United States v. Jose Jaime Lopez ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1391
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE JAIME LOPEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:16-cr-20004-1 — Colin S. Bruce, Judge.
____________________
ARGUED SEPTEMBER 26, 2018 — DECIDED OCTOBER 24, 2018
____________________
Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. A jury convicted Jose Jaime Lopez of
several drug-related offenses and the district court sentenced
him to life in prison. In this direct appeal, Lopez challenges
the denial of his motion to suppress, the sufficiency of the ev-
idence on his conviction for attempting to possess with the
intent to distribute 50 grams or more of methamphetamine,
and his sentence of life in prison. We affirm both Lopez’s con-
viction and sentence, though we again remind district courts
2 No. 17-1391
and the government to ensure compliance with the require-
ments of 21 U.S.C. § 851.
I. Background
Beginning in late September 2014, law enforcement agents
intercepted communications over a cellular telephone pursu-
ant to a Maryland state court order revealing that Heliodoro
Moreno, through courier George Salinas, planned to transport
to Lopez a large quantity of illegal drugs from Texas to Illi-
nois. Lopez arranged for his friend Andrew Linares to pick up
the illegal drugs from Salinas and bring them to him. Law en-
forcement intercepted the illegal drugs at an Illinois bus stop,
arresting Salinas and Linares and seizing 10 ounces of meth-
amphetamine from Salinas. By 2015, the government devel-
oped a source who engaged in three controlled purchases of
illegal drugs from Lopez, who law enforcement later arrested
and charged in this case with several drug crimes.
A.
On February 4, 2016, a federal grand jury indicted Lopez
on numerous drug-related offenses including, pertinent here,
that on or about October 1 to October 3, 2014, Lopez know-
ingly attempted to possess 50 grams or more of methamphet-
amine with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(viii). Lopez entered a plea of not guilty
to all counts charged in the indictment. 1
1 Though not relevant to this appeal, the indictment additionally
charged Lopez with one count of distributing a mixture and substance
containing cocaine, two counts of distributing methamphetamine, and
one count of possession with intent to distribute a mixture and substance
containing cocaine.
No. 17-1391 3
Prior to trial, on July 11, 2016, Lopez moved to suppress
two cellular telephone calls—one between Moreno and a con-
fidential source and another between Lopez and Moreno. The
government intercepted the calls pursuant to a Maryland
state court order authorizing law enforcement to intercept
communications from a cellular telephone that Moreno was
using in Texas, based on information that he was supplying
illegal drugs to traffickers in Baltimore. In moving to sup-
press, Lopez argued that the order violated 18 U.S.C.
§ 2518(4)(b) by failing to specify “the nature and location of
the communications facilities as to which, or the place where,
authority to intercept is granted,” and further that law en-
forcement intercepted communications falling outside of the
state’s territorial jurisdiction.
The district court denied Lopez’s motion, concluding that
the court order complied with § 2518(4)(b) because it “identi-
fied the nature and location of the intercepted cellular tele-
phone” and “specified the place where authority to intercept
was granted.” The court also found that law enforcement’s
listening post was located in Maryland and law enforcement
heard all the intercepted conversations in Maryland. 2
On October 24, 2016, about a week before trial, the govern-
ment filed an information pursuant to 21 U.S.C. § 851 notify-
ing Lopez that it intended to rely on two prior drug convic-
tions to enhance his sentence to life in prison under 21 U.S.C.
§ 841(b)(1)(A)(viii). One of the convictions stemmed from a
1999 Texas state felony marijuana possession charge to which
2 The district court additionally held, as to the first intercepted call,
that since Lopez was not a party to the call, he lacked standing to challenge
it under 18 U.S.C. § 2518(10)(a). Lopez does not appeal this ruling.
4 No. 17-1391
Lopez had entered a plea of guilty and received a deferred
adjudication that he successfully completed.
B.
1.
