United States v. Goncalves

United States Court of Appeals
For the First Circuit

No. 10-1367

UNITED STATES OF AMERICA,

Appellee,

v.

PEDRO MICHAEL GONCALVES,
a/k/a Mike Goncalves,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Stahl and Howard,

Circuit Judges.

George J. West with whom George J. West & Associates was on
brief for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, and Sandra R.
Hebert, Assistant United States Attorney, were on brief for
appellee.

April 28, 2011
 BOUDIN, Circuit Judge. Pedro Michael Goncalves appeals

from his conviction on drug and gun counts and from his sentence.

The appeal presents two issues of some significance--one relating

to the search of a car parked in a driveway and the other to the

Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372--

and a host of other claims that require little time to resolve. We

begin with a bare sketch of the background events and proceedings,

reserving factual detail for the discussion of specific claims.

In February 2006, a confidential informant told Scott

Sullivan--a Pawtucket Police Detective working with a joint

FBI/Rhode Island state police task force--that Goncalves was selling

large amounts of crack cocaine in the Providence and Pawtucket

areas. The informant reported that Goncalves used a third-floor

apartment at 83-85 Pomona Avenue in Providence to store and

distribute crack; kept additional crack in his bedroom at his

mother's house at 406 West Avenue in Pawtucket; used a white 1998

Lincoln Continental for drug deliveries; and was armed with a semi-

automatic handgun.

Sullivan conducted surveillance and record checks in March

and April 2006 to verify the informant's information. He confirmed

that Goncalves regularly visited the Providence apartment; that the

white Lincoln (registered to his girlfriend Julia Baptista) was

regularly parked there; and that Goncalves visited his mother's

Pawtucket house and used that address for his cell phone

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subscription. Sullivan also discovered that Goncalves had a 2000

conviction for carrying a concealed weapon and a 2003 arrest and

still-pending state charge for cocaine trafficking, and that police

had found a large amount of cash in Goncalves' Pawtucket bedroom in

an unrelated 2003 investigation.

In March and April 2006, Sullivan oversaw two controlled

purchases by the informant of crack cocaine from Goncalves.

Goncalves drove the Lincoln to the first purchase, and the second

purchase occurred within walking distance of the Providence

apartment. Based on his corroboration of the informant's

information and evidence from the second purchase, Sullivan obtained

warrants authorizing searches of the Providence apartment, the

Pawtucket house, and Goncalves' person.

On May 3, 2006, Sullivan planned to make a traffic stop

of Goncalves in his car after he left the Providence apartment;

however, Goncalves noticed the surveillance as he drove away and,

ignoring red lights and reaching speeds of 100 miles per hour, led

the police on a high-speed chase through various streets and on

Interstate 95. Reaching his mother's house in Pawtucket, he crashed

the car in her driveway, locked the driver's door, ran, and was

apprehended. On searching Goncalves, police found $1,081 in cash

and two cell phones--one in the name of "Eugene Fernandes" [sic] (an

associate of Goncalves)--but no car keys, drugs, or gun.

In the Lincoln, police discovered hidden in the gas tank

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cap 65.43 grams of powder cocaine and hidden under the hood a loaded

and cocked .45 caliber semi-automatic pistol. In Goncalves' bedroom

in the Pawtucket house, police found two bags of crack cocaine,

totaling 10.43 grams, and a cardboard box addressed to him

containing over ninety needles and syringes. In the Providence

apartment, police found in the kitchen pantry and cupboards 92.43

grams of crack cocaine, a small digital scale, chemicals, and other

materials useful in making and selling crack; they found elsewhere

in the apartment papers and photographs connecting Goncalves to the

apartment and to Fernandez.

Goncalves was indicted on five counts: three for

possession with intent to distribute, 21 U.S.C. § 841(a)(1),

(b)(1)(A)-(C) (2006), relating to the crack found in the Providence

apartment, the crack found in the Pawtucket house, and the powder

cocaine found in the Lincoln, and two counts relating to the gun

found in the Lincoln--being a felon in possession, 18 U.S.C.

§ 922(g) (2006), and gun possession in furtherance of a drug crime,

id. § 924(c). After failing in a motion to suppress the evidence,

Goncalves was tried, rapidly convicted by a jury on all five counts,

and sentenced (as described below). He now appeals.

