In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1924
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JEROME W ILLIAMS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:08-CR-72 RLM—Robert L. Miller, Jr., Chief Judge.
A RGUED S EPTEMBER 11, 2009—D ECIDED O CTOBER 14, 2009
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
P OSNER, Circuit Judge. A jury convicted the defendant
of drug and firearms offenses. He had two prior felony
drug convictions and therefore received a mandatory
life sentence. 21 U.S.C. § 841(b)(1)(A). The only questions
presented by his appeal that require discussion (the defen-
dant’s other grounds for appeal are either foreclosed
by recent circuit precedent or frivolous) are whether the
government complied with 21 U.S.C. § 851(a)(1), the
2 No. 09-1924
“notice of enhancement” statute, and if not whether
the defendant is entitled to be resentenced.
The statute states:
No person who stands convicted of an offense under
this part 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. Upon a
showing by the United States attorney that facts
regarding prior convictions could not with due dili-
gence be obtained prior to trial or before entry of a
plea of guilty, the court may postpone the trial or
the taking of the plea of guilty for a reasonable period
for the purpose of obtaining such facts. Clerical mis-
takes in the information may be amended at any
time prior to the pronouncement of sentence.
The purposes of the statute are to give the defendant an
opportunity to contest the use of his prior conviction or
convictions to enhance his sentence, and to give him
enough information about the potential sentence to
enable him to decide intelligently whether to plead guilty
or throw the dice by going to trial. E.g., United States v.
Cooper, 461 F.3d 850, 854-55 (7th Cir. 2006); Kelly v. United
States, 29 F.3d 1107, 1109-10 (7th Cir. 1994), overruled on
other grounds by United States v. Ceballos, 302 F.3d 679, 689-
92 (7th Cir. 2002); United States v. Morales, 560 F.3d 112, 115-
No. 09-1924 3
16 (2d Cir. 2009) (per curiam); United States v. Williams,
59 F.3d 1180, 1185 (11th Cir. 1995).
The defendant argues that the notice the government
filed did not comply with the statute. It reads as follows:
Comes now the United States of America . . . to
hereby inform the defendant . . . that, if he is convicted
of offenses under Title 21, United States Code, Section
841(a)(1), he will be subject to the enhanced penalty
provisions of . . . Section 841(b). This Information and
notice is filed pursuant to the provisions of . . . .
Section 851. The United States further specifically
informs the defendant that it will use his conviction
in St. Joseph County . . . in 2002 for dealing in
cocaine . . . and all other [convictions] applicable to
qualify him for sentencing under the enhanced
penalty provisions of . . . Section 841(b).
Further information concerning the defendant’s
criminal history can be obtained from the United
States Probation Office and specifically the Pretrial
Services Report in this matter . . . .
The notice was sent to the defendant on June 17, 2008.
The pretrial services report was not attached to the infor-
mation. It was not filed with the district court until
March 23, 2009, as an exhibit to the government’s
response to the defendant’s objection to a life sentence;
this was after the defendant’s trial and before the sen-
tencing hearing, which was held on April 3. The defen-
dant’s lawyer could have obtained a copy of the report
from the district court’s probation office; we don’t know
whether he did or not. The government does not
4 No. 09-1924
contend, and there is nothing in the record to suggest, that
either the lawyer or his client was sent a copy of the
report; there is no information about the practice in that
regard of the probation office of the Northern District
of Indiana.
A section of the report captioned “Prior Record” lists 19
sets of charges, identifies each charge, and lists the disposi-
tion. Three of the 19 dispositions are convictions for a
felony because they involve prison sentences (though in
one case it was suspended) of more than a year. But only
two of the three are drug convictions and therefore
could be used to enhance the defendant’s sentence
under section 841(b). One of them is the St. Joseph County
offense mentioned in the notice of enhancement. At the
sentencing hearing the prosecutor cited the other felony
drug conviction as another basis for enhancement; that
made two; hence the mandatory life sentence.
The defendant argues that the notice did not
comply with section 851(a)(1). The statute is explicit in
requiring that the government in advance of trial or
guilty plea file a document with the court that lists the
convictions on which it intends to rely in arguing for an
enhanced sentence. The government did not list the
second conviction on the basis of which the defendant’s
sentence was enhanced, which jacked up his minimum
sentence from 20 years to life. The notice refers the reader
to another document, but it is not attached and was not
(so far as we can determine) otherwise conveyed to the
defendant or his lawyer, and it contains a lengthy list
of charges and dispositions without indicating which
No. 09-1924 5
one or ones the government intended to use to enhance
the defendant’s sentence.
The excuse that the government’s lawyer gave us
for these omissions does not reflect well on the Depart-
ment of Justice. He said that he prepared the notice in
haste—long before it was due (for it was filed only six
days after the defendant was indicted, yet was not due
until the eve of trial, many months later)—because he
was afraid he’d forget about it. He thus has offered an all-
purpose excuse for premature filings in federal courts
of any and all documents.
