UNITED STATES OF AMERICA, v. FREDERICK LAMAR HAMILTON, No. 97-50540
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UNITED STATES OF AMERICA, No. 97-50540 Plaintiff-Appellant, D.C. No. v. CR-96-00557-WMB-1 FREDERICK LAMAR HAMILTON, OPINION Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
William Matthew Byrne, Jr., District Judge, Presiding
Argued and Submitted
November 1, 1999--Pasadena, California
Filed March 24, 2000
Before: James R. Browning and A. Wallace Tashima,
Circuit Judges, and Samuel P. King,1 District Judge.
Opinion by Judge King
tencing information filed under 21 U.S.C. S 851(a) does not
render it invalid per se.
A federal jury convicted appellee Frederick Hamilton of a
controlled-substance offense in violation of 21 U.S.C.
S 841(a). The government sought a sentence enhancement for
a 1991 prior drug conviction with a sentencing information
filed under S 851(a). The information was correct in all
respects, except that it said that the year of the prior convic-
tion was 1996.
At the arraignment on the sentencing information, Hamil-
ton denied that he had been convicted of the charge alleged.
Before sentencing, the government filed an amended sen-
tencing information, this time alleging the date when Hamil-
ton was previously sentenced instead of the date of the prior
conviction.
Based on the incorrect year on the original information and
insufficient proof of clerical error, the district court refused to
consider the prior conviction. The court sentenced Hamilton
accordingly.
On appeal, the government contended that becauseS 851(a)
allows the correction of clerical errors any time before sen-
tencing, the district court erred by not considering the
amended sentencing information.
[1] A defendant convicted of a drug offense under S 841(a)
is subject to a possible enhanced sentence for prior convic-
tions for felony drug offenses. Before a sentence can be
enhanced, the government must file an information stating the
previous conviction on which it intends to rely. The informa-
tion is mandatory. If the requirement is not satisfied, a court
may not enhance a sentence even if a defendant has prior fel-
ony drug convictions.
[2] Section 851(a) ensures proper notice, so that a defen-
dant is able to challenge the information, and make an
informed decision about whether or not to plead guilty.
[3] Hamilton could not have been confused about the prior
conviction. The original information had the correct name,
case number, court, court location, charge, description of
offense, and date of conviction. Moreover, the information
alleged that Hamilton was convicted in the Western District
of Tennessee, where he had been convicted on only one occa-
sion. Hamilton received clear notice that the government
intended to invoke S 851(a).
[4] An apparent typographical mistake in aS 851(a) sen-
tencing information that otherwise satisfies due-process notice
requirements does not render the information invalid. To hold
otherwise under these facts would have elevated form over
substance. As long as the information provides clear notice of
the prior conviction (and the court gives an opportunity to
attack convictions less than five years old), the statute is satis-
fied.
[5] The government complied with S 851. The trial court
should have considered whether to enhance Hamilton's sen-
tence.
_________________________________________________________________
COUNSEL
Yvette M. Palazuelos and Patrick R. Fitzgerald, Assistant
United States Attorneys, Los Angeles, California, for the
plaintiff-appellant.
Michael Tanaka, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellee.
_________________________________________________________________
OPINION
KING, District Judge:
The United States cross-appeals Frederick Lamar Hamil-
ton's sentence,2 challenging the district court's refusal to
enhance Hamilton's sentence under 21 U.S.C. S 841(b)(1)(A).
We have jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C.
S 3742, and vacate and remand for resentencing.
I.
A jury convicted Hamilton of conspiracy to manufacture
piperidine cyclohexanolcarbonictrite ("PCP") in violation of
21 U.S.C. SS 841(a)(1) and 846. The government then sought
to enhance Hamilton's sentence under section 841(b)(1)(A)
because he had a prior federal drug conspiracy conviction for
possession with intent to distribute cocaine.3 The government
must follow 21 U.S.C. S 851, which provides in pertinent
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 . . . 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. . . . Clerical mistakes in the informa-
tion may be amended at any time prior to the pro-
nouncement of sentence.
21 U.S.C. S 851(a)(1).
On September 10, 1996 (before trial) the government filed
a sentencing information alleging:
Defendant FREDERICK LAMAR HAMILTON,
prior to committing the offense alleged in count one
of the indictment . . . had been finally convicted of
a felony under the laws of the United States relating
to narcotic drugs . . . namely, on or about July 23,
1996, in case number 90-20095-01-H, in the United
States District Court for the Western District of Ten-
nessee, defendant FREDERICK LAMAR HAMIL-
TON was convicted of conspiracy to possess with
intent to distribute cocaine, in violation of Title 21,
United States Code, Section 846. (emphasis added).