Goncalves challenges the sufficiency of the government's

case on all of the charges, pointing to evidence that the Providence

apartment was rented in Fernandez' name and paid for and used by

Fernandez and a man named "Mike" (the latter name, however, also

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used by Goncalves), and that the car belonged to Baptista. As for

the crack cocaine found in the Pawtucket house, Goncalves admitted

ownership but said that it was for personal use. These are

appropriate jury arguments, but the adverse evidence is so powerful

that a rational jury could reasonably and readily convict on all

five counts.

The bare bones of the adverse evidence have already been

set forth: the association of Goncalves with both premises where

drugs and drug-related items were found, his use of the Lincoln and

the presence of drugs and a weapon concealed within, and his flight

from arrest. And there was considerably more evidence filling in

the chinks.1 Whether any single event in isolation would convict

him of any one of the charges might be debated; but the ensemble of

pieces fit together and the jury could rationally conclude that all

of the drugs belonged to Goncalves and were part of his trade.

Nor was there any difficulty in the jury's inference that

the gun under the hood belonged to Goncalves and was kept in aid of

his drug dealing. The car was used by him for drug dealing, guns

are a regular accessory in drug dealing, and this one was wedged

under the hood--loaded and cocked--where it could be retrieved with

1
For example, the government offered evidence tying Goncalves
more closely to the Providence apartment; evidence reinforcing the
inference of an intent to distribute drugs in the form and quantity
found in the Pawtucket house; evidence tying Goncalves more closely
to the car; and evidence connecting the use of weapons to drug
activity.

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a single movement once the hood was popped open. See United States

v. Robinson, 473 F.3d 387, 400 (1st Cir. 2007). His flight from the

police and his locking the car and apparently tossing away the key

supported the inference that drugs or guns--here, both--were

knowingly concealed within.

This brings us to Goncalves' claim that the gun and powder

cocaine obtained in the search of the Lincoln should have been

suppressed. Suppression would have blocked both gun convictions and

one of the drug counts, and it would have barred evidence, useful

if not essential, for the other two drug counts. Sullivan's

warrants covered the searches of the Providence apartment and

Pawtucket house, but they did not include the vehicle. A search

presumptively requires a warrant, Maryland v. Dyson, 527 U.S. 465,

466 (1999) (per curiam), but as usual there are exceptions--

actually, a great many of them. See generally 2 W. LaFave, Search

and Seizure § 4.1(b), at 446-51 (4th ed. 2004).

In this case, the relevant exception is for searches of

automobiles. Reaching back to Carroll v. United States, 267 U.S.

132 (1925), current law is that "a search [of a vehicle] is not

unreasonable if based on facts that would justify the issuance of

a warrant, even though a warrant has not actually been obtained."

United States v. Ross, 456 U.S. 798, 809 (1982). The question is

whether probable cause exists to believe that a vehicle contains

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contraband or evidence of criminal activity. California v. Acevedo,

500 U.S. 565, 579 (1991); see also Gant, 129 S. Ct. at 1721.

The district court held that there was probable cause to

believe that evidence of drug dealing would be found in the car,

which the police knew was regularly used by Goncalves and had in

fact been used for a prior drug delivery to the informant

superintended by the authorities. Further, Sullivan had been told

by the previously reliable informant that Goncalves was selling

crack in Providence and Pawtucket, possessed a handgun, and used the

Lincoln to make drug deliveries. The high-speed chase lent

additional support but none is needed.

Goncalves argues that even if the car's interior were

searchable, no probable cause justified searching the engine

compartment and gas cap, where the handgun and cocaine were found.

But "[i]f probable cause justifies the search of a lawfully stopped

vehicle, it justifies the search of every part of the vehicle and

its contents that may conceal the object of the search." Wyoming

v. Houghton, 526 U.S. 295, 301 (1999) (quoting Ross, 456 U.S. at

825, and adding emphasis). Sullivan testified as to the use of such

hiding places by drug dealers, and common sense would suggest this

possibility anyway.

On appeal, Goncalves for the first time makes new

arguments for suppression not presented at the district court

suppression hearing. These are forfeited, of course, Fed. R. Crim.

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P. 12(b)(3), (e); United States v. Torres, 162 F.3d 6, 11 (1st Cir.

1998), cert. denied, 526 U.S. 1057 (1999), but the forfeiture may

be forgiven where plain error exists under United States v. Olano,

507 U.S. 725, 731-32 (1993). See United States v. St. Pierre, 488

F.3d 76, 80 n.2 (1st Cir. 2007).

