United States v. Jones , 78 F. App'x 844 ( 2003 )


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  •                            UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.
            No. 02-4257
    JOHN EDWARD JONES, JR., a/k/a
    Liddy,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the District of Maryland, at Baltimore.
    William N. Nickerson, Senior District Judge.
    (CR-98-48-WMN)
    Argued: May 9, 2003
    Decided: September 12, 2003
    Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
    Affirmed by unpublished per curiam opinion. Judge Williams wrote
    an opinion concurring in the judgment. Judge Shedd wrote an opinion
    concurring in the judgment. Judge Michael wrote a dissenting opin-
    ion.
    COUNSEL
    ARGUED: Sol Zalel Rosen, Washington, D.C., for Appellant.
    Andrea L. Smith, Assistant United States Attorney, Baltimore, Mary-
    land, for Appellee. ON BRIEF: Thomas M. DiBiagio, United States
    Attorney, Jane M. Erisman, Assistant United States Attorney, Balti-
    more, Maryland, for Appellee.
    2                           UNITED STATES v. JONES
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    The judgment of the district court is
    AFFIRMED.
    WILLIAMS, Circuit Judge, concurring in the judgment:
    In an earlier appeal in this case, we vacated the sentence imposed
    upon John Edward Jones, Jr., after his conviction under 
    21 U.S.C.A. § 846
     (West 1999) for conspiracy to distribute narcotics and
    remanded for resentencing in light of Apprendi v. New Jersey, 
    530 U.S. 466
     (2000). See United States v. Jones, 
    2001 WL 1019398
    , 
    17 Fed. Appx. 240
     (4th Cir. Dec. 18, 2001) (per curiam) (unpublished).
    At resentencing, Jones raised, for the first time, the issue of whether
    he had timely been served with notice, as mandated by 
    21 U.S.C.A. § 851
     (West 1999), that the Government intended to proceed against
    him as a repeat offender.1 The district court concluded that the § 851
    information was timely filed, and Jones appeals. Because I conclude
    that Jones waived his argument regarding the timeliness of the § 851
    information by failing to raise it in his initial appeal, I would affirm.
    1
    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 per-
    son or counsel for the person) stating in writing the previous
    convictions to be relied upon.
    
    21 U.S.C.A. § 851
     (West 1999).
    UNITED STATES v. JONES                         3
    I.
    Jones was indicted for conspiracy to distribute heroin and mari-
    juana, in violation of § 846. Drug quantity was not specified in the
    indictment. The jury was asked to return a general verdict on whether
    the defendants were guilty of conspiracy to distribute narcotics, with-
    out specifying the drug type (marijuana or heroin). The jury found all
    four defendants guilty, and the court imposed a 210-month sentence
    on Jones.
    In his initial appeal in this case, Jones challenged both his convic-
    tion and sentence on several grounds, arguing that: (1) the district
    court erred in allowing the jury to return a general verdict not specify-
    ing drug type where the indictment charged him with a conspiracy
    involving both heroin and marijuana; (2) there was insufficient evi-
    dence to support the conviction; (3) the district court’s factual find-
    ings as to drug quantity violated Apprendi, and the district court erred
    in relying on a government informant’s testimony to calculate quan-
    tity; and (4) the district court erred in refusing to give an instruction
    on the lesser-included offense of simple possession of marijuana.
    Jones, 17 Fed. Appx. at 244 & n.2.
    We rejected each of Jones’s contentions except his argument con-
    cerning Apprendi. With respect to that argument, we concluded that
    Jones’s sentence violated the rule dictated by Apprendi — "that in
    order to authorize the imposition of a sentence exceeding the maxi-
    mum allowable without a jury finding of a specific threshold drug
    quantity, the specific threshold quantity must be treated as an element
    of an aggravated drug trafficking offense." Jones, 17 Fed. Appx. at
    248 (quoting United States v. Promise, 
    255 F.3d 150
    , 156 (4th Cir.
    2001) (en banc)). Without a jury finding of a specific threshold quan-
    tity of marijuana, the statutory maximum sentence for conspiracy to
    distribute marijuana is ten years’ imprisonment if the defendant has
    a prior felony drug conviction. See § 841(b)(1)(D). In light of Jones’s
    prior felony drug conviction, we reasoned, the maximum sentence he
    could receive was ten years, and we remanded for the district court
    to sentence him in compliance with that limit. Jones, 17 Fed. Appx.
    at 248.
    At resentencing, Jones argued that the § 851 information filed by
    the Government was untimely because it was filed after voir dire had
    4                         UNITED STATES v. JONES
    begun. Jones contended that, for purposes of § 851, trial begins when
    voir dire begins, and thus failure to file before that point constitutes
    failure to file "before trial," as § 851 requires. Because the § 851
    information was untimely filed, Jones argued, his sentence should be
    limited to five years, the applicable statutory maximum sentence
    where the defendant does not have a prior felony drug conviction and
    there is no jury finding of drug quantity. See § 841(b)(1)(D). The dis-
    trict court held that filing the information before the jury was sworn
    constituted filing "before trial," and therefore that the Government
    had complied with § 851. The district court sentenced Jones to ten
    years’ imprisonment. Jones appeals, arguing only that the § 851 infor-
    mation was untimely filed.
    II.
    I first consider whether Jones has waived his argument concerning
    the timeliness of the § 851 information. As noted above, Jones did not
    raise any objection at trial to the § 851 information2 and did not raise
    the timeliness issue in his initial appeal. Responding in this appeal to
    the Government’s contention that he has waived any argument con-
    cerning timeliness, Jones asserts that failure timely to file a § 851
    information deprives the district court of jurisdiction to impose an
    enhanced sentence. An objection to the timeliness of such an informa-
    tion, he argues, may be raised at any time because jurisdictional
    defects cannot be forfeited or waived. See American Canoe Ass’n v.
