United States v. Arreola-Castillo, Je

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4055
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JESUS A RREOLA-C ASTILLO,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 05-64-CR-07-B/F—Sarah Evans Barker, Judge.
____________
A RGUED A PRIL 1, 2008—D ECIDED A UGUST 25, 2008
____________
Before C UDAHY, R IPPLE and R OVNER, Circuit Judges.
C UDAHY, Circuit Judge. After a three-day trial, a jury
convicted Jesus Arreola-Castillo of participating in a
conspiracy to distribute more than 1,000 kilograms of
marijuana. See 21 U.S.C. § § 841(a)(1), 846. Because he
had already been convicted of three previous felony
drug offenses, Arreola-Castillo received a mandatory
minimum sentence of life imprisonment pursuant to the
recidivism provisions of § 841(b)(1)(A). Arreola-Castillo
2 No. 06-4055
now appeals his sentence. He argues that the mandatory
minimum should not have been imposed because the
sentencing judge failed to properly apply § 841(b)(1)(A)
and because the government failed to comply with the
procedural requirements set out in § 851. We find, how-
ever, that Arreola-Castillo’s sentence was properly im-
posed.
I.
On December 13, 2005, Arreola-Castillo was indicted,
along with five other individuals, on one count of conspir-
acy to distribute in excess of 1,000 kilograms of marijuana.
See 21 U.S.C. § § 841(a)(1), 846. The charges stemmed from
an investigation into a marijuana distribution ring that
operated in Indianapolis, Indiana from early 2001 to
August 2004. One of the ring’s largest customers, Rodolfo
Reyes-Aranda, agreed to cooperate with government
officials, and he identified Arreola-Castillo as one of the
ring’s biggest suppliers. Reyes-Aranda estimated that
Arreola-Castillo delivered between 100 and 140 pounds of
marijuana, three or four times per month, for the duration
of the conspiracy. Arreola-Castillo maintained his inno-
cence, insisting that Reyes-Aranda was not telling the
truth. The case was set for trial.
On May 22, 2006, about three weeks before trial, the
government filed an information notifying Arreola-Castillo
of its intent to rely on a prior felony drug conviction
“pursuant to 21 U.S.C. § 851(A)(1)” (the First Information).
Attached to the First Information was a certified copy of
a conviction for distribution of a controlled substance
No. 06-4055 3
entered against “Jesus Arreola-Castillo” on May 6, 1996
in San Miguel County, New Mexico.1 On June 6, 2006,
about a week before trial, the government filed another
information, notifying the defendant of its intent to rely
on “a second prior felony drug-related conviction” (the
Second Information). Attached to the Second Information
was a certified copy of a conviction, on two counts, of
trafficking in a controlled substance (cocaine) entered
against “Jesus Arreola-Castillo” on February 21, 1996 in
Sante Fe County, New Mexico.
The jury returned a guilty verdict on June 14, 2006, and
the district court scheduled a sentencing hearing for
November 7, 2006. The criminal history section of the
presentence report (PSR) noted the two felony drug
convictions referenced in the Second Information, as
well as a conviction for residential entry and a few mis-
demeanors.2 According to the PSR, Arreola-Castillo’s
1
While the certified copy of the conviction makes clear that the
offense occurred in New Mexico, the first page of the First
Information erroneously stated that the San Miguel District
Court was in Arizona: “On or about April 29, 1996, JESUS
ARREOLA-CASTILLO was convicted in the San Miguel (Ari-
zona) District Court for Distribution of a Controlled Substance.
Judgment was entered on the conviction on or about May 6,
1996 and the conviction is a Fourth Degree Felony under New
Mexico law.”
2
The conviction referenced in the First Information, however,
was omitted from the PSR. The probation office later explained
that the conviction did not appear on the FBI’s criminal history
(continued...)
4 No. 06-4055
criminal history category was III. Because Arreola-Castillo
had been responsible for supplying between 3,000 and
10,000 kilograms of marijuana, his base offense level was
34. See U.S.S.G. § 2D1.1(c)(3) (2005). The probation office
recommended that the district court raise his base offense
level from 34 to 37 pursuant to the career offender provi-
sions of U.S.S.G. § 4B1.1. It then calculated the Guide-
lines range to be 360 months to life imprisonment. The
probation office also indicated, however, that the statutory
minimum was life imprisonment in accordance with
21 U.S.C. § 841(b)(1)(A) because the defendant had “two
prior felony convictions.”