The case proceeded to trial on November 1, 2016. During
trial, the jury heard from 17 witnesses, including Salinas, who
testified about his transportation of methamphetamine via
bus from Texas to Illinois and his communications with Lopez
and Moreno; Linares, who testified about the instructions he
received from, and the communications with, Lopez relating
to picking up Salinas with the drugs from the bus stop in Illi-
nois and bringing him to Lopez; Special Agent Joe Green, who
testified about the events surrounding the receipt of infor-
mation about Salinas’ transportation of drugs from Texas to
Illinois and the arrest of Salinas and Linares; and other law
enforcement officers. The government additionally presented
many exhibits, including intercepted phone calls, extracted
data from Salinas’ and Linares’ cell phones; the methamphet-
amine that Salinas transported from Texas to Illinois; and var-
ious items seized from Lopez’s Illinois home pursuant to a
federal search warrant, including, among other things, ad-
dress books with contact information for Salinas and Linares,
five digital scales, ingredients that can be used as current
agents for cocaine and methamphetamine, and two heat seal-
ers that can be used to package illegal drugs.
2.
On September 27, 2014, pursuant to the Maryland state
court order, agents of the Drug Enforcement Agency (“DEA”)
intercepted a telephone call between Moreno and an individ-
No. 17-1391 5
ual using telephone number (217) xxx-8124 (the “217 Num-
ber”), that the government and several witnesses identified as
Lopez. On the call, Moreno asked Lopez if he could “pro-
mote” “whiskey” where he lived, and Lopez answered “a lot
is moved around here.” Moreno and Lopez discussed a trans-
action involving “onions” and “whiskey” at $1,000 per “on-
ion.” Law enforcement agents testified that the discussion
was about a drug transaction involving ounces (“onions”) of
a controlled substance (“whiskey”) at $1,000 per ounce.
On the call, Moreno confirmed that Lopez knew Salinas—
the eventual drug courier—and told Lopez that Salinas would
contact him. Salinas had known Lopez for more than six years
and had twice traveled to Illinois to bring Lopez “a little bit of
weed.” On September 28, 2014, Salinas and Lopez spoke
about Salinas “bringing a package up” from Texas to Illinois.
Over the next three days, Moreno, Salinas, and Lopez
made plans for Salinas to travel by bus from Houston to Illi-
nois to deliver “ten little onions” to Lopez. Salinas would re-
main in Illinois until he received $4,000 in partial payment
from Lopez, which Lopez thought would take him a few days
to obtain. Lopez would then “work it, get rid of it” and settle
the remaining balance with Moreno. As part of the plan,
Lopez asked his friend Linares to pick up Salinas at the bus
stop and Linares agreed to do so.
On the morning of October 2, 2014, Salinas arrived at a
Houston bus station where one of Moreno’s workers took him
to pick up a cellophane-wrapped package that Salinas then
hid in his crotch area before boarding the bus bound for
Rantoul, Illinois, a town near Lopez’s hometown of
Hoopeston, Illinois. Salinas periodically sent text messages
6 No. 17-1391
and spoke to Lopez during the nearly 24-hour bus trip that
followed, updating Lopez on the progress of his trip.
On October 3, 2014, Linares was waiting at the Rantoul bus
stop for Salinas’ arrival. Linares, who knew Salinas only by
the nickname “old man,” had met him through Lopez on Sa-
linas’ past trips to Illinois. Earlier that morning, Lopez re-
minded Linares to pick up Salinas and informed Linares of
the status of the Salinas’ bus, confirmed the pick-up location
(“the usual Walmart”), and directed him where to take Salinas
(“to town,” meaning Lopez’s home).
When Linares arrived at the bus stop on October 3, 2014,
he sent a text message to Lopez stating, “I’m here looks all
clear,” to which Lopez responded, “Cool … . see you in a bit.”
Salinas informed Lopez via text message when the bus ar-
rived. Lopez responded that Linares is at the bus stop and in-
structed Salinas not to say anything.
Law enforcement agents were also at the bus stop. On Oc-
tober 2, 2014, the day prior, Baltimore DEA agents had in-
formed their Illinois counterparts about incepted phone calls
revealing that illegal drugs were being transported from
Texas to Illinois. By that evening, after obtaining a federal
search warrant for prospective cell phone location data, the
Illinois DEA agents used cellular location data and physical
surveillance to identify the bus on which Salinas was travel-
ing and then followed the bus to Rantoul.
