USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 91-2136
WILFREDO GONGORA
a/k/a PEDRO GUERRERO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge] ___________________
___________________
Before
Breyer, Chief Judge, ___________
Selya and Cyr, Circuit Judges. ______________
___________________
Wilfredo Gongora on brief pro se. ________________
Daniel F. Lopez-Romo, United States Attorney, and Luis A. ____________________ ________
Plaza, Assistant United States Attorney, on brief for appellee. _____
__________________
July 13, 1993
__________________
Per Curiam. Wilfredo Gongora appeals from a ___________
judgment dismissing his motion to vacate his sentence under
28 U.S.C. 2255. He claims that his sentence was illegally
enhanced in violation of 21 U.S.C. 851.1 Finding no
illegal enhancement, we affirm.
I.
On September 24, 1987, Gongora and eight others were
arrested on the high seas aboard the COLOSO II, a Panamanian
tugboat. The Coast Guard made the arrest after observing
numerous bales of marijuana being thrown from the tugboat.
Gongora and the captain and other crew members of the COLOSO
II were charged with violating 46 U.S.C. App. 1903(a) and 18
U.S.C. 2 (aiding and abetting the unlawful possession of
5818 kilograms of marijuana, with the intent to distribute
same, on board a vessel subject to the jurisdiction of the
United States). A jury convicted Gongora and his
codefendants on December 16, 1987.
The statute the defendants were convicted under
incorporates the penalty provisions of 21 U.S.C. 960 for
____________________
1. 21 U.S.C. 851(a)(1) provides, in relevant part, that:
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....
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first offenders and the penalty provisions of 21 U.S.C. 962
for second offenders.2 Under 21 U.S.C. 960, first
offenders are subject to a mandatory minimum penalty of ten
years' imprisonment and five years of supervised release, and
a maximum term of life imprisonment. A person convicted of a
second or subsequent offense "is punishable by a term of
imprisonment twice that otherwise authorized" and "twice the
term of supervised release otherwise authorized." 21 U.S.C.
962(a). Thus, repeat offenders of 46 U.S.C. App. 1903 are
subject to a mandatory minimum sentence of twenty years'
imprisonment and ten years of supervised release. However,
to subject a repeat offender to that mandatory minimum, the
government must first file an information notifying the
offender of the prior convictions it intends to rely upon in
seeking an enhanced sentence under 21 U.S.C. 851. See 21 ___
U.S.C. 962(c)("Section 851 of this title shall apply with
____________________
2. 46 U.S.C. App. 1903 (g) provides:
(1) Any person who commits an offense under this
section shall be punished in accordance with the
penalties set forth in section 1010 of the
Comprehensive Drug Abuse Prevention and Control Act
of 1970 (21 U.S.C. 960).
(2) Notwithstanding paragraph (1) of this
subsection, any person convicted of an offense under
this chapter shall be punished in accordance with
the penalties set forth in section 1012 of the
Comprehensive Drug Abuse Prevention and Control Act
of 1970 (21 U.S.C. 962) if such offense is a second
or subsequent offense as defined in section 1012(b)
of that Act.
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respect to any proceeding to sentence a person under this
section.") See also United States v. Craveiro, 907 F.2d 260, ___ ____ _____________ ________
262 & n. 4 (1st Cir.), cert. denied, 498 U.S. 1015 _____ ______
(1990)(noting that double penalties for second or subsequent
conviction under 21 U.S.C. 962 required proof of recidivism
under procedures set forth in 21 U.S.C. 851(a)(1)).
The case was called for sentencing on February 25, 1988.
Six of the crew members had no prior criminal records and
received sentences of ten years' imprisonment and five years
of supervised release, the mandatory minimum for first
offenders under 21 U.S.C. 960(b)(1)(G). Before trial, the
prosecutor had filed an information notifying the captain
(defendant Corpus) that the government would seek to enhance
his sentence pursuant to 21 U.S.C. 851 on the basis of his
prior marijuana smuggling conviction. The trial judge
sentenced the captain to a thirty-year prison term and ten
years of supervised release. Another crew member (Alfonso
Gonzalez) had a prior conviction for marijuana smuggling, but
the government had not filed a 851 information with respect
to him. Gonzalez received a thirty-year prison term and five
years of supervised release.