At the sentencing hearing, Arreola-Castillo insisted that
he was not the subject of the conviction referenced in the
First Information. He argued that he could not have
committed the offense because he lived in New Mexico
at the time; he never left New Mexico, he argued, because
remaining in New Mexico was a term of his probation. The
government admitted that there was an error on the
First Information; it mistakenly referred to San Miguel
County as being in Arizona rather than New Mexico. The
government asked the district court for permission to
2
(...continued)
printout. It appears that counsel for the government discovered
the conviction after contacting the jurisdiction directly. While
the government did not object to the PSR, it did alert the
district judge to the omission at the sentencing hearing. Arreola-
Castillo never argued that the government was precluded from
relying on the conviction referenced in the First Information
because it had been omitted from the PSR.
No. 06-4055 5
correct the error, and Arreola-Castillo made no objection.
Undeterred, Arreola-Castillo argued that the crime must
have been committed by some other “Jesus Arreola-
Castillo” because the conviction would have violated
his probation and that violation would have shown up
on his record. The district court rejected this argument.
The district judge explained that the probation violation
could have been absorbed in a plea agreement or even
waived. The district judge noted that the government
had presented solid evidence that the offense was com-
mitted by the defendant: a certified copy of the conviction,
a copy of the plea agreement with a signature that
matched the defendant’s own signature, and a docket entry
listing the same date of birth as the defendant. This was
sufficient, in the district court’s eyes, to establish that
the prior conviction was, in fact, attributable to the defen-
dant.
Arreola-Castillo also argued that the two convictions
referenced in the Second Information only counted as one
conviction for sentencing enhancement purposes. See
21 U.S.C. § 841(b)(1)(A). The government, however,
produced a certified copy of the plea agreement in which
Arreola-Castillo pleaded guilty to two counts of felony
distribution. The judgment stated that the sentences for
the two counts would run concurrently. For convictions
to run concurrently, the district judge reasoned, there
must be at least two convictions. While the district court
refused to apply the career offender sections of U.S.S.G.
§ 4B1.1, it sentenced Arreola-Castillo to life imprisonment
pursuant to the mandatory minimum provisions of
§ 841(b)(1)(A).
6 No. 06-4055
II.
When a defendant is convicted of a drug-related offense,
the existence of prior felony drug convictions may signifi-
cantly enhance the mandatory minimum sentence that
he or she receives. See 21 U.S.C. § 841(b)(1)(A). Under
§ 841(b)(1)(A), one prior felony drug conviction raises
the mandatory minimum sentence to twenty years in
prison, while two or more prior felony drug convictions
raise the mandatory minimum to life imprisonment. See 21
U.S.C. § 841(b)(1)(A). The effect of prior convictions on
a defendant’s sentence under § 841(b)(1)(A) can be so
significant that Congress felt the need to provide special
protections before the enhanced minimum can be imposed.
See United States v. Belanger, 970 F.2d 416, 418 (7th Cir.
1992). These protections are embodied in § 851, which
was enacted by Congress to satisfy “the due process
requirements of reasonable notice and opportunity to be
heard with regard to the prior conviction.” United States v.
Gonzalez-Lerma, 14 F.3d 1479, 1485 (10th Cir. 1994). The
defendant must receive clear notice of the government’s
intent to use the prior conviction at sentencing, and the
defendant must have an opportunity both to deny the
existence or validity of the prior conviction and to be
heard on the issue. See United States v. Jackson, 121 F.3d
316, 319 (7th Cir. 1997); Belanger, 970 F.2d at 418.
Under § 851(a)(1), the government must file an informa-
tion before trial indicating its intent to rely on a prior
conviction for sentencing purposes. See 21 U.S.C.
§ 851(a)(1). This information must be served upon defense
counsel, and it must identify the particular convictions
No. 06-4055 7
on which the government intends to rely. See 21 U.S.C.
§ 851(a)(1). If the defendant denies the existence or
validity of a prior conviction, the court must hold a
hearing, and the government must prove the prior con-
viction beyond a reasonable doubt. See 21 U.S.C.
§ 851(c)(1). If the prior conviction is so proven, the court
may impose the enhanced minimums. See 21 U.S.C.
