United States v. Ellis ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4583
ERNEST JOE ELLIS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-00-197)
Argued: January 23, 2003
Decided: April 25, 2003
Before WILKINS, Chief Judge, and TRAXLER and
GREGORY, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkins wrote the major-
ity opinion, in which Judge Traxler joined. Judge Gregory wrote an
opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Denise Charlotte Barrett, Assistant Federal Public
Defender, Baltimore, Maryland, for Appellant. Deborah A. Johnston,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, Baltimore,
Maryland, for Appellant. Thomas M. DiBiagio, United States Attor-
ney, Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. ELLIS
OPINION
WILKINS, Chief Judge:
Ernest Joe Ellis appeals his convictions and sentences for various
drug offenses. Finding no reversible error, we affirm.
I.
In 1999 and 2000, federal and state law enforcement officers
assigned to a multi-jurisdictional task force were investigating drug
trafficking in an area of Prince George’s County, Maryland that
included the Fox Glen apartment complex (Fox Glen). During that
investigation, the officers received information from multiple sources
indicating that Ellis regularly distributed cocaine base at Fox Glen.
On at least one occasion while conducting surveillance at Fox Glen,
the officers observed Ellis—who sometimes drove a cream-colored
Cadillac El Dorado—conduct hand-to-hand transactions with other
individuals. The officers also learned that Ellis’ Maryland driver’s
license had been suspended.
On March 2, 2000, FBI agents assigned to the task force observed
Ellis driving the cream-colored Cadillac into the Fox Glen parking
lot. The agents stopped Ellis after he pulled into the complex. During
the investigation that followed, the agents searched the vehicle and
found quantities of cocaine base and marijuana. Ellis was arrested,
and he subsequently made statements implicating himself in narcotics
trafficking. That same evening, agents searched Ellis’ girlfriend’s
apartment, where Ellis often stayed, and found additional quantities
of cocaine base and marijuana, as well as a loaded .45 caliber pistol.
A grand jury indicted Ellis for conspiracy to distribute and possess
with the intent to distribute marijuana and more than 50 grams of
cocaine base, see 21 U.S.C.A. § 846 (West 1999) (Count One); pos-
sessing more than five grams of cocaine base with the intent to dis-
tribute, see 21 U.S.C.A. § 841(a)(1) (West 1999) (Count Two);
possessing a detectable amount of marijuana with the intent to distrib-
ute, see id. (Count Three); and possessing a firearm and ammunition
as a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West 2000) (Count
UNITED STATES v. ELLIS 3
Four). In accordance with 21 U.S.C.A. § 851(a)(1) (West 1999), the
Government filed an information stating its intent to seek enhanced
penalties for Counts One and Two on the basis of Ellis’ two prior fel-
ony narcotics convictions.
Ellis moved to suppress the physical evidence seized from the vehi-
cle and his post-arrest statements. The district court determined that
the agents had probable cause to stop Ellis because they had reason
to believe that he was driving with a suspended license. Relying on
Whren v. United States, 517 U.S. 806 (1996), the court further
explained that because the agents had probable cause to stop Ellis for
the traffic violation, any subjective intent they may have had to inves-
tigate him for narcotics activity was irrelevant to the validity of the
stop. In addition, the court suggested that the observations of Ellis’
narcotics activity provided an alternative basis for the stop.1
Following a trial, a jury convicted Ellis on all four counts. The dis-
trict court sentenced Ellis to life imprisonment on Count One, to con-
current 360-month terms on Counts Two and Three, and to a
concurrent 120-month term on Count Four.
II.
Ellis first claims that the district court erred in denying his motions
to suppress, arguing that the initial stop by the FBI agents was invalid
because these federal agents lacked authority to stop him for violating
a state traffic law.2 In the district court, however, Ellis did not assert
the FBI agents’ lack of authority as a basis for suppression; rather, he
argued that the stop was primarily motivated by the agents’ desire to
investigate him for narcotics activity. Thus, we review Ellis’ claims
regarding the scope of the agents’ authority for plain error. See Fed.
1
The district court also ruled that the search of the vehicle was valid
and that Ellis made his post-arrest statements voluntarily. Because Ellis
does not appeal those rulings, we do not address them further.
2
Ellis also argues that the agents did not have reasonable suspicion that
he was involved in narcotics activity at the time of the stop. We do not
consider this argument because, as explained below, we affirm the denial
of Ellis’ suppression motions on the ground that the agents had probable
cause to stop him based on a probable violation of state traffic law.