Now as it happens the date on which his office
received the pretrial services report was June 17, the very
day on which he filed the section 851 information in
the district court; and he does not remember whether
he had received the report, or read it, before or after he
filed the information. For all that appears, he attempted
to incorporate by reference a document that he had not
yet read, that his office had not received, and that for all
we know had not been completed by the probation
office when he submitted the information.
Apparently the U.S. Attorney’s office for the Northern
District of Indiana has no protocol for compliance
with section 851, perhaps because our opinion in
United States v. Tringali, 71 F.3d 1375, 1382 (7th Cir. 1995),
states that “section 851 does not specify the particular
form notice of an enhancement must take.” There is
similar language in many other cases. E.g., United States v.
Belanger, 970 F.2d 416, 419 (7th Cir. 1992), overruled on
6 No. 09-1924
other grounds by United States v. Ceballos, supra, 302 F.3d
at 689-92; United States v. Boudreau, 564 F.3d 431, 437-38
(6th Cir. 2009); United States v. Severino, 316 F.3d 939, 943-44
(9th Cir. 2003) (en banc); United States v. Weaver, 267
F.3d 231, 247 (3d Cir. 2001); Perez v. United States, 249 F.3d
1261, 1265-67 (11th Cir. 2001); United States v. Layne, 192
F.3d 556, 575-76 (6th Cir. 1999); United States v. Gonzales-
Lerma, 14 F.3d 1479, 1485 (10th Cir. 1994), overruled on
other grounds by United States v. Botero-Ospina, 71 F.3d
783 (10th Cir. 1995) (en banc). Sometimes the notice
contains the wrong date of the offense sought to be used
to enhance the defendant’s sentence, or the wrong
offense, or the wrong date of the right offense, or other-
wise misdescribes the offense, or fails to cite section
851. Sometimes the notice isn’t filed in court; sometimes
the notice and the list of convictions are separate docu-
ments. It is odd that U.S. Attorneys seem to have so
much difficulty in complying unambiguously with a
simple statute. But the cases say that as long as the defen-
dant has actual notice of the intended use of a prior
conviction to enhance his sentence, the statute has been
substantially complied with and that is good enough.
United States v. Rutherford, 175 F.3d 899, 903-04 (11th
Cir. 1999), reached the opposite result, insisting that
providing the defendant with a list of convictions
separate from and not referred to in the section 851
notice did not comply with the statute. However, the
Eleventh Circuit’s later decision in Perez v. United States,
supra, while not overruling Rutherford, held that harmless
errors in the section 851 notice do not invalidate the
No. 09-1924 7
notice. Yet in cases like United States v. Olson, 71 F.2d
850, 852-53 (11th Cir. 1983), and United States v. Bowden,
No. 08-11935, 2009 WL 32755 (11th Cir. Jan. 7, 2009)
(unpublished), the Eleventh Circuit had gone further
than it had in Rutherford and held that a failure to comply
with section 851 deprives the sentencing judge of juris-
diction to enhance the defendant’s sentence on the basis
of a prior conviction. The Solicitor General has filed a
petition for certiorari in Bowden (No. 09-244, Aug. 27,
2009), noting that the Eleventh Circuit is in conflict with
all eight other circuits to have considered the issue. We
are one of the eight. United States v. Ceballos, supra, 302
F.3d at 689-92. And in any event Rutherford is contrary to
our decision in the Belanger case.
The defendant argues that the notice of enhancement
failed to comply with the statute in several respects.
The first is that it did not contain the information in the
pretrial services report about the second conviction that
would later be used to enhance his sentence—the informa-
tion was in a separate document. The argument implies
that stapling the report to the notice would not have
complied with the statute. That is much too strict an
interpretation.
He argues next that even if a physically attached list of
convictions would satisfy the statutory requirement, a
physically separate list would not. Again we disagree.
The difference between stapling a list of convictions to
the notice and setting forth the convictions in a completely
separate document is too slight to matter, and several of
the cases that we have cited uphold that method of com-
8 No. 09-1924
plying with the statute (Tringali, Belanger, and Layne). This
case differs from them because the second document, the
list of convictions, was not (so far as appears) actually
given to the defendant. But it was incorporated by refer-
ence, and that was good enough, consistently with cases
such as Farmer v. Baldwin, 563 F.3d 1042, 1043-44 (9th Cir.
2009); United States v. Sealed Juvenile I, 225 F.3d 507, 508-09
(5th Cir. 2000), and United States v. Loya, 807 F.2d 1483,
1492 (9th Cir. 1987), that affirm in other contexts the
adequacy of notice that takes the form of incorporation
by reference.
