United States v. Dye , 351 F. App'x 92 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0718n.06
No. 07-3509 FILED
Nov 05, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, ON APPEAL FROM THE
UNITED STATES DISTRICT
v. COURT FOR THE NORTHERN
DISTRICT OF OHIO
MUHAMMED DYE,
Defendant - Appellant.
/
Before: MARTIN, ROGERS, and COOK, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Muhammed Dye appeals his sentence, claiming
that he did not receive proper notice of the government’s sentencing enhancement under 18 U.S.C.
§ 851. The government claims that it proper notice of the enhancement was served upon Dye
through counsel on October 18, 2006 and that he did not become a pro se litigant until December
6, 2006. Thus, the government contends that it complied with the notice requirements of Section
851 and that Dye received proper notice. For the following reasons, we AFFIRM the judgment of
the district court.
I.
On June 14, 2006, the grand jury returned a 49-count indictment against Dye and his co-
defendants for activities related to the possession and sale of crack cocaine within 1,000 feet of a
public school. Dye was indicted on several counts of conspiracy to distribute and distribution of
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cocaine base, crack. On June 15, 2006, Michael J. Goldberg, Esq. was appointed to represent Dye.
On July 26, 2006, Dye filed a motion to proceed pro se. Though Dye claims that the district court
granted his motion on August 1, 2006, it appears from the record that the court granted his motion
for an attorney conference regarding his pro se representation on that date. On August 17, following
the August 16th attorney conference, the court issued an order for a competency evaluation pursuant
to 18 U.S.C. § 4241. It appears that Dye was still represented by counsel at this hearing.
On October 18, 2006, the government filed an Information pursuant to 18 U.S.C. § 851 to
establish Dye’s prior convictions. The government served a copy of this notice on attorney
Goldberg. From August through December 2006, trial documents continue to refer to Goldberg as
Dye’s counsel and Goldberg appears to have continued to act in that capacity, including providing
representation at Dye’s competency hearing on December 6, 2006. On December 6, 2006, the
district court filed an order noting that Dye wished to proceed pro se and appointing Goldberg to
serve as Dye’s legal advisor only. Dye immediately filed a number of motions pro se. Dye had filed
no pro se motions prior to December 2006.
The jury trial, at which Dye acted as his own counsel, began on January 16, 2007. On
January 23, 2007, the jury returned a guilty verdict on multiple counts and, on March 30, 2007, Dye
was sentenced to 292 months in prison with a term of supervised release of ten years and a $500
special assessment. At the sentencing hearing, Dye argued that he had not received any written
notice of the prior conviction relied on in the Section 851 enhancement. The district court overruled
his objection upon learning that the Information had been served on Dye’s attorney and was included
in the discovery packet so “Dye was certainly aware of his conviction” and the government’s
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intention to use it at sentencing. The district court entered judgment on April 3, 2007. Dye timely
appealed on April 20, 2007.
Dye moved for appointment of appellate counsel which we granted April 26, 2007. On May
7, 2007, Goldberg’s motion to withdraw as counsel of record for Dye was granted.
II.
We review de novo the sufficiency of notice about a sentencing enhancement under 21 U.S.C.
§ 851. United States v. Odeneal, 517 F.3d 406, 415 (6th Cir. 2008). Section 851 provides in
relevant part:
No person who stands convicted of an offense under this part 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). The statute further dictates that a defendant must file a written response if
he “denies any allegation of the information of prior conviction, or claims that any conviction alleged
is invalid.” 21 U.S.C. § 851(c)(1). Finally, the statute imposes a duty of inquiry upon the district
court:
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.
21 U.S.C. § 851(b). As these are requirements, a district court may not enhance a defendant’s
sentence unless the government and the court has satisfied them. United States v. King, 127 F.3d
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483, 487 (6th Cir. 1997). “Section 851 was designed to satisfy the requirements of due process and
provide the defendant with ‘reasonable notice and an opportunity to be heard regarding the
possibility of an enhanced sentence for recidivism.’” King, 127 F.3d at 490 (quoting United States
v. Belanger, 970 F.2d 416, 418 (7th Cir. 1992)).
III.
Though Dye claims that he did not receive proper notice of a sentencing enhancement
because he was acting pro se as of June 15, 2006, the record does not corroborate this story. His
attorney, Goldberg, who had been appointed to represent him on June 15, 2006, received a copy of
the United States’ information establishing a prior conviction on October 18, 2006. The record
indicates that Goldberg continued to serve as Dye’s attorney during this period while the court held
his motion to proceed pro se in abeyance pending a competency evaluation, including representing
him at that competency hearing on December 6, 2006. It does not appear that Dye actually
proceeded pro se until the court granted his motion to do so, on December 6, 2006, more than six
weeks after the Section 851 Information was served upon Dye through his counsel. Because the
district court had found reasonable cause to believe that Dye was incompetent to stand trial, requiring
a competency evaluation before permitting Dye to proceed pro se was not error. See United States
v. Klat, 156 F.3d 1258, 1263 (D.C. Cir. 1998) (“[W]here a defendant’s competence to stand trial is
reasonably in question, a court may not allow that defendant to waive [his] right to counsel and
proceed pro se until the issue of competency has been resolved.”). Thus, the district court properly
overruled Dye’s objection at sentencing because he was represented by counsel at the time the
Information was filed.
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IV.
For the foregoing reasons, we AFFIRM the judgment of the district court.