United States v. Baugham

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2009 Decided July 30, 2010

No. 07-3145

UNITED STATES OF AMERICA,
APPELLEE

v.

REGINALD BAUGHAM,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 01cr00253-02)

Marshall N. Perkins argued the cause for appellant.
With him on the briefs was Steven J. McCool, appointed by the
court.

Ryan W. Bounds, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Roy W. McLeese III and
John P. Gidez, Assistant U.S. Attorneys.

Before: HENDERSON, ROGERS, and BROWN, Circuit
Judges.

Opinion for the Court filed PER CURIAM.
 2

Opinion concurring in the judgment filed by Circuit
Judge BROWN.

PER CURIAM: Reginald Baugham, convicted in the
district court of various federal drug and conspiracy offenses,
challenges his sentence and asks this court to vacate and remand
for resentencing. He argues the district court failed to observe
the requirements of 21 U.S.C. § 851(a) and (b) when it enhanced
his sentence based on a prior drug conviction and that it levied
a vindictive fine on him in violation of his constitutional due
process rights. We find the district court committed no error
that requires resentencing and affirm both Baugham’s prison
term and fine.

I

Together with four co-defendants, Reginald Baugham
was tried in 2003 for a number of drug and conspiracy charges.
He was ultimately convicted on three counts: conspiracy to
distribute crack cocaine, 21 U.S.C. § 846; distribution of crack,
id. § 841(a) & 841(b)(1)(C); and possession of crack with intent
to distribute, id. § 841(a)(1) & 841(b)(1)(B)(iii). J.A. 127. Prior
to trial, the government filed with the district court and served
upon Baugham pursuant to 21 U.S.C. § 851(a) an information
listing three prior convictions in Baugham’s criminal record.
J.A. 95. Filing such an information is a prerequisite under
§ 851(a) for any sentence to be enhanced based on prior
convictions. This particular information, however, incorrectly
inserted the name of one of Baugham’s co-defendants rather
than Baugham himself as the subject of the prior convictions.
All other elements of the information—the case heading reading
“United States of America v. Reginald Baugham,” the case
number, and details of the prior convictions—were correct. Id.
 3

Relying on the prior drug conviction listed in the
information and without either the government or Baugham
drawing attention to the misstated name, the district court
announced an enhanced sentence of life in prison, two 30-year
sentences to run concurrently with the life sentence, ten years of
supervised release, and a special assessment of $300. Id. at
128–32. Prior to announcing the sentence, the district court did
not—as is required by 21 U.S.C. § 851(b)—inquire of Baugham
whether he affirmed or denied the prior convictions or notify
him that failure to challenge the convictions would preclude him
from raising such challenges after sentencing. See Brief for
Appellee 15. On direct appeal, this court affirmed Baugham’s
convictions but remanded for resentencing pursuant to United
States v. Booker, 543 U.S. 220 (2005). See United States v.
Baugham, 449 F.3d 167, 183–84 (D.C. Cir. 2006). At
resentencing, the district court again relied on the § 851(a)
information with no one identifying its misstatement and again
failed to conduct a § 851(b) colloquy with Baugham. The court
imposed an enhanced sentence of three concurrent 20-year
sentences and a fine of $1,000 to be paid gradually through a
prison work program. J.A. 173–75, 177–78.

Baugham appealed the newer sentence under 28 U.S.C.
§ 1291, arguing the district court violated 21 U.S.C. § 851(a)
and (b) in its issuance of the sentence and that the $1,000 fine is
unconstitutionally vindictive. Because Baugham failed to
preserve his § 851(a) and vindictive sentence claims before the
district court, we review those claims for plain error. See United
States v. Olano, 507 U.S. 725, 731–32 (1993); United States v.
Scott, 48 F.3d 1389, 1398 (5th Cir. 1995). Even though
Baugham also failed to preserve his § 851(b) claim, for reasons
explained in section II.B, we review that claim de novo and for
harmless error. See United States v. Gaviria, 116 F.3d 1498,
1518 (D.C. Cir. 1997).
 4

II

Baugham’s appeal presents three arguments. First, he
claims the inclusion of a co-defendant’s name in the body of the
pre-trial information instead of his own rendered the information
invalid under § 851(a) and the district court’s reliance on the
information to enhance his sentence was therefore error.
Second, Baugham claims the district court erred when it failed
to conduct the sentencing colloquy required by § 851(b). Third,
he claims the district court’s imposition of a $1,000 fine at
resentencing demonstrates a vindictive and unconstitutional
effort to “punish[] [Baugham] for vindicating his legitimate
appellate rights.” Brief for Appellant 23. We consider each
claim in order.

