United States v. James

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10399 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 9, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cr-00089-SDM-TBM-1

UNITED STATES OF AMERICA,

lllllllll lllllllllPlaintiff-Appellee,

versus

SAMUEL THAMAR JAMES,

lllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(June 9, 2011)

Before WILSON, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:
 Samuel Thamar James appeals his conviction and 262-month sentence for

possession with intent to distribute less than five grams of cocaine, in violation of

21 U.S.C. § 841(b)(1)(C). James argues on appeal that the district court’s

instruction on reasonable doubt misled the jury and lowered the government’s

burden of proof by including a subjective standard of proof. Next, James argues

that the district court did not comply with the 21 U.S.C. § 851(b) requirements in

sentencing him because the court failed to conduct the required colloquy regarding

his prior convictions. James also argues that the district court violated the Sixth

Amendment by enhancing his sentence based on prior convictions not proven to a

jury beyond a reasonable doubt. Finally, James argues that the written judgment

contains a clerical error, listing the incorrect statute of conviction.

I. Facts

In March 2009, Samuel Thamar James was indicted on one count of

possession with intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). On July 17, 2009, the

government filed an information and notice of prior convictions, pursuant to § 21

U.S.C. 851(a), alleging that James had two prior convictions, one for delivery and

possession of cocaine and the other for possession of cocaine with intent to

distribute. James did not contest either of the convictions alleged in the

2
government’s information. A jury found James guilty of the lesser-included

offense of possession with the intent to distribute less than five grams of cocaine

base.

The facts presented at trial were that on February 9, 2009, while in the

process of attempting to stop a car that had an illegal window tint, an officer of the

Tampa Police Department observed a black man with medium-length dreadlocks,

wearing a black shirt, lean out the driver’s side door and drop a plastic bag

containing a white substance in a driveway. After the car came to a permanent

stop, the officer identified James as both the driver of the vehicle and the person

who dropped the plastic bag, based on his black shirt and dreadlocks. Testing

revealed that the plastic bag contained 5.8 grams of cocaine base.

Before trial, Defendant and the government submitted proposed jury

instructions to the district court. The government’s instructions included a

definition of reasonable doubt identical to this Circuit’s Pattern Jury Instructions.1

James submitted two possible definitions of reasonable doubt. The first was an

excerpt from the Eleventh Circuit Pattern Jury Instructions, reading “Proof beyond

1
At the time of James’s trial, in 2009, this Circuit was still using the 2003 edition of the
pattern instructions. This Circuit released new pattern jury instructions in August 2010. This
new instruction on reasonable doubt is substantially similar, but not identical. See Eleventh
Circuit Pattern Jury Instructions (Criminal Cases), Basic Instruction 3 (2010).

3
a reasonable doubt is proof of such a convincing character that you would be

willing to rely and act upon it without hesitation in the most important of your

own affairs.” James’s alternative definition of reasonable doubt was the same

Eleventh Circuit Pattern Jury Instruction submitted by the government, which also

included the above quoted language. The district court, after reviewing the

parties’ proposed instructions, prepared preliminary draft instructions. James’s

counsel reviewed the draft instructions and stated that he had no objections. The

district court instructed the jury using the reasonable doubt standard from the

Eleventh Circuit Pattern Jury Instructions, which had been both proposed and

approved by James. Those instructions read:

Now, the United States has the burden of proof, of proving a
defendant guilty beyond a reasonable doubt. And if it fails to do so,
you must find that defendant not guilty.
But while the United States’ burden of proof is a strict or
heavy burden, it is not necessary that a defendant’s guilt be proved
beyond all possible doubt. It is only required that the United States’
prove [sic]—proof exclude any reasonable doubt concerning the
defendant’s guilt.
A reasonable doubt is a real doubt based upon reason and
common sense after careful and impartial consideration of all the
evidence in the case.
Proof beyond a reasonable doubt is proof of such a convincing
character that you would be willing to rely and act upon it without
hesitation in the most important of your own affairs.
If you are convinced that the defendant has been proved guilty
beyond a reasonable doubt, then during your deliberations you should

4
 say so. If you are not sufficiently convinced by the evidence, then
during your deliberations you should say so.