4 UNITED STATES v. ELLIS
R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993); see also United States v. Perrin, 45 F.3d 869, 875 (4th Cir.
1995) (reviewing suppression claim not raised in district court for
plain error).
To establish plain error, Ellis must show that an error occurred, that
the error was plain, and that the error affected his substantial rights.
See Olano, 507 U.S. at 732. Even if Ellis makes this three-part show-
ing, correction of the error remains within our discretion, which we
"should not exercise . . . unless the error ‘seriously affect[s] the fair-
ness, integrity or public reputation of judicial proceedings.’" Id.(quoting United States v. Young, 470 U.S. 1, 15 (1985)) (second alter-
ation in original).
We need not decide whether an error occurred here because we
conclude that any such error was not "plain." To be plain, an error
must be "clear" or "obvious," id. at 734 (internal quotation marks
omitted), at least by the time of appeal, see Johnson v. United States,
520 U.S. 461, 468 (1997). An error is clear or obvious "when the set-
tled law of the Supreme Court or this circuit establishes that an error
has occurred. In the absence of such authority, decisions by other cir-
cuit courts of appeals are pertinent to the question of whether an error
is plain." United States v. Neal, 101 F.3d 993, 998 (4th Cir. 1996)
(internal quotation marks and citation omitted).
Ellis contends that neither federal nor state law permits FBI agents
to make a pretextual stop based on a violation of state traffic laws.
However, none of the arguments raised by Ellis establishes a "clear"
or "obvious" legal error.
First, while Ellis argues that Whren applies only to stops conducted
by state law enforcement officers, nothing in the language of Whren
indicates that its holding does not apply to federal agents. Cf. United
States v. Machuca-Barrera, 261 F.3d 425, 434 n.26 (5th Cir. 2001)
(citing Whren for the proposition that courts "do not inquire into the
motives of individual Border Patrol agents in performing [checkpoint]
stops").
Further, Ellis asserts that the FBI agents’ authority is derived
exclusively from federal statutes that permit agents to investigate fed-
UNITED STATES v. ELLIS 5
eral offenses and certain violent crimes under state law. See 18
U.S.C.A. § 3052 (West 2000) (providing that FBI agents may "make
arrests without warrant for any offense against the United States com-
mitted in their presence, or for any felony cognizable under the laws
of the United States"); 28 U.S.C.A. §§ 540-540B (West 1993 & Supp.
2002) (providing that upon request from state officials, FBI may
investigate certain killings of state officials and employees, violent
crimes against travelers, and serial killings). Ellis claims that these
federal statutes preempt a Maryland statute that, in relevant part,
grants federal law enforcement officers the authority to make arrests
for state offenses when "[t]he officer is participating in a joint investi-
gation with officials from any State or local law enforcement agency."
Md. Ann. Code art. 27, § 594B(h)(3)(i) (1996) (repealed 2001).3
There is little precedent addressing whether federal agents may
investigate state offenses when state law purports to grant such
authority. Ellis cites United States v. Di Re, 332 U.S. 581, 590 (1948),
which states that under federal law, FBI agents are "authorized only"
to make warrantless arrests for violations of federal law. Di Re, how-
ever, addressed the issue of whether federal or state law governed the
validity of a state officer’s warrantless arrest for a federal offense, see
id. at 588-91. The Supreme Court did not consider whether federal
agents may arrest suspects for state violations (or, as here, investigate
such violations) when state law purports to grant them that authority.
Also, the few circuit decisions that have discussed this issue have
expressed differing views. Compare United States v. Green, 797 F.2d
855, 857 (10th Cir. 1986) (stating in dicta that "[a]lthough there is no
federal statute authorizing the federal [probation] officer in this case
to make a warrantless arrest for the commission of Texas crimes, it
is arguable that a federal officer may make such an arrest if it would
be permitted under state law"), with United States v. Prim, 698 F.2d
972, 978 (9th Cir. 1983) (Hug, Circuit Judge, concurring) (concluding
that federal statute precluded DEA agents from arresting defendant
for state offense and rejecting notion that this limitation "can be
avoided merely by invoking state statutes permitting warrantless
arrests by private persons").
