USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1353
HENRY L. TORRES,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Henry L. Torres on brief pro se.
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Edwin J. Gale, United States Attorney, and Kenneth P.
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Madden, Assistant United States Attorney, on brief for Appellee.
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November 30, 1993
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Per Curiam. Pro se inmate Henry Torres appeals
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from a district court judgment that denied his motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
2255. We affirm.
I.
The relevant facts are not in dispute. On May 23, 1989,
Torres and six codefendants were indicted on two counts of
possession with intent to distribute more than 100 grams of
heroin in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B),
and conspiracy to distribute and possess with intent to
distribute the said heroin in violation of 21 U.S.C. 846.
On October 4, 1989, Torres pled guilty to the possession with
intent to distribute charge pursuant to a plea agreement with
the government. That offense was punishable by a mandatory
minimum of five years' imprisonment and at least four years
of supervised release if the crime did not result in death or
serious bodily injury and the offender had no prior
convictions for violations of 841(a) or for other felonies
relating to narcotic drugs. However, if the offender had
such a prior conviction, the offense was punishable by an
enhanced mandatory minimum of ten years' imprisonment and at
least eight years of supervised release, assuming neither
death nor serious bodily injury resulted from the offense.1
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1. 21 U.S.C. 841(b)(1)(B) provides, in relevant part, that
a person convicted of an offense involving 100 grams or more
of a substance containing heroin:
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The record indicates that, in return for Torres' guilty plea
on count one, the government agreed to dismiss count two and
to recommend that Torres receive ten years' imprisonment.2
On December 7, 1989, the district court sentenced Torres
to the enhanced mandatory minimum of ten years' imprisonment
and eight years of supervised release. The enhancement was
based on Torres' prior Rhode Island state conviction for
possession of cocaine. The conspiracy charge was dismissed
on the government's motion. Although Torres appealed his
sentence, that appeal was subsequently dismissed for lack of
prosecution.
On December 24, 1992, Torres filed the 28 U.S.C. 2255
motion that is the subject of this appeal. That motion,
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... shall be sentenced to a term of imprisonment
which may not be less than 5 years and not more
than 40 years ... If any person commits such a
violation after one or more prior convictions for
an offense punishable under this paragraph or for a
felony under any other provision of this subchapter
or subchapter II of this chapter or other law of a
State, the United States, or a foreign country
relating to narcotic drugs ... have become final,
such person shall be sentenced to a term of
imprisonment which may not be less than 10 years
and not more than life imprisonment ... Any
sentence imposed under this subparagraph shall, in
the absence of such a prior conviction, include a
term of supervised release of at least 4 years in
addition to such term of imprisonment and shall, if
there was such a prior conviction, include a term
of supervised release of at least 8 years in
addition to such term of imprisonment.
2. The government further agreed to make no recommendation
as to an appropriate fine or supervised release term.
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which was supported by a memorandum, attacked Torres'
sentence on three grounds. First, Torres alleged that state
convictions could not support a sentence enhancement under 21
U.S.C. 841(b). In support of this assertion, Torres cited
United States v. Johnson, 506 F.2d 305 (7th Cir. 1974), cert.
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denied, 420 U.S. 1005 (1975), a case which held that the
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double penalty provisions of 21 U.S.C. 841(b)(1)(A) could
only be applied if a prior conviction had been obtained under
federal law. See 506 F.2d at 307. In connection with this
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first point, Torres also contended that his prior conviction
for simple possession of cocaine was the equivalent of a
violation of 21 U.S.C. 844, which describes the federal
penalties for simple possession of controlled substances.
Torres asserted that no federal law allowed violations of 21
U.S.C. 844 to be used as a basis for invoking the double
penalties prescribed in 21 U.S.C. 841, therefore, Torres'
prior conviction, treated as a violation of 21 U.S.C. 844,
could not support his enhanced sentence.
Torres' second ground for 2255 relief alleged that the
government failed to file an information notifying Torres of
its intent to seek to enhance his sentence based on his prior
conviction, as required by 21 U.S.C. 851(a)(1).3 Third,
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3. 28 U.S.C. 851(a)(1) provides, in relevant part, that:
No person who stands convicted of an offense under
this part shall be sentenced to increased
punishment by reason of one or more prior
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Torres argued that the probation officer engaged in improper
double counting in computing Torres' criminal history under
the United States Sentencing Guidelines (U.S.S.G., Nov.
1989). Torres specifically complained that points were
improperly added under 4A1.1(c) and 4A1.1(d). Marshalling
these claims, Torres asked the district court to reduce his
enhanced sentence to seventy months' imprisonment and four
years of supervised release.
The government filed an objection to Torres' 28 U.S.C.
2255 motion and a supporting memorandum which is not in the
record before us. On February 19, 1993, the district court
issued an order denying relief. The court specifically found
that the government had filed and served the requisite 21
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U.S.C. 851(a)(1) information, that 21 U.S.C. 841(b)(1)(B)
expressly authorizes sentence enhancements based on prior
state convictions, and that Torres' objection to the
calculation of his criminal history category was meritless
since U.S.S.G. 5G1.1(b) required that Torres be sentenced to
the mandatory statutory minimum prison and supervised release
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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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terms, thus rendering his criminal history score
irrelevant.4 Judgment entered for the government on
February 22, 1993.
The record indicates that Torres filed a reply to the
government's objection to his 2255 motion which set forth
additional arguments in favor of Torres' request for
resentencing. Specifically, Torres alleged that the
"Information" which the government purportedly filed under 21
U.S.C. 851 in fact had been filed in response to the
defendants' discovery requests, had no nexus with that
information required by 21 U.S.C. 851, and was fatally
defective under United States v. Wirsing, 662 F. Supp. 199,
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200 (D. Nev. 1987), because it did not mention that the
government intended to seek an enhanced sentence.5 Torres'
certificate of service indicates that he mailed this reply on
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4. U.S.S.G 5G1.1(b) provides that, "[w]here a statutorily
required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence."
