In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3278
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
V ALERIAN N. L EWIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07 CR 20115—Michael P. McCuskey, Chief Judge.
A RGUED D ECEMBER 3, 2009—D ECIDED M ARCH 15, 2010
Before E ASTERBROOK, Chief Judge, and M ANION and
E VANS, Circuit Judges.
E VANS, Circuit Judge. A jury convicted Valerian Lewis
on a charge of attempting to possess, with intent to dis-
tribute, over 500 grams of cocaine. See 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), 846. The jury also returned a
special verdict finding that the attempt to possess
involved over five kilograms of cocaine. Because this
was Lewis’s second felony drug conviction, the drug
2 No. 08-3278
quantity finding triggered the imposition of a manda-
tory minimum sentence of 20 years.
Prior to trial, the government neglected to file an infor-
mation pursuant to 21 U.S.C. § 851, which would have
given Lewis notice of its intent to seek an enhanced
penalty. Lewis appeals his sentence, arguing that the
government’s failure to comply with § 851 stripped the
district court of its “authority” to impose the 20-year
mandatory minimum sentence. This is not quite right,
for even without a prior conviction Lewis faced a
statutory sentencing range of 10 years to life for a con-
viction involving more than five kilograms of cocaine.
So without regard to the filing of a § 851 information,
the district court had the “authority” to impose the
20-year sentence that it ordered. Whether it should have
done so, not its “authority” to do so, is the issue we con-
sider on Lewis’s appeal.
Lewis first found himself in federal court in 2002 when
he was convicted of distributing cocaine and cocaine
base. He received a 57-month sentence. In 2007, while on
supervised release from his 2002 conviction, Lewis met
with Fidel Sanchez at a McDonald’s on Chicago’s South
Side. Lewis told Sanchez there was no cocaine to be
found in the Fort Wayne (Indiana) area where he lived,
so once Sanchez was “ready with the cocaine, he was
going to be ready with the money.” On December 3,
Lewis and Sanchez set up a deal over the phone—Lewis
would buy three kilograms of cocaine at the price of
$18,000 per kilogram and receive another three kilo-
grams on a consignment basis. The following day, Lewis
No. 08-3278 3
drove from Fort Wayne to Kankakee (Illinois), a trip of
over 150 miles, to do the deal with Sanchez at a Hilton
Inn. He brought $47,465 in cash with him to pay for
the drugs. Unfortunately for Lewis, Sanchez was a confi-
dential informant who had been working for the Drug
Enforcement Agency for nearly 20 years. After Lewis
arrived and met with Sanchez, DEA agents and Illinois
police arrested him.
During pretrial proceedings, Lewis’s prior conviction
was mentioned many times. The criminal complaint
issued the day after his arrest referred to it. Both the
government and Lewis’s defense counsel made note of
it at his initial appearance before the district court. The
magistrate judge detained Lewis prior to trial primarily
because he was on supervised release for the prior con-
viction when he was arrested. And at Lewis’s arraignment,
the judge advised him of the enhanced penalty he
faced given the 2002 conviction.
Additionally, Lewis filed two motions in limine seeking
to prevent the government from introducing the convic-
tion as Rule 404(b) evidence during the trial. The gov-
ernment’s written response defended its use of the evi-
dence and included the details of the 2002 prior convic-
tion—the specific offense, jurisdiction, date of conviction,
sentence, and release date. The district court denied the
first motion in limine and granted the second one only
in part. Lewis then filed a motion to reconsider, which
the court granted, ruling that the government would not
be able to introduce evidence of the prior conviction
unless Lewis opened the door to it.
4 No. 08-3278
At sentencing, Lewis contested a two-level upward
adjustment to his guideline range for his role in the
offense. That was the only objection he lodged to the
presentence report (“PSR”). Lewis acknowledged that he
faced a mandatory minimum sentence greater than the
188 to 235 month range prescribed by the advisory guide-
lines under § 841(b) and the jury’s drug quantity finding.
No objection was made to the government’s failure to
file a § 851 information. The district court adopted the
findings of the PSR and imposed 20 years, the mandatory
minimum.
It is only now on appeal that Lewis contests the govern-
ment’s failure to comply with § 851 prior to trial. Section
851 requires the government to provide written notice
when it intends to seek an increased punishment
based on prior convictions. The government believes we
need not reach the substance of Lewis’s appeal, claiming
that he waived his argument by affirmatively acknowl-
edging the applicability of the mandatory minimum
during his sentencing hearing. Waiver, of course, is the
intentional relinquishment of a known right, whereas
forfeiture is the failure to timely assert a right. United States
v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009). Waiver pre-
cludes review, but forfeiture allows review albeit only
for plain error. Id. The government has a strong argu-
ment that Lewis waived his objection when he agreed
that he faced the mandatory minimum sentence of
20 years. See United States v. Staples, 202 F.3d 992, 995 (7th
Cir. 2000) (defendant waived the right to object when he
knew he had a right to object to the calculation of his
criminal history, knew the contents of the PSR, and affir-
matively decided not to object).
No. 08-3278 5
But having said that, it ultimately does not matter
whether we find waiver or forfeiture as Lewis’s argu-
ment fails under plain error review. To meet this
exacting standard, Lewis must show that the district court
made a clear error, affecting his substantial rights.
United States v. Lane, 591 F.3d 921, 926 (7th Cir. 2010).
Obviously § 851 was violated. The government did not
file an information. However, there is no prejudice
here. The two main purposes of the § 851 information
requirement are to give a defendant an opportunity to
contest the accuracy of his prior convictions and to
inform his decision on whether to plead guilty or proceed
to trial. Id. at 927. We can’t see how Lewis suffered
from the lack of a formal notice. He was well aware of
the prior conviction; it was the subject of the Rule 404(b)
pretrial debate. Our analysis might be different if
Lewis had pled guilty, expecting a lower sentence than
§ 841(b) would require. But he proceeded to trial. Plus,
plain error review has a judicial discretion component.
We only notice the error if it “seriously affect[s] the
fairness, integrity or public reputation of judicial pro-
ceedings.” Id. at 926 (quoting United States v. Olano, 507
U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993)). The govern-
ment’s failure to file a § 851 information was a slipup to
be sure, but it does not change the fact that Lewis had
full knowledge of his prior conviction and the penalty
he faced.
Accordingly, we A FFIRM the judgment of the district
court.
3-15-10