After the court instructed the jury, the court called counsel to sidebar and asked,

“Did I give an instruction that I said I would omit or otherwise err in the

instructions?” James’s counsel replied, “No, Your Honor.” James’s counsel later

relied upon the phrase “proof of such a convincing character that you would be

willing to rely and act upon it without hesitation in the most important of your

own affairs,” in closing argument.2

During deliberations, the jury sent back a note with the question, “If we

have, believe [sic], there is a possible doubt, should we return a verdict of

guilty?,” and the court responded with a supplemental instruction, reiterating its

original reasonable doubt instruction.3 James objected to the court’s response to

2
James’s counsel argued that

in order to be convinced beyond a reasonable doubt, you have to have proof that is
of such strength, of such character that you would be willing to rely on it without
hesitation in the most important of your own affairs.
When you compare that instruction, that you have to have proof of a
character so convincing that you would rely upon it without hesitation in the most
important of your own personal affairs, how does that square with [the police
officer’s] opportunity to see the individual dropping a baggie for two seconds and
never sees his face?
3
The court responded with the following supplemental instruction:

Members of the jury, as stated in the instructions, the United States’
burden is to prove each element of the alleged offense beyond a reasonable doubt.
In other words, the United States’ proof must exclude every reasonable doubt, but

5
the jury, essentially requesting that the court repeat its original reasonable doubt

instruction exactly, including the last paragraph of the pattern instructions, the

“subjective component.” The court overruled this objection because the jury had

requested an instruction on “possible doubt,” rather than a mere repetition of the

reasonable doubt standard.

The jury found James guilty of possession with intent to distribute less than

five grams of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(C). The written

judgment, filed in the case erroneously, indicated that James was convicted of

possession with intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. § 841(b)(1)(B)(iii).

At the sentencing hearing, the judge asked whether James had any

objections to the Presentence Investigation Report (“PSI”), and his counsel

responded that James did not stipulate to the facts presented as to the instant case

not necessarily every possible doubt. A reasonable doubt is a real doubt based
upon reason and common sense after careful and impartial consideration of all of
the evidence in the case. If you find unanimously that the United States has
proved each element of the alleged offense beyond a reasonable doubt, then your
verdict is guilty.
If you find unanimously that the United States has failed to prove any
element of the alleged offense beyond a reasonable doubt, then your verdict is not
guilty.
Although the preceding two paragraphs refer primarily to the instructions
on page 3 of the written instructions you received, you should not single out or
exclude any instruction, and you should consider all of the court’s instructions as
a whole.

6
but that they had no objections in any other respects to the PSI. The judge then

asked Mr. James, “Do you understand that it’s these drug trafficking offenses that

are hurting you here today, not the one you got convicted for, and the two – the

trial in my court and then the two other convictions you have for selling?,” and

Mr. James responded, “Yes.”

II. Reasonable Doubt Instruction

“We review jury instructions de novo to determine whether they misstate

the law or mislead the jury to the prejudice of the objecting party.” United States

v. Hansen, 262 F.3d 1217, 1248 (11th Cir. 2001) (per curiam) (internal quotations

omitted). However, where the defendant has failed to object to the instruction in

the district court, we will review for plain error only. Id. at 1248. Furthermore,

“[u]nder the invited error doctrine, we will generally not review an error induced

or invited by a party through the submission of an incorrect jury instruction to the

judge which passed on to the jury.” Id. We review the response of the district

court to questions from the jury for an abuse of discretion. United States v.

Phaknikone, 605 F.3d 1099, 1107 (11th Cir. 2010).