A

The portion of § 851(a) relevant to Baugham’s first
claim 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, 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.

21 U.S.C. § 851(a)(1). In United States v. Vanness, we held that
“[a] prosecutor’s compliance with § 851(a)(1) is simply a
necessary condition to a judge’s imposing an enhanced sentence
on the basis of a defendant’s prior convictions.” 85 F.3d 661,
663 n.2 (D.C. Cir. 1996). Similarly, in United States v.
 5

Kennedy, we held that “[s]ection 851(a) is a firm and strict rule”
and that a failure to comply with its “statutory scheme” may not
be excused as harmless. 133 F.3d 53, 59 (D.C. Cir. 1998)
(quoting United States v. Weaver, 905 F.2d 1466, 1481 (11th
Cir. 1990)). Hence, our caselaw makes clear that a prosecutor
must strictly comply with § 851(a) in order for the court to
impose a sentence enhancement based on a defendant’s prior
conviction; it recognizes the statute’s due process purpose,
which is to ensure the defendant is aware before trial that he
faces possible sentence enhancement as he assesses his legal
options and to afford him a chance to contest allegations of prior
convictions. See Kennedy, 133 F.3d at 59; Vanness, 85 F.3d at
663-64.

Our caselaw also makes clear, however, that to comply
with § 851(a) the information need not be perfect with respect
to every jot and tittle. In Vanness, the prosecutor filed an
information that misstated the minimum prison term the
defendant faced. 85 F.3d at 663. We nevertheless affirmed the
enhanced sentence, holding that, because § 851(a) does not
require the prosecutor to notify the defendant of the minimum
sentence, the prosecutor’s mistake was merely a “gratuitous
misstatement” that did not amount to a failure to comply with
the statute. Id. at 664. Indeed, the text of § 851(a) makes clear
that, in order to comply with it, the prosecutor need only (1) file
with the court and (2) serve on the defendant (3) an information
stating “the previous convictions to be relied upon” (4) before
trial or a guilty plea. Here, it is undisputed that the prosecutor
filed and served in a timely manner an information detailing
Baugham’s prior convictions. Thus, the prosecutor strictly
complied with § 851(a)’s requirements.

The question then becomes: Given that the prosecutor
satisfied the “necessary condition” that he comply with § 851(a),
Id. at 663 n.2, under what standard should we review the
 6

mistake regarding the defendant’s name? Baugham did not
object to the mistake in the district court. Ordinarily, “[w]hen
a defendant does not timely object to an error in the district
court, appellate review is limited by the ‘plain error’ standard.”
United States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir. 2005).
Our caselaw has not, it appears, expressly applied plain error to
an alleged defect in a § 851(a) information. Also, in Vanness,
we applied de novo and harmless error review to the “gratuitous
misstatement,” even though we did not make clear whether the
defendant had timely objected in the district court. See 85 F.3d
at 664.

We need not resolve the standard-of-review question,
however, because Baugham has failed to show prejudice, which
is required under either standard. At no point has he asserted
that the misstated name in the information caused him any
hardship or confusion. To the contrary, his lawyer
acknowledged, both in his Memorandum in Aid of Sentencing
and at the resentencing hearing, that the information regarded
Baugham and affected his prospective sentence. In other words,
here, as in Vanness, “[t]here is no indication that [the defendant]
relied on [the misstatement] in deciding whether to put the
government to its proof at trial, and there is every indication that
he knew what was coming at sentencing.” Id. Therefore, the
misstatement did not prejudice Baugham and his appeal on this
ground fails.