The law enforcement agents arrested Salinas and Linares
after Salinas exited the bus and entered Linares’ car. Salinas
gave them the package which a forensic chemist later deter-
mined contained 276.4 grams of a methamphetamine mixture
No. 17-1391 7
with a purity level of 99.5%. While in custody, Salinas and Li-
nares consented to searches of their cell phones, which
yielded text messages to and from Lopez about the planned
drug transaction and call records showing multiple attempted
calls from Lopez after their arrest. Linares’ phone had contact
information for “Jose L” at the 217 Number, whom he would
later testify was Lopez. Salinas’ phone likewise had contact
information for “Jose Lopez” at the 217 Number.
Law enforcement waited to arrest Lopez. By fall 2015,
agents had completed three controlled buys of illegal drugs,
including methamphetamine, from Lopez. Then, in early Jan-
uary 2016, law enforcement executed a search warrant on
Lopez’s home, seizing, among other things, address books
with contact information for Salinas and Linares, five digital
scales, ingredients that can be cutting agents for cocaine and
methamphetamine, and two vacuum heat sealers and related
packaging materials that can be used to package illegal drugs.
C.
Following the three-day trial, the jury found Lopez guilty
on all counts. It also found on a special verdict form that the
offense involved 50 grams or more of methamphetamine.
The district court subsequently held a sentencing hearing
at which Lopez’s sole objection to the Presentence Investiga-
tion Report (“PSR”) was its reliance on his 1999 guilty plea in
Texas state court to enhance his sentence to mandatory life in
prison. In short, Lopez contended that the guilty plea was not
a “conviction” for purposes of § 841(b)(1)(A)(viii) because he
pleaded guilty and received a deferred adjudication that he
successfully completed. Lopez further argued that his counsel
8 No. 17-1391
for the plea gave him faulty advice about the collateral conse-
quences of pleading guilty at that time.
Without engaging in the colloquy or providing the ad-
monition required by § 851(b), the district court overruled
Lopez’s objection based on two cases from the Fifth Circuit:
United States v. Fazande, 487 F.3d 307 (5th Cir. 2007) (per cu-
riam) and United States v. Cisneros, 112 F.3d 1272 (5th Cir.
1997). The court then adopted the PSR and sentenced Lopez
to mandatory life in prison under § 841(b)(1)(A)(viii) and a
concurrent sentence of 188 months in prison.
II. Discussion
On appeal, Lopez makes three basic arguments: first, that
the district court improperly admitted certain intercepted
communications; second, that the government failed to prove
beyond a reasonable doubt that he attempted to possess with
intent to distribute 50 grams or more of methamphetamine;
and third, that the district court erred in sentencing him to life
in prison. We consider each challenge.
A.
We first take up Lopez’s argument that the district court
erred “by allowing the government to present evidence that
violated Lopez’s Fourth Amendment rights and did not meet
the requirements of 18 U.S.C. § 2518.” Essentially, Lopez
claims that the government introduced intercepted commu-
nications at trial to prove that he was communicating with
Moreno in Texas and posits that “if” the law enforcement
agents were located outside of Maryland when they inter-
cepted the communications at issue, then the communications
were obtained unlawfully under § 2518.
No. 17-1391 9
It is unclear whether Lopez is challenging the district
court’s denial of his pre-trial motion to suppress, for which
we review legal questions de novo and factual questions for
clear error, United States v. Rodriguez-Escalera, 884 F.3d 661,
667 (7th Cir. 2018); or the admission of evidence at trial, for
which we review for abuse of discretion if preserved or for
plain error if not, Walker v. Groot, 867 F.3d 799, 805 (7th Cir.
2017). Either way the challenge fails.
The district court expressly found that the listening post
was located in Maryland and Lopez did not argue otherwise
below, see United States v. Daniels, 803 F.3d 335, 351–52 (7th
Cir. 2015) (reiterating that suppression arguments made for
the first time on appeal are waived absent good cause), and
does not now identify any evidence to counter this finding or
otherwise attempt to show that it was erroneous. Indeed, he
merely speculates about the location of the listening post,
while admitting that he failed to develop any record to sup-
port his claim. We therefore find no error in the district court’s
denial of Lopez’s motion to suppress and reject any claim of
evidentiary error at trial in this regard.
B.