5. Torres also alleged that he had received ineffective
assistance of counsel since his attorney had allowed his
direct appeal of his sentence to be dismissed for lack of
prosecution and failed to file an Anders brief. This claim
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was not properly before the district court since it was not
raised in Torres' 2255 motion. Thus, we are unable to
effectively review this claim. See Barrett v. United States,
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965 F.2d 1184, 1188 (1st Cir. 1992)(holding plaintiff failed
to raise Jencks Act claim in a timely manner below where
claim was first asserted in plaintiff's reply to government's
response to plaintiff's amended 2255 motion). Moreover,
Torres' filings with this court do not seek appellate review
of this issue. Thus, we do not address it.
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February 17, 1993, two days before the district court issued
its order denying relief and four days before judgment for
the government was entered. It appears that the district
court did not consider this reply before it entered its
decision, for the docket sheet indicates that the reply was
not docketed until March 2, 1993, after judgment had been
entered and the case had been closed. In any event, Torres
filed a timely notice of appeal.
II.
We have allowed Torres to proceed on the memorandum he
filed in the district court in lieu of filing a brief on
appeal.6 Having reviewed the record thoroughly, we conclude
that the district court's analysis was correct. It is true
that when 21 U.S.C. 841(b) was originally enacted, it did
not subject defendants with prior state court drug
convictions to enhanced penalties as repeat offenders.
Rather, this statute initially allowed sentence enhancements
only for prior federal felony-drug violations. See, e.g.,
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United States v. Gates, 807 F.2d 1075, 1082 (D.C. Cir. 1986),
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6. Torres has also filed a reply brief which emphasizes
that, in his view, Congress did not intend the crime of
simple possession of cocaine to trigger a sentence
enhancement. This argument is based on Torres' assumptions
that violations of 21 U.S.C. 844 cannot result in a sentence
enhancement and that, had Torres' prior possession of cocaine
offense been prosecuted under 21 U.S.C. 844, his prior
conviction could not have triggered the enhanced sentence he
now endures.
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cert. denied, 481 U.S. 1006 (1987); United States v. Johnson,
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supra. However, 21 U.S.C. 841(b) was amended by the
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Comprehensive Crime Control Act of 1984. See Pub. L. 98-473,
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Tit. II, 502, 98 Stat. 1976, 2068. See also United States
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v. Rivera, 996 F.2d 993, 1000-01 & n.4 (9th Cir.
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1993)(dissenting opinion discussing legislative history of
841). At the time of Torres' offense, as now, 21 U.S.C.
841(b)(1)(B) explicitly authorized enhanced penalties on the
basis of prior state felony convictions. Possession of
cocaine is a felony under Rhode Island law. See, e.g.,
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Amaral v. INS, 977 F.2d 33, 36 n.3 (1st Cir. 1992). Thus,
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Torres' contention that he could not be subjected to the
enhanced penalties in 21 U.S.C. 841(b) based on his prior
state conviction is plainly meritless. The fact that Torres'
prior offense may only have amounted to a misdemeanor under
21 U.S.C. 844 is irrelevant given the plain wording of 21
U.S.C. 841(b)(1)(B).7
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7. Torres errs in asserting that violations of 21 U.S.C.
844 may never support a sentence enhancement under 21 U.S.C.
841. To be sure, "absent prior convictions, simple
possession is not a felony under federal law." Amaral v.
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INS, 977 F.2d at 36. Thus, under circumstances where simple
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possession is only a misdemeanor, a violation of 21 U.S.C.
844 cannot be used to invoke the recidivist penalties of 21
U.S.C. 841, which require that prior convictions be for
felonies. "However, one prior conviction turns possession
into a felony since the maximum penalty increases to over a
year." Id. Thus, prior convictions for violations of 21
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U.S.C. 844 which constitute felonies may support sentence
enhancements under 21 U.S.C. 841.
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The record also contradicts Torres' assertion that the
prosecutor failed to file the information required by 21
U.S.C. 851(a)(1). The information was filed on September 6,
1989 and served by mail on Torres' counsel on that date.
Moreover, we think that the information was substantively
adequate. The information clearly specified the date and
place of Torres' prior conviction, that the conviction
involved a felony (possession of cocaine) and the sentence
that Torres received.8 Torres' reliance on United States v.
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Wirsing, supra, is misplaced, for the 851 information which
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was held defective in that case wholly failed to identify the
defendant's prior conviction. We also think that the
information's reference to 21 U.S.C. 851 was adequate to
place Torres, who was represented by counsel, on notice that
the government intended to seek a sentence enhancement based
on Torres' prior conviction. Cf. United States v. Belanger,
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8. The Information provided, in relevant part, that:
The said defendant, on or about the 13th day of
September, 1988, in the state of Rhode Island, was
duly convicted of possession of cocaine, a felony,
in violation of Rhode Island General Laws, and was
sentenced on said date to a three year term of
imprisonment, sentence suspended, and a three year
term of probation. All in violation of Title 21,
United States Code, Section 851.
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970 F.2d 416, 419 (7th Cir. 1992)(noting that "[s]ection 851
does not specify the particular form which notice of
enhancement must take...").
Finally, we note that the Presentence Report shows that
Torres received only one criminal history point under
4A1.1(c), thus there was no double counting. And, since
Torres was subject to the enhanced mandatory minimum ten-year
prison term, his criminal history score did not affect his
sentence.
Accordingly, the judgment of the district court is
affirmed.
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