Suveges v. United States

USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_________________________



No. 92-2465



ROBERT E. SUVEGES, JR.,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]
___________________

_________________________

Before

Selya, Boudin and Stahl, Circuit Judges.
______________

_________________________

Robert E. Suveges, Jr. on brief pro se.
______________________
Richard S. Cohen, United States Attorney, and F. Mark
__________________ ________
Terison, Assistant United States Attorney, on brief for the
_______
United States.

_________________________

October 14, 1993

_________________________





















SELYA, Circuit Judge. Petitioner-appellant Robert E.
SELYA, Circuit Judge.
_____________

Suveges, Jr., strives gallantly to persuade us that the district

court erred in summarily denying a petition to vacate his

sentence brought pursuant to 28 U.S.C. 2255. For the reasons

discussed below, we affirm the judgment in its major aspects, but

remand to permit further consideration of one related point.

I
I

On August 14, 1990, a federal grand jury indicted

Suveges on three counts of drug distribution, not involving death

or injury, in violation of 21 U.S.C. 841(a)(1). The charges

arose from separate incidents in which Suveges sold cocaine to

undercover agents. The aggregate amount of cocaine involved in

the three transactions totalled 10.19 grams.

On November 1, 1990, Suveges pleaded guilty to the

charges pursuant to a plea agreement which provided, inter alia,
_____ ____

that the government would not oppose a two-level reduction in his

offense level for acceptance of responsibility.1 The criminal

docket sheet indicates that, before Suveges pled guilty, the

prosecution did not file or serve an information notifying him

that increased punishment might result from certain specified

____________________

1Notwithstanding that the probation office used the November
1, 1989 version of the federal sentencing guidelines in preparing
the presentence report, the November 1, 1990 version of the
guidelines applies to this case. See United States v.
___ ______________
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) ("Barring any
__________
ex post facto problem, a defendant is to be punished according to
__ ____ _____
the guidelines in effect at the time of sentencing."). This
bevue is of no consequence, however, as the guidelines affecting
Suveges's sentence are the same in both incarnations. In
particular, the career offender guideline, quoted infra note 4,
_____
was not changed.

2














prior convictions. See 21 U.S.C. 851(a)(1).2 Nonetheless,
___

paragraph one of the plea agreement specified that Suveges was

subject to a potential 30-year maximum prison term and/or a

$2,000,000 fine, as well as a mandatory six-year term of

supervised release. The statutory mosaic makes clear that this

is an enhanced penalty regime prescribed for repeat offenders.3

____________________

2The statute provides in relevant part:

No person who stands convicted of an offense
under this part [i.e., 21 U.S.C. 841 et
____ __
seq.] shall be sentenced to increased
____
punishment by reason of one or more prior
convictions, unless before trial, or before
entry of a plea of guilty, the United States
attorney files an information with the court
(and serves a copy of such information on the
person or counsel for the person) stating in
writing the previous convictions to be relied
upon. . . .

28 U.S.C. 851(a)(1).

321 U.S.C. 841(b)(1)(C) sets forth the penalties for
distributing less than 500 grams of cocaine. In relevant part,
this statute provides that, in instances where death or serious
injury do not follow the use of the controlled substance, an
offender:

shall be sentenced to a term of imprisonment
of not more than 20 years . . . a fine not to
exceed . . . $1,000,000 if the person is an
individual . . . or both. If any person
commits such a violation after one or more
prior convictions for . . . a felony under
any other . . . law of a State, . . .
relating to narcotic drugs, . . . such person
shall be sentenced to a term of imprisonment
of not more than 30 years . . . a fine not to
exceed . . . $2,000,000 if the person is an
individual . . . or both. Any sentence
imposing a term of imprisonment under this
paragraph shall, in the absence of such a
prior conviction, impose a term of supervised
release of at least 3 years . . . and shall,
if there was such a prior conviction, impose

3














During the course of Suveges's change-of-plea hearing,

the district judge initially warned him that he would be subject

to a 20-year maximum prison term and a three-year supervised

release term. These are the maxima that 21 U.S.C. 841(b)(1)(C)

prescribes for first offenders. See supra note 3. Despite the
___ _____

fact that the government had neither filed an informational

notice nor sought a sentence enhancement, Suveges's attorney

informed the judge that a 30-year prison term and a six-year

supervised release term were available in Suveges's case. The

judge accepted the volunteered correction, warned Suveges about

these possible penalties, and, when Suveges reaffirmed his desire

to plead guilty, accepted the changed plea.

On November 19, 1990, the probation office prepared a

presentence investigation report (PSI Report) which revealed that

Suveges had a myriad of prior convictions. Among these were

state-court convictions for armed robbery (1982), unlawful

trafficking in drugs (1983), and reckless conduct involving a

dangerous weapon (1987). As a result of these convictions, the

probation officer concluded that Suveges qualified for treatment

as a career offender under U.S.S.G. 4B1.1.4 The career

____________________

a term of supervised release of at least 6
years in addition to such term of
imprisonment.

