IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 96-60173 & 96-60488
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVERETT HATCHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC Nos. 1:92-CR-009-B-D & 3:94-CV-157-B
July 15, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Everett Hatcher, federal prisoner #09612-042, was convicted of
distributing LSD after pleading guilty to counts two and four of
the indictment, which alleged violations of 21 U.S.C. §§ 841(a) and
841(b)(1)(C), and 21 U.S.C. §§ 841(a) and 843(b) respectively. We
granted his motion for a certificate of appealability after the
district court dismissed his 28 U.S.C. § 2255 petitions. The
certificate limits the issues for appeal to two: whether the
district court erred in enhancing his sentence for prior
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
convictions, and whether his attorney provided ineffective
assistance by failing to object to the enhancements.
Hatcher argues that the term of supervised release imposed on
count two and the term of imprisonment imposed on count four should
not have been enhanced because the government failed to comply with
21 U.S.C. § 851(a)(1). Under § 851(a)(1), “[n]o person who stands
convicted of an offense under this part [§§ 841-852] 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.”
“If the prosecution fails to comply with § 851’s procedural
requirements, a district court cannot enhance a defendant’s
sentence.” United States v. Steen, 55 F.3d 1022, 1025 (5th Cir.),
cert. denied, 116 S. Ct. 577 (1995). Indeed, a court has no
authority to impose an enhancement when the government does not
file an information before entry of the plea. United States v.
Noland, 495 F.2d 529, 533 (5th Cir.), cert. denied, 419 U.S. 966
(1974). See also United States v. Levay, 76 F.3d 671, 674 (5th
Cir. 1996) (“[S]ince the government withdrew its notice of intent
to prove prior convictions as a part of the plea agreement, the
court was precluded from considering prior convictions as a factor
under § 841(b)(1)(A).”); Steen, 55 F.3d at 1025 n.2 (citing cases
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holding that failure to file a § 851(a) information deprives the
district court of jurisdiction to impose a statutory enhancement
based on prior convictions); United States v. Cevallos, 538 F.2d
1122, 1125 n.4 (5th Cir. 1976) (“In Noland, . . . the failure to
file the information of previous conviction prior to trial deprived
the District Court of jurisdiction to impose an enhanced sentence
(and obviously the opportunity to file such an information before
trial had been irretrievably lost) . . . .”); Kelly v. United
States, 29 F.3d 1107, 1110 (7th Cir. 1994) (“[A] court does not
even have jurisdiction to impose an enhanced sentence unless notice
is served.”). Just as a court may not enter a conviction without
a formal indictment, it may not impose an enhancement under 21
U.S.C. §§ 841-852 without a filing from the government. See United
States v. Olson, 716 F.2d 850, 853 (11th Cir. 1983) (explaining
that a court without a § 851(a) information “can no more enhance
the sentence than it could impose imprisonment under a statute that
only prescribes a fine”).
Because of the jurisdictional nature of § 851(a) filings, we
review de novo in spite of Hatcher’s failure to raise the issue on
direct review or in the district court on collateral review. See
United States v. Fitzgerald, 89 F.3d 218, 221 & n.1 (5th Cir.)
(explaining that a defendant cannot forfeit his right to de novo
review of the sufficiency of an indictment), cert. denied, 117
S. Ct. 446 (1996). As the government concedes, the trial court
should not have enhanced Hatcher’s sentence. Furthermore, the
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prosecution may not go back and cure its omission. Cevallos, 538
F.2d at 1125 n.4; Noland, 495 F.2d at 533-34. We must vacate the
sentence and remand for re-sentencing without consideration of
enhancement for prior offenses.
In light of this result, we need not reach Hatcher’s
ineffective-assistance claim.
Hatcher’s sentences on counts two and four are VACATED, and
the case is REMANDED for re-sentencing.
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