United States Court of Appeals
For the First Circuit
No. 04-1087
UNITED STATES,
Appellee,
v.
JOSÉ SÁNCHEZ, a/k/a VICTOR ALBINO, a/k/a
JUAN CARLOS RODRIGUEZ, a/k/a SAMMY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
[Hon. Charles B. Swartwood, III, U.S. Magistrate Judge]
Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Edward L. Hayden for appellant.
David H. Hennessy, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
November 24, 2004
CAMPBELL, Senior Circuit Judge. Jose Sanchez was
convicted in the United States District Court for the District of
Massachusetts upon his plea of guilty to charges of drug-related
offenses and criminal forfeiture. Because Sanchez had been
previously convicted of felony drug offenses in the Pennsylvania
state courts, the district court imposed the mandatory minimum
sentence of twenty years' imprisonment pursuant to 21 U.S.C. §§
841(b) and 851. Sanchez argues that the mandatory minimum sentence
provision does not apply to him because his prior state convictions
were not prosecuted by indictment nor did he waive indictment for
those offenses. For the reasons stated below, we affirm.
I.
The relevant facts are not in dispute. On July 24, 2002,
a federal grand jury indicted Sanchez and three co-defendants, who
are not parties to this appeal, for conspiring to distribute 50
grams or more of cocaine base, in violation of 21 U.S.C. § 846.
The grand jury also indicted Sanchez on two counts of distribution
of 50 grams or more of a substance containing cocaine base, in
violation of 21 U.S.C. § 841(a); two counts of distribution of five
grams or more of a substance containing cocaine base, in violation
of 21 U.S.C. § 841(a); and one count of criminal forfeiture, in
violation of 21 U.S.C. § 853(a).
On February 7, 2003, the United States filed a previous
offender information under 21 U.S.C. § 851(a), giving notice of the
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prosecution's intention to seek the enhanced penalties prescribed
in 21 U.S.C. § 841, based on prior state convictions for a felony
drug offense. The information alleged that Sanchez had been
previously convicted of drug felonies in the Court of Common Pleas
of Berks County, Pennsylvania. The parties agree that those
felonies were not prosecuted by indictment nor was there a waiver
of indictment.
On September 25, 2003, Sanchez pleaded guilty. In
accordance with 21 U.S.C. § 851(b), the district court inquired of
Sanchez whether he affirmed or denied the prior convictions alleged
in the information. Sanchez affirmed the existence of the prior
convictions, but argued that they should not be used to enhance his
sentence because, in Sanchez's view, enhancement was appropriate
only where the prior state felonies were prosecuted by indictment
or he had waived indictment for those offenses, pursuant to a
provision in 21 U.S.C. § 851(a)(2), infra. At sentencing, the
district court ruled that the indictment requirement set out in §
851(a)(2) applied to the present federal offenses, and not to the
prior predicate convictions. Accordingly, the district court
imposed the mandatory minimum sentence of twenty years'
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imprisonment based on Sanchez's prior drug felony convictions.1
See 21 U.S.C. §§ 841(b)(1)(A) and (b)(1)(B).2
II.
Disputes regarding the interpretation of a statute give
rise to legal questions subject to de novo review. United States
v. Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir. 2003). The statute here
in issue, 21 U.S.C. § 851(a), provides in pertinent part:
(1) 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 entry of a plea of guilty, the United States
attorney files an information with the court . . .
stating in writing the previous convictions to be relied
upon. . . .
(2) An information may not be filed under this section if
the increased punishment which may be imposed is
imprisonment for a term in excess of three years unless
the person either waived or was afforded prosecution by
indictment for the offense for which such increased
punishment may be imposed.
21 U.S.C. § 851(a) (emphasis added).
1
The district court also ordered Sanchez to forfeit his
interest in certain property, consisting of cash exchanged for
crack cocaine, held jointly and severally with the three co-
defendants. Sanchez does not challenge this portion of the
sentencing decision.
2
21 U.S.C. § 841(b)(1)(A) imposes a 20-year mandatory minimum
sentence for cases involving 50 or more grams of crack cocaine if
the defendant commits the violation after a prior conviction for a
felony drug offense. Section 841(b)(1)(B) imposes a 10-year
mandatory minimum for cases involving five or more grams of cocaine
base if the defendant commits the violation after a prior
conviction for a felony drug offense.