We next address Lopez’s sufficiency of the evidence chal-
lenge. “Appellants raising insufficiency challenges face ‘a
nearly insurmountable hurdle.’” United States v. Johnson, 874
F.3d 990, 998 (7th Cir. 2017) (citations omitted). In approach-
ing such a challenge, we ask “‘whether after viewing the evi-
dence in the light most favorable to the prosecution, any ra-
tional trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” United States v. Wilson,
879 F.3d 795, 802 (7th Cir. 2018) (citation omitted) (emphasis
in original).
10 No. 17-1391
To sustain a conviction for possession of methampheta-
mine with intent to distribute, the government has to prove
the following elements beyond a reasonable doubt: the de-
fendant knowingly and intentionally possessed methamphet-
amine, he possessed methamphetamine with the intent to dis-
tribute it, and he knew the material was a controlled sub-
stance. See United States v. Campbell, 534 F.3d 599, 605 (7th Cir.
2008). To sustain the conviction for attempted possession with
intent to distribute methamphetamine, the government had
to prove beyond a reasonable doubt that Lopez acted with the
specific intent to commit the underlying offense and took a
substantial step toward completion of the that offense. See
United States v. Conley, 875 F.3d 391, 398 (7th Cir. 2017). Lopez
claims that the government failed to prove each element of the
attempt charge.
1.
Lopez argues that we should vacate his conviction because
the government did not prove beyond a reasonable doubt that
he acted with specific intent. He does not focus on the jury’s
finding that he intended to possess methamphetamine, but
instead focuses on distribution. We nonetheless address both
and conclude that the evidence more than supports the jury’s
finding beyond a reasonable doubt that Lopez intended to
possess and distribute at least 50 grams of methamphetamine.
First, on possession, the government presented more than
sufficient evidence for the jury to find that Lopez intended to
possess at least 50 grams of methamphetamine. Viewed in the
light most favorable to the government, the evidence, includ-
ing communication intercepts and the testimony of Salinas,
Linares, and others, established that Lopez specifically agreed
No. 17-1391 11
and arranged with Moreno to receive a nearly 10 ounces (ap-
proximately 283 grams) of methamphetamine on October 3,
2014 through Salinas, a drug mule whom Lopez knew and
from whom Lopez and had previously received illegal drugs.
Salinas traveled by bus to bring the methamphetamine to Illi-
nois, during which time Lopez was in contact with Salinas.
Lopez arranged payment terms in advance and further ar-
ranged for his friend Linares to meet Salinas at the bus stop
and bring Salinas to his home to provide the drugs to Lopez.
Second, on distribution, the government likewise pre-
sented sufficient evidence for the jury to find beyond a rea-
sonable doubt that Lopez intended to distribute the at least 50
grams of methamphetamine he arranged to receive from Sa-
linas. The evidence showed that 10 ounces of methampheta-
mine exceeds the amount an individual would have for per-
sonal use (which is about 1 gram), supporting the reasonable
inference that Lopez intended to distribute it, rather than use
it for himself, as several government witnesses, including an
expert in controlled substances, testified. See United States v.
Baker, 655 F.3d 677, 684 (7th Cir. 2011) (observing that “intent
to distribute can be inferred from the possession of a quantity
of drugs larger than needed for personal use”). Lopez addi-
tionally told Moreno that “a lot is moved here” in response to
Moreno asking him if he could sell illegal drugs prior to
Moreno sending Salinas to Illinois. Moreover, Lopez arranged
to pay the balance for the drugs a few days after receiving the
drugs, suggesting that he would sell some of the drugs to gen-
erate money.
Lopez’s primary retort is to challenge the intercepted com-
munications, arguing that there is not sufficient evidence to
12 No. 17-1391
link him to the communications. But that argument is unavail-
ing. Although phone records did not show Lopez as the sub-
scriber of the 217 Number, there was ample trial evidence that
Lopez was the user of that number. Salinas and Linares had
the number saved in their cellular telephones under Lopez’s
name and each testified that he used that number to com-
municate with Lopez and to coordinate and arrange the trans-
action. This is in addition to the user of the number stating
that he lived “out here by Champaign,” close to Lopez’s
home. Additionally, a police officer testified that, after taking
Salinas and Linares into custody, the 217 Number called Li-
nares phone and the officer recognized the caller’s voice to be
Lopez’s. Even without the calls, however, the testimony of Sa-
linas and Linares, together with other evidence, provides a
solid evidentiary basis for the jury to find beyond a reasona-
ble doubt that Salinas transported a 10 ounce package of
methamphetamine to Illinois, that Lopez was the intended re-
cipient of the package, that Lopez arranged for Linares to pick
up Salinas at the bus, and that the package contained meth-
amphetamine far in excess of a personal use amount.