B

We turn to Baugham’s claim that the district court
violated § 851(b), which requires:

[T]he court shall after conviction but before
pronouncement of the sentence inquire of the
[defendant] whether he affirms or denies that he
 7

has been previously convicted as alleged in the
information, and shall inform him that any
challenge to a prior conviction which is not made
before sentence is imposed may not thereafter be
raised to attack the sentence. 21 U.S.C.
§ 851(b).

Although Baugham did not preserve this claim and courts are
generally obligated to review unpreserved claims under the strict
plain error standard, we follow prior caselaw in this circuit and
review the challenge de novo and for harmlessness. See
Gaviria, 116 F.3d at 1518. The rule regarding preservation and
plain error aims to prevent parties from wasting judicial
resources by holding possible trial errors in reserve in hopes of
raising them on appeal. See City of Newport v. Fact Concerts,
Inc., 453 U.S. 247, 256 (1981) (indicating that the plain error
standard advances “interests in fair and effective trial
administration”). That logic, however, does not apply to
§ 851(b) errors. The purpose of § 851(b) is to place the
procedural onus on the district court to ensure defendants are
fully aware of their rights. See United States v. Cevallos, 538
F.2d 1122, 1128 (5th Cir. 1976) (“One purpose of § 851(b) is to
[e]nsure that a defendant knowingly and voluntarily waives his
right to challenge the previous conviction . . . . [A]nd its
omission can result in very real prejudice to a defendant who
learns only after he attempts to challenge the prior conviction
that that conviction has become unassailable.”). To penalize a
defendant for not alerting the district court to its failure to alert
him would pervert the statute and get it exactly backward. We
therefore conduct this inquiry de novo.

Under that standard, it is clear the district court erred by
not conducting the required colloquy, and the government
concedes as much. Brief for Appellee 15–16. The question then
is whether the government has carried its burden to demonstrate
 8

the error did not substantially harm Baugham by affecting his
sentence. We believe the government has. The government
correctly points out that even if the district court asked Baugham
whether he affirmed or denied the prior convictions, he could
not have raised any issues regarding the convictions. Baugham
has not indicated at any point—before trial, during trial, at
sentencing and resentencing, and now on appeal—that the drug
conviction on which his sentence enhancement depends was
invalid in any way. His counsel at sentencing even conceded
that he could not “find anyway around” the sentence
enhancement and requested the same 20-year sentence the
district court ultimately imposed. J.A. 159, 161–62. Further,
even if the drug conviction were invalid, no challenge can be
made to a prior conviction that is more than five years old. See
21 U.S.C. § 851(e). Baugham’s prior conviction occurred in
1996, J.A. 95, and was already more than five years old at the
start of his trial.

The only irregularity Baugham could have possibly
raised relates to the pretrial information’s erroneous use of a co-
defendant’s name. The government correctly notes that
nowhere in the record or in his brief does Baugham claim any
prejudice from the inaccuracy, and there is no indication he was
confused by it or relied on it to his detriment when formulating
his pre-trial strategy. While the district court erred in neglecting
the § 851(b) colloquy, the error was harmless.

C

In his final claim, Baugham argues the $1,000 fine in his
new sentence creates a “presumption of vindictiveness” on the
part of the district court since the court did not impose a fine in
the original sentence. Brief for Appellant 23. Baugham cites
North Carolina v. Pearce, 395 U.S. 711 (1969), for the
proposition that when a court imposes a harsher sentence upon
 9

resentencing and “offer[s no] reason or justification for [the
higher] sentence beyond the naked power to impose it,” id. at
726, an appellate court should presume the sentencing court was
unconstitutionally punishing the defendant for exercising his
right to challenge his original sentence.