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On appeal, Sanchez renews his argument, rejected by the
district court, that the phraseology in § 851(a)(2) requiring that
the person subject to increased punishment be afforded prosecution
by indictment, or else have waived indictment, "for the offense for
which such increased punishment may be imposed," is ambiguous as to
whether it refers to the present offense or to the prior predicate
convictions. Because of this ambiguity, Sanchez contends the rule
of lenity should be applied in his favor and his case remanded for
resentencing. The United States argues that the phrase "the
offense for which such increased punishment may be imposed" refers
logically to the federal offenses for which Sanchez has been
currently sentenced, and not to the prior state convictions used to
enhance the current sentence. It is undisputed that the instant
federal offenses were prosecuted by indictment.
The question posed is one of first impression in this
circuit. Sanchez concedes, however, that of the several other
federal courts of appeal that have construed 21 U.S.C. § 851(a)(2),
all have held that the indictment requirement applies to the
present offense of conviction, and not to the one or more prior
convictions that may be used to enhance the sentence. See United
States v. Brown, 191 F.3d 486, 487 (D.C. Cir. 1999); United States
v. Lampton, 158 F.3d 251, 256 (5th Cir. 1998); United States v.
Lynch, 158 F.3d 195, 198-99 (3d Cir. 1998); United States v. Ortiz,
143 F.3d 728, 732 (2d Cir. 1998), overruling United States v.
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Collado, 106 F.3d 1097 (2d Cir. 1997); United States v.
Gaitan-Acevedo, 148 F.3d 577, 594 (6th Cir. 1998); United States v.
Harden, 37 F.3d 595, 601 (11th Cir. 1994); United States v.
Trevino-Rodriguez, 994 F.2d 533, 536 (8th Cir. 1993); United States
v. Burrell, 963 F.2d 976, 992-93 (7th Cir. 1992); United States v.
Adams, 914 F.2d 1404, 1407 (10th Cir. 1990); United States v.
Espinosa, 827 F.2d 604, 617 (9th Cir. 1987).
In the earliest of those decisions, Espinosa, the Ninth
Circuit gave three reasons for concluding that the indictment
requirement in § 851(a)(2) referred to the current offense of
conviction. Espinosa, 827 F.2d at 617. First, the court noted
that "although one may not be punished twice for the same crime,
punishment for a second crime may be enhanced by reason of a second
conviction." Id. It then concluded that "a common-sense reading
of the phrase 'offense for which such increased punishment may be
imposed' is the current, or latest, offense." Id.3 Second, the
3
The Ninth Circuit does not actually say, as has sometimes
been inferred and as the government implies here, that there would
be a double jeopardy or ex post facto concern with applying the
statute to the prior conviction. See, e.g., Harden, 37 F.3d at
601; Burrell, 963 F.2d at 992; Adams, 914 F.2d at 1407. Rather,
the Espinosa court seems to be saying simply that the language of
§ 851(a)(2) is most reasonably parsed to indicate that the
indictment requirement refers to the present offense, the sentence
for which is being enhanced because of the prior conviction. We
agree with others who have pointed out that there is no evident
double jeopardy or ex post facto problem with construing §
851(a)(2) as applying to the prior offenses. As stated by the
Second Circuit in Ortiz,
Enhanced sentencing for recidivism has long been approved
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Ninth Circuit noted that the two other usages of the word "offense"
in § 851 refer to the current offense while the terms "prior
conviction" and "previous conviction" are employed to refer to the
earlier conviction. Id. Finally, the Ninth Circuit stated that
the defendant's proposed interpretation would result in an
anomalous situation. "Despite Congress's evident attempt in 1984
to broaden the scope of § 841(b) prior convictions to include state
and foreign convictions (in addition to federal convictions), [the
defendant's] interpretation would exclude from the statute's ambit
prior convictions in those states or foreign countries that happen
to use a felony complaint system rather than a grand jury
indictment system." Id.
Other circuit courts have followed much the same path to
a similar result. See, e.g., Brown, 191 F.3d at 487 (agreeing with
the circuit courts that have interpreted the indictment requirement
to refer to the present offense); Lynch, 158 F.3d at 197-98 (same);
Gaitan-Acevedo, 148 F.3d at 594 (same); Harden, 37 F.3d at 601
(agreeing with Burrell, Adams and Espinosa); Trevino-Rodriguez,
994 F.2d at 536 (same); Burrell, 963 F.2d at 992-93 (adopting the
notwithstanding that the prior offenses occurred prior to
passage of the enhancement provision; the lawfulness of
the procedure cannot depend on the semantic factor of
whether a recidivism statute refers to the first
conviction, or the second, or the combination of the two
as requiring the enhancement. In each case, the effect
would be exactly the same.
Ortiz, 143 F.3d at 730 (citation omitted).