The information had the wrong year. The prior judgment of
conviction was entered on July 23, 1991, not July 23, 1996.4
Everything else was correct: the case number, the court, the
charge, the description of the prior offense, the month of the
conviction, and the state in which he was convicted. At an
October 11, 1996, arraignment on the sentencing information,
Hamilton denied that he had been convicted of the charge set
forth in the information:
The Court: In each of these counts of the Informa-
tion, the government intends to estab-
lish your prior convictions in order to
enhance the sentence. Do you desire
the taking of a plea on this?
Counsel: At this time, yes, your Honor.
The Court: Okay. Mr. Frederick Hamilton, do you
admit or deny the allegations con-
tained in Count 1?
Hamilton: Deny.
The Court: You deny that you were convicted?
Hamilton: Yes.
On January 10, 1997 (after trial but before sentencing) the
government filed an amended sentencing information, chang-
ing the date to July 12, 1991. This date was also technically
incorrect: July 12, 1991, was when Hamilton was previously
sentenced, not when the prior judgment of conviction was
entered (which was July 23, 1991).
The trial court refused to consider the prior federal convic-
tion because the year on the original information was wrong
and because the government offered insufficient proof of cler-
ical error. The court struck the amended information and indi-
cated that, if the sentencing information had been correct,
Hamilton might have pled guilty before trial. The court sen-
tenced Hamilton to 168 months, rather than the statutory
minimum of 240 months if the prior conviction was consid-
ered.
II.
The government argues that the original sentencing infor-
mation of September 10, 1996, gave Hamilton adequate
notice of the government's intent to seek to enhance the sen-
tence. Alternatively, it contends that the wrong year was
"clerical error" within the meaning of section 851(a)(1), and
was therefore subject to correction at any time before sentenc-
ing. It asserts that the post-trial amended sentencing informa-
tion of January 10, 1997, was such a correction.
The sufficiency of a section 851(a) sentencing information
is a question of law reviewed de novo. See United States v.
King, 127 F.3d 483, 488 (6th Cir. 1997), cert. denied, 522
U.S. 1130 (1998).
[1] A defendant convicted of a drug offense under section
841(a) is subject to a possible enhanced sentence for prior
convictions for felony drug offenses. See 21 U.S.C. S 841(b).
Before a sentence can be enhanced, the government must file
an information stating in writing the previous conviction or
convictions upon which it intends to rely. See 21 U.S.C.
S 851. The information is mandatory; the government must
file it before trial or entry of a guilty plea. See id. If the
requirement is not satisfied, a court may not enhance a sen-
tence even if a defendant has prior felony drug convictions.
See United States v. Layne, 192 F.3d 556, 575 (6th Cir. 1999),
petition for cert. filed, (U.S. Dec. 14, 1999) (No. 99-8177). If
a section 851 information is filed, the court must (1) ask a
defendant whether he or she affirms or denies the prior con-
viction, and, if challenged, (2) hold a hearing to address issues
raised which would except the defendant from increased pun-
ishment. See 21 U.S.C. S 851(b)-(c). The Ninth Circuit
requires strict compliance with the procedural aspects of sec-
tion 851(b). See United States v. Garrett, 506 F.2d 1065, 1072
(9th Cir. 1977) (vacating sentence for failure to comply with
provision of section 851(b)). We have not, however, previ-
ously addressed the substantive requirements of an informa-
tion under section 851(a). Nevertheless, other circuits have
faced similar situations and have published ample authority
which is instructive here.
[2] Section 851(a) ensures proper notice so a defendant is
able to challenge the information. See United States v. Steen,
55 F.3d 1022, 1026 (5th Cir. 1995). It allows a defendant to
make an informed decision about whether or not to plead
guilty. See Kelly v. United States, 29 F.3d 1107, 1109 (7th
Cir. 1994) ("Section 851(a) serves . . . an additional purpose,
to inform the defendant that she faces severe consequences if
convicted. This procedure, one would hope, should lead to
better informed decisions whether to proceed to trial"); United
States v. Johnson, 944 F.2d 396, 407 (8th Cir. 1991) (requir-
ing information before jury selection begins, reasoning in part
that this "allows the defendant ample time to determine
whether he should enter a plea or go to trial, and to plan his
trial strategy with full knowledge of the consequences of a
potential guilty verdict"). Section 851(a) should be interpreted
in a manner "so as to avoid elevating form over substance."