2.
Lopez next asks us to vacate his conviction because the
government failed to prove that he took a substantial step to-
wards committing the underlying offense. “A substantial step
is ‘some overt act adapted to, approximating, and which in
the ordinary and likely course of things will result in, the com-
mission of the particular crime.’” United States v. Muratovic,
719 F.3d 809, 815 (7th Cir. 2013) (citations omitted). “It re-
quires ‘something more than mere preparation, but less than
the last act necessary before actual commission of the substan-
tive crime.’” Id. (citation omitted). This is an “inherently fact
No. 17-1391 13
specific” inquiry. See United States v. Sanchez, 615 F.3d 836, 844
(7th Cir. 2010).
Here, the trial evidence establishes that but for the govern-
ment’s intervention Lopez would have received 10 ounces of
methamphetamine that he planned to distribute. Although
Lopez did not meet Salinas or Linares nor was he in the im-
mediate vicinity of the bus station, the evidence nonetheless
shows that he went well beyond the mere preparation stage.
Lopez set in motion a complex plan that would have resulted
in a large quantity of illegal drugs arriving at his home on Oc-
tober 3, 2014.
Indeed, in less than a week, Lopez agreed to buy a large
quantity of illegal drugs from Moreno, and Salinas, at
Moreno’s direction, obtained 10 ounces of methampheta-
mine, communicated with Lopez about bringing illegal drugs
to Lopez, and traveled from Texas to Rantoul—near Lopez’s
house—to meet Linares, who Lopez arranged to pick up Sa-
linas at the bus stop and bring him to Lopez’s home (and re-
minded him to do so on the morning of Salinas’ arrival).
Lopez also agreed to specific payment terms, methods, and
timing. Further showing Lopez’s resolve to commit the crime,
he repeatedly attempted to contact Salinas and Linares after
their arrest. Taken together, Lopez’s actions constitute more
than mere preparation or speech; they were a substantial step
towards commission of the underlying drug offense.
C.
We finally turn to Lopez’s sentencing arguments. He con-
tends that the district court erred in enhancing his sentence to
life imprisonment because it improperly counted his 1999
guilty plea as a predicate “conviction” for purposes of
14 No. 17-1391
§ 841(b)(1)(A)(viii). Lopez also claims the court failed to com-
ply with § 851(b) before enhancing his sentence and that the
enhancement violates “due process and government policy.”
We review claims of procedural error at sentencing de
novo. See United States v. Tounisi, 900 F.3d 982, 987 (7th Cir.
2018) (per curiam); see also United States v. Lockwood, 840 F.3d
896, 900 (7th Cir. 2016). Where, as here, a sentencing enhance-
ment is at issue, we review “the district court’s determination
of facts at sentencing for clear error, and its interpretation of
the guidelines and other statutory enhancements de novo.”
United States v. Brown, 822 F.3d 966, 976 (7th Cir. 2016).
Section 841(b) “outlines the penalties for federal drug
crimes based upon the quantity of drugs involved and the
number of prior drug convictions.” Arreola-Castillo v. United
States, 889 F.3d 378, 385 (7th Cir. 2018). If a defendant has two
or more prior felony drug convictions that have become final,
and his federal offense involves at least 50 grams of metham-
phetamine, the enhanced sentence is mandatory life in prison.
21 U.S.C. § 841(b)(1)(A)(viii). Federal law, not state law, de-
fines “conviction” for purposes of the enhancement. United
States v. Gomez, 24 F.3d 924, 930 (7th Cir. 1994).
To impose the statutory enhancement under § 841, “the
government must follow the procedures in 21 U.S.C. § 851.”
Arreola-Castillo, 889 F.3d at 384. The prosecutor first must file
an information identifying the prior convictions. See 21 U.S.C.
