United States v. Robert Whitelaw , 376 F. App'x 584 ( 2010 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 10a0286n.06
FILED
No. 08-3700 May 12, 2010
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
ROBERT WHITELAW, )
)
Defendant-Appellant. )
) OPINION
_____________________________________)
Before: BOGGS and GILMAN, Circuit Judges; and McCALLA, Chief District Judge.*
RONALD LEE GILMAN, Circuit Judge. Robert Whitelaw pled no contest to the charge
of conspiring to possess and distribute 1,000 kilograms or more of marijuana. Before Whitelaw
entered his plea, the government filed a notice pursuant to 21 U.S.C. § 851, seeking an enhanced
sentence due to Whitelaw’s prior conviction for a felony drug offense. This notice had the effect of
increasing the mandatory minimum sentence that Whitelaw faced from 10 years of imprisonment
to 20 years. Whitelaw nonetheless pled no contest without a plea agreement. At the conclusion of
Whitelaw’s sentencing hearing, the district court imposed the 20-year mandatory minimum sentence.
*
The Honorable Jon P. McCalla, Chief United States District Judge for the W estern District of Tennessee,
sitting by designation.
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Whitelaw now seeks to invalidate his conviction and sentence, challenging the propriety of
the § 851 notice, disputing the quantity of drugs attributed to him, and objecting to the finding that
he had a supervisory role in the conspiracy. For the reasons set forth below, we AFFIRM the
judgment of the district court.
I. BACKGROUND
In May 2006, Whitelaw was charged with participating in a drug conspiracy involving 100
kilograms or more of marijuana. A superseding indictment was issued four months later that
upgraded the charge to a drug conspiracy involving 1,000 kilograms or more of marijuana. Shortly
after the superseding indictment was issued, three of Whitelaw’s coconspirators agreed to plead
guilty and cooperate with the government. Whitelaw, however, evaded arrest until August 2007.
Before his arraignment the following month, the government filed a notice, pursuant to 21 U.S.C.
§ 851, informing Whitelaw that the government intended to seek an enhanced sentence due to his
prior felony drug conviction. Because of this notice and the severity of the charge, Whitelaw faced
a mandatory minimum sentence of 20 years of imprisonment if convicted.
Whitelaw rejected a plea agreement that would have required him to cooperate with the
government and that would have resulted in a recommended sentence of 17 years of imprisonment.
Instead, he opted to plead no contest. The district court accepted this plea over the government’s
objection. At his plea hearing, the court asked Whitelaw a series of questions about the rights that
he was waiving and the potential charges that he faced. In particular, the court inquired whether
Whitelaw understood that “there [was] a mandatory minimum of 20 years imprisonment.” Whitelaw
responded: “Yes, I understand.”
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In addition, the government presented a federal agent who testified to the factual basis of the
charges against Whitelaw. The agent specified that all three of Whitelaw’s coconspirators had
“stated that [during the period covered in the superseding indictment] they conspired with . . .
Whitelaw to transport multiple shipments of marijuana, totaling more than 1000 kilograms, from
Arizona to Columbus, Ohio for distribution,” and he further informed the court that Whitelaw had
a prior felony drug conviction. At the conclusion of the agent’s testimony, the court engaged in the
following exchange with Whitelaw:
THE COURT: Thank you. Mr. Whitelaw, did you hear what Agent
Heufelder said?
THE DEFENDANT: Yes, Your Honor, I did.
THE COURT: Is what he said concerning your activity correct?
THE DEFENDANT: No contest, Your Honor.
THE COURT: And would you—is there anything that you would—I am not
sure how to say this. Is there anything that you would
disagree with or not contest? Or you would contest? Is there
anything that you would contest in the facts?
THE DEFENDANT: I don’t know how I could, Your Honor. Not from the position
of no contest, I don’t know how I could.
After receiving these sworn statements from Whitelaw, the district court accepted his plea of no
contest.
A Presentence Report (PSR) was then prepared by the U.S. Probation Office. The PSR stated
that the applicable U.S. Sentencing Guidelines range was 121 to 151 months of imprisonment, with
a mandatory minimum sentence of 10 years. But because of the § 851 notice of Whitelaw’s prior
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conviction filed by the government, the PSR further noted that the mandatory minimum sentence that
Whitelaw faced was in fact 20 years of imprisonment. Whitelaw raised a number of objections to
the PSR, many of which contested the validity of the government’s § 851 notice. After hearing
arguments from Whitelaw and the government, the district court overruled Whitelaw’s objections
and sentenced him to the mandatory minimum of 20 years’ imprisonment.