Similarly, the government also did not file a 851
information on Gongora, the last to be called for sentencing.
Gongora's Presentence Report (PSR) indicated that Gongora was
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subject to the ten year-to-life range applicable to first
offenders under 21 U.S.C. 960(b)(1)(G). However, the PSR
also identified two prior arrests for drug crimes. One of
these resulted in a 1983 conviction for violating 21 U.S.C.
955a, the predecessor to 46 U.S.C. App. 1903.3 Gongora
initially denied that he was the person with the criminal
record described in the PSR. The district court continued
Gongora's sentencing so that an evidentiary hearing could be
held. Gongora's counsel moved to waive the hearing. On
March 3, 1988, Gongora admitted to the 1983 conviction.
Nevertheless, the district court proceeded with the hearing
and an FBI fingerprint expert established that Gongora indeed
had been convicted of the 1983 marijuana smuggling charge
under 21 U.S.C. 955a.
The trial court sentenced Gongora to thirty years'
imprisonment and five years of supervised release. All
convictions were affirmed on direct appeal. See United ___ ______
States v. Corpus, 882 F.2d 546 (1st Cir. 1989). Thereafter, ______ ______
the district court entered two orders affecting Gongora's
sentence. On September 6, 1989, it ordered that all the
defendants' supervised release terms should be replaced by
terms of special parole. Amended judgments issued. On April
____________________
3. The 1983 conviction was for Gongora's participation in an
attempt to import 57,265 pounds of marijuana into the United
States. The Puerto Rico federal district court (Torruella,
J.) sentenced Gongora to three years' imprisonment and three
years of special parole.
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17, 1990, the court clarified its previous order by
specifying that the defendants were not eligible for parole
under the 1986 amendments to 21 U.S.C. 960 and 962. This
ruling was affirmed on appeal. See United States v. De Los ___ _____________ ______
Santos-Himitola, 924 F.2d 380 (1st Cir. 1991).4 _______________
In 1991, Gongora filed the instant 2255 motion.
Relying on Hardy v. United States, 691 F.2d 39, 41-42 (1st _____ ______________
Cir. 1982)(vacating sentence where record suggested
government may not have filed 851 information), Gongora
argued that his sentence had been illegally enhanced because
the district court had relied on his prior conviction in
imposing his thirty-year prison term and the government had
failed to file a pretrial enhancement information under 21
U.S.C. 851. Gongora maintained that the district court
lacked jurisdiction to impose the thirty-year sentence and
that his sentence should be reduced to the ten year prison
____________________
4. In De Los Santos-Himitola, 924 F.2d at 381-82 & n. 2, we ______________________
observed that the district court correctly left the special
parole terms in place when it determined that the defendants
were not eligible for parole, but that the Supreme Court had
granted certiorari review on whether the mandatory minimum
supervised release terms required by the Anti-Drug Abuse Act
of 1986 applied to offenses committed between October 27,
1986 and November 1, 1987. The Supreme Court answered this
question in the affirmative. See Gozlon-Peretz v. United ___ _____________ ______
States, 498 U.S. 395, 404-410 (1991). Thus, these ______
defendants' sentences may include an incorrect term of
special parole. See Padilla Palacios v. United States, 932 ___ _________________ ______________
F.2d 31, 32-34 (1st Cir. 1991)(per curiam)(holding supervised
release applied to 2255 petitioner convicted of violating 46
U.S.C. App. 1903). As the issue has not been raised, we do
not consider it.
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term imposed on the first offenders. Gongora filed several
documents in support of his 2255 motion, including the
district court's September 6, 1989 order revoking the
defendants' supervised release terms. Footnote one of that
order stated: "Defendants with prior criminal convictions
were sentenced under 21 U.S.C. section 962(a), authorizing
sentences twice the length of those otherwise provided."