Pursuant to the invited-error doctrine, because James not only failed to

object to the reasonable doubt instruction in the district court but also submitted

the very instruction he now challenges, we need not review his argument on

7
appeal. Id. Nonetheless, his argument is without merit because we have

repeatedly approved of the definition of reasonable doubt provided in the Eleventh

Circuit Pattern Jury Instructions. See, e.g., Hansen, 262 F.3d at 1249–50

(affirming jury instructions that defined proof beyond a reasonable doubt as “proof

of such a convincing character that you would be willing to rely or act upon it

without hesitation in a decision involving the most important of your affairs” and

stated that “it is not necessary that a Defendant’s guilt be proved beyond all

possible doubt. It is only required that the Government’s proof exclude any

‘reasonable doubt’ concerning a Defendant’s guilt”); United States v. Daniels, 986

F.2d 451, 457–58, opinion readopted on reh’g, 5 F.3d 495, 496 (11th Cir. 1993)

(per curiam) (rejecting a defendant’s argument that the “willing to act” language in

this Circuit’s reasonable doubt instruction impermissibly lowers the government’s

burden of proof); United States v. Clayton, 643 F.2d 1071, 1074–75 (5th Cir.

1981) (finding no error in the jury instruction, “[p]roof beyond a reasonable doubt,

therefore, is proof of such a convincing character that you would be willing to rely

and act upon it without hesitation in the most important of your own affairs”).

Thus, the district court’s jury instructions were proper.

Furthermore, James’s challenge to the supplemental instructions provided in

response to the jury’s question about “possible doubt” is vague and wholly

8
without merit. The district court’s supplemental instructions were not an abuse of

discretion.

III. 21 U.S.C. § 851(b)

James next argues that his sentence must be vacated because the district

court failed to follow the proper procedure dictated by 21 U.S.C. § 851(b).

Appellant argues that strict compliance with the mandatory language of § 851(a)

and (b) is required by our circuit precedent. James acknowledges that this Court

does not automatically reverse a district court for failure to conduct the § 851(b)

colloquy, but argues that despite the holding of United States v. Weaver, 905 F.2d

1466 (11th Cir. 1990), his sentence must be reversed because, unlike the defendant

in Weaver, his convictions were less than five years old and thus were not barred

from challenge under § 851(e).

“[F]or the court to exercise jurisdiction to impose an enhanced sentence

based on prior convictions . . . the government must comply with the procedural

requirements of Title 21 U.S.C. § 851.” United States v. Cespedes, 151 F.3d

1329, 1331 (11th Cir. 1998). Under § 851, the government is required to file and

serve an information, stating the prior convictions on which it seeks to rely to

enhance the sentence. 21 U.S.C. § 851(a). Once the information is filed:

9
 the [district] court shall after conviction but before pronouncement of
sentence inquire of the person with respect to whom the information was
filed whether he affirms or denies that he 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.

Id. § 851(b). If the defendant denies any allegation contained in the information

or claims that any conviction alleged is invalid, he must file a written response to

the information. Id. § 851(c)(1). The district court then must “hold a hearing to

determine any issues raised by the response which would except the person from

increased punishment.” Id. If the defendant does not respond to the information,

the court will proceed to sentencing. Id. § 851(d)(1). Finally, under § 851(e):

“No person who stands convicted of an offense under this part may challenge the

validity of any prior conviction alleged under this section which occurred more

than five years before the date of the information alleging such prior conviction.”

In United States v. Weaver, 905 F.2d 1466, 1480 (11th Cir. 1990), a

consolidated case with two appellants, one of the two appellants, Sikes, appealed

the enhancement of his sentence pursuant to 21 U.S.C. § 851, based on a prior

drug conviction. Sikes contended that the government failed to give adequate and

timely notice of its intent to rely on a prior conviction as required by § 851(a), and

that the district court failed to comply with § 851(b) because it did not inform him

10
that he was required to challenge the validity of any prior convictions underlying

the enhancement of his sentence and failed to inquire whether he affirmed or

denied the prior drug conviction alleged in the information. Id.