§ 851(a). Then, “the court shall … inquire of the person with
respect to whom the information was filed 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 im-
posed may not thereafter be raised to attack the sentence.” Id.No. 17-1391 15
§ 851(b). If the person denies any allegation in the infor-
mation, or claims a prior conviction is invalid, that person
must file a written response. Id. § 851(c)(1). “Any challenge to
a prior conviction, not raised by response to the information
… , shall be waived unless good cause be shown for failure to
make a timely challenge.” Id. § 851(c)(2).
If the defendant files a response, “[t]he court shall hold a
hearing to determine any issues raised by the response which
would except the person from increased punishment.” Id.
§ 851(c)(1). At the hearing, the parties may present evidence
and request that the court make findings of fact and conclu-
sions of law. Id. The government bears the burden of proof
beyond a reasonable doubt on factual issues. Id.
In addition, § 851 provides that “‘No person who stands
convicted of an offense under this part may challenge the va-
lidity of any prior conviction alleged under this section which
occurred more than five years before the date of the infor-
mation alleging such prior conviction.’” Arreola-Castillo, 889
F.3d at 384 (quoting 21 U.S.C. § 851(e)). This limits challenges
to the legal validity of the prior conviction, not challenges to
its factual existence. Id.
1.
Lopez’s primary argument is that the district court erred
in counting his 1999 guilty plea in Texas as a conviction under
§ 841(b)(1)(A)(viii) to enhance his sentence. He explains that,
after pleading guilty, the state court granted him a deferred
adjudication and that he was discharged from probation in
2002, thus in his view disqualifying the offense from being a
“conviction” under § 841(b)(1)(A)(viii). Though we are sym-
pathetic to Lopez’s plight, his claim fails under existing law.
16 No. 17-1391
To begin, the Fifth Circuit considered this precise issue—
namely, “whether a deferred adjudication in Texas constitutes
a ‘prior conviction’ in the context of 21 U.S.C.
§ 841(b)(1)(A)”—in United States v. Cisneros, 112 F.3d 1272,
1275 (5th Cir. 1997). The Circuit Court answered in the affirm-
ative, relying heavily on Dickerson v. New Banner Inst. Inc., 460
U.S. 103 (1993). We find the Fifth Circuit’s reasoning persua-
sive and its reliance on Dickerson dispositive.
In Dickerson, the Supreme Court considered whether, as a
matter of federal law, an individual had “been convicted” of
a felony for purposes of evaluating his eligibility to possess a
firearm under 18 U.S.C. §§ 922(g)-(h). The individual pleaded
guilty in Iowa state court to carrying a concealed firearm, and
the state court deferred entry of formal judgment and placed
him on probation, after which the court discharged the de-
fendant and expunged his record. Id. at 107-08 & n.4.
Although the formal entry of judgment was absent, the
Dickerson court held that the guilty plea constituted a convic-
tion, as a matter of federal law, for purposes of disabling this
individual from owning a firearm. The Court reasoned that
there was a charge of the disqualifying type; a guilty plea to
the charge; and a court order of probation. Reasoning further,
the Court explained that a guilty plea “differs in purpose and
effect from a mere admission or an extrajudicial confession; it
is itself a conviction. Like a verdict of a jury it is conclusive.
More is not required; the court has nothing to do but give
judgment and sentence.” Id. at 111–13. The historical fact of
conviction did not change with the state court’s later ex-
pungement order. Id. at 114–15.
No. 17-1391 17
The same reasoning applies here. Lopez was charged with
a felony in Texas; he pleaded guilty; and the state court de-
ferred adjudication and placed him on probation. Therefore,
Lopez has a prior conviction for purposes of
§ 841(b)(1)(A)(viii). See Dickerson, 460 U.S. at 111–15.
Our case law bolsters this conclusion. Relying on Dicker-
son, we have held that a guilty plea under Illinois’ first-time-
offender law, 720 ILCS 570/410 qualifies as a “prior convic-
tion” under § 841(b)(1). See, e.g., United States v. Graham, 315
F.3d 777, 783 (7th Cir. 2003). In Graham, for example, we up-
held a sentence of mandatory life in prison under
§ 841(b)(1)(B), where one of the predicate convictions was a
finding of guilt for felony possession of a controlled substance
and a sentence of two years of probation that was ultimately
expunged. 315 F.3d at 783. Rejecting a challenge to the sen-
tence, we held that “the fact that [the defendant] received pro-
bation that was later discharged does not alter the fact that he
possesses a prior drug-related felony conviction qualifying
him for the enhancement under § 841(b)(1)(B).” Id.