Whitelaw now appeals, raising the same arguments that he raised at sentencing. These are
whether (1) the § 851 notice is defective for failing to refer specifically to the superseding indictment
in the case, (2) the government was barred from filing a § 851 notice because Whitelaw pled no
contest, (3) the notice is void because the trial court failed to ask Whitelaw if he affirmed or denied
his previous conviction, (4) § 851 represents an unconstitutional delegation of power to the executive
branch, (5) § 851 interferes with the judiciary’s power to issue sentences, (6) § 851 interferes with
the grand jury’s power to indict, (7) § 851 violates a criminal defendant’s right to a jury trial, and (8)
§ 851 undermines the Sentencing Guidelines. Whitelaw also contends that the district court erred
in enhancing his offense level by determining that he was responsible for conspiring to distribute
more than 1,000 kilograms of marijuana and that he had a supervisory role in the conspiracy.
II. ANALYSIS
A. Validity of the government’s § 851 notice
We review the sufficiency of a § 851 notice de novo. 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,
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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 also requires a defendant to file a written objection 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, § 851 mandates that, before imposing a sentence, the
district court must ask the defendant whether he affirms or denies his previous conviction. 21 U.S.C.
§ 851(b). A district court may not enhance the defendant’s sentence under § 851 unless these steps
are satisfied, United States v. King, 127 F.3d 483, 487 (6th Cir. 1997), although the court’s failure
to conduct the colloquy required by § 851 is subject to the harmless-error standard, United States v.
Denkins, 367 F.3d 537, 548-49 (6th Cir. 2004) (holding that the district court’s failure to ask a
defendant, as required by § 851(b), whether he admitted or denied the fact of his prior conviction was
harmless).
1. The § 851 notice’s failure to reference the superseding indictment
Whitelaw first argues that the government’s § 851 notice is fatally flawed because it referred
to “the indictment” rather than to the superseding indictment. He asserts that the notice must be
strictly construed and, because he pled no contest to the charge in the superseding indictment, not
the original indictment, the notice is inapplicable. The government responds that the original
indictment in Whitelaw’s case had been replaced by the superseding indictment well before
Whitelaw was arrested and arraigned. As such, the government argues that “[e]very appearance
Whitelaw made in federal court in this case was based upon the charges in the superseding
indictment,” and thus the error in the notice’s wording was inconsequential.
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This court has previously explained that when a defendant contests the specificity of a § 851
notice, “the proper inquiry is whether the government’s information provided the defendant
reasonable notice of its intent to rely on a particular conviction and a meaningful opportunity to be
heard.” King, 127 F.3d at 488-89 (alteration, citation, and internal quotation marks omitted). In the
present case, there is no question that the § 851 notice provided Whitelaw with reasonable notice and
an opportunity to be heard. The government filed the notice more than two months before Whitelaw
pled no contest and nearly nine months before his sentencing. Furthermore, Whitelaw makes no
argument that the terminology used by the government in the § 851 notice actually confused him.
And even if he had, such an argument would be meritless. The superseding indictment in the present
case was filed well before Whitelaw was arrested and thus was the only indictment that was ever
relevant to him. This argument is therefore without merit.
2. No-contest pleas and § 851 notices
Whitelaw next contends that § 851 does not permit notices to be filed in cases where the
defendant pleads no contest, noting that the statute states that such notices must be filed “before trial,
or before entry of a plea of guilty.” See 21 U.S.C. § 851(a)(1). The government responds by arguing
that reading the statute in the manner suggested by Whitelaw makes little sense, and that the
language “before trial, or before entry of a plea of guilty” simply refers to the appropriate timing of
a § 851 notice. If the statute were intended to exclude no-contest pleas, the government contends
that it would state that such notices may be filed “only before trial, or before entry of a plea of
guilty.”
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We believe that the government’s interpretation of the statute is the more reasonable one.
If the statute were intended to exclude the use of § 851 notices in cases where the defendant pleads
no contest, it likely would have been written in a more explicit manner. Furthermore, a no-contest
plea is generally considered to be a hybrid form of a guilty plea because it avoids a trial, requires the
defendant to waive various trial rights, and results in the imposition of criminal liability. United
States v. Heller, 579 F.2d 990, 992 n.1 (6th Cir. 1978) (a no-contest plea “waive[s] non-jurisdictional
defects to the conviction”); Pharr v. United States, 48 F.2d 767, 770 (6th Cir. 1931) (“For all
practical purposes, the plea of nolo contendere is one of guilt.”). Given the similarity between a no-
contest plea and a guilty plea, we conclude that construing § 851 to apply in one circumstance but
not the other (without an explicit congressional directive to do so) would create a unjustified
disparity and would be inconsistent with the purpose of the statute—to impose longer sentences on
repeat offenders like Whitelaw. See Negusie v. Holder, 129 S. Ct. 1159, 1171 (2009) (Stevens, J.,
concurring) (explaining that “statutory interpretation is a multifaceted enterprise, ranging from a
precise construction of statutory language to a determination of what policy best effectuates statutory
objectives” (emphasis added)).
