United States v. Deas , 263 F. App'x 310 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4098
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNEST MORDEAU DEAS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., District
Judge. (8:05-cr-00524-HMH)
Submitted: July 9, 2007 Decided: January 29, 2008
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Rauch Wise, Greenwood, South Carolina, for Appellant. Reginald
I. Lloyd, United States Attorney, Regan A. Pendleton, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury indicted Ernest Mordeau Deas on one
count of conspiracy to possess with intent to distribute five
kilograms or more of powder cocaine, in violation of 21 U.S.C.
§ 846 (2000), and possession with intent to distribute five
kilograms or more of powder cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A) (2000). Prior to trial, the Government
filed an information pursuant to 21 U.S.C. § 851 (2000), notifying
Deas that it intended to seek an enhanced sentence because of Deas’
prior convictions for drug offenses. The § 851 information
enumerated three prior drug convictions: a conviction for
possession with intent to distribute marijuana (“marijuana
conviction”) and two convictions for possession of cocaine
(“cocaine convictions”). The § 851 information noted the date of
arrest, the date of conviction, and the sentence imposed for each
conviction. However, the § 851 information did not detail the
statutory provisions Deas violated or the maximum penalties
applicable to those sections, nor did it explicitly state that any
of the convictions were for felony offenses. Deas neither filed a
written objection to the § 851 information nor denied having been
convicted of any of the enumerated offenses.
At sentencing, Deas argued that neither cocaine
conviction qualified as prior felony drug offenses as required to
support an enhanced sentence. The district court agreed, reducing
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Deas’ sentencing range from mandatory life imprisonment to twenty
years to life in prison. The district court ultimately sentenced
Deas to 240 months’ imprisonment on each count, to run
concurrently.
On appeal, Deas first argues that he is not subject to
the enhanced penalty for a prior felony conviction because the
Government never established that the marijuana conviction was for
a felony drug offense. Because Deas raises this argument for the
first time on appeal, we review for plain error. United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005); United States v.
Martinez, 277 F.3d 517, 524 (4th Cir. 2002). Under the plain error
standard, Deas must show: (1) there was error; (2) the error was
plain; and (3) the error affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732-34 (1993).
In relevant part, § 851(a)(1) states:
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
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.
21 U.S.C. § 851(a)(1) (2000).
The purpose of § 851 is to provide notice to a defendant,
prior to trial, that he faces an increased punishment if convicted
of a qualifying offense such that the defendant has the opportunity
to contest the accuracy of the information and to allow the defense
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sufficient time to understand the full consequences of a guilty
plea or verdict. United States v. King, 127 F.3d 483, 489 (6th
Cir. 1997); 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
the enhancement is based and to make an informed decision regarding
whether to challenge the information. United States v. Severino,
316 F.3d 939, 943 (9th Cir. 2003); United States v. Layne, 192 F.3d
556, 576 (6th Cir. 1999).
The § 851 information stated that Deas’ prior drug
offense was a March 4, 1994 conviction for possession with intent
to distribute marijuana.1 Although the § 851 information did not
explicitly identify this offense as a felony or provide the
statutory provision involved, it did set forth the date of the
arrest, the date of conviction, and the sentence imposed.2 The
record supports Deas’ assertion that the Government did not present
any evidence at sentencing to establish that the marijuana
1
Although the information listed three predicate convictions,
because the district court did not count either of the cocaine
convictions and the Government does not cross-appeal on this issue,
we limit our review to the district court’s consideration of the
marijuana conviction.
2
The presentence report prepared by the probation officer
provided additional information regarding this conviction,
including the court of conviction and the docket number.
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conviction was a prior “felony drug conviction” within the
applicable statutory definitions and that Deas never conceded this
was a felony offense.
We have reviewed the record and conclude Deas fails to
establish that the district court committed plain error in finding
the marijuana conviction supported the enhanced punishment. Deas’
comments at sentencing were not sufficient to draw the court’s
attention to the argument Deas now advances on appeal: that the
Government did not meet its burden of proof in establishing that
the marijuana conviction qualified as a prior felony drug
conviction. Nowhere in the record or in his pleadings does Deas
assert that the marijuana conviction was not a felony; moreover,
Deas presented no evidence below, and similarly fails to provide
any on appeal, to demonstrate that the marijuana conviction was
anything other than a felony. Accordingly, we reject Deas’
assertion that the district court committed plain error in finding
the marijuana conviction qualified as a predicate offense.
Deas next challenges the district court’s failure 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.
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21 U.S.C. § 851(b) (2000). However, the district court failed to
conduct such a colloquy in this case.
In United States v. Ellis, 326 F.3d 593 (4th Cir. 2003),
the defendant challenged the district court’s failure to conduct
the § 851(b) colloquy. The Government notified the defendant that
it was seeking an enhanced sentence based on prior convictions.
Id. at 596. The presentence report, which was compiled prior to
sentencing, again advised the defendant of the aggravating effect
of the prior convictions; yet, the defendant did not object to that
portion of the PSR. Id. at 599. The defendant acknowledged the
aggravating effect of the prior convictions at the sentencing
hearing. Id.. We concluded that the district court’s failure to
comply with the notification requirement of § 851(b) was plain
error. Id. Nonetheless, we 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, the § 851 information adequately
notified Deas of the prior drug offense upon which the Government
sought to enhance his sentence, but he did not formally object to
it. The prior drug offense was also included in the presentence
report (“PSR”), both in the convictions section and in the
discussion of Deas’ criminal history, yet Deas raised no objection
to the PSR. Finally, the court made clear at sentencing that Deas
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faced a mandatory minimum sentence and gave Deas an opportunity to
address the court before pronouncing sentence. Although Deas did
question whether either of the cocaine convictions should be
counted as predicate offenses in support of a mandatory life
sentence, he did not expressly contend that the marijuana
conviction was not a felony drug conviction. Because it is clear
from the record that Deas would not have challenged his prior
conviction even if the district court had conducted the § 851
colloquy, we find that the district court’s failure to comply with
the § 851(b) requirements did not affect Deas’ substantial rights.
For the foregoing reasons, we affirm Deas’ sentence. 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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