Our sister circuits are in accord. See United States v. Pritch-
ett, 749 F.3d 417, 425 (6th Cir. 2014) (deferred adjudication un-
der Tennessee law); United States v. Craddock, 593 F.3d 699, 701
(8th Cir. 2010) (per curiam) (deferred sentence under Missouri
law); Cisneros, 112 F.3d at 1275 (deferred adjudication under
Texas law); United States v. Mejias, 47 F.3d 401, 403-04 (11th
Cir. 1995) (per curiam) (deferred adjudication under Florida
law). The district court therefore did not err in counting
Lopez’s 1999 conviction as a predicate conviction to enhance
his sentence under § 841(b)(1)(A)(viii).
18 No. 17-1391
2.
Lopez also argues that we should remand for resentencing
because the district court violated § 851(b) by failing to in-
quire of him personally, prior to imposing sentence, “whether
he affirms or denies that he has been previously convicted as
alleged in the information,” and likewise by failing to 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.” 21 U.S.C. § 851(b). The government
does not dispute that the district court erred, but says that this
error was harmless. We agree.
Lopez, who had notice from the government and the PSR
that the government intended to seek an enhancement based
on the 1999 guilty plea, never disputed the factual existence
of the plea. In fact, his trial and appellate briefs acknowledge
it and so did his counsel at oral argument. Lopez instead chal-
lenges the legal status of the 1999 guilty plea, arguing that it
cannot qualify as a “conviction” under § 841(b)(1)(A)(viii). He
also argued below that his counsel for the plea gave him
faulty advice about the collateral consequences of pleading
guilty. Either way, these are legal challenges that have no
nexus to the district court’s error and would not have been
affected by a proper § 851(b) colloquy. 3 The challenge fails.
3To the extent Lopez asks us to construe his challenge as one to the
factual (not legal) existence of his prior conviction, we decline to do so.
Not only is it clear that Lopez challenges the legal status of his prior con-
viction, but also he made no such objection to its factual existence below,
and thus the argument is “waived unless good cause be shown for failure
to make a timely challenge.” 21 U.S.C. § 851(c)(2). Lopez does not attempt
to show good cause.
No. 17-1391 19
See United States v. Williams, 298 F.3d 688, 692–93 (7th Cir.
2002).
Although we find harmless error, we emphasize that the
availability of the harmless error analysis is not a license to
skirt mandatory procedures. We remind district courts to fol-
low the detailed procedures set forth in § 851 to ensure the
integrity and fairness of the sentencing process. This is not our
first time saying this. See, e.g., Arreola-Castillo, 889 F.3d at 387
(stating that compliance with § 851(b) “is necessary because
‘it is always possible that the government was mistaken and
there was no prior conviction, or that the facts alleged in the
government’s information of prior conviction are incorrect’”)
(quoting United States v. Arango-Montoya, 61 F.3d 1331, 1339
(7th Cir. 1995)). We also remind counsel, including the gov-
ernment, of its obligation to object when a district court fails
to follow proper sentencing procedures prior to enhancing a
sentence.
3.
Lopez finally argues that the district court’s “application
of the recidivist sentencing enhancement ran afoul of due pro-
cess and government policy.” This argument merits little dis-
cussion. Lopez reiterates his procedural objections without
connecting them to due process and further attacks the gov-
ernment for its exercise of prosecutorial discretion in seeking
a sentencing enhancement. Not only did Lopez fail to raise
this argument below, and makes no attempt to show plain er-
ror, but his argument is merely an expression of his discontent
with his mandatory life sentence, which is severe but not a
violation of due process. See United States v. Franklin, 547 F.3d
726, 735 (7th Cir. 2008) (“mandatory minimum sentences are
not a violation of a defendant’s due process rights”).
20 No. 17-1391
III. Conclusion
For the foregoing reasons, Lopez’s conviction and sen-
tence are AFFIRMED.