The Weaver Court first stated that “[t]his circuit has insisted upon strict

compliance with the mandatory language of the procedural requirements of section

851(a) and (b).” Id. at 1481 (emphasis added) (citing United States v. Noland, 495

F.2d 529, 533 (5th Cir. 1974); United States v. Cevallos, 538 F.2d 1122, 1126–27

(5th Cir. 1976).4 However, the Court immediately followed this statement by

explaining that “[t]his is particularly true with respect to the timing of the

government’s filing with the court and service on the defendant of an information

signifying the government’s intent to rely on a prior drug conviction,” id., thus

referring solely to § 851(a).

Within that same paragraph, Weaver stated that the doctrine of harmless

error does not apply to failures to comply with the requirements of § 851. Id.

(“Significantly, ‘[t]he doctrine of harmless error does not apply’ with respect to

failures to follow the statutory scheme of § 851.” (quoting United States v. Olson,

716 F.2d 850, 852 (11th Cir. 1983)). It is clear that this statement was referring to

4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.

11
§ 851(a), not § 851(b). For the reasons set forth below, we hold that this quotation

from Weaver applies only to § 851(a), and not to § 851(b).

After concluding that the district court had complied with the strict

compliance standard of § 851(a), the Weaver Court moved to the § 851(b)

challenge, the most relevant part of Weaver for the instant case. Sikes argued that

his sentence was improper because the district court failed to inquire whether he

affirmed or denied the prior drug conviction alleged in the information filed by the

government, as required by § 851(b). Id. at 1481–82. The sentencing transcript

revealed that “the district court did not specifically ask Sikes whether he had been

previously convicted,” but that this omission was “understandable when

considered in context.” Id. at 1482. The Court outlined a series of instances in

which Sikes and his counsel implicitly affirmed the prior conviction: Sikes’

counsel admitted that Sikes had a prior drug conviction during opening statement;

when the court reviewed the PSI during the sentencing proceeding, which

discussed both the prior arrests and the prior convictions alleged in the

government’s information, Sikes’ counsel stated that the “court should not take

into consideration anything other than convictions”; during the sentencing

proceeding, Sikes’ counsel argued that the prior arrests should be stricken and that

the PSI should state only “the number of convictions”; and the court discussed

12
doubling Sikes’ sentence as a result of a conviction that occurred while Sikes was

out on bond and his counsel did not object. Id. The Weaver court ultimately

concluded that “[n]ot only did Sikes fail to object to the prior convictions

contained in the PSI, but, by implication, he agreed that the prior convictions

stated in the PSI were correct. Thus, far from challenging the prior convictions,

Sikes’ counsel all but affirmed Sikes’ previous drug convictions.” Id.

Additionally, because Sikes’ prior convictions were more than five years

old, any challenge to their validity was barred by § 851(e). Id. The Court

explained that “[a] trial court is not required ‘to adhere to the rituals of § 851(b)

where a defendant, as a matter of law, is precluded from attacking the conviction

forming the basis of the enhancement information.” Id. (quoting United States v.

Nanez, 694 F.2d 405, 413 (5th Cir. 1982)). Thus, we also upheld Sikes’ enhanced

sentence because it would not “be subject to successful attack in this appeal even if

that court had not done all it was required to do under the statute.” Id. (emphasis

added).

We believe that Weaver has two separate and independent holdings.

Weaver first held that where § 851(a) is complied with and a defendant is properly

apprised of the underlying convictions considered to enhance his sentence,

substantial compliance with § 851(b) is sufficient. Second, Weaver held that

13
where § 851(e) bars any challenge to the validity of a conviction, a trial court is

not required to conduct the § 851(b) colloquy.

While it is true that this Circuit’s precedent had indicated that substantial

compliance with § 851(b) might be insufficient, that precedent did not preclude

Weaver’s holding that substantial compliance with § 851(b) is in fact sufficient, or

that use of the harmless error standard in relation to such challenges is appropriate.