    Murphy Farms, Inc., 
    326 F.3d 505
    , 515 (4th Cir. 2003) (noting that
    "a party can challenge subject matter jurisdiction for the first time on
    appeal even though, in most contexts, issues not raised below are con-
    sidered waived").
    We have not addressed in a published opinion the question of
    whether § 851’s requirements are "jurisdictional." Other circuits are
    2
    In fact, Jones testified at trial to his prior federal conviction as part of
    his broader contention that the Government had concocted the instant
    prosecution against him simply as a means of keeping him in prison. He
    went on to testify that he was "embarrassed" to be in federal court
    charged with such a paltry amount of drugs, and suggested that if he
    were dealing drugs again, it would have been in much larger quantities
    than the Government was alleging. (J.A. at 99.)
    UNITED STATES v. JONES                          5
    split on the issue. Several circuits have stated, without detailed analy-
    sis, the proposition that § 851’s requirements are jurisdictional in
    nature. See, e.g., United States v. Lawuary, 
    211 F.3d 372
    , 376 n.6 (7th
    Cir. 2000); Harris v. United States, 
    149 F.3d 1304
    , 1306 (11th Cir.
    1998); United States v. Hill, 
    142 F.3d 305
    , 312 (6th Cir. 1998);
    United States v. Wright, 
    932 F.2d 868
    , 882 (10th Cir. 1991); cf. Lawu-
    ary, 
    211 F.3d at 378
     (Easterbrook, J., concurring) (noting that while
    "[i]t is easy to find opinions saying that § 851(a) is a jurisdictional
    rule . . . [i]t is considerably harder to find an explanation for this
    assertion"; joining all parts of majority opinion except a footnote stat-
    ing that § 851’s requirements are jurisdictional). On the other hand,
    at least three circuits have recently held explicitly that § 851’s proce-
    dural requirements are not jurisdictional and are thus subject to the
    ordinary rules of waiver and forfeiture. See United States v. Ceballos,
    
    302 F.3d 679
    , 690-92 (7th Cir. 2002) (panel opinion overruling Lawu-
    ary’s footnote statement that § 851(a)’s requirements are jurisdic-
    tional and cannot be waived, because that statement was based on
    circuit precedent unsupported by reasoning), cert. denied, ___ U.S.
    ___, 
    123 S. Ct. 924
    , 925, and ___ U.S. ___, 
    123 S.Ct. 1571
     (2003));
    United States v. Mooring, 
    287 F.3d 725
    , 727 (8th Cir. 2002) (conclud-
    ing that § 851(a)’s requirements are not jurisdictional); Prou v. United
    States, 
    199 F.3d 37
    , 43-46 (1st Cir. 1999) (same).
    The Supreme Court has instructed that subject matter jurisdiction
    is "the courts’ statutory or constitutional power to adjudicate the
    case." United States v. Cotton, 
    535 U.S. 625
    , 630 (2002) (quoting
    Steel Co. v. Citizens for Better Env’t, 
    523 U.S. 83
    , 89 (1998)). Not
    all statutory delineations of the court’s power to act in a given case
    are jurisdictional provisions, however. In Steel Co., the Court held
    that a statute stating that "‘[t]he district court shall have jurisdiction
    in actions brought under subsection (a) of this section . . . [to grant
    certain relief],’" did not affect the jurisdiction of the court; instead,
    the statute was properly read as "specifying the remedial powers of
    the court, viz., to enforce the violated requirement and to impose civil
    penalties." Steel Co., 
    523 U.S. at 90
    . Nothing in its jurisprudence, the
    Court noted, suggested "the expansive principle that a statute saying
    ‘the district court shall have jurisdiction to remedy violations [in spec-
    ified ways]’ renders the existence of a violation necessary for subject-
    matter jurisdiction." 
    Id. at 91-92
    .
    6                        UNITED STATES v. JONES
    Nor does the omission from an indictment of a fact that enhances
    the statutory maximum sentence affect the court’s jurisdiction to
    impose an enhanced sentence. In Cotton, the Supreme Court held that
    "defects in an indictment [in Cotton, the omission of drug quantity]
    do not deprive a court of its power to adjudicate a case." Cotton, 
    535 U.S. at 630
    . Thus, the Court could conclude that there was no plain
    error warranting relief in sentences exceeding the 20-year statutory
    maximum for a detectable amount of cocaine or cocaine base even
    though quantity had not been charged in the indictment or submitted
    to the jury. Although the district court in Cotton erred in meting out
    the sentences in the absence of a charge in the indictment or a jury
    finding, its jurisdiction to impose the sentences was not affected by
    the omission of the quantity element from the indictment.
    The relevant principle from Steel Co. and Cotton is that only those
    claims that concern the constitutional or statutory limits of the court’s
    authority to adjudicate in a given action implicate jurisdiction. The
    district courts have jurisdiction over drug prosecutions brought under
    the federal drug laws pursuant to 
    18 U.S.C.A. § 3231
    , which states
    that "[t]he district courts of the United States shall have original juris-
    diction, exclusive of the courts of the States, of all offenses against
    the laws of the United States." 
    18 U.S.C.A. § 3231
     (West 2000).