This claim has no merit. We put aside the abstruse
question of whether a 20-year sentence and a $1,000 fine is in
fact a more severe sentence than life in prison with no fine,
though we imagine few would opt for the latter if given the
choice. We also put aside more recent Supreme Court caselaw
that has pared back the sweeping presumption established by
Pearce and likely renders the presumption inapplicable to
Baugham’s resentencing. See Alabama v. Smith, 490 U.S. 794,
799 (1989) (“[The presumption applies in] circumstances . . . in
which there is a ‘reasonable likelihood’ that the increase in
sentence is the product of actual vindictiveness . . . . [Otherwise]
the burden remains upon the defendant to prove actual
vindictiveness.”). We rather turn our attention to the simple fact
that the district court at resentencing explained Baugham’s
modest fine as “an incentive to work while in prison,” J.A. 175,
which would better prepare him to be “a law-abiding citizen”
upon release, id. at 174. This reason does not exhibit
vindictiveness. Instead, it shows a justified concern with
rehabilitating Baugham in light of a new sentence that gave him
an actual prospect of full freedom. By enunciating a valid
reason for the fine, the district court clearly did not rely on mere
“naked power” to increase Baugham’s punishment, and that is
enough to remove the new sentence from the Pearce
presumption.
 10

III

Baugham has presented no error by the district court
that requires remand for resentencing. Baugham’s sentence is
therefore

Affirmed.
 BROWN, Circuit Judge, concurring in the judgment: I
arrive at the same result the court does in this case, but my
path to it differs in three respects.

First, I would apply a plain error standard—not de novo
review—to Baugham’s claim that the information of prior
convictions accepted by the district court did not comply with
21 U.S.C. §851(a). The court refrains from articulating the
particular standard, pointing out that prior cases in this circuit
do not appear to apply plain error to such challenges. Those
cases, however, either leave unsaid which standard they are
applying, do not explain whether appellants preserved their
challenges before the district court, or even imply the
challenge was preserved, see United States v. Kennedy, 133
F.3d 53, 59–60 (D.C. Cir. 1998) (discussing the district
court’s findings on the relevant issue). In the absence of a
firm statement that plain error review is never applicable to
§ 851(a) challenges, I do not think this is an open question.
The default rule followed by courts is that unpreserved errors
are subject to procedural default and plain error review, see
United States v. Olano, 507 U.S. 725, 731 (1993), and,
generally, only errors that implicate a jurisdictional issue
escape the rule. See United States v. Cotton, 535 U.S. 625,
630–31 (2002) (“Consequently, defects in subject-matter
jurisdiction require correction regardless of whether the error
was raised in district court.”); United States v. Mezzanatto,
513 U.S. 196, 200–01 (1995) (waiver of statutory provisions
is presumptively available). If this court had meant in the past
to designate § 851(a) as jurisdictional, it should have said so.

The second point on which I differ is I would reject
Baugham’s § 851(a) challenge under plain error review
because he forfeited that challenge at the sentencing stage.
The court cites circuit precedent obligating the government to
strictly comply with § 851(a), but we have only applied that
strict compliance rule to the section’s procedural
requirements: those concerning filing, service, and timeliness.
 2
See Kennedy, 133 F.3d at 59 (holding that § 851(a) requires
government to comply with service rules); see also United
States v. Belanger, 970 F.2d 416, 418 (7th Cir. 1992),
overruled on separate grounds by United States v. Ceballos,
302 F.3d 679 (7th Cir. 2002) (“Strict compliance with the
mandatory language of the procedural requirements of § 851
is required, especially with respect to the timing of the
government’s filing with the court and serving on the
defendant a notice.”).1 We have not applied the strict rule to §
851(a)’s more elastic requirements for the substantive
contents of the information. The statute allows for correction
of clerical errors any time prior to the pronouncement of the
sentence. See 21 U.S.C. § 851(a)(1) (“Clerical mistakes in the
information may be amended at any time prior to the
pronouncement of sentence.”). Further, the statute indicates
that responsibility for the accuracy of the information is not
the government’s alone, but is in fact shared with the
defendant in a burden-shifting scheme once the defendant
receives the information. After the government timely files
an information, the defendant is required to make any
challenges to the prior convictions in writing to the
government and the court, which will then hold a hearing if
any challenge raises an issue that would except the defendant
from sentence enhancement. See id. § 851(c)(1) (“If the
person denies any allegation of the information of prior
conviction, or claims that any conviction alleged is invalid, he
shall file a written response to the information. . . . The court
shall hold a hearing to determine any issues . . . which would
except the person from increased punishment.”). The
1
This strict compliance rule is premised on a due process interest:
§ 851(a)’s procedural requirements ensure the defendant is aware of
possible sentence enhancement as he assesses his legal options and
afford him a chance to contest allegations of prior convictions. See
Kennedy, 133 F.3d at 59.
 3
defendant must do this or risk forfeiting all challenges to the
contents of the information once a sentence is imposed. See
id. § 851(b) (“[A]ny challenge to a prior conviction which is
not made before sentence is imposed may not thereafter be
raised to attack the sentence.”); United States v. Beasley, 495
F.3d 142, 146, 148 (4th Cir. 2007) (“21 U.S.C. § 851 is not
jurisdictional and therefore is subject to the usual rules of
procedural default. . . . Moreover, the requirements of § 851
can be waived by defendants.”).