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"careful reasoning set forth in Adams and Espinosa"); Adams, 914
F.2d at 1407 (adopting the reasoning in Espinosa).
Although Sanchez concedes that precedent is now entirely
against him, he relies upon the reasoning employed in a since-
abandoned case that supports his interpretation, to wit, United
States v. Collado. There, the defendant successfully argued to a
panel of the Second Circuit that the indictment requirement would
be "mere surplusage" if it referred to the present offense, because
"[a]ll federal felony prosecutions are required to proceed by
indictment." Collado, 106 F.3d at 1103. The panel agreed that the
language in § 851(a)(2) was ambiguous. Id. It invoked the rule of
lenity to hold that the defendant's sentence in that case should
not be enhanced based on a prior conviction prosecuted without
indictment or waiver of indictment. Id.
The Second Circuit, however, has since rejected the
decision in Collado. See Ortiz, 143 F.3d at 731-32. Writing for
the court in Ortiz, Judge Leval (a member of the earlier Collado
panel) explained the departure from Collado as being based upon
updated information presented by the government that "at the time
§ 851(a)(2) was formulated in 1970, federal felony narcotics
violations were prosecutable without indictment in the Virgin
Islands, and the Panama Canal Zone." Id. at 731. This information
undermined the Collado court's belief that all relevant federal
prosecutions were by indictment, a mistaken assumption that would
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have rendered § 851(a)(2) surplusage if applied to the current
offense. See id. The Ortiz panel went on to state that "[t]he
apparent redundancy of § 851(a)(2) as applied to federal
prosecutions evaporates in light of this information, because the
provision confers a procedural safeguard for offenders facing
charges eligible for enhancement . . . in territorial jurisdictions
where federal prosecution by information is possible." Id. While
in Ortiz the Second Circuit characterized § 851(a)(2) as being "not
free of ambiguity," it found "it far more sensible in terms of the
structure and purpose of the statute that the grand jury guarantee
refers to the instant felony offense." Id. We agree.
Sanchez argues, however, that the updated information
discussed in Ortiz has done no more than continue to demonstrate
the inherent ambiguity of § 851(a)(2). Even if federal felony drug
offenses were prosecutable without indictment in the Virgin Islands
and the Panama Canal Zone in 1970, it is nonetheless still unclear,
he argues, whether Congress intended the indictment requirement to
apply to the present offense or to the prior convictions. In light
of the purported ambiguity, Sanchez insists we should invoke the
rule of lenity to preclude the enhancement of his sentence.
We disagree. "The rule of lenity applies only if, 'after
seizing everything from which aid can be derived,' we can make 'no
more than a guess as to what Congress intended.'" Reno v. Koray,
515 U.S. 50, 65 (1995) (citations omitted). While the language of
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§ 851(a)(2) is less than crystal clear, it is not so unclear that
resort to the rule of lenity should follow. See Brown, 191 F.3d at
487 ("Nor is this section ambiguous such that the rule of lenity
would preclude the enhancement of [the defendant's] sentence.");
Lampton, 158 F.3d at 256 (rejecting defendant's rule of lenity
argument). The statutory language, "unless the person either
waived or was . . . [indicted] . . . for the offense for which such
increased punishment may be imposed," 21 U.S.C. § 851(a)(2)
(emphasis added), points most naturally to the current offense (the
offense for which the increased punishment will be imposed on
account of the prior convictions) rather than to the enhancing
prior convictions themselves. And we agree with the Ortiz court
that it is more reasonable to infer that Congress intended to
ensure that the instant prosecution, in which the defendant stands
in jeopardy of an enhanced punishment, is safeguarded by the grand
jury guarantee. Ortiz, 143 F.3d at 731-32. Given Congress' intent
to enhance sentences for second offenders, it is also unlikely that
Congress intended to create a varied system that would shield from
enhanced punishment those defendants, such as Sanchez, who commit
serious drug felony offenses simply because of the nature of the
charging instrument used in a particular state or other
jurisdiction. See id. at 732; Lynch, 158 F.3d at 198; Espinosa,
827 F.2d at 617.
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We see no need to say more, given the extensive analysis
already appearing in Ortiz and the other circuit opinions. We hold
that the district court's reading of 21 U.S.C. § 851(a)(2) was the
correct one, and that the indictment condition in § 851(a)(2)
refers to the current offense. Because Sanchez's current offenses
of conviction were prosecuted by indictment, § 851(a)(2) does not
preclude the use of the prior Pennsylvania convictions that were
not so prosecuted to trigger the enhanced mandatory minimum
penalty.
Affirmed.
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