    "This jurisdiction necessarily includes the imposition of criminal pen-
    alties." Prou, 
    199 F.3d at 45
    . As in Steel Co. and Cotton, a limitation
    on the remedy that a district court may grant or the sentence it may
    impose does not affect the court’s subject matter jurisdiction. The
    court in Prou explained:
    Once subject-matter jurisdiction has properly attached,
    courts may exceed their authority or otherwise err without
    loss of jurisdiction. See United States v. Wey, 
    895 F.2d 429
    ,
    431 (7th Cir. 1990) ("Courts may err, even offend the Con-
    stitution, without losing subject-matter jurisdiction."); cf.
    Blackledge v. Perry, 
    417 U.S. 21
    , 30 (1974) (indicating that
    only claims that go "to the very power of the State to bring
    the defendant into court to answer the charge brought
    against him" implicate subject-matter jurisdiction). Thus,
    the only question that legitimately arises from the prosecu-
    tion’s late filing of a section 851(a)(1) information concerns
    UNITED STATES v. JONES                          7
    the court’s authority to impose an enhanced sentence. This
    is simply not a question of subject-matter jurisdiction.
    Prou, 
    199 F.3d at 45
     (parallel citation omitted). I agree. Accordingly,
    I conclude that the provisions of § 851, like charges of drug quantity
    in an indictment, are not "jurisdictional," and are thus subject to the
    ordinary rules of waiver and forfeiture.
    Jones does not dispute that he failed to raise any argument concern-
    ing the § 851 information in his initial appeal. The result of such a
    failure is waiver of the claim in question.3 See Rowland v. American
    General Finance, Inc., ___ F.3d ___, 
    2003 WL 21912173
     at *2 n.1
    (4th Cir. Aug. 12, 2003) ("Given that she had the opportunity (indeed
    the duty) to raise this and all other appealable issues in her initial
    appeal, we conclude that she has waived appellate consideration of
    this claim."); Omni Outdoor Adver., Inc. v. Columbia Outdoor Adver.,
    Inc., 
    974 F.2d 502
    , 505 (4th Cir. 1992) (issues not raised on first
    appeal will be considered waived and cannot be raised in a subse-
    quent appeal); see also United States v. Husband, 
    312 F.3d 247
    , 251
    (7th Cir. 2002) (noting that "any issue that could have been but was
    not raised on appeal is waived and thus not remanded"); United States
    v. Morris, 
    259 F.3d 894
    , 898 (7th Cir. 2001) ("[P]arties cannot use the
    accident of remand as an opportunity to reopen waived issues.").
    Because, as I explain below, Jones has waived his argument concern-
    3
    In addition to his jurisdictional argument, Jones asserts that he could
    not have raised this issue in his first appeal because he was "of the opin-
    ion that the other issues were more than sufficient to justify reversal of
    the conviction," and that it would have been "improper" to argue to this
    court both that he should have been convicted and sentenced only for
    unlawful possession of marijuana and that his sentence for conspiracy to
    distribute marijuana should have been limited based upon the Govern-
    ment’s improper notice of intent to rely on a prior conviction. Inconsis-
    tent defenses or appellate arguments are of course not prohibited. United
    States v. Harbin, 
    377 F.2d 78
    , 80 (4th Cir. 1967). Further, as is explained
    more fully in the text, Jones plainly had both an incentive and an oppor-
    tunity to raise the issue in his first appeal — a five-year mandatory maxi-
    mum would certainly have been relevant, as the district court initially
    sentenced Jones to more than ten years, and as this court, in that appeal,
    remanded with instructions to sentence him within the ten-year maxi-
    mum for repeat offenders and a detectable amount of marijuana.
    8                        UNITED STATES v. JONES
    ing the § 851 information’s timeliness, I need not consider whether
    such an information filed after voir dire has begun, but before the jury
    is sworn, is filed "before trial."4
    While the ordinary result of failure to raise an argument in this situ-
    ation is waiver, I might conclude that Jones has not waived the argu-
    ment if he lacked either an opportunity or an incentive to raise the
    argument at his initial sentencing in 1999 and in his initial appeal in
    2001. See, e.g., United States v. Carpenter, 
    320 F.3d 334
    , 341 n.6 (2d
    Cir. 2003). Even assuming that Jones lacked opportunity or incentive
    to raise the § 851 issue at his initial sentencing, however, his current
    challenge must fail because he not only had both an opportunity and
    an incentive to raise the argument in his first appeal, but he also made
    a strategic decision not to raise the issue in that appeal. See note 3,
    supra.
    At Jones’s initial sentencing, without the benefit of our decision in
    Rhynes and the Supreme Court’s in Apprendi, the district court
    assumed the propriety of its determining both drug type and quantity,
    a process which led the district court to conclude under the guidelines
    that a sentence of more than seventeen years was appropriate. After
    the decisions in Rhynes and Apprendi, the course followed by the dis-
    trict court was shown to be erroneous. This revelation made plain the
    prospect of a sentence reduction to the statutory maximum applicable
    to an indeterminate quantity of the least-punished drug that was an
    object of the conspiracy, and it was on the basis of the decisions in
    Rhynes and Apprendi that we "vacate[d] Jones’s sentence and
    remand[ed] to the district court for imposition of a sentence that does
    not exceed the ten-year statutory maximum set out in § 841(b)(1)(D)."
    United States v. Jones, 
    2001 WL 1019398
    , 
    17 Fed. Appx. 240
    , 245
    (4th Cir. Dec. 18, 2001) (per curiam) (unpublished). It hardly bears
    4
    As an alternative to his primary argument regarding jurisdiction,
    Jones suggests that we ought to excuse his failure to raise the issue of the
    § 851 information’s timeliness on direct appeal because it was the result
    of his counsel’s ineffectiveness. Ineffective assistance claims, however,
    are generally not cognizable on direct appeal unless the trial record con-
    clusively establishes such ineffective assistance. See United States v.