4This guideline provides that:

A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time of the instant offense, (2) the
instant offense of conviction is a felony
that is either a crime of violence or a

4














offender guideline boosted Suveges's overall offense level from

ten to thirty-two and shifted his criminal history category from

V to VI. In turn, these higher integers yielded a guideline

sentencing range (GSR) of 210-262 months. Had Suveges not

qualified as a career offender, the GSR would have been 21-27

months.

Suveges and his attorney filed objections to the PSI

Report. The district court considered these objections at a

sentencing hearing held on March 4, 1991. Defense counsel

protested the use of the career offender guideline both on

constitutional grounds and because Suveges had not been informed

that he might be treated as a career offender before he changed

his plea. The court inquired whether Suveges wished to withdraw

his guilty plea. When he declined, the court overruled his

objections, applied the career offender guideline, and sentenced

him to a prison term of 210 months. The court also imposed the

six-year supervised release term mandated by 21 U.S.C.

841(b)(1)(C) for repeat offenders, see supra note 3, but declined
___ _____

to levy a fine due to Suveges's straitened financial condition.

Suveges did not appeal this sentence.

On October 2, 1992, Suveges filed this motion to vacate

his sentence under U.S.C. 2255. Read in conjunction with his


____________________

controlled substance offense, and (3) the
defendant has at least two prior felony
convictions of either a crime of violence or
a controlled substance offense.

U.S.S.G. 4B1.1.

5














supporting memorandum, Suveges's petition limned a single claim:

that his sentence was unlawful because the government, prior to

the court's acceptance of his guilty plea, did not file or serve

an informational notice detailing the prior convictions which

were later used to establish career offender status. Suveges

contended that the absence of such a notice violated both 21

U.S.C. 851(a)(1) and the Due Process Clause, thereby requiring

that he be resentenced without resort to the career offender

guideline. After studying the government's response, the

district court summarily denied the section 2255 petition. This

appeal followed.

II
II

On appeal, Suveges maintains that the government had an

obligation to file and serve an informational notice specifying

its intent to employ the career offender guideline before his

guilty plea took effect. The government's failure to do so, he

contends, disabled the court from sentencing him as a career

offender. The government demurs. Relying on United States v.
_____________

Sanchez, 917 F.2d 607, 616 (1st Cir. 1990), cert. denied, 111 S.
_______ _____ ______

Ct. 1625 (1991), it asserts that 21 U.S.C. 851(a)(1) is

inapposite to career offender status; and that, therefore, an

informational notice was not essential because Suveges's prior

convictions were used merely to establish his career offender

status under the sentencing guidelines not to expand the

maximum penalties that Congress, in the first instance, had

prescribed for the offense(s) of conviction.


6














While we agree that Sanchez defeats Suveges's attack on
_______

the lower court's use of the career offender guideline, the

record indicates that the district judge and the parties

incorrectly assumed that Suveges was subject to the enhanced

penalties provided by 21 U.S.C. 841(b)(1)(C) even though the

government had not sought enhancement under 21 U.S.C.

851(a)(1). Consequently, we think it is important that we

clarify the situation.

In Sanchez, this court held an informational notice to
_______

be obligatory under 21 U.S.C. 851 only in cases where the

government seeks to enhance the statutory minimum or maximum
_________

penalties that apply to a given defendant. It follows, then,

that section 851 is not in play, and an informational notice is

not required, in a situation where, as here, the defendant is

sentenced as a career offender to a prison term that falls within

a non-enhanced statutory minimum-maximum range. For example, the

defendants in Sanchez received 360-month prison terms. As these
_______

were within the range prescribed for first offenders under 21

U.S.C. 841(b)(1)(A), ten years to life, an informational notice

was not required. See Sanchez, 917 F.2d at 616; see also United
___ _______ ___ ____ ______

States v. Elwell, 984 F.2d 1289, 1297 (1st Cir.) (reaffirming
______ ______

position adopted in Sanchez), cert. denied, 113 S. Ct. 2429
_______ _____ ______

(1993). Our sister circuits toe the same line. See United
___ ______

States v. Day, 969 F.2d 39, 48 (3d Cir. 1992) (explaining that
______ ___

"the government is not required to file a pretrial information to

subject a defendant to sentencing as a career offender under


7














U.S.S.G. 4B1.1"); United States v. Koller, 956 F.2d 1408, 1417
_____________ ______

(7th Cir. 1992); United States v. Whitaker, 938 F.2d 1551, 1552
______________ ________

(2d Cir. 1991), cert. denied, 112 S. Ct. 977 (1992); Young v.
_____ ______ _____

United States, 936 F.2d 533, 536 (11th Cir. 1991); United States
______________ _____________

v. McDougherty, 920 F.2d 569, 574 (9th Cir. 1990), cert. denied,
___________ _____ ______

111 S. Ct. 1119 (1991); United States v. Marshall, 910 F.2d 1241,
_____________ ________

1245 (5th Cir. 1990), cert. denied, 111 S. Ct. 976 (1991); see
_____ ______ ___

generally United States v. Novey, 922 F.2d 624, 629 (10th Cir.)
_________ _____________ _____

(holding that 851 applies when prior convictions are used to

increase the minimum or maximum statutory sentence), cert.
_____

denied, 111 S. Ct. 2861 (1991); United States v. Wallace, 895
______ _____________ _______

F.2d 487, 489-90 (8th Cir. 1990) (observing that, although

851(a)(1) predates the sentencing guidelines, the guidelines do

not require the filing of an informational notice when using

prior convictions for sentence-enhancement purposes).