One new argument is that the police created a dangerous

situation by allowing Goncalves to drive off in the Lincoln (and so

to flee at high speed when he sought to evade the police) and that

therefore the fruits of this tactic should be banned on public

policy grounds. Sullivan explained that, knowing from the informant

that Goncalves might be armed, the police thought it safer to block

him in his car than to enter the Providence apartment with Goncalves

inside. Anyhow, courts are not in the business of suppressing

evidence on generalized public policy grounds not required by the

Fourth Amendment.2

Goncalves' final new argument is the most serious one: he

argues that the automobile exception does not apply to a vehicle

parked in a private driveway and unoccupied by anyone who might

drive it away. This is a significant unresolved issue, primarily

because, forty years ago, the Supreme Court held that the automobile

exception did not justify the warrantless search of the defendant's

2
Goncalves makes a related argument that the planned traffic
stop was a pretext to allow them to search his car without a
warrant, but--aside from several other answers--subjective intent
is irrelevant in this context, Whren v. United States, 517 U.S.
806, 813 (1996).

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car parked in his own driveway. Coolidge v. New Hampshire, 403 U.S.

443, 459-62 (1971).

Just what to make of Coolidge's reach today is debatable.

The Court was fractured so there was no majority position on the

driveway search issue, questions other than the Carroll doctrine

received primary attention, and--most important--the plurality

opinion's disallowance of the driveway search was highly fact-

specific, stressing circumstances that would easily distinguish our

case. For example, the Court stated:

In this case, the police had known for some
time of the probable role of the Pontiac car in
the crime. Coolidge was aware that he was a
suspect in the Mason murder, but he had been
extremely cooperative throughout the
investigation, and there was no indication that
he meant to flee. He had already had ample
opportunity to destroy any evidence he thought
incriminating. There is no suggestion that, on
the night in question, the car was being used
for any illegal purpose, and it was regularly
parked in the driveway of his house. The
opportunity for search was thus hardly
"fleeting." The objects that the police are
assumed to have had probable cause to search
for in the car were neither stolen nor
contraband nor dangerous.

Coolidge, 403 U.S. at 460 (emphasis added).

The contrast is striking between the case before us and

the underlined points stressed in Coolidge: Goncalves was far from

cooperative, he did seek to flee, he had not had a chance to destroy

or to remove the gun or drugs, his car was being used for the

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illegal purpose of transporting drugs and a concealed weapon, and

the items being sought were both contraband and dangerous.

Further, after Coolidge, the Court has distinguished

between buildings and cars, emphasizing the "significantly" lesser

"expectation of privacy" in the latter, South Dakota v. Opperman,

428 U.S. 364, 367 (1976), based on "the pervasive regulation of

vehicles capable of traveling on the public highways," California

v. Carney, 471 U.S. 386, 392 (1985). In various contexts, the Court

has been lenient in upholding searches under the automobile

exception. E.g., Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)

(per curiam); Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality

opinion); Cady v. Dombrowski, 413 U.S. 433, 446 (1973).

Finally, a number of circuits have upheld driveway

searches with probable cause but no warrant: three have squarely

applied the automobile exception to permit searches of vehicles

parked in the driveway of the defendant's own residence,3 while

others including this one have permitted such searches of vehicles

in private driveways that were not the defendant's residence.4 A

3
United States v. Blaylock, 535 F.3d 922, 925-27 (8th Cir.
2008), cert. denied, 130 S. Ct. 58 (2009); United States v. Hines,
449 F.3d 808, 810-15 (7th Cir. 2006); United States v. Hatley, 15
F.3d 856, 858-59 (9th Cir. 1994).
4
United States v. DeJear, 552 F.3d 1196, 1202 (10th Cir.),
cert. denied, 129 S. Ct. 2418 (2009); United States v. Brookins,
345 F.3d 231, 234-38 (4th Cir. 2003); United States v. Markham, 844
F.2d 366, 367-69 (6th Cir.), cert. denied, 488 U.S. 843 (1988);
United States v. Moscatiello, 771 F.2d 589, 599-600 (1st Cir.
1985), vacated on other grounds by Murray v. United States, 487

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few others have expressed doubts in light of Coolidge, e.g., United

States v. Fields, 456 F.3d 519, 524-25 (5th Cir.), cert. denied, 549

U.S. 1046 (2006), but no circuit appears to read Coolidge as a per

se rule against all driveway searches without a warrant.