    King, 
    119 F.3d 290
    , 295 (4th Cir. 1997). On the record before us, I do
    not believe this is such a case.
    UNITED STATES v. JONES                          9
    pointing out that Rhynes and Apprendi were both decided well before
    Jones’s first appeal was argued, and if these decisions were the neces-
    sary predicates to the excogitation of Jones’s argument, there can be
    no reason why he lacked either opportunity or incentive to raise it in
    that appeal. Yet the dissent, while conceding that Rhynes and
    Apprendi made "the prospect of a five-year mandatory maximum"
    apparent, would excuse Jones’s failure to argue for such a maximum.
    Post, at 18.
    Nor should we excuse Jones’s failure to raise the § 851 issue
    because, at the time of his initial sentencing and first appeal, the issue
    was somehow lurking in an unknowable future, becoming relevant
    only after our decision in the first appeal. The § 851 issue became rel-
    evant (i.e., became an argument that Jones had an incentive to raise)
    not after our remand in the first appeal but when the Government
    sought to rely on Jones’s prior conviction to enhance his sentence
    pursuant to § 851. The dissent suggests that, at the time of Jones’s
    first appeal, "the government . . . did not rely on or even mention the
    § 851 enhancement" and therefore Jones "had no reason to raise it in
    his initial appeal." Post, at 18. The Presentence Investigation Report
    (PSI) used at Jones’s initial sentencing, however, noted that the gov-
    ernment had filed a § 851 notice and sought to rely on Jones’s prior
    conviction to enhance his sentence. (J.A. at 189.) Morever, at his ini-
    tial sentencing hearing, Jones’s attorney noted that the district court
    had submitted a general verdict form to the jury, and his attorney
    argued that because the jury had not determined the drug type
    involved, the district court was limited to the statutory maximum term
    applicable to the least-punished drug alleged in the indictment, in this
    case marijuana. Jones’s attorney then stated
    the maximum sentence to which [the defendants] could be
    exposed is the five years for the marijuana, unless, as is the
    case with Mr. Jones, the government has filed a notice of
    subsequent offender, in which case they would double the
    penalty, and he would be exposed to ten years.
    (J.A. at 101 (emphases added).) Thus, even if its filing of a § 851
    notice were insufficient to indicate the Government’s intent to rely on
    a prior conviction to enhance Jones’s sentence, the issue plainly arose,
    and was addressed, at sentencing. Indeed, Jones’s own attorney asked
    10                       UNITED STATES v. JONES
    the court to remain within a ten-year, rather than a five-year, mini-
    mum, assuming an enhancement under the very information he now
    seeks to challenge as improperly filed.
    The importance of the waiver rule in preventing piecemeal litiga-
    tion of issues was expressed in Omni, where we stated:
    The most rudimentary procedural efficiency demands that
    litigants present all available arguments to an appellate court
    on the first appeal. If parties who lost on appeal were
    allowed to return to appellate courts to advance different,
    previously available theories, cases could languish for years
    before final resolution and already crowded court dockets
    would swell even more.
    Omni, 
    974 F.2d at 505
    ; cf. also Greene v. United States, 
    880 F.2d 1299
    , 1305 (11th Cir. 1988) (petitioner’s failure to raise available sen-
    tencing objection on direct appeal results in waiver for purposes of
    habeas review). I cannot agree with the suggestion that we ignore this
    rudimentary principle of procedural efficiency and permit Jones to lit-
    igate now an issue that was available to him at the time of his first
    appeal.
    III.
    For the foregoing reasons, I would affirm the judgment of the dis-
    trict court.
    SHEDD, Circuit Judge, concurring in the judgment:
    On remand from our earlier decision, United States v. Jones, 
    17 Fed. Appx. 240
     (4th Cir. 2001) (Jones I), Jones argued for the first
    time that his sentence cannot exceed five years because of the govern-
    ment’s alleged failure to provide timely notice that it would rely upon
    a prior conviction to increase his sentence. See 
    21 U.S.C. § 851
    . The
    district court fully considered and rejected Jones’ argument that the
    notification was untimely and sentenced him to ten years’ imprison-
    ment. Because Jones presented the § 851 argument on remand of the
    initial appeal, the propriety of our consideration of the issue is not pri-
    UNITED STATES v. JONES                         11
    1
    marily a question of waiver (or forfeiture). Rather, the question is
    more precisely analyzed within the framework of the mandate rule.
    Jones’ argument that he faces a maximum sentence of five years does
    not fall outside the parameters of our mandate in Jones I; therefore,
    the issue is properly before us on this appeal. Jones’ contention that
    the government failed to comply with § 851, however, is contrary to
    the plain language of the statute, and the district court correctly deter-
    mined that the government provided timely notice to him. Accord-
    ingly, I would affirm the judgment of the district court.
    I.
    It is well established that a lower court is "bound to carry the man-
    date of the upper court into execution and may not consider the ques-
    tions which the mandate laid at rest." United States v. Bell, 
    5 F.3d 64
    ,
    66 (4th Cir. 1993). This doctrine, known as the mandate rule, "fore-
    closes litigation on remand of issues decided by the district court but
    foregone on appeal or otherwise waived." United States v. Aramony,
    
    166 F.3d 655
    , 662 (4th Cir. 1999). If "the mandate of the appellate
    court instructs or permits reconsideration of sentencing issues on
    remand," however, the district court may consider the issues de novo.
    Bell, 
    5 F.3d at 67
     (emphasis added).
