UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2465
ROBERT E. SUVEGES, JR.,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Boudin and Stahl, Circuit Judges.
Robert E. Suveges, Jr. on brief pro se.
Richard S. Cohen, United States Attorney, and F. Mark
Terison, Assistant United States Attorney, on brief for the
United States.
October 14, 1993
SELYA, Circuit Judge. Petitioner-appellant Robert E.
SELYA, Circuit Judge.
Suveges, Jr., strives gallantly to persuade us that the district
court erred in summarily denying a petition to vacate his
sentence brought pursuant to 28 U.S.C. 2255. For the reasons
discussed below, we affirm the judgment in its major aspects, but
remand to permit further consideration of one related point.
I
On August 14, 1990, a federal grand jury indicted
Suveges on three counts of drug distribution, not involving death
or injury, in violation of 21 U.S.C. 841(a)(1). The charges
arose from separate incidents in which Suveges sold cocaine to
undercover agents. The aggregate amount of cocaine involved in
the three transactions totalled 10.19 grams.
On November 1, 1990, Suveges pleaded guilty to the
charges pursuant to a plea agreement which provided, inter alia,
that the government would not oppose a two-level reduction in his
offense level for acceptance of responsibility.1 The criminal
docket sheet indicates that, before Suveges pled guilty, the
prosecution did not file or serve an information notifying him
that increased punishment might result from certain specified
1Notwithstanding that the probation office used the November
1, 1989 version of the federal sentencing guidelines in preparing
the presentence report, the November 1, 1990 version of the
guidelines applies to this case. See United States v.
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) ("Barring any
ex post facto problem, a defendant is to be punished according to
the guidelines in effect at the time of sentencing."). This
bevue is of no consequence, however, as the guidelines affecting
Suveges's sentence are the same in both incarnations. In
particular, the career offender guideline, quoted infra note 4,
was not changed.
2
prior convictions. See 21 U.S.C. 851(a)(1).2 Nonetheless,
paragraph one of the plea agreement specified that Suveges was
subject to a potential 30-year maximum prison term and/or a
$2,000,000 fine, as well as a mandatory six-year term of
supervised release. The statutory mosaic makes clear that this
is an enhanced penalty regime prescribed for repeat offenders.3
2The statute provides in relevant part:
No person who stands convicted of an offense
under this part [i.e., 21 U.S.C. 841 et
seq.] 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. . . .
28 U.S.C. 851(a)(1).
321 U.S.C. 841(b)(1)(C) sets forth the penalties for
distributing less than 500 grams of cocaine. In relevant part,
this statute provides that, in instances where death or serious
injury do not follow the use of the controlled substance, an
offender:
shall be sentenced to a term of imprisonment
of not more than 20 years . . . a fine not to
exceed . . . $1,000,000 if the person is an
individual . . . or both. If any person
commits such a violation after one or more
prior convictions for . . . a felony under
any other . . . law of a State, . . .
relating to narcotic drugs, . . . such person
shall be sentenced to a term of imprisonment
of not more than 30 years . . . a fine not to
exceed . . . $2,000,000 if the person is an
individual . . . or both. Any sentence
imposing a term of imprisonment under this
paragraph shall, in the absence of such a
prior conviction, impose a term of supervised
release of at least 3 years . . . and shall,
if there was such a prior conviction, impose
3
During the course of Suveges's change-of-plea hearing,
the district judge initially warned him that he would be subject
to a 20-year maximum prison term and a three-year supervised
release term. These are the maxima that 21 U.S.C. 841(b)(1)(C)
prescribes for first offenders. See supra note 3. Despite the
fact that the government had neither filed an informational
notice nor sought a sentence enhancement, Suveges's attorney
informed the judge that a 30-year prison term and a six-year
supervised release term were available in Suveges's case. The
judge accepted the volunteered correction, warned Suveges about
these possible penalties, and, when Suveges reaffirmed his desire
to plead guilty, accepted the changed plea.
On November 19, 1990, the probation office prepared a
presentence investigation report (PSI Report) which revealed that
Suveges had a myriad of prior convictions. Among these were
state-court convictions for armed robbery (1982), unlawful
trafficking in drugs (1983), and reckless conduct involving a
dangerous weapon (1987). As a result of these convictions, the
probation officer concluded that Suveges qualified for treatment
as a career offender under U.S.S.G. 4B1.1.4 The career
a term of supervised release of at least 6
years in addition to such term of
imprisonment.