The cases which indicated that substantial compliance with § 851(b) might not be

sufficient—United States v. Garcia, 526 F.2d 958, 961 (5th Cir. 1976), and United

States v. Cevallos, 538 F.2d 1122, 1126–27 & n.9 (5th Cir. 1976)—both made

these statements in dicta only. Garcia merely expressed doubt that substantial

compliance would be sufficient, rather than issuing a holding about substantial

compliance. See Garcia, 526 F.2d at 961 (“[I]t is doubtful that a substantial

compliance [with § 851(b)] would suffice.”). Moreover, the Court indicated that

there had not even been substantial compliance with § 851(b) because Garcia

never admitted to having been convicted of the offense identified in the § 851(a)

notice. See id. at 961 (“If Garcia’s admission of a narcotics conviction identified

it as the offense set forth in the information it could be plausibly urged that there

was a substantial compliance with the statute. But there was no identity of

offenses.”). Then, in Cevallos the district court failed to comply with § 851(b)

14
completely. Cevallos, 538 F.2d at 1127. Cevallos also asserted that the

conviction relied on to enhance his sentence was invalid. Id. at 1125. While the

Court noted that Garcia had indicated that it was doubtful whether substantial

compliance would suffice, Cevallos also issued no holding on the issue, instead

holding that there had not been substantial compliance at all. Id. at 1126–27 (“In

Garcia the non-compliance with § 851(b) was much less egregious than the

complete failure to comply with § 851(b) in the case before us. On the doubtful

possibility that substantial compliance with § 851(b) would suffice, there was no

such compliance here. In sentencing petitioner the District Court completely

failed to comply with § 851(b), which is a prerequisite to the imposition of an

enhanced sentence.”) (footnote omitted). Thus, both Garcia and Cevallos involve

fact situations that the Court perceived as not rising to the level of substantial

compliance. Accordingly, neither case precludes Weaver’s alternative holding

that substantial compliance with § 851(b) is sufficient where § 851(a) has been

fully complied with.

In an opinion issued just two years after Weaver, the Fifth Circuit, which

issued both the Garcia and Cevallos opinions, made clear that the statements

regarding substantial compliance with § 851(b) in each of those two opinions were

dicta. See United States v. Garcia, 954 F.2d 273, 277 (5th Cir. 1992). In that

15
case, the defendant appealed his enhanced sentence, arguing that the district court

failed to strictly comply with § 851(b), as required by Garcia and Cevallos. Id. at

276. The court responded: “Although the two Fifth Circuit cases upon which

Garcia relies suggest that substantial compliance with § 851(b) is insufficient, the

statements in both cases are no more than dicta.” Id. at 277 (emphasis added).

The court “consider[ed] more significant in th[e] case the fact that Garcia never

revealed . . . the basis for any challenge to his prior convictions.” Id. He did not

utilize § 851(c) procedures available to him to notify the court and the government

of the substance of any challenge, nor did he argue that he would have raised any

challenge to the prior convictions. Id. at 277–78. The court addressed the exact

issue that Appellant in this case raises and stated:

While § 851(e) would not bar a challenge to either of the prior
convictions alleged in the information in this case, we find that
Garcia’s conduct has the same effect as the § 851(e) bar in Nanez.
Garcia’s failure to comply with the procedures of § 851(c), when
coupled with the absence of any suggestion by Garcia (to this court or
the district court) that the judge’s omission precluded him from
presenting a specific challenge to one or both of the prior convictions,
renders harmless the judge’s failure to comply with the warning
component of § 851(b).

Id. at 278.