    Because the mandate rule does not preclude the de novo consider-
    ation of issues at resentencing, an argument presented for the first
    time on remand is not necessarily waived. The conclusion that a par-
    ticular argument has been waived is, of course, case-specific and
    depends upon the mandate of the appellate court. For example, in
    United States v. Henoud, 
    81 F.3d 484
     (4th Cir. 1996), we vacated a
    restitution order after determining that there were inconsistencies in
    the record regarding the amount of restitution owed to each victim.
    On remand, the defendant argued for the first time that a purported
    victim should not have been considered as such because the victim
    was not named in the indictment. On the second appeal, the govern-
    ment argued that the defendant had waived the issue by not raising
    1
    See 18B C. Wright, A. Miller & E. Cooper, Federal Practice and
    Procedure: Jurisdiction 2d § 4478.3, at 827 (2002) (discussing distinc-
    tion between waiver and forfeiture). I will hereafter refer to this concept
    as waiver.
    12                       UNITED STATES v. JONES
    it at the initial sentencing. We noted, however, that because the pur-
    pose of the remand was to determine the amount of restitution actu-
    ally owed, the scope of our remand order reasonably encompassed the
    arguments advanced by the defendant. Id. at 487 n.8. Accordingly, we
    determined that the defendant did not waive the issue and that the
    mandate rule did not preclude the district court from considering it on
    remand. Id.
    The scope of our remand in Jones I, therefore, is critical to deter-
    mining whether the district court properly considered Jones’ § 851
    argument at resentencing. In Jones I, we instructed the district court
    to impose a sentence "that does not exceed the ten-year statutory max-
    imum set out in § 841(b)(1)(D)." 17 Fed. Appx. at 245. While it is
    arguable that we expected Jones to be sentenced to ten years, we did
    not specifically rule on this point, and our mandate did not prohibit
    the district court from imposing a sentence of less than ten years.
    Jones’ argument that his sentence may not exceed five years, there-
    fore, falls within the terms of the mandate, and the district court prop-
    erly considered the issue at resentencing.2
    We are here presented with a question that requires an analysis
    under the mandate rule, and upon remand, Jones pressed the district
    court for a sentence that was consistent with the mandate. Given these
    facts, I do not believe that Jones waived his challenge to the timeli-
    ness of the government’s notification in this case. Accordingly, we
    may consider it on appeal.
    II.
    Turning to the merits, Section 851 provides, in pertinent part:
    2
    One leading commentator has noted that the complex nature of the
    Sentencing Guidelines often results in numerous opportunities to chal-
    lenge a sentence. If a sentence is set aside on appeal, "the process of set-
    ting a new sentence within the Guidelines may require—or at least
    justify—reconsideration of many aspects of the original determination."
    Wright et al., supra, at 763 (2002). If a court of appeals intends to control
    the resentencing process, therefore, it should clearly state what is
    required of the district court. Id.
    UNITED STATES v. JONES                        13
    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.
    (Emphasis added). This statute provides two reference points to deter-
    mine the timeliness of the government’s notice: "before trial" and "be-
    fore entry of a plea of guilty." Here, the government provided notice
    to Jones that it would rely upon a prior conviction after jury selection
    but before the swearing of the jury. Jones contends that "before trial"
    means before jury selection and that the government, in filing the
    information after jury selection had begun, did not comply with the
    notice requirements of § 851.
    The threshold question that we must address is whether the words
    "before trial," as used in § 851, are ambiguous. See United States v.
    Jennings, 
    323 F.3d 263
    , 266 (2003). If they are not, we are bound to
    apply the statute according to its plain terms. 
    Id.
     In addressing
    whether there is an ambiguity, our determination is guided "by refer-
    ence to the language itself, the specific context in which that language
    is used, and the broader context of the statute as a whole." Id.; see
    also Davis v. Michigan Dep’t of Treasury, 
    489 U.S. 803
    , 809 (1989)
    ("It is a fundamental canon of statutory construction that the words
    of a statute must be read in their context and with a view to their place
    in the overall statutory scheme.").
    The parallel phrase "before entry of a plea of guilty" provides the
    proper context in which to determine the meaning of "before trial."
    This language unequivocally recognizes that notice at any time prior
    to a guilty plea is timely. Thus, notice given after jury selection is
    timely if the defendant subsequently pleads guilty. Were we to accept
    Jones’ argument that "before trial" means before jury selection, how-
    ever, a striking inconsistency would result. Notice given after jury
    selection would be timely if the defendant ultimately pleads guilty,
    but untimely if the defendant elects to proceed to trial. There is no
    basis to adopt this incongruous result. See American Tobacco Co. v.
    Patterson, 
    456 U.S. 63
    , 71 (1982) (noting that statutory interpretation
    14                      UNITED STATES v. JONES
    should "avoid untenable distinctions and unreasonable results when-
    ever possible"). I therefore conclude that the terms of the statute,
    when considered in their proper context, are not ambiguous and that
    "before trial" means before the swearing of the jury.
    Admittedly, several courts have determined that for purposes of
    § 851, "before trial" means before jury selection.3 The Eighth Circuit
    was the first court of appeals to address this question. In United States
    v. Johnson, that court, without addressing the text of the statute, rea-
    soned that notification before jury selection "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." Johnson, 944 F.2d at 407. I respectfully
    suggest that this rationale, based upon the court’s perceived policy
    concerns, fails to address the statute itself. As I have explained, the
    words "before trial" are not ambiguous within the context of the stat-
    ute and hence, there is no need to refer to extrinsic matters, even if
    one considers them to be valid policy concerns. Here, consideration
    of these extrinsic concerns is not necessary because the text of the
    statute is clear.