King, 127 F.3d at 487.
[3] Here, Hamilton could not have been confused about the
prior conviction.5 The original information had the correct
name, case number, court, court location, charge, description
of offense, and date of conviction (though not the year).
Moreover, the information alleged that Hamilton was con-
victed in the Western District of Tennessee, where he had
been previously convicted on only one occasion. It gave Ham-
ilton sufficient notice that the government was aware of his
prior conviction and would seek to enhance his sentence
under section 841(b)(1)(A). Hamilton received clear notice
that the government intended to invoke section 851(a). See
Layne, 192 F.3d at 575-76 (reasoning in part that section
851(a) is silent on the specificity with which the government
must identify prior convictions); King, 127 F.3d at 489
(reversing preclusion of enhancement where information
wrongly listed date of conviction because of apparent transpo-
sition error); Steen, 55 F.3d at 1027 (upholding information
with the wrong court number that incorrectly stated convic-
tion for delivery, rather than possession, of cocaine, but other-
wise stated the correct date, venue and case number); United
States v. Gonzalez-Lerma, 14 F.3d 1479, 1485 (10th Cir.
1994) (upholding information with no prior case number, date
or place of conviction, other than the state); United States v.
Campbell, 980 F.2d 245 (4th Cir. 1992) (upholding enhance-
ment despite error in statutory section of previous conviction).
[4] True, the statute requires strict compliance with the pro-
cedural aspects. An information must be timely filed before
trial. See, e.g., Neary v. United States , 998 F.2d 563, 565 (8th
Cir. 1993). It must be properly served. See, e.g., United States
v. Weaver, 905 F.2d 1466, 1481 (11th Cir. 1990). The defen-
dant must be allowed the opportunity to deny the prior con-
viction. See Garrett, 506 F.2d at 1072. Nevertheless, an
apparent typographical mistake in a section 851(a) sentencing
information that otherwise satisfies due process notice
requirements does not render the information invalid. To hold
otherwise under these facts would "elevat[e ] form over sub-
stance." King, 127 F.3d at 487. As long as the information
provides clear notice to a defendant of the prior convictions
(and the court gives an opportunity to attack convictions less
than five years old), then the statute has been satisfied. See
Damerville v. United States, 197 F.3d 287, 290 (7th Cir.
1999) ("Due process demands only that adequate procedures
be employed in determining when to include prior convictions
in increasing a sentence. Procedures satisfy the requirements
of due process by providing the defendant with reasonable
notice and an opportunity to be heard regarding the possibility
of an enhanced sentence for recidivism") (citations and inter-
nal quotation omitted). See also Steen, 55 F.3d at 1027;
Gonzalez-Lerma, 14 F.3d at 1485.
[5] The government complied with section 851. The trial
court should have considered whether to enhance Hamilton's
sentence. Thus, because the original information of Septem-
ber 10, 1996, provided sufficient notice, we need not address
any issue regarding the amended information (e.g., whether
the trial court erred in striking it because it was not filed
before trial, or whether it corrected a "clerical error" in the
original information).
III.
For the foregoing reasons, we vacate Hamilton's sentence
and remand for resentencing. We offer no opinion on the mer-
its of any challenge to the constitutionality of the prior con-
viction.
VACATED and REMANDED.
_______________________________________________________________
FOOTNOTES
1 Honorable Samuel P. King, Senior United States District Judge for the
District of Hawaii, sitting by designation.
2 We affirm Hamilton's conviction in a memorandum disposition filed
separately.
3 The relevant part of section 841(b)(1)(A) provides:
If any person commits [a section 841(a)] violation after a prior
conviction for a felony drug offense has become final, such per-
son shall be sentenced to a term of imprisonment which may not
be less than 20 years[.]4 We grant the government's Motion to Expand the Record to include a
copy of the prior judgment of conviction.
5 Hamilton challenged the prior conviction on multiple grounds. First, he
argued that a 1996 felony drug conviction was impossible because in 1996
he was already in custody for the instant charge. Second, he argued that
the amended information was filed after trial -- contrary to section 851(a)
-- and should be dismissed. Third, he argued on the merits that the prior
conviction (he had pled guilty) was constitutionally invalid in violation of
Fed. R. Crim. P. 11.
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