3
Section 594B(h)(3)(i), which was in effect at the time of Ellis’ arrest,
was reenacted without any substantive change as Md. Code Ann., Crim.
P. § 2-104(b)(2)(i) (2001).
6 UNITED STATES v. ELLIS
Ellis also claims that "the Maryland statute is an unconstitutional
infringement on the division of power between State and Federal gov-
ernments and on federal executive action." Appellant’s Br. at 23. We
have found no appellate decision directly addressing the constitutional
validity of a state statute purporting to grant federal agents the author-
ity to make arrests for state law offenses. In arguing that the Maryland
statute is unconstitutional, Ellis relies on Printz v. United States, 521
U.S. 898 (1997), in which the Supreme Court held invalid certain pro-
visions of a federal law requiring state law enforcement officers to
conduct background checks on prospective firearm purchasers. It is
far from clear, however, that Printz applies to the statute at issue here,
which does not obligate federal agents to enforce state laws, but
rather, merely grants the agents discretionary authority in limited cir-
cumstances.
Ellis further argues that even if the Maryland statute permits fed-
eral agents to make arrests for state law offenses, it does not autho-
rize pretextual stops based on such offenses. On its face, however, the
Maryland statute allows federal agents participating in joint investiga-
tions to make arrests for state law offenses—a power that logically
would seem to include the authority to investigate such offenses.
In sum, the legal issues raised by Ellis concerning the scope of the
FBI agents’ authority are, at best, largely undecided. Thus, any
alleged error relating to these issues cannot be "plain." See United
States v. Brewer, 1 F.3d 1430, 1435 (4th Cir. 1993) (holding that
alleged error was not plain because applicable law was unsettled).
The district court therefore did not plainly err in denying Ellis’
motions to suppress.
III.
Ellis next challenges the imposition of a mandatory life sentence
on Count One, arguing that the district court failed to conduct the col-
loquy required by 21 U.S.C.A. § 851(b) (West 1999).4 Because Ellis
4
Ellis also maintains that the enhancement provision, 21 U.S.C.A.
§ 841(b)(1)(A) (West 1999), does not apply to conspiracy convictions
under § 846. This claim is without merit. See United States v. Irvin, 2
UNITED STATES v. ELLIS 7
did not raise this claim in the district court, our review is for plain
error.
Section 851(b) provides that if the Government files an information
seeking enhanced penalties for a drug offense on the basis of prior
convictions,
the court shall after conviction but before pronouncement of
sentence inquire of the [defendant] 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.
"This procedure provides the defendant with a full and fair opportu-
nity to establish that he is not the previously convicted individual or
that the conviction is an inappropriate basis for enhancement under
section 841." United States v. Campbell, 980 F.2d 245, 252 (4th Cir.
1992). We agree with Ellis that the district court committed plain
error in failing to comply with § 851(b). However, we conclude that
the error did not affect Ellis’ substantial rights.
During the sentencing hearing, defense counsel acknowledged that
"[t]here were two prior felony convictions, and the applicable Federal
F.3d 72, 75 (4th Cir. 1993) (explaining that "the penalties established
under § 841(b) apply with equal force to attempts and conspiracies to
violate the object offenses set forth in § 841(a)"); see also United States
v. Walker, 228 F.3d 1276, 1277 (11th Cir. 2000) (per curiam) ("Because
possessing 50 or more grams of cocaine base is ‘a violation of this sub-
paragraph’ as described in § 841(b)(1)(A) and Walker had two prior fel-
ony drug convictions, a mandatory life sentence applies for conspiring to
commit a section 841(a)(1) offense.").
Ellis further challenges his sentence on Count One on the ground that
the prior convictions supporting the enhanced penalty were neither
alleged in the indictment nor proven to the jury beyond a reasonable
doubt. As Ellis recognizes, however, this claim is foreclosed by our opin-
ion in United States v. Sterling, 283 F.3d 216, 219-20 (4th Cir.), cert.
denied, 122 S. Ct. 2606 (2002).