    One of the cases relied upon by the dissent, United States v. Jor-
    dan, 
    810 F.2d 262
     (D.C. Cir. 1987), not only reserved a determination
    as to when trial begins for purposes of § 851, but also rejected the
    argument—virtually indistinguishable from the rationale advanced by
    Johnson and its progeny (and Jones here)—that notice must allow for
    a "calm meditation period." Id. at 269 ("[T]hat § 851(a) merely
    requires that the information be filed before entry of a plea of guilty
    belies any inference that it guarantees a calm meditation period.")
    (internal quotation marks omitted). The court in Jordan acknowl-
    edged the fundamental weakness in the general policy argument that
    3
    See United States v. White, 
    980 F.2d 836
    , 842 (2d Cir. 1992); Kelly
    v. United States, 
    29 F.3d 1107
    , 1110 (7th Cir. 1994), overruled on other
    grounds by United States v. Ceballos, 
    302 F.3d 679
     (7th Cir. 2002);
    United States v. Gonzalez-Lerma, 
    14 F.3d 1479
    , 1484 (10th Cir. 1994);
    United States v. Johnson, 
    944 F.2d 396
    , 407 (8th Cir. 1991). But see
    United States v. Galloway, 
    57 F.3d 1071
    , 
    1995 WL 329242
    , at **8 (6th
    Cir. 1995) (holding that trial begins when jury is sworn for purposes of
    § 851).
    UNITED STATES v. JONES                         15
    Jones urges us to adopt. While § 851 requires that the defendant
    receive notice, it does not guarantee the defendant "ample time" to
    develop strategy for the simple reason that notification is timely if
    given at any time before a guilty plea. Jordan, therefore, supports the
    approach that I take.
    For the foregoing reasons, I conclude that the government provided
    Jones with timely notice under 
    21 U.S.C. § 851
    . Accordingly, I would
    affirm the judgment of the district court.
    MICHAEL, Circuit Judge, dissenting:
    When Jones appealed the first time, we vacated his 17 1/2-year
    prison sentence and remanded for resentencing "in accordance with
    the statutory maximum for the least-punished object of the [drug]
    conspiracy (distribution of marijuana)." United States v. Jones, 
    17 Fed. Appx. 240
    , 250 (4th Cir. 2001) (unpublished) (Jones I). At
    resentencing Jones was subject to a maximum prison term of five
    years or, if the government gave proper notice of its intent to rely on
    his prior felony drug conviction, ten years. See 
    21 U.S.C. §§ 841
    (b)(1)(D); 
    id.
     § 851. The district court resentenced Jones to a
    ten-year term of imprisonment, and our court affirms. I respectfully
    dissent. The government did not file its § 851 notice "before trial" as
    the statute requires. Rather, it waited until after jury selection was
    under way to notify Jones that it intended to use his prior drug convic-
    tion to enhance his sentence. Jones objected to the late filing at resen-
    tencing, and he had not previously waived his right to object. Because
    the § 851 notice was late, I would vacate Jones’s sentence once again
    and remand for him to be resentenced in accordance with the five-
    year statutory maximum.
    I.
    Section 851(a), the notice provision, reads: "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." 
    21 U.S.C. § 851
    (a) (emphasis added). The purpose of § 851’s
    16                       UNITED STATES v. JONES
    notice requirement is to give a defendant ample time to decide
    whether to plead guilty or go to trial. If he chooses trial, he does so
    with full knowledge of the potential sentencing consequences of a
    guilty verdict. See United States v. Johnson, 
    944 F.2d 396
    , 407 (8th
    Cir. 1991).
    It is true that Jones did not raise any argument about the late filing
    of the § 851 information at his initial sentencing or in his initial
    appeal. And it is true, as Judge Williams points out, that an issue not
    raised on a first appeal is generally considered to be waived (or more
    accurately, forfeited). Ante at 7. But an issue is not waived if the
    defendant did not "have both an opportunity and an incentive to raise
    it before the sentencing court or on appeal." United States v. Quin-
    tieri, 
    306 F.3d 1217
    , 1229 (2d Cir. 2002) (emphasis added). Simply
    put, a "‘defendant should not be held to have waived [a sentencing]
    issue if he did not have a reason to raise it at his original sentencing.’"
    United States v. Ticchiarelli, 
    171 F.3d 24
    , 32 (1st Cir. 1999) (quoting
    United States v. Whren, 
    111 F.3d 956
    , 960 (D.C. Cir. 1997)). Cf.
    United States v. Jennings, 
    83 F.3d 145
    , 151 (6th Cir.), amended by
    
    96 F.3d 799
     (6th Cir. 1996) (allowing de novo sentencing after
    remand); United States v. Atehortva, 
    69 F.3d 679
    , 685 (2d Cir. 1995)
    (same). The determination of whether a defendant had a sufficient
    incentive to raise an issue in earlier proceedings requires a "fact-
    intensive, case-by-case analysis." Tichiarelli, 
    171 F.3d at 33
    .