Here, it would be enough for us to uphold the search under

the automobile exception on the grounds that Goncalves had tried to

flee with a car known to be used for carrying drugs, had been chased

into a driveway, and then had fled so that probable cause certainly

existed to believe that the car contained contraband and quite

possibly a weapon. Even if this were a close call, we are dealing

with an unpreserved claim of error. There is certainly no "plain"

error--let alone anything remotely approaching the miscarriage of

justice required under the Olano standard.

The remaining issues on appeal concern Goncalves'

sentence. At sentencing, the district court imposed concurrent

twenty-year sentences on each of the three drug counts, 21 U.S.C.

§ 841(a)(1), (b)(1)(A)-(C), a concurrent ten-year sentence on the

firearm felon-in-possession count, 18 U.S.C. § 922(g), and a

consecutive five-year sentence on the count charging gun possession

in furtherance of a drug crime, id. § 924(c). Thus, his current

term of imprisonment is twenty-five years.

Our concern is with the count I sentence of twenty years

imposed for the 92.43 grams of crack stored in the Providence

U.S. 533 (1988).

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apartment. At the time Goncalves committed the crime, the governing

federal statute, 21 U.S.C. § 841(b)(1)(A)(iii), imposed a mandatory

ten-year minimum term for offenses involving over fifty grams of

cocaine base (a term that encompasses crack cocaine); but the

mandatory minimum increased to twenty years because Goncalves had

a prior felony drug conviction, id., and the government filed the

necessary information, id. § 851.

Goncalves was sentenced on March 19, 2010. On August 3,

2010, the President signed the Fair Sentencing Act of 2010 (the

"Act" or "FSA"), which reduced the mandatory minimums for specified

drug crimes. Under the Act, the current mandatory minimum for 92.43

grams of crack with a prior drug felony would be only ten years; on

the other two drug counts, no mandatory minimum would apply to

Goncalves' violations. If the FSA governed here, Goncalves could

conceivably get a substantial reduction in sentence on remand.

The difficulty for Goncalves lies with the general federal

savings statute, which in pertinent part provides:

The repeal of any statute shall not have the
effect to release or extinguish any penalty,
forfeiture, or liability incurred under such
statute, unless the repealing Act shall so
expressly provide, and such statute shall be
treated as still remaining in force for the
purpose of sustaining any proper action or
prosecution for the enforcement of such
penalty, forfeiture, or liability.

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1 U.S.C. § 109 (2006). Section 109 not only includes but was

primarily enacted to cover criminal cases and to undo the common-law

rule abating prosecution upon the repeal of the statute.

"Incurred" means "to which one is subject"--not "already

imposed"--and so looks to the time of the conduct that makes the

defendant liable rather than the date of conviction or imposition

of sentence. United States v. Reisinger, 128 U.S. 398, 401 (1888)

("[The savings statute] clearly excepts offences committed before

the passage of the repealing act . . . ."). Thus, if a new criminal

statute supersedes an older one, conduct occurring under the

superseded version can still be punished under the older version.

This dovetails with ex post facto principles that allow the new

statute to apply only to post-enactment conduct.

Congress can decide to narrow a statute so as to de-

criminalize pre-enactment conduct or to lessen the penalty for

illegal conduct occurring before the more lenient penalty was

enacted. But, by the terms of the savings statute, the narrowed

definition of the crime or the reduced penalty provided in the new

statute benefits the defendant only where "the repealing Act shall

so expressly provide," either in terms or by necessary implication.

Goncalves can point to no express provisions in the FSA that even

arguably satisfy that test as to him.5

5
At least one district court has held that provisions of the
FSA, coupled with later amendments by the Sentencing Commission, do
make the FSA's adjustments--including a lessening of mandatory

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 Goncalves argues that Congress' intent in the FSA is

unclear because the Act itself says nothing about the retroactivity

issue, but this argument misses the point. The savings statute

adopts a general rule that the penalty incurred is that provided by

the statute in effect at the time of the conduct unless the

superseding statute provides otherwise. Section 109 is not a

presumption or indicator of subjective intent: it is a binding rule

that overturns common-law abatement and governs the meaning that

courts are to give to the superseding statute unless otherwise

affirmatively directed.