Gongora insists that this notation shows that the district
court impermissibly imposed a twenty-year mandatory minimum
term on Gongora as a repeat offender under 21 U.S.C. 962
then added ten years. The government conceded that no 851
information had been filed on Gongora, but argued that
Gongora had been sentenced under 21 U.S.C. 960(b)(1)(G) and
that his sentence had not been unlawfully enhanced since it
was within the ten year-to-life range applicable to first
offenders under that statute. The government further argued
that Gongora's five-year supervised release term showed that
the district court did not unlawfully enhance his sentence,
as a ten-year term would have been required for a repeat
offender. The government maintained that Gongora's sentence
was unreviewable under United States v. Tucker, 404 U.S. 443, _____________ ______
447 (1972)("... a sentence imposed by a federal district
judge, if within statutory limits, is generally not subject
to review.") The district court ruled that Gongora had
not been sentenced under 21 U.S.C. 962 but rather had been
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sentenced to a term within the ten year-to-life range
applicable to him under 21 U.S.C. 960(b)(1)(G). The
sentencing judge acknowledged that he had considered the
prior conviction in imposing the sentence. However, in view
of the fact that Gongora did not contend that Fed. R. Crim.
P. 32(c)(governing disclosure of PSR) had been violated, the
judge discerned no illegality in the thirty-year sentence and
dismissed Gongora's 2255 motion. This appeal followed.
II.
"Congress enacted section 851(a)(1) and the procedure
for filing an information to protect defendants from
receiving increased statutory sentences ... resulting from
prior, incorrectly charged offenses ... and to give
defendants the opportunity to show that they were not the
persons convicted." United States v. Wallace, 895 F.2d 487, ______________ _______
489 (8th Cir. 1989) (citations omitted). In Hardy v. United _____ ______
States, 691 F.2d at 41, we observed that a district court ______
lacks jurisdiction to enhance a convicted defendant's
sentence on its own motion if the government has not filed an
information seeking a sentence enhancement under 21 U.S.C.
851(a)(1). See also United States v. Belanger, 970 F.2d ___ ____ _____________ ________
416, 418 (7th Cir. 1992)("Failure to file [ 851] information
before trial deprives the district court of jurisdiction to
impose an enhanced sentence."); United States v. Williams, _____________ ________
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899 F.2d 1526, 1528-29 (6th Cir. 1990); United States v. ______________
Olson, 716 F.2d 850, 851-54 (11th Cir. 1983). _____
Nevertheless, this rule is not dispositive of the
present case, for it is clear that the district court had
jurisdiction to impose Gongora's thirty-year prison sentence
as it was within the ten year-to-life range applicable to
first offenders. See 21 U.S.C. 960(b)(1)(G). Section 851 ___
applies only where the government seeks to enhance the
mandatory statutory minimum or maximum sentence of a
defendant. See, e.g., United States v. French, 974 F.2d 687, ___ ____ _____________ ______
697-98 (6th Cir. 1992), cert. denied, 113 S. Ct. 1431 (1993) _____ ______
( 851 applied where defendant's mandatory sentence was
enhanced from twenty years to life under recidivist provision
of 21 U.S.C. 841(b)(1)(A)); United States v. Sanchez, 917 _____________ _______
F.2d 607, 616 (1st Cir. 1990), cert. denied, 111 S. Ct. 1625 _____ ______
(1991) ("The section 851(a)(1) enhancement notice requirement
applies 'to situations in which a convicted defendant's
statutory minimum or maximum penalty is enhanced _________
...'")(citation omitted); United States v. Wallace, 895 F.2d _____________ _______
at 490 (same). The fact that the government did not file a
851 information on Gongora meant that the district court was
not compelled to impose the mandatory minimum sentence of
twenty years imprisonment and ten years of supervised release
required by 21 U.S.C. 962. However, the absence of this
information did not rob the district court of its discretion
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to impose such a sentence under the statutory authority
vested in it under 21 U.S.C. 960(b)(1)(G).
The absence of a 851 enhancement information does not
preclude a sentencing court from considering a defendant's
prior convictions in determining whether the defendant should
be treated as a Career Offender under the Sentencing
Guidelines. See United States v. Whitaker, 938 F.2d 1551, ___ _____________ ________
1552 (2d Cir. 1991)(per curiam); United States v. Sanchez, _____________ _______
id.; United States v. Marshall, 910 F.2d 1241, 1444-45 (5th ___ _____________ ________
Cir. 1990). While this is a pre-Guidelines case, the
rationale of these authorities applies with like force to
Gongora's claim. Thus, the district court lawfully
considered Gongora's prior conviction in imposing a thirty-
year prison term, see Corpus, 882 F.2d at 553, and correctly ___ ______
dismissed the 2255 motion. Affirmed. _________
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