C. § 851(a)(1). The
purpose of the requirement is to provide the defendant with "reason-
able notice of the government’s intent to rely on a particular convic-
tion and a meaningful opportunity to be heard." United States v.
Gonzalez-Lerma, 14 F.3d 1479, 1485 (10th Cir. 1994) (citing United
States v. Belanger, 970 F.2d 416, 418-19 (7th Cir. 1992), overruled
on other grounds by United States v. Ceballos, 302 F.3d 679, 692 (7th
Cir. 2002) (holding that § 851’s procedural requirements are not juris-
dictional), cert. denied, 123 S. Ct. 924, 925 and 2003 WL 1448024,
1451726 (2003)).
The government’s first notice was titled "Notice of Intent to Seek
Enhanced Penalties." It cited the wrong statute and did not state the
particular convictions to be relied upon. The government later filed
a supplemental notice in each case citing the correct statute. The sup-
plemental notice was hand delivered to Daniel’s attorney the day
before trial and to Steven’s attorney before jury selection on the day
of trial. To Steven’s notice, the government attached a computer
printout of his Ohio criminal record. The court found in each case that
the form of the notice to each defendant was sufficient even though
it was not titled an "information," and that the content of each notice
was sufficient. Steven argues here that the supplemental notice did
not fulfill the statutory requirement. Questions of statutory interpreta-
tion are reviewed de novo. United States v. Meyers, 280 F.3d 407,
416 (4th Cir.), cert. denied, 123 S. Ct. 53 (2002).
Steven first maintains that the term "before trial" means before the
trial term begins because the purpose of § 851 is to permit the defen-
dant to make an informed decision as to whether to plead guilty or
proceed to trial by informing him what "actual statutory maximum"
sentence he faces. His position has no support in case law. The two
cases he cites in support of his argument agree that "before trial"
means before jury selection. See United States v. Prou, 199 F.3d 37,
UNITED STATES v. KELLY 5
48 (1st Cir. 1999); United States v. Kelly, 29 F.3d 1107, 1110 (7th
Cir. 1994); see also Ceballos, 302 F.3d at 692-93 (holding that either
actual notice of the government’s intention to seek an enhanced sen-
tence or mailing of a § 851 information before trial (even if received
after trial begins) is sufficient to satisfy the requirements of § 851 and
discussing similar holdings from other circuits). Although we have
not addressed the question, given the weight of authority from other
circuits, we are persuaded that the district court did not err in deter-
mining that the § 851 notice delivered to Steven’s attorney before jury
selection was timely.
Steven also argues that the government’s § 851 notice was insuffi-
cient because it was not titled an "information" and because it did not
state in writing the prior convictions on which the government relied.
However, because the government attached a computer printout of
Steven’s Ohio criminal record, thereby establishing that he had a
1991 conviction for attempted aggravated drug trafficking for which
he received an eighteen-month prison sentence, we conclude that this
document provided sufficient notice to him as to the conviction to be
relied upon. Moreover, the fact that the document was not titled an
"information" is not significant. See Belanger, 970 F.2d at 419("Section 851 does not specify the particular form which notice of
enhancement must take . . .").
We find no error in the district court’s decision to apply the 2001
Guidelines Manual rather than the 1995 Guidelines Manual. Under
USSG § 1B1.11(b)(1), the manual in effect on the date of sentencing
is used unless its use would violate the Ex Post Facto Clause, in
which case the manual in effect on the date the offense was commit-
ted should be used. At his resentencing, Steven sought to persuade the
district court to apply the 1995 Guidelines Manual so that he could
benefit from Amendment 506, which was in effect from 1994 to
1997, and which would have fixed his base offense level at 32 rather
than 34 under § 4B1.1. Amendment 506 defined the term "offense
statutory maximum" in USSG § 4B1.1 to mean the statutory maxi-
mum without any enhancement for prior convictions. When Steven
was originally sentenced under § 841(b)(1)(A), the definition did not
concern him because his offense statutory maximum was automati-
cally life imprisonment, making his base offense level 37 under
§ 4B1.1. By that time, the Supreme Court had already held that
6 UNITED STATES v. KELLY
Amendment 506 was inconsistent with 18 U.S.C. § 994(h) and was
therefore invalid. United States v. LaBonte, 520 U.S. 751, 762 (1997).
The district court did not err in refusing to apply the 1995 Guide-
lines Manual on remand. Steven was not affected by enactment of an
Ex Post Facto law. See United States v. Rice, 116 F.3d 267, 268 (7th
Cir. 1997) (Amendment 506 is not a "law," but an interpretive note
to a regulation). Moreover, he cannot show a due process violation
resulting from an unexpected enlargement of a criminal statute of the
sort addressed in Bouie v. City of Columbia, 378 U.S. 347, 353-54
(1964).
On remand, the Kellys sought to religitate certain issues that had
been decided at the first sentencing and to raise new issues. The dis-
trict court correctly determined that all these issues were foreclosed
by the mandate rule, United States v. Bell, 5 F.3d 64, 66 (4th Cir.
1993), because they had either been decided in the first appeal or
waived because they were not raised on appeal.3
We therefore affirm the Kellys’ convictions and sentences. We
grant Steven’s motion to file supplemental materials under seal and
affirm the district court’s ex part order in his case. We grant the gov-
ernment’s motion to submit the case on the briefs and 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
3
These issues were: the district court’s refusal to recuse; drug type and
quantity; weapon enhancement; role adjustment; obstruction of justice
adjustment; denial of motion for acquittal or recalculation of sentence
based on Chapman v. United States, 500 U.S. 453 (1991); denial of
motion to dismiss indictment or for new trial based on Apprendi and
United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part
on reh’g en banc, 218 F.3d 310 (4th Cir. 2000).