8 UNITED STATES v. ELLIS
Code imposes and mandates a life sentence." J.A. 249. Counsel also
made clear that Ellis understood these facts. And, when the court pro-
vided Ellis an opportunity to offer anything that might affect his sen-
tence, Ellis merely asked for leniency. Thus, it is clear that even if the
district court had conducted the colloquy specified by § 851(b), nei-
ther Ellis nor his attorney would have challenged Ellis’ prior convic-
tions. See United States v. Severino, 316 F.3d 939, 948 (9th Cir. 2003)
(en banc) (holding that failure to comply with § 851(b) did not affect
defendant’s substantial rights because defense counsel and defendant
acknowledged validity of prior conviction and its effect on sentence;
thus, defendant could not "plausibly argue that he would have done
anything differently, had the district court [complied with § 851(b)]");
see also United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998)
(holding that on plain error review, defendant must prove that error
"actually affected the outcome of the proceedings").
We note also that Ellis did not contest the existence or validity of
the prior convictions pursuant to 21 U.S.C.A. § 851(c) (West 1999).
See United States v. Williams, 298 F.3d 688, 693 (7th Cir. 2002)
(holding that failure to comply with § 851(b) was harmless error, in
part because defendant did not comply with § 851(c) procedures for
challenging prior convictions). And, while Ellis objected to certain
findings in the presentence report, he did not object to the inclusion
of the predicate convictions in his criminal history or to the determi-
nation that those convictions mandated a life sentence on Count One.
See United States v. Hill, 142 F.3d 305, 313 (6th Cir. 1998) (holding
that failure to comply with § 851(b) was harmless, in part because
defendant did not object to prior convictions listed in presentence
report).5
5
On appeal, Ellis asserts for the first time that one of his predicate con-
victions is constitutionally invalid and thus should not have been used to
enhance his sentence. Again, however, it is clear from the record that
Ellis would not have raised this claim in the district court before
sentencing—as he was required to do in order not to waive it—even if
the court had complied with § 851(b). Thus, we do not consider the mer-
its of this claim.
UNITED STATES v. ELLIS 9
IV.
Ellis also claims that the district court erred by imposing a 30-year
sentence on Count Three. Ellis correctly argues, and the Government
concedes, that because no specific quantity of marijuana was charged
in the indictment or proven to the jury, the 30-year sentence exceeds
the statutory maximum. See 21 U.S.C.A. § 841(b)(1)(D) (West Supp.
2002) (providing for maximum sentence of five years, or ten years
with prior conviction, for offenses involving less than 50 kilograms
of marijuana); United States v. Promise, 255 F.3d 150, 156-57 (4th
Cir. 2001) (en banc), cert. denied, 122 S. Ct. 2296 (2002). Thus, the
district court plainly erred in imposing a 30-year sentence on Count
Three.
However, in light of Ellis’ life sentence on Count One and concur-
rent 30-year term on Count Two, the error did not affect his substan-
tial rights. See United States v. Burns, 298 F.3d 523, 544-45 (6th Cir.)
(holding that sentencing error did not affect defendants’ substantial
rights because error did not result in longer total terms of imprison-
ment), cert. denied, 123 S. Ct. 614, 642, 649 (2002), and petition for
cert. filed, No. 02-9179 (U.S. Dec. 31, 2002); United States v. Rivera,
282 F.3d 74, 77-78 (2d Cir. 2000) (per curiam) (explaining that
because defendant was properly sentenced to life imprisonment on
one count, "a concurrent sentence on other counts is irrelevant to the
time he will serve in prison").6
V.
For the reasons set forth above, we affirm Ellis’ convictions and
sentences.
AFFIRMED
6
Ellis also challenges the imposition of a six-year term of supervised
release on Count Three. However, even assuming that Ellis could some-
how be harmed by an alleged error relating to supervised release (which
is unlikely given his life sentence on Count One), Ellis’ substantial rights
were not affected because he received ten-year and eight-year terms of
supervised release on Counts One and Two.
10 UNITED STATES v. ELLIS
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that the district court did not plainly err
in denying Ellis’ motions to suppress or by imposing a thirty-year
sentence on Count Three. However, I believe that the district court’s
failure to satisfy the pre-sentencing requirements clearly imposed by
Congress upon the federal courts in Section 851(b) constitutes plain
and prejudicial error. Accordingly, I must dissent from Part III of the
majority’s opinion.