    The record in this case amply demonstrates why Jones had no rea-
    son to raise the § 851 issue during his first sentencing and appeal. At
    trial the district court rejected Jones’s request for a special verdict
    form that would have allowed the jury to specify whether it was con-
    victing him and his co-defendants of a heroin conspiracy, a marijuana
    conspiracy, or both. As a result, the jury returned a general verdict
    that did not specify drug type. At Jones’s initial sentencing, the dis-
    trict court sentenced him for conspiracy involving heroin. After con-
    cluding that at least 100 grams of heroin were sold, and adding points
    for Jones’s distribution of drugs in a detention facility, for his obstruc-
    tion of justice, and for his role in the conspiracy, the district court sen-
    tenced Jones to 210 months imprisonment, or 17 1/2 years. See
    United States v. Jones, No. WMN-98-048, Sentencing Tr. at 77-98
    (D. Md. Sept. 22, 1999). Section 841(b)(1)(B) of Title 21 subjects a
    defendant involved in the distribution of 100 grams or more of heroin
    UNITED STATES v. JONES                         17
    to a minimum prison term of five years; if the defendant has a prior
    felony drug conviction, he is subject to a statutory enhancement that
    raises the minimum prison term to ten years, assuming the govern-
    ment complies with the requirements of § 851. At Jones’s original
    sentencing, the routine calculations under the sentencing guidelines
    allowed the district court to sentence Jones to 17 1/2 years in prison;
    thus, the question of enhancing the five-year minimum to a ten-year
    minimum did not come up. The court, in other words, used the guide-
    lines to sentence Jones to more than ten years, and the government
    therefore did not need to rely upon Jones’s prior felony drug convic-
    tion to raise the five-year minimum to ten years. As a result, Jones
    had no reason to contest the untimely filing of the § 851 information
    at his original sentencing. See Ticchiarelli, 
    171 F.3d at 33
     ("[W]aiver
    doctrine does not require that a defendant . . . raise every objection
    that might have been relevant if the district court had not already
    rejected the defendant’s arguments."). The § 851 issue was simply not
    in play when Jones was sentenced the first time, and he could not
    have been expected to raise the issue "in anticipation of the possibility
    that, upon remand, [it] might be relevant." Jennings, 
    83 F.3d at 151
    .
    Judge Williams nonetheless contends that the § 851 issue was rele-
    vant at Jones’s first sentencing. Ante at 9-10. She is correct that the
    presentence report used in Jones’s initial sentencing "note[d] that the
    government filed notice that the defendant is a second offender." J.A.
    189. The question, however, is whether the § 851 notice came into
    play at the first sentencing. It did not. The government did not rely
    on or even mention the § 851 enhancement because the district court
    sentenced Jones, based on the heroin conspiracy, to a term of impris-
    onment that exceeded the enhanced ten-year minimum. As a result,
    there was simply no reason for Jones to object to the untimeliness of
    the § 851 notice at the first sentencing. It is also correct, as Judge Wil-
    liams notes, ante at 10, that Jones’s lawyer at his first sentencing
    referred to the government’s filing of "a notice of subsequent
    offender," which would "double the penalty, and [Jones] would be
    exposed to ten years." J.A. 101. That comment was made in passing
    shortly before the district court once again rejected (as it had at trial)
    Jones’s argument that the use of a general verdict was in error. See
    United States v. Jones, No. WMN-98-048, Sentencing Tr. at 9-16 (D.
    Md. Sept. 22, 1999). At Jones’s second sentencing, the district court
    specifically found that this comment by Jones’s lawyer at his first
    18                      UNITED STATES v. JONES
    sentencing did not amount to a waiver of Jones’s right to challenge
    the untimely § 851 filing. J.A. 120. The district court was correct on
    this point. Finally, Judge Williams suggests that "a five-year manda-
    tory maximum would certainly have been relevant" at Jones’s original
    sentencing. Ante at 7 n.3. But as our decision in Jones I makes clear,
    see infra, the prospect of a five-year mandatory maximum for Jones
    arose only after our decision in Rhynes and the Supreme Court’s deci-
    sion in Apprendi, both of which were decided after Jones’s initial sen-
    tencing. Jones could not have been expected at his initial sentencing
    to raise an issue that was not on the radar screen and was made rele-
    vant only by our decision on appeal. See Whren, 
    111 F.3d at 960
    (concluding that "a defendant may argue at resentencing that the court
    of appeals’ decision has breathed life into a previously dormant
    issue").
    Because Jones had no reason to raise the § 851 issue at his original
    sentencing, it follows that he had no reason to raise it in his initial
    appeal. In fact, the government concedes that Jones did not raise the
    issue in his first appeal because "[s]imply stated, it was not at issue."
    Appellee’s Br. at 12. Rather, in his first appeal Jones argued that the
    district court erred in using a general verdict form. He also argued
    that the court’s factual findings on drug quantity violated Apprendi v.
    New Jersey, 
    530 U.S. 466
     (2000). See Jones I, 17 Fed. Appx. at 244.
    In light of our opinion in United States v. Rhynes, 
    196 F.3d 207
    , 238-
    40 (4th Cir. 1999), we agreed with Jones that the district court erred
    in using a general verdict form that did not distinguish between the
    marijuana and heroin conspiracies. The government, in fact, conceded
    the error and chose "the option of having Jones resentenced for con-
    spiracy to distribute marijuana instead of retrying him." Jones I, 17
    Fed. Appx. at 245. As to Jones’s Apprendi argument, we agreed that
    "[t]he statutory maximum sentence for conspiracy to distribute mari-
    juana without a jury finding of a specific threshold quantity of mari-
    juana is five years imprisonment; the maximum sentence is ten years
    imprisonment if the defendant has a prior felony drug conviction." Id.
    at 248. Accordingly, we vacated Jones’s sentence and remanded "for
    resentencing in accordance with the statutory maximum for the least-
    punished object of the conspiracy (distribution of marijuana)." Id. at
    250. "Because the scope of our remand order reasonably encompasses
    those matters relevant to determining the appropriate [statutory maxi-
    mum]," consideration of the § 851 issue at Jones’s resentencing was
    UNITED STATES v. JONES                         19
    entirely appropriate. United States v. Henoud, 
    81 F.3d 484
    , 487 n.8
    (4th Cir. 1996). Cf. United States v. Husband, 
    312 F.3d 247
    , 250 (7th
    Cir. 2002) ("[T]his court does not remand issues to the district court
    when those issues have been waived or decided."). Thus, Jones was
    free to argue at his resentencing, as he did, that in his case the statu-
    tory maximum for the marijuana conspiracy was five years. I recog-
    nize that our Jones I opinion mentioned in passing that "[t]he
    government filed an information indicating that Jones has at least one
    prior felony drug conviction," Jones I, 17 Fed. Appx. at 245, but we
    did not decide whether the § 851 information had been filed and
    served on a timely basis.