In addition to the fact that the statements regarding substantial compliance

were dicta, both Cevallos and the 1976 Garcia decision occurred prior to the

16
enactment of the Sentencing Guidelines, and, thus, the defendants did not have

PSIs specifically identifying their prior offenses. Now, following the enactment of

the Sentencing Guidelines, a PSI is prepared for each defendant, which is

reviewed both prior to and during the sentencing proceeding. Although we have

not specifically stated that the advent of PSIs alone impacts what is required of a

court under § 851(b), we have recognized the role of the PSI in making clear to a

defendant what, if any, prior convictions have been attributed to him. See Weaver,

905 F.2d at 1482.

In the years since Weaver was published in 1990, we have published

opinions following the second of the two separate and independent Weaver

holdings mentioned above—i.e., that a trial court’s failure to conduct the § 851(b)

colloquy is not reversible where § 851(e) bars any challenge to the conviction.

See, e.g., United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006)

(“Because this provision precluded Williams from challenging the prior

convictions ‘as a matter of law,’ the district court was ‘not required to adhere to

the rituals of § 851(b).’ ” (quoting Weaver, 905 F.2d at 1482)); United States v.

Cespedes, 151 F.3d 1329, 1334 n.2 (11th Cir. 1998) (“Although the district court

failed to so inquire of the Defendant at the sentencing hearing, Cespedes made no

claim regarding this omission on appeal, nor could he do so since his prior

17
conviction occurred more than five years before the date of the information. ‘A

trial court is not required to adhere to the rituals of § 851(b) where a defendant, as

a matter of law, is precluded from attacking the conviction forming the basis of the

enhancement information.’ ”) (internal citation omitted) (quoting Weaver, 905

F.2d at 1482).

Although we have not published an opinion following the other Weaver

holding—i.e., that substantial compliance with § 851(b) is sufficient where

§ 851(a) is fully complied with and a defendant is timely apprised of the

underlying convictions to be considered to enhance his sentence—we do so today.

This holding is not only sufficiently clear in Weaver itself, but a number of our

sister circuits have also held that failure to comply strictly with § 851(b) is

harmless error, even where a defendant could have challenged their prior

convictions under § 851(e). United States v. Severino, 316 F.3d 939, 948 (9th Cir.

2003) (“Severino admitted—more than once—that he had no way to challenge the

validity of the prior conviction. . . . The error was harmless.”); United States v.

Williams, 298 F.3d 688, 693 (7th Cir. 2002) (where both government’s

information and PSI disclosed convictions used for enhancement and defendant

did not challenge through § 851(c) or at sentencing, “any error resulting from the

district court’s failure to comply with the procedures of § 851(b) was harmless

18
error”); United States v. Gaviria, 116 F.3d 1498, 1525 (D.C. Cir. 1997) (per

curiam) (“Although failure to comply strictly with the statute’s requirements is

error, here the error was harmless.”) (internal citations omitted); United States v.

Gonzalez-Lerma, 71 F.3d 1537, 1541& n.4 (10th Cir. 1995) (holding that failure

to comply with § 851(b) was harmless because defendant was properly put on

notice that the government was seeking an enhancement and defendant concluded

that no valid grounds existed for challenging the convictions or enhancement after

research), overruled on other grounds by United States v. Flowers, 464 F.3d 1127

(10th Cir. 2006); United States v. Harwood, 998 F.2d 91, 100–01 (2nd Cir. 1993)

(holding that where the government filed an information identifying the conviction

relied upon to enhance defendant’s sentence and counsel told the court that the

defendant did not dispute the conviction, “the trial judge’s sentencing ritual here

complied with the requirements of § 851(b)”); United States v. Campbell, 980

F.2d 245, 252 (4th Cir. 1992) (“Although the trial record does not contain a

colloquy in which the district court specifically addressed each of the issues in

section 851(b), we nevertheless conclude that the substantive protections

underlying that subsection were provided to Campbell in this case.”) (footnotes

omitted); Garcia, 954 F.2d 273, 278 (5th Cir. 1992) (district court’s failure to

comply with § 851(b) is harmless although § 851(e) would not bar challenge of the

19
prior convictions because defendant did not comply with § 851(c) and did not

suggest that he had a valid challenge to the prior convictions).