4This guideline provides that:
A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time of the instant offense, (2) the
instant offense of conviction is a felony
that is either a crime of violence or a
4
offender guideline boosted Suveges's overall offense level from
ten to thirty-two and shifted his criminal history category from
V to VI. In turn, these higher integers yielded a guideline
sentencing range (GSR) of 210-262 months. Had Suveges not
qualified as a career offender, the GSR would have been 21-27
months.
Suveges and his attorney filed objections to the PSI
Report. The district court considered these objections at a
sentencing hearing held on March 4, 1991. Defense counsel
protested the use of the career offender guideline both on
constitutional grounds and because Suveges had not been informed
that he might be treated as a career offender before he changed
his plea. The court inquired whether Suveges wished to withdraw
his guilty plea. When he declined, the court overruled his
objections, applied the career offender guideline, and sentenced
him to a prison term of 210 months. The court also imposed the
six-year supervised release term mandated by 21 U.S.C.
841(b)(1)(C) for repeat offenders, see supra note 3, but declined
to levy a fine due to Suveges's straitened financial condition.
Suveges did not appeal this sentence.
On October 2, 1992, Suveges filed this motion to vacate
his sentence under U.S.C. 2255. Read in conjunction with his
controlled substance offense, and (3) the
defendant has at least two prior felony
convictions of either a crime of violence or
a controlled substance offense.
U.S.S.G. 4B1.1.
5
supporting memorandum, Suveges's petition limned a single claim:
that his sentence was unlawful because the government, prior to
the court's acceptance of his guilty plea, did not file or serve
an informational notice detailing the prior convictions which
were later used to establish career offender status. Suveges
contended that the absence of such a notice violated both 21
U.S.C. 851(a)(1) and the Due Process Clause, thereby requiring
that he be resentenced without resort to the career offender
guideline. After studying the government's response, the
district court summarily denied the section 2255 petition. This
appeal followed.
II
On appeal, Suveges maintains that the government had an
obligation to file and serve an informational notice specifying
its intent to employ the career offender guideline before his
guilty plea took effect. The government's failure to do so, he
contends, disabled the court from sentencing him as a career
offender. The government demurs. Relying on United States v.
Sanchez, 917 F.2d 607, 616 (1st Cir. 1990), cert. denied, 111 S.
Ct. 1625 (1991), it asserts that 21 U.S.C. 851(a)(1) is
inapposite to career offender status; and that, therefore, an
informational notice was not essential because Suveges's prior
convictions were used merely to establish his career offender
status under the sentencing guidelines not to expand the
maximum penalties that Congress, in the first instance, had
prescribed for the offense(s) of conviction.
6
While we agree that Sanchez defeats Suveges's attack on
the lower court's use of the career offender guideline, the
record indicates that the district judge and the parties
incorrectly assumed that Suveges was subject to the enhanced
penalties provided by 21 U.S.C. 841(b)(1)(C) even though the
government had not sought enhancement under 21 U.S.C.
851(a)(1). Consequently, we think it is important that we
clarify the situation.
In Sanchez, this court held an informational notice to
be obligatory under 21 U.S.C. 851 only in cases where the
government seeks to enhance the statutory minimum or maximum
penalties that apply to a given defendant. It follows, then,
that section 851 is not in play, and an informational notice is
not required, in a situation where, as here, the defendant is
sentenced as a career offender to a prison term that falls within
a non-enhanced statutory minimum-maximum range. For example, the
defendants in Sanchez received 360-month prison terms. As these
were within the range prescribed for first offenders under 21
U.S.C. 841(b)(1)(A), ten years to life, an informational notice
was not required. See Sanchez, 917 F.2d at 616; see also United
States v. Elwell, 984 F.2d 1289, 1297 (1st Cir.) (reaffirming
position adopted in Sanchez), cert. denied, 113 S. Ct. 2429
(1993). Our sister circuits toe the same line. See United
States v. Day, 969 F.2d 39, 48 (3d Cir. 1992) (explaining that
"the government is not required to file a pretrial information to
subject a defendant to sentencing as a career offender under
7
U.S.S.G. 4B1.1"); United States v. Koller, 956 F.2d 1408, 1417
(7th Cir. 1992); United States v. Whitaker, 938 F.2d 1551, 1552
(2d Cir. 1991), cert. denied, 112 S. Ct. 977 (1992); Young v.
United States, 936 F.2d 533, 536 (11th Cir. 1991); United States
v. McDougherty, 920 F.2d 569, 574 (9th Cir. 1990), cert. denied,
111 S. Ct. 1119 (1991); United States v. Marshall, 910 F.2d 1241,
1245 (5th Cir. 1990), cert. denied, 111 S. Ct. 976 (1991); see
generally United States v. Novey, 922 F.2d 624, 629 (10th Cir.)