§ 851(d)(1). But the sentencing judge “cannot . . . enhance
the sentence of a defendant convicted of a drug offense
under 21 U.S.C. § 841(a) . . . unless the government com-
plies with the requirements of 21 U.S.C. § 851(a).” See
United States v. Mayfield, 418 F.3d 1017, 1020 (9th Cir. 2005).
Section 851 also requires the district court to “enter find-
ings of fact and conclusions of law” regarding contested
issues. 21 U.S.C. § 851(c)(1). We review the district
court’s factual findings for clear error and its legal con-
clusions de novo. See Belanger, 970 F.2d at 418; United
States v. Denberg, 212 F.3d 987, 991 (7th Cir. 2000).
On appeal, Arreola-Castillo makes three basic arguments.
First, he argues that the district court erred in finding
that the First Information and Second Information com-
plied with the notice provisions of § 851(a)(1). Second, he
argues that the district court committed clear error in
concluding that there was sufficient evidence to prove
the prior felony drug conviction outlined in the First
Information beyond a reasonable doubt. Finally, he argues
that the district court committed clear error in concluding
that the convictions referenced in the Second Information
constituted separate convictions for the purposes of
§ 841(b)(1)(A).
8 No. 06-4055
The mandatory minimum life sentence is triggered when
the defendant has two or more prior felony drug con-
victions. 21 U.S.C. § 841(b)(1)(A). For Arreola-Castillo
to succeed in this appeal, he must establish both that he
was never convicted of the offense referred to in the
First Information and that the two convictions referred to
in the Second Information should count as a single con-
viction for sentencing purposes. If he loses on either issue,
the mandatory minimum sentence is life imprisonment.
Although we find that his second argument does have
some merit, Arreola-Castillo cannot escape the mandatory
minimum life sentence under § 851(a)(1) because his
first argument fails.
A.
Arreola-Castillo first contends that the government failed
to comply with the notice requirements of § 851(a)(1). He
correctly notes that the first page of the First Information
mistakenly lists Arizona as the jurisdiction where the
conviction was entered. But, as we have explained, the
government moved to correct the error before sentenc-
ing. While Arreola-Castillo argues, rather surprisingly, that
§ 851 makes no provision for “amendments,” the statute
clearly states that “clerical errors” may be corrected at “any
time prior to the pronouncement of sentence.” 21 U.S.C.
851(a)(1). It is clear that the accidental reference to Arizona
was a clerical error. See, e.g., United States v. Curiale, 390
F.3d 1075 (8th Cir. 2004) (identifying the crime as a “sale”
rather than as “possession”of drugs was a clerical error);
United States v. Weaver, 267 F.3d 231 (3d Cir. 2001) (identify-
No. 06-4055 9
ing the crime as “involuntary” rather than as “voluntary”
manslaughter was a clerical error); United States v. Hamil-
ton, 208 F.3d 1165, 1169 (9th Cir. 2000) (listing an incorrect
year of conviction was a clerical error); United States v.
King, 127 F.3d 483, 489 (6th Cir. 1997) (listing an incorrect
date of conviction was a clerical error). Even a cursory
reading of the First Information reveals that the reference
to Arizona was a mistake. The sentence that follows the
mistaken reference to Arizona states that the offense was
a felony “under New Mexico law.” The certified copy of
the conviction, attached to the information and incorpo-
rated by reference, states that the conviction was entered
in New Mexico. Indeed, all of the other relevant informa-
tion in the government’s filing referred to New Mexico. As
the district court noted, the certified copy of the conviction
adequately apprised Arreola-Castillo of the date, the
jurisdiction and the sentence received.
Arreola-Castillo also argues that both the First Informa-
tion and the Second Information failed to comply with the
notice requirements because neither he nor his counsel
knew that a mandatory minimum sentence of life impris-
onment would apply upon conviction. Both the First
Information and the Second Information, however,
clearly stated that they were being filed “pursuant to 21
U.S.C. § 851(A)(1),” so the implications should have been
clear. More importantly, the record shows that Arreola-
Castillo was advised of the possibility of a mandatory
10 No. 06-4055
minimum life sentence before the trial began.3
B.
Arreola-Castillo next argues that the government failed
to prove that he had committed the crime alleged in the
First Information beyond a reasonable doubt. See 21 U.S.C.
§ 851(c)(1). At the sentencing hearing, however, the
government presented a certified copy of the conviction, a
copy of the plea agreement and the docketing record for
the conviction. The certified records established that the
conviction involved an individual named “Jesus Arreola-
Castillo” with the same date of birth as the defendant.