    In sum, because Jones did not have any reason to raise the § 851
    issue either at his first sentencing or in his first appeal, he did not
    waive the issue and therefore could raise it at his resentencing.
    II.
    Because Jones did not waive his right to object to the timeliness of
    the § 851 filing, I would consider the merits of this issue. The govern-
    ment filed the § 851 information after jury selection began, but before
    the jury was sworn. The district court concluded that its "best guess
    as to what the Fourth Circuit would conclude, is that what ‘before
    trial’ means in the context of this particular statute, means that in this
    particular case, filing and serving this notice before the jury was
    sworn, satisfies the statute. Whether that may be true in every situa-
    tion is difficult to say." J.A. 121. The court went on to say that Jones
    was aware of his prior conviction and that he suffered no prejudice
    by being served with notice after jury selection began. The meaning
    of "before trial" should not vary from case to case. We should choose
    one of two alternatives: before jury selection begins or before the jury
    is sworn. I would adopt the prevailing view and hold that "before
    trial" means before jury selection begins.
    "[E]very court of appeals to have addressed this question [in a pub-
    lished opinion] has concluded that before trial means before jury
    selection begins (which is obviously also before the jury is sworn)."
    Kelly v. United States, 
    29 F.3d 1107
    , 1110 (7th Cir. 1994), overruled
    on other grounds by United States v. Ceballos, 
    302 F.2d 679
     (7th Cir.
    2002). See also United States v. Gonzalez-Lerma, 
    14 F.3d 1479
    , 1484
    20                       UNITED STATES v. JONES
    (10th Cir. 1994); United States v. White, 
    980 F.2d 836
    , 842 (2d Cir.
    1992); Johnson, 
    944 F.2d at 407
    ; United States v. Weaver, 
    905 F.2d 1466
    , 1481 (11th Cir. 1990); United States v. Jordan, 
    810 F.2d 262
    ,
    268-69 (D.C. Cir. 1987). But see United States v. Galloway, 
    57 F.3d 1071
    , 
    1995 WL 329242
    , at *8 (6th Cir. May 31, 1995) (unpublished)
    (concluding that "trial did not begin until the jury was sworn"). In
    Johnson the Eighth Circuit gave thorough consideration to the issue
    that Jones raises here — whether a § 851 notice is timely if it is filed
    after jury selection begins but before the jury is sworn. The Johnson
    court concluded that "section 851 requires filing before jury selection
    begins." Johnson, 
    944 F.2d at 407
    . This interpretation was necessary,
    the court said, to "allow[ ] the defendant ample time to determine
    whether he should enter a plea or go to trial, and to plan his trial strat-
    egy with full knowledge of the consequences of a potential guilty ver-
    dict." 
    Id.
     Cf. United States v. Ferebe, 
    332 F.3d 722
    , 733 (4th Cir.
    2003) (indicating that for purposes of 
    18 U.S.C. § 3593
    (a)’s death
    notice requirement, "before trial" means before "the judge gavel[s] the
    trial’s voir dire to a start"). I agree and would adopt the rule followed
    by the Eighth Circuit (and at least five others) that before trial means
    before jury selection begins.
    Judge Shedd argues that the interpretation of § 851 that I and many
    circuits adopt leads to "a striking inconsistency." Ante at 13. Accord-
    ing to Judge Shedd, "notice given after jury selection would be timely
    if the defendant ultimately pleads guilty, but untimely if the defendant
    elects to proceed to trial." Id. I do not see a striking inconsistency
    here. Once a defendant decides to plead guilty, he no longer has the
    need "to plan his trial strategy with full knowledge of the conse-
    quences of a potential guilty verdict." Johnson, 
    944 F.2d at 407
    . Spe-
    cifically, if a defendant pleads guilty after jury selection, any damage
    to his trial strategy caused by the government’s untimely § 851 filing
    is no longer of consequence. However, if he continues with his trial,
    any damage done by the untimely filing is likely to remain.
    Because the government here did not file the § 851 information
    before jury selection began, the district court was without authority
    to sentence Jones to double time (ten years) for the marijuana conspir-
    acy conviction. See Ceballos, 
    302 F.3d at 691
     (recognizing that "the
    government’s failure to satisfy the requirements of § 851(a) deprives
    the district court of authority . . . to impose an enhanced sentence due
    UNITED STATES v. JONES                        21
    to prior convictions"); see also Weaver, 
    905 F.2d at 1481
     ("Even
    when the defendant is not surprised by the enhanced sentence, was
    aware from the outset that his previous conviction could lead to an
    enhanced sentence, never challenged the validity of the prior convic-
    tion, and admitted it at the sentencing hearing, the statute prohibits an
    enhanced sentence unless the government first seeks it by properly fil-
    ing an information prior to trial.") (emphasis added). Thus, the maxi-
    mum prison sentence that Jones should face for the marijuana
    conspiracy is five years. I would therefore vacate his ten-year prison
    term and remand for the imposition of a sentence in accordance with
    the five-year statutory maximum.
    

Document Info

Docket Number: 02-4257

Citation Numbers: 78 F. App'x 844

Judges: Michael, Per Curiam, Shedd, Williams

Filed Date: 9/12/2003

Precedential Status: Non-Precedential

Modified Date: 8/6/2023

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