The motivation for the FSA was to reduce the harshness of

existing drug sentences, centrally by modifying the underlying ratio

that punished quantities of cocaine base much more heavily than

equivalent weights of powder cocaine. The legislative history of

the FSA suggests that some who voted may have believed that the old

100:1 ratio was unconstitutional under the equal protection clause;6

minimums--applicable to defendants sentenced after the amendments
became effective. United States v. Douglas, 746 F. Supp. 2d 220
(D. Me. 2010) (now pending in this circuit). Nothing in this
decision is intended to resolve the distinct issues in that appeal.
6
See 156 Cong. Rec. H6198 (daily ed. July 28, 2010) (statement
of Rep. James Clyburn) ("[T]his is unjust and runs contrary to our
fundamental principles of equal protection under the law."); 155
Cong. Rec. S10492 (daily ed. Oct. 15, 2009) (statement of Sen.
Patrick Leahy) ("Today, the criminal justice system has unfair and
biased cocaine penalties that undermine the Constitution's promise
of equal treatment for all Americans."); id. at S10491 (statement
of Sen. Richard Durbin) ("There is widespread and growing agreement
that the Federal cocaine and sentencing policy in the United States
today is unjustified and unjust.").

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and, were that true, the old ratio certainly could not be applied

to persons who were convicted under prior law, at least if they were

still to be sentenced or on direct appeal after sentencing.

But professions of individual legislators do not establish

the view of Congress, see Garcia v. United States, 469 U.S. 70, 76

(1984); still less do individual statements made after the

legislation has been adopted. Probably the fairest assessment is

that Congress as a whole viewed the 100:1 ratio as too harsh and

adopted a compromise reducing the ratio to 18:1 (rather than 1:1)

because many members thought that crack remains more dangerous than

powder cocaine.7 The Supreme Court has never suggested that the

100:1 ratio violates the Constitution.

There is assuredly a policy reason favoring Goncalves'

requested result: Congress did think that the superseded law was too

harsh, so that it will be too harsh for Goncalves just as much as

for those who committed the same offense after the FSA went into

effect. Indeed, Goncalves suggests that the discrepancy is itself

unconstitutional under equal protection principles; but

discrepancies among persons who committed similar crimes are

7
The initial bill proposed a 1:1 crack/powder sentencing
ratio, 155 Cong. Rec. S10490 (daily ed. Oct. 15, 2009) (statement
of Sen. Richard Durbin). The Senate Judiciary Committee amended
the bill to the 18:1 ratio as a "bipartisan compromise." 156 Cong.
Rec. S1681 (daily ed. Mar. 17, 2010) (statement of Sen. Richard
Durbin).

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inescapable whenever Congress raises or lowers the penalties for an

offense. Most often, the dividing line is the date of the crime.

As for precedent, ten other circuits have considered this

question and held that the FSA is not retroactive to persons in

Goncalves' position.8 The Supreme Court has not addressed the issue

under the FSA, but Warden, Lewisburg Penitentiary v. Marrero, 417

U.S. 653 (1974), is somewhat apropos and supports the government.

There, the Court applied the savings statute to reject a claim that

a statute that loosened parole eligibility should apply to those who

committed their crimes before the statute was enacted. Id. at 659-

64.

Goncalves relies primarily on several Supreme Court

decisions. The earliest, United States v. Chambers, 291 U.S. 217,

(1934), held that the savings statute did not rescue a prosecution

for liquor law violations carried on after the Twenty-first

8
See United States v. Glover, 398 F. App'x 677, 680 (2d Cir.
2010), cert. denied, 131 S. Ct. 1582 (2011); United States v.
Reevey, 631 F.3d 110, 113-15 (3d Cir. 2010); United States v.
McAllister, 401 F. App'x 818, 820 n.* (4th Cir. 2010) (per curiam);
United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011); United
States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010), cert.
denied, 79 U.S.L.W. 3539 (U.S. Mar. 21, 2011) (No. 10-8937); United
States v. Bell, 624 F.3d 803, 814-15 (7th Cir. 2010), cert. denied,
79 U.S.L.W. 3592 (U.S. Apr. 18, 2011) (No. 10-9409); United States
v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010), cert. denied, 79
U.S.L.W. 3553 (U.S. Mar. 28, 2011) (No. 10-9224); United States v.
Hall, 403 F. App'x 214, 217 (9th Cir. 2010); United States v.
Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010), cert. denied, 79
U.S.L.W. 3553 (U.S. Mar. 28, 2011) (No. 10-8606); United States v.
Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam), cert.
denied, 79 U.S.L.W. 3568 (U.S. Apr. 4, 2011) (No. 10-9271).