Applying § 851’s scheme to Baugham’s case, it is clear
the government filed and served a timely information
detailing Baugham’s prior convictions and therefore met the
strict and mandatory procedural requirement of § 851(a).
Regarding the information’s substantive compliance, it
contained the latent error regarding Baugham’s name. But
because neither Baugham nor his counsel contested this error
prior to trial, during the trial, or during two sentencing
proceedings pursuant to his duties under § 851, he forfeited
his challenge to it, precluding any legal error on the part of
the district court when it accepted and relied on the
information. The resulting enhanced sentence is therefore
impervious to attack on this point.

My third comment is not really a disagreement with the
court, but a belief that one of its determinations would benefit
from more explanation. I, too, would apply a de novo
standard to Baugham’s § 851(b) claim regarding the district
court’s failure to grant him a proper colloquy at sentencing
and resentencing even though Baugham failed to preserve this
error. Our prior caselaw appears to require this, see United
States v. Gaviria, 116 F.3d 1498, 1518 (D.C. Cir. 1997 (per
curiam) (“Legal questions relating to sentencing are reviewed
de novo.”), a requirement that—as already discussed—is in
tension with the general rule that all errors are subject to
 4
procedural default. It is therefore worth explaining this
different treatment of § 851(b).

The procedural default rule, with its scheme of
preservation and plain error review, aims to prevent parties
from wasting judicial resources by eliminating the incentive
to hold possible trial errors in reserve in hopes of raising them
on appeal. See City of Newport v. Fact Concerts, Inc., 453
U.S. 247, 256 (1981) (indicating that the plain error standard
advances “interests in fair and effective trial administration”).
That logic, however, does not apply to § 851(b) errors. The
purpose of § 851(b) is to place the procedural onus on the
district court to ensure defendants are fully aware of their
rights. See United States v. Cevallos, 538 F.2d 1122, 1128
(5th Cir. 1976) (“One purpose of § 851(b) is to [e]nsure that a
defendant knowingly and voluntarily waives his right to
challenge the previous conviction . . . . [A]nd its omission can
result in very real prejudice to a defendant who learns only
after he attempts to challenge the prior conviction that that
conviction has become unassailable.”). To penalize a
defendant for not alerting the district court to its failure to
alert him would pervert the statute and get it exactly
backward.

I recognize that Supreme Court caselaw appears to
mandate plain error review for all unpreserved challenges,
even when doing so would put the Federal Rules of Criminal
Procedure and the U.S. Code at cross purposes. See Olano,
507 U.S. at 731 (“Federal Rule of Criminal Procedure 52(b),
which governs on appeal from criminal proceedings, provides
a court of appeals a limited power to correct errors that were
forfeited because not timely raised in district court.”).
However, our de novo and harmlessness review in this case
ultimately results in affirmance of Baugham’s sentence, the
same outcome that would a fortiori result from a plain error
 5
inquiry. I therefore think that applying de novo review here
serves to highlight a possible flaw in the federal standard of
review doctrine, comfortable in the knowledge that the case
does not turn on this question.