3. The district court’s failure to ask Whitelaw whether he admitted or denied the fact
of his prior conviction
Whitelaw’s third assertion is that the district court erred by failing to inquire directly whether
he admitted or denied the fact of his prior conviction, a requirement set forth in 21 U.S.C. § 851(b).
The record reveals, and the government admits, that the district court did not explicitly ask whether
Whitelaw admitted or denied the fact of his prior conviction.
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But “[t]his [c]ourt has repeatedly found the failure to inquire under § 851(b) to be harmless
when a defendant receives adequate notice of the government’s intent to use the prior conviction at
sentencing and fails to file an objection under § 851(c).” United States v. Fields, No. 08-5334, 2009
WL 4407636, at *3 (6th Cir. Dec. 4, 2009). Whitelaw, as noted above, received more than adequate
notice of the government’s intent to use his prior conviction at sentencing. Furthermore, the record
shows no evidence that he filed an objection to the notice under § 851(c). The district court’s failure
to explicitly ask Whitelaw whether he admitted or denied the fact of his prior conviction is therefore
harmless. See Denkins, 367 F.3d at 548-49; Fields, 2009 WL 4407636, at *3.
4. Improper delegation of authority to the executive branch
Whitelaw next argues that § 851 violates the principle of separation of powers by allowing
“the executive branch to set criminal penalties.” Unfortunately for Whitelaw, this court has already
rejected his argument in the case of United States v. Crayton, 357 F.3d 560 (6th Cir. 2004), which
explicitly holds that Ҥ 851 does not violate the principle of separation of powers. The discretion
a prosecutor exercises in determining whether an enhanced statutory maximum applies under § 851
is similar to the initial discretion the prosecutor has in deciding which charges to bring against a
defendant, discretion that is obviously constitutional.” Id. at 572. As controlling precedent, Crayton
mandates the rejection of Whitelaw’s separation-of-powers argument. See Salmi v. Sec’y of Health
& Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (holding that a prior published decision of this
court is binding on all subsequent panels “unless an inconsistent decision of the United States
Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior
decision”).
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5. Interference with the judiciary’s sentencing power
Whitelaw’s fifth assertion is that § 851 gives the prosecution too much power to set sentences
and thus “is an impermissible intrusion on the judiciary’s power to sentence.” Again, the holding
of Crayton defeats Whitelaw’s argument. This court in Crayton explained that the prosecution has
the power to determine which charges to bring and, if applicable, whether to seek an enhanced
statutory minimum sentence under § 851. Crayton, 357 F.3d at 572. The right of the government
to seek an enhanced sentence pursuant to § 851 no more limits the judiciary’s sentencing power than
the statutory minimum and maximum punishments for various federal crimes limit that power, which
depend on the charges brought by the prosecution and the statutes enacted by Congress.
In effect, the judiciary’s “power to impose a just sentence,” as Whitelaw puts it, is always
cabined by the decisions of the legislative and executive branches. The powers granted to the
prosecution by § 851 fit well within this framework and do not impermissibly intrude on the
judiciary’s power to sentence. See, e.g., United States v. LaBonte, 520 U.S. 751, 762 (1997)
(“Insofar as prosecutors, as a practical matter, may be able to determine whether a particular
defendant will be subject to the enhanced statutory maximum, any such discretion would be similar
to the discretion a prosecutor exercises when he decides what, if any, charges to bring against a
criminal suspect.”).
6. Interference with the grand jury’s power to indict
Whitelaw next argues that § 851 interferes with the grand jury’s power to indict. This claim
is clearly without merit, since a § 851 notice can be filed only after the grand jury’s indictment has
issued. In this case, for example, Whitelaw was indicted well before the government filed its § 851
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notice. Furthermore, a § 851 notice affects only the sentence to which a defendant is subject, not the
charges brought against the defendant as a result of the grand jury’s indictment.