(holding that 851 applies when prior convictions are used to
increase the minimum or maximum statutory sentence), cert.
denied, 111 S. Ct. 2861 (1991); United States v. Wallace, 895
F.2d 487, 489-90 (8th Cir. 1990) (observing that, although
851(a)(1) predates the sentencing guidelines, the guidelines do
not require the filing of an informational notice when using
prior convictions for sentence-enhancement purposes).
It would be pleonastic to repeat the reasoning of these
numerous cases. Suffice it to say that an informational notice
under 21 U.S.C. 851(a)(1) was not a necessary precondition to
either the change of plea or the imposition of sentence since
Suveges, even after the career offender guideline attached,
received an incarcerative sentence of 17 1/2 years, as opposed to
the non-enhanced statutory maximum of 20 years applicable to
first offenders under the statute of conviction. In as much as
application of the career offender guideline to Suveges in the
circumstances of this case comported with Due Process Clause, the
lower court's summary denial of 2255 relief was, by and large,
8
proper.5
III
There remains one small stumbling block. The record
indicates that Suveges did receive an enhanced supervised release
term. The district court imposed the mandatory minimum six-year
supervision term that 21 U.S.C. 841(b)(1)(C) prescribes for
repeat offenders. This constituted an increased punishment which
required the filing and service of an informational notice under
section 851(a)(1). Nonetheless, the court ignored the statutory
requirement. The filing of such an informational notice is
jurisdictional. See United States v. Belanger, 970 F.2d 416, 418
(7th Cir. 1992) ("Failure to file the [ 851] notice prior to
trial deprives the district court of jurisdiction to impose an
enhanced sentence."); Novey, 922 F.2d at 627 (same); see also
Hardy v. United States, 691 F.2d 39, 41 (1st Cir. 1982) (noting
that if the government does not seek a sentence enhancement the
district court "is without authority to enhance on its own
motion."). Thus, the district court lacked the authority to
enhance Suveges's supervised release term to six years.6
5Suveges's due process argument is inextricably intertwined
with his statutory argument. Thus, our conclusion that no
violation of 21 U.S.C. 851(a)(1) occurred serves to
defenestrate Suveges's constitutional claim.
6In the absence of other statutory authority, 18 U.S.C.
3583 authorizes district courts to impose up to five years of
supervised release depending upon the classification of a
defendant's crimes. The district court categorized Suveges's
crimes as Class A felonies. This appears to be in error, for
Class A felonies are felonies punishable by death or life
9
To be sure, Suveges did not object below to the
imposition of the enhanced term of supervised release and he did
not appeal his sentence in the first instance. The failure to
raise this objection earlier constitutes a procedural default.
See, e.g., Ford v. United States, 983 F.2d 897, 898 (8th Cir.
1993) (per curiam). Hence, Suveges must show cause and prejudice
to obtain collateral relief at this juncture. See United States
v. Frady, 456 U.S. 152, 167-68 (1982). Yet, the record before us
suggests that both cause and prejudice arguably might be present.
Defense counsel, seemingly unaware that such a penalty was not
required unless the government sedulously followed the
enhancement procedures set forth in 21 U.S.C. 851(a)(1),
invited the court to apply the enhanced recidivist penalty
embodied in 21 U.S.C. 841(b)(1)(C). Such an oversight could
conceivably constitute sufficient cause to excuse the procedural
default before the district court. Cf., e.g., Hardy, 691 F.2d at
42 (noting that a lesser showing of cause is required where the
district court lacked authority to impose the sentence because
the requirements of 851 were not met). Prejudice appears
rather obvious: after all, Suveges received a six-year
supervised release term notwithstanding that the governing law
only authorized a maximum three-year term. In view of the fact
imprisonment. See 18 U.S.C. 3559(a)(1). Absent an
informational notice sufficient to trigger a 851 enhancement,
Suveges's crimes were punishable by a maximum prison term of
twenty years and, thus, constituted Class C felonies. See 18
U.S.C. 3559(a)(3). Under 18 U.S.C. 3583(b)(2), no more than
three years of supervised release may be imposed for a Class C
felony.
10
that the parties did not focus on these issues the first time
around, we think the most appropriate course is to remand so that
the district court may reconsider this aspect of the matter.
Therefore, the judgment below is affirmed in part and vacated
only in respect to the imposition of the six-year term of
supervised release. The matter is remanded to the district
court for further proceedings consistent with this opinion
It is so ordered.
11