Arreola-Castillo conceded that he was living in New
Mexico at the time; he also conceded that the signature
on the plea agreement matched his own. His argument
rests largely on the fact that eight other individuals living
in New Mexico at the time were also named “Jesus
Arreola-Castillo.” But none of the other individuals
named “Jesus Arreola-Castillo” had the same date of birth
as the defendant. Nor, presumably, would their signatures
have matched the one on the plea agreement. The argu-
3
At his initial appearance, counsel for the government stated,
“Your Honor, the only thing I wanted to note for the record was
it appears that Mr. Arreola has two prior felony drug convic-
tions. If an information were filed, that would trigger him for
a life sentence.” The district judge then turned to Arreola-
Castillo and said, “If you suffered two or more qualifying state
or federal controlled substance felonies, it is life imprisonment
without any supervised release.”
No. 06-4055 11
ment that other people “could be out there” was properly
dismissed by the district judge as speculative. The exis-
tence and validity of these convictions were proved
beyond a reasonable doubt. See 21 U.S.C. § 851(c)(1).
C.
Finally, Arreola-Castillo argues that the district court
erred in finding that the two counts referenced in the
Second Information constituted separate convictions under
§ 841(b)(1)(A). Of course, the two counts are, technically,
two different convictions. But courts have generally
assumed that a sentencing judge may only consider prior
convictions for purposes of enhancement under
§ 841(b)(1)(A) if they constitute separate “criminal epi-
sodes,” as opposed to a single act of criminality or a
single transaction. See United States v. Garcia, 32 F.3d 1017,
1018 (7th Cir. 1994); United States v. Blackwood, 913 F.2d 139
(4th Cir. 1990). To be treated as separate criminal episodes,
the offenses must be “distinct in time” and require “sepa-
rate planning.” United States v. Gray, 152 F.3d 816, 821 (8th
Cir. 1998).
Frankly, it is difficult to determine whether the two
convictions involved separate criminal episodes because
we know very little about the facts underlying those
convictions. We know that both involved trafficking in
cocaine; one took place on January 24, 1995 in Rio Arriba
County, while the other took place on January 18, 1995
in San Miguel County. No case narrative was available,
so we know nothing further. The government argues that
the two convictions were separate criminal episodes
12 No. 06-4055
because they involved separate deliveries of cocaine. While
the two offenses were certainly “distinct in time” because
they took place six days apart and in different locations,
see, e.g., United States v. Barr, 130 F.3d 711, 712 (5th Cir.
1997), it is unclear whether they involved separate plan-
ning, separate customers and so forth. This is enough to
give us pause.
Our skepticism deepens when we consider a related
argument raised by Arreola-Castillo. Arreola-Castillo
also contends that the conviction alleged in the Second
Information was represented to him to be a single con-
viction at the commencement of trial. This is, in essence,
an estoppel argument, although it also bears on the issue
of whether Arreola-Castillo received clear notice of the
government’s intent to use all three prior convictions.
There is some weight to this argument. At his initial
appearance, counsel for the government stated that
Arreola-Castillo had “two prior felony drug convictions.”
The Second Information notified Arreola-Castillo of the
government’s intent to rely on “a second prior felony drug-
related conviction.” When the issue came up on the first
day of trial, the government was not clear about whether
the two counts referenced in the Second Information
counted as one conviction or two. Finally, the PSR refer-
enced only two of three possible prior felony drug
offenses and stated that the mandatory minimum
applied because Arreola-Castillo had “two prior felony
convictions.” It was only at the sentencing hearing that
it became clear that the Second Information itself con-
tained two convictions for the purposes of § 841(b)(1)(A).
No. 06-4055 13
We doubt whether this constitutes clear notice of the
government’s intent to use all three prior convictions.
The point, however, is academic. Arreola-Castillo
concedes that he was convicted on the two counts in the
Second Information. Thus, he agrees that at least one
conviction is contained there. When that conviction is
combined with the conviction referenced in the First
Information, Arreola-Castillo becomes subject to the
enhanced sentencing provisions of § 841(b)(1)(A), which
are triggered when the defendant has “two or more” prior
felony drug convictions. 21 U.S.C. § 841(b)(1)(A). The
district judge had no choice but to apply the mandatory
minimum life sentence.
III.
For the foregoing reasons, the decision of the district
court is A FFIRMED.
8-25-08