James has never claimed that his prior convictions listed in the information

and PSI are in any way invalid, nor has he ever disputed that the two convictions

cited by the government are in fact his. James did not file a written response under

§ 851(c) contesting the United States’ properly filed information.5 After

conviction, James did not object to the PSI’s description of his prior convictions or

to the enhancement of his sentence based on those prior convictions. At the

sentencing hearing, the district court asked James, “Do you understand that it’s

these drug trafficking offenses that are hurting you here today, not the one you got

convicted for, and the two—the trial in my court and then the two other

convictions you have for selling?,” referring to the prior convictions listed in the

PSI. James replied, “Yes.”

As James’s convictions were fewer than five years old, he was not barred

from challenging them under § 851(e), unlike the defendant in Weaver. However,

5
Additionally, during trial, the United States attempted to introduce James’s prior
convictions into evidence, but they were excluded because the government’s notice of intent to
introduce evidence, pursuant to Federal Rule of Evidence 404(b), was untimely. While the
evidentiary issue is separate from the notice and colloquy requirements of § 851, we note this
because it is another example of James implicitly affirming his prior convictions. James sought
to exclude the admission of his prior convictions solely on the basis that notice was untimely
under 404(b) and did not contest the validity of his prior convictions at that time either.

20
the district court enhanced James’s sentence based on prior convictions clearly

delineated and described in the § 851 notice (in full compliance with § 851(a)) and

also in the PSI, to which the court specifically directed James’s attention during

the sentencing hearing. Thus, like the defendant in Weaver, James “all but

affirmed” his prior convictions by failing to object to their use in the PSI’s

sentence calculation and by confirming their existence at sentencing when the

district court referenced them as the reason for the severity of his sentence. Our

review of the sentencing transcript reveals that the district court adequately

discussed with James and his counsel the underlying convictions that were the

basis of his enhanced sentence and gave ample opportunity for any objection.

Rather than object, James indicated that the convictions were accurate throughout

pre-trial, trial, and sentencing proceedings. Any error in not specifically asking

whether he affirmed or denied the convictions was harmless error.

IV. Prior Convictions Were Properly Considered for Sentence Enhancement
Purposes

Binding precedent forecloses James’s argument that the district court erred

by enhancing his statutory maximum based on prior convictions not proven to a

jury beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S.

224, 228–47, 118 S. Ct. 1219, 1223–33 (1998) (holding that prior convictions

21
“relevant only to the sentencing of an offender found guilty of the charged crime”

do not need to be charged in an indictment or proven to a jury beyond a reasonable

doubt). James concedes this point but contends that Almendarez-Torres is

wrongly decided. However, Almendarez-Torres remains binding precedent. See

Apprendi v. New Jersey, 530 U.S. 466, 489–90, 120 S. Ct. 2348, 2362–63 (2000)

(holding that “other than the fact of a prior conviction” any fact that increases the

penalty for a crime beyond the statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt, and explicitly stating that the Court’s

holding did not affect the validity of Almendarez-Torres). We have stated that

“we are bound by Almendarez-Torres until it is explicitly overruled by the

Supreme Court.” United States v. Dowd, 451 F.3d 1244, 1253 (11th Cir. 2006).

The district court followed binding precedent and did not err in enhancing

James’s sentence based on his prior convictions.

V. Clerical Error

We may remand with instructions to correct a clerical error in the judgment.

United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006). “Furthermore, it is

fundamental error for a court to enter a judgment of conviction against a defendant

who has not been charged, tried, or found guilty of the crime recited in the

judgment.” Id. (citation and quotations omitted).

22
 Because the written judgment incorrectly states that James was convicted

under § 841(b)(1)(B)(iii), rather than § 841(b)(1)(C), we remand for the limited

purpose of correcting the clerical error.

Upon a thorough review of the entire record on appeal, and after

consideration of the parties’ briefs, we affirm in part and remand in part.

AFFIRMED IN PART, REMANDED IN PART.6

6
Appellant’s request for oral argument is denied as moot.

23