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Amendment repealed the Eighteenth Amendment. Id. at 224-26. The

Court treated the liquor law in question as resting on the

Eighteenth Amendment and said that the savings clause itself rested

implicitly on the premise of a continuing power to punish the

conduct after a statute was repealed. Id. at 224. Because that

power lapsed on repeal of the Eighteenth Amendment, the prosecution

had to be terminated.

This style of syllogistic reasoning might or might not

find favor with the present Court; possibly the Chambers decision,

about five pages in length and unanimous, owed something to the

distaste for the failed experiment with a national liquor ban. But

assuming that Chambers remains good law, it offers no support to

Goncalves. Congress retains full constitutional power after the FSA

both to criminalize the underlying conduct and to punish it at the

same level as existed prior to the reduction.

Goncalves' other decision, Hamm v. City of Rock Hill, 379

U.S. 306 (1964), invoked the federal Civil Rights Act of 1964 to

overturn state court decisions upholding the convictions of "sit-in"

demonstrators protesting racial segregation in retail store

lunchrooms--demonstrations occurring prior to the federal statute.

Id. at 312-17. The 1964 statute was read by the Court to give the

defendants a right to use the facilities without discrimination, and

the Court noted that the statute explicitly forbade anyone to

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"punish or attempt to punish" the exercise of that right. Id. at

311.

Hamm held that the savings clause had no application

because Congress had "substitute[d] a right for a crime." Id. at

315. The result, which (as with Chambers) likely owed something to

the social context, might have been more easily reached by saying

that the savings clause by its terms did not apply because Congress

was not engaged in "the repeal of any statute," let alone a federal

statute. In all events, nothing in the FSA gave Goncalves "the

right" to sell drugs or to carry arms in aid of that enterprise, and

Hamm too is easily distinguishable.

In legal terms, the FSA is clearly inapplicable to this

case; in human terms, the result is much less attractive but that

is because the savings statute treats all such penalty reductions

generically, and Congress did not expressly make the FSA an

exception here. It could easily have done so; indeed, it remains

free to do so now. More broadly, it could sensibly amend section

109 so that reductions in penalties for a pre-existing crime

presumptively applied upon the enactment (or effective date) of the

statute to anyone not yet sentenced or otherwise still on direct

appeal.

Goncalves raised two other sentencing challenges in his

brief. The first--a challenge to imposing the consecutive running

of 18 U.S.C. § 924(c)(1)(A)'s mandatory minimum--his reply brief

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acknowledges is now foreclosed by Abbott v. United States, 131 S.

Ct. 18 (2010). The second challenge--an argument that the

application of a sentencing enhancement under 21 U.S.C. § 851

requires proof to a jury--is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998), Harris v. United States, 536

U.S. 545 (2002), and a number of this circuit's precedents upholding

the constitutionality of section 851 enhancements, e.g., United

States v. Marsh, 561 F.3d 81, 85 (1st Cir.), cert. denied, 129 S.

Ct. 2784 (2009).

A final sentencing issue is raised by an error called to

our attention not by Goncalves but by the government. It appears

that the district court, in imposing twenty-year sentences on the

drug count under 21 U.S.C. § 841(b)(1)(A) for the crack found in the

Providence apartment and on the other two drug counts, assumed

wrongly that the other two also required twenty-year mandatory

sentences, as the first one did. Apparently, no one noticed the

discrepancy at the time and called it to the court's attention.

The government points out that one of the two counts in

question, 21 U.S.C. § 841(b)(1)(B), had only a ten-year mandatory

minimum sentence, and the other, id. § 841(b)(1)(C), had no

mandatory sentence at all. The government has invited the defendant

to ask for a remand for resentencing, and defendant in his reply

brief so requests. This court, as well as Goncalves, is indebted

to government counsel for his care and his candor.

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 The judgment of conviction is affirmed, as is the twenty-

year mandatory minimum sentence for the drugs at the Providence

apartment, the concurrent ten-year sentence on the firearm felon in

possession count, and the consecutive five-year sentence for gun

possession in furtherance of a drug crime. The sentences for the

other two drug counts are vacated and the case is remanded for

resentencing on those counts.

It is so ordered.

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