7. Interference with the petit jury’s power to decide the facts
Whitelaw’s seventh claim is that § 851 “interferes with [the] petit jury’s power to decide the
facts that could be used for sentencing” and thus violates his Sixth Amendment right to a jury trial.
But Supreme Court precedent holds to the contrary. In Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), the Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” The Supreme Court has thus explicitly carved out an
exception in its Sixth Amendment jurisprudence by holding that prior convictions may be used to
increase the statutory range that a defendant faces without a jury determining the existence of such
prior convictions beyond a reasonable doubt. See Crayton, 357 F.3d at 571 n.8 (“Apprendi
specifically states that a jury need not decide prior convictions for a defendant to receive an enhanced
sentence.”).
Furthermore, Apprendi applies only to statutory maximums. See Apprendi, 530 U.S. at 490
(holding that “any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury” (emphasis added)). In the present case, the § 851 notice had
the effect of increasing only the statutory minimum that Whitelaw faced, not the statutory maximum.
Here, the statutory maximum is far higher than the 20-year sentence he received. See 21 U.S.C.
§ 841(b)(1)(A) (fixing the maximum penalty for federal crimes involving 1,000 kilograms or more
of marijuana as life imprisonment). Whitelaw’s Sixth Amendment claim is therefore groundless.
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See Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009) (“Apprendi’s rule does not apply to
judicial factfinding that increases a minimum sentence so long as the sentence does not exceed the
applicable statutory maximum.”).
8. Undermining of the Sentencing Guidelines
Whitelaw’s final argument attacking § 851 is that the statute “undermines the development
of the sentencing guidelines and Congress’s stated goal of uniformity.” This argument—that one
federal statute is somewhat inconsistent with the purposes of another federal statute—does not
provide Whitelaw with a legal basis for relief from a § 851 notice. Indeed, many federal sentencing
policies are somewhat inconsistent with each other. The disparities in the statutory sentencing
ranges for crack-cocaine offenses verses powder-cocaine offenses stand as one frequently discussed
example. See Kimbrough v. United States, 552 U.S. 85, 97-98 (2007) (discussing the crack/powder
cocaine sentencing disparity and how it frustrates the goals of the Sentencing Reform Act). As such,
Whitelaw is making an argument as to general sentencing policy, which does not entitle him to relief
in this particular case.
B. The quantity of marijuana attributable to Whitelaw
In addition to his contesting of the government’s § 851 notice, Whitelaw claims that the
district court erred by determining that he was responsible for conspiring to distribute more than
1,000 kilograms of marijuana. He also contends that he did not admit to the existence of such
evidence.
Whitelaw has waived this argument. Specifically, by pleading no contest, Whitelaw is
prevented from contesting the sufficiency of the evidence against him. This is because a defendant
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who pleads no contest waives all “non-jurisdictional defects to the conviction.” United States v.
Heller, 579 F.2d 990, 992 n.1 (6th Cir. 1978). “Like a plea of guilty, a plea of [no contest]
constitutes a waiver of all so-called ‘non-jurisdictional defects’ or, more accurately, any claims not
logically inconsistent with the issue of factual guilt, as well as the right to contest the factual merits
of the charges against him.” United States v. Freed, 688 F.2d 24, 25 (6th Cir. 1982). Whitelaw’s
claim that there was no evidence that he conspired to distribute more than 1,000 kilograms of
marijuana is exactly the kind of claim—one that seeks “to contest the factual merits of the charges
against him”—that a defendant may not challenge after entering a plea of no contest. See id.
C. Whitelaw’s sentencing enhancement for his supervisory role
The final issue on appeal is Whitelaw’s challenge to the district court’s finding that he played
a supervisory role in the conspiracy. This finding was used by the court to give Whitelaw a two-
level enhancement under the Sentencing Guidelines.
We find this issue to be moot. The factual finding that Whitelaw played a supervisory role
has no effect on his mandatory minimum sentence. Even with the two-level enhancement that
resulted from this factual finding, Whitelaw’s Sentencing Guidelines range of 135 to 168 months
of imprisonment, see U.S. Sentencing Guidelines Manual Ch. 5, pt. A, was still well under the
statutory minimum sentence of 20 years’ imprisonment (240 months) that was applicable after the
government filed its § 851 notice. As a result, even if we were to agree with Whitelaw that the
district court erred by finding that he had a supervisory role in the conspiracy (and we reach no such
conclusion), his sentence would be unaffected because there is no reversible error with regard to the
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government’s § 851 notice or Whitelaw’s conviction. We thus find no basis to invalidate
Whitelaw’s 20-year mandatory minimum sentence.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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