The majority concedes that the district court committed plain error
in its failure to perform the statutory colloquy required by section
851(b). As the majority observes, the district court failed either to
clearly inquire whether Ellis affirmed or denied the prior convictions
or to warn Ellis regarding the consequence of failing to object at the
appropriate time. Proceeding to analyze this deficiency under the
plain error standard of Fed. R. Crim. Proc. 52(b), the majority then
concludes that the district court’s "error did not affect Ellis’ substan-
tial rights." In reaching this result, the majority notes Ellis’ failure to
object to the prior convictions during either his partial colloquy or
pursuant to section 851(c). According to the majority, it is clear that
even if the district court had properly apprised Ellis of his right to
object, Ellis would not have challenged his prior convictions. Not-
withstanding the evidence marshaled by the majority to bolster its
conclusion, I simply cannot agree that Ellis necessarily would have
forfeited his objection if the district court had properly discharged its
statutory duty.
First, although I find it perverse and ironic that Ellis’ forfeiture
should be analyzed under the exacting plain error standard, I concede
that we are bound by its strictures. As the Ninth Circuit aptly noted
in United States v. Severino, "It’s a bit strange to require that a defen-
dant object to the district court’s failure to give him an admonition.
After all, if the defendant knows to object, he doesn’t need the admo-
nition in the first place; it’s the defendant who fails to object that
needs the admonition most." 316 F.3d 939, 948, n.7 (9th Cir. 2003).
However, as the Severino court also noted, we appear to be foreclosed
from treating Ellis’ forfeiture differently by the Supreme Court’s
decision in United States v. Vonn, 535 U.S. 55 (2002) (analyzing
under plain error the defendant’s failure to object to the district
UNITED STATES v. ELLIS 11
court’s failure to comply with Fed. R. Crim. Proc. 11(c)(3) regarding
waiver of the right to counsel at trial). If a defendant must establish
plain error where the district court has failed to ensure proper waiver
of a right as fundamental as the right to counsel at trial, we cannot
insist that a defendant have greater protections to challenge an error
under section 851(b).
Before applying the prejudice component of the plain error analy-
sis, we should also note this Court’s reasoning in United States v.
Campbell, 980 F.2d 245 (4th Cir. 1992). In Campbell, we allowed
sentencing upon substantial compliance with the terms of section
851(b) where we were satisfied that "the substantive protections
underlying [section 851(b)] were provided . . . [and where]
[d]efendant appreciated his right to challenge the state conviction."
Id. at 252 (emphasis added). In Campbell, because the defendant chal-
lenged his prior convictions in a presentence motion, his objections
were properly raised before the Court. Nonetheless, our emphasis
upon the defendant’s appreciation of his statutory right cannot be
overlooked. It is not clear to me that Ellis appreciated his right to
object and the consequences of silence. Hence, I do not think that the
majority’s conclusion properly addresses the fundamental concern
underlying our substantial compliance approach in Campbell.
If Ellis had appreciated his rights, which would have been the case
if the district court had fulfilled its statutory duty, I believe that he
probably would have objected to his prior convictions. Given that
Ellis was denied his rights by the district court, we owe him at least
the benefit of the doubt with respect to whether he would have
objected if he had appreciated his rights. Because I believe that Ellis
probably would have acted differently had he been aware of the risks
of forfeiture, I conclude that the district court’s error affected Ellis’
substantial rights.
Finally, I do not believe that Ellis’ failure to object pursuant to sec-
tion 851(c) should vitiate the district court’s underlying error. Admit-
tedly, as the majority notes, some of our sister circuits have grounded
findings of harmless error in the section 851(b) context upon the
defendant’s failure to object in satisfaction of section 851(c). See,
e.g., United States v. Gaviria, 116 F.3d 1498, 1525 (D.C. Cir. 1997)
(treating failure to warn of waiver as harmless where defendant failed
12 UNITED STATES v. ELLIS
to offer sufficient factual basis to challenge his priors pursuant to sec-
tion 851(c)); United States v. Williams, 298 F.3d 688, 693 (7th Cir.
2002). I find, however, that this approach unnecessarily penalizes the
defendant for the sentencing court’s failure to follow Congress’ direc-
tions. Indeed, invoking this answer to resolve the issue of prejudice
merely begs the question of whether a defendant who appreciates his
rights would have objected appropriately. We cannot confidently say
whether Ellis, had he objected at the appropriate time, would have
complied with the provisions of section 851(c). We should reserve
consideration of compliance with this section until after Ellis is
afforded an appropriate colloquy.
Because I believe that Ellis was prejudiced because he did not
appreciate his rights, I dissent from the majority’s affirmance of the
sentence and would instead remand to the district court with direc-
tions to conduct a proper colloquy pursuant to section 851(b).