The defendant is on stronger ground in arguing that a
statute which states that the required notice shall list the
convictions on which the government intends to rely
should not allow the government to send the defendant’s
lawyer to rummage in the probation office and try to
guess which in a long list of “dispositions” the govern-
ment might argue was a conviction usable for an enhance-
ment—especially if the list has not yet been compiled,
which may have been the situation in our case, though
that is uncertain. And since the list contained only one
felony drug conviction besides the one mentioned in
the notice, we cannot fathom the failure to list it unless
the prosecutor hadn’t received or hadn’t read the
pretrial services report—either of which possibility
seems, however, quite likely.
Furthermore, the incorporated pretrial services report
provided the defendant with a list of “dispositions,” not
even a list of convictions (a number of the dispositions
listed in the defendant’s criminal history are dismissals),
leaving him to guess which might be the basis of an
No. 09-1924 9
enhancement. Not that it was a difficult guess; but there
is the added irregularity of the government’s having, for
all we can tell, not even seen the list before it issued
the information, and conceivably having attempted to
incorporate by reference a document that did not yet exist.
No doubt the defendant’s lawyer would want a list of
all his client’s previous criminal charges, and their dis-
positions, for they would figure in sentencing regardless
of any mandatory enhancement. They would also help
him decide how badly his client’s testimony would be
impeached by his previous convictions if he took the
stand. But the statute requires the government to indicate
which prior convictions it plans to use as the basis for
arguing for a longer sentence, and this could well be
thought to require the government to specify those con-
victions rather than, as we said, leave the defendant’s
lawyer to guess.
But even if the government failed to comply
with the statute, the notice adequately informed the
defendant of what he was facing and so fulfilled
the statutory purposes, and consequently there was no
reversible error. The defendant does not contend that
the second conviction was an improper basis for enhance-
ment, and that takes care of the first purpose of the
statute. He does argue that “the Government’s failure to
list [both] previous convictions prejudiced [him] because
it did not allow him to make an informed decision of
whether to enter a plea or proceed to trial.” But the notice
says that the government would rely on all “applicable”
convictions in the pretrial services report, and it was
10 No. 09-1924
apparent that the second felony drug conviction was
“applicable,” that is, a basis for enhancement. It was the
only other felony drug conviction in the list of 19 dis-
positions; it was unequivocally a felony drug conviction;
a lawyer reading the list would notice that in about
fifteen seconds; and if the defendant’s lawyer had had
any doubt about which conviction the prosecutor was
planning to rely on for an enhancement he could
have sought clarification from the prosecutor, and
he didn’t—doubtless because it was clear. Nor can we
see how the defendant’s lawyer might have taken ad-
vantage in guilty-plea negotiations of knowledge that
his client was facing a mandatory life sentence.
We can imagine a notice and a list of convictions that
were so confusing that the defendant and his lawyer
could not be expected to pick out the one or ones that the
government might try to use to enhance the defendant’s
sentence. But in this case the lawyer could arrive at the
critical conviction in a simple two-step reading: the
notice itself, which referred him to the list of convictions
in the probation office; and the list itself, in which only
one eligible conviction (besides the one named in the
notice) appeared, as would be obvious from a quick
reading.
The government takes a risk by sloppy compliance
(or perhaps it is not compliance at all) with section
851(a)(1): the risk that either the court will hold that the
government failed to provide the defendant with
adequate notice or that the defendant will have a claim
that by failing to interpret a confusing notice correctly
No. 09-1924 11
his lawyer rendered ineffective assistance of counsel.
For these reasons and to spare us pointless appeals, the
U.S. Attorney’s office that prosecuted this case would
be well advised to get its act together and comply strictly
with section 851. It might also be wise for the Depart-
ment of Justice to notify all the U.S. Attorneys of the
importance of strict compliance, as the problem of non-
compliance or sloppy compliance seems to be wide-
spread, judging from the number of cases. And it is not as
if strict compliance were difficult.
But the Supreme Court has been emphatic that a
criminal judgment is not to be reversed as a way of disci-
plining prosecutors for errors, even egregious ones.
United States v. Hasting, 461 U.S. 499, 504-05 (1983); see
also United States v. Johnson, 26 F.3d 669, 682-83 (7th
Cir. 1994). Some errors in criminal proceedings are not
excusable on grounds of harmlessness, but they are
errors (called “structural”) that strike at the heart of
criminal justice, like denial of counsel to a defendant who
wants representation. See United States v. Gonzales-Lopez,
548 U.S. 140, 149-150 (2006), for a list of such errors. We
cannot think of any reason why a violation of section
851(a)(1) should be thought such an error when it does
not confuse the defendant or his lawyer. See, e.g., United
States v. Morales, supra, 560 F.3d at 116-18; compare United
States v. Sperow, 494 F.3d 1223, 1228 (9th Cir. 2007); United
States v. Arnold, 467 F.3d 880, 887-89 (5th Cir. 2006).
A FFIRMED.
10-14-09