It would be pleonastic to repeat the reasoning of these

numerous cases. Suffice it to say that an informational notice

under 21 U.S.C. 851(a)(1) was not a necessary precondition to

either the change of plea or the imposition of sentence since

Suveges, even after the career offender guideline attached,

received an incarcerative sentence of 17 1/2 years, as opposed to

the non-enhanced statutory maximum of 20 years applicable to

first offenders under the statute of conviction. In as much as

application of the career offender guideline to Suveges in the

circumstances of this case comported with Due Process Clause, the

lower court's summary denial of 2255 relief was, by and large,


8














proper.5



III
III

There remains one small stumbling block. The record

indicates that Suveges did receive an enhanced supervised release

term. The district court imposed the mandatory minimum six-year

supervision term that 21 U.S.C. 841(b)(1)(C) prescribes for

repeat offenders. This constituted an increased punishment which

required the filing and service of an informational notice under

section 851(a)(1). Nonetheless, the court ignored the statutory

requirement. The filing of such an informational notice is

jurisdictional. See United States v. Belanger, 970 F.2d 416, 418
___ _____________ ________

(7th Cir. 1992) ("Failure to file the [ 851] notice prior to

trial deprives the district court of jurisdiction to impose an

enhanced sentence."); Novey, 922 F.2d at 627 (same); see also
_____ ___ ____

Hardy v. United States, 691 F.2d 39, 41 (1st Cir. 1982) (noting
_____ ______________

that if the government does not seek a sentence enhancement the

district court "is without authority to enhance on its own

motion."). Thus, the district court lacked the authority to

enhance Suveges's supervised release term to six years.6

____________________

5Suveges's due process argument is inextricably intertwined
with his statutory argument. Thus, our conclusion that no
violation of 21 U.S.C. 851(a)(1) occurred serves to
defenestrate Suveges's constitutional claim.

6In the absence of other statutory authority, 18 U.S.C.
3583 authorizes district courts to impose up to five years of
supervised release depending upon the classification of a
defendant's crimes. The district court categorized Suveges's
crimes as Class A felonies. This appears to be in error, for
Class A felonies are felonies punishable by death or life

9














To be sure, Suveges did not object below to the

imposition of the enhanced term of supervised release and he did

not appeal his sentence in the first instance. The failure to

raise this objection earlier constitutes a procedural default.

See, e.g., Ford v. United States, 983 F.2d 897, 898 (8th Cir.
___ ____ ____ ______________

1993) (per curiam). Hence, Suveges must show cause and prejudice

to obtain collateral relief at this juncture. See United States
___ _____________

v. Frady, 456 U.S. 152, 167-68 (1982). Yet, the record before us
_____

suggests that both cause and prejudice arguably might be present.

Defense counsel, seemingly unaware that such a penalty was not

required unless the government sedulously followed the

enhancement procedures set forth in 21 U.S.C. 851(a)(1),

invited the court to apply the enhanced recidivist penalty

embodied in 21 U.S.C. 841(b)(1)(C). Such an oversight could

conceivably constitute sufficient cause to excuse the procedural

default before the district court. Cf., e.g., Hardy, 691 F.2d at
___ ____ _____

42 (noting that a lesser showing of cause is required where the

district court lacked authority to impose the sentence because

the requirements of 851 were not met). Prejudice appears

rather obvious: after all, Suveges received a six-year

supervised release term notwithstanding that the governing law

only authorized a maximum three-year term. In view of the fact

____________________

imprisonment. See 18 U.S.C. 3559(a)(1). Absent an
___
informational notice sufficient to trigger a 851 enhancement,
Suveges's crimes were punishable by a maximum prison term of
twenty years and, thus, constituted Class C felonies. See 18
___
U.S.C. 3559(a)(3). Under 18 U.S.C. 3583(b)(2), no more than
three years of supervised release may be imposed for a Class C
felony.

10














that the parties did not focus on these issues the first time

around, we think the most appropriate course is to remand so that

the district court may reconsider this aspect of the matter.

Therefore, the judgment below is affirmed in part and vacated

only in respect to the imposition of the six-year term of

supervised release. The matter is remanded to the district

court for further proceedings consistent with this opinion





It is so ordered.
It is so ordered.
________________


































11