United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 12, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-31150
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN COUNTY, also known as KC, also known as Cat,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CR-201-1-S
Before JONES, BARKSDALE and CLEMENT, Circuit Judges.
PER CURIAM:
Kevin County appeals from the district court’s sentence
following his guilty-plea conviction for numerous controlled-
substance offenses. County argues that the district court lacked
the authority to enhance his sentence based upon a prior conviction
because the Government failed to comply with the procedural
requirements of 21 U.S.C. § 851(a)(1). County contends that the
Government’s “last-minute” delivery to defense counsel of a copy of
the notice of enhancement shortly before County’s rearraignment was
insufficient under 21 U.S.C. § 851(a). County relies on United
States v. McCoy, 1996 WL 351309 (S.D.N.Y. 1996), in support of his
argument.
The enhancement for County’s prior conviction for
conspiracy to distribute cocaine hydrochloride increased his
mandatory minimum sentence on several counts from 10 years’ to 20
years’ imprisonment. 21 U.S.C. §§ 841(a)(1), (b)(1); 851(a)(1).
Because County filed a timely objection, the issue of the
Government’s compliance with § 851(a)(1) is reviewed de novo. See
United States v. Steen, 55 F.3d 1022, 1025 (5th Cir. 1995).
Section 21 U.S.C. § 851(a)(1) provides, in pertinent
part, that
[n]o person who stands convicted of an offense
under this part shall be sentenced to
increased punishment by 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 relied upon.
Service can be accomplished via hand delivery of the notice of
enhancement prior to the entry of the guilty plea. See
FED. R. CRIM. P. 49(b) (providing that service of any criminal papers
be accomplished according to the civil rules of procedure); FED. R.
CIV. P. 5(b)(2)(A)(I) (permitting service to be accomplished via
hand delivery). This court has recognized that the Government’s
failure to properly file and serve a notice of enhancement in
accordance with the requirements of § 851(a)(1) restricts the
district court’s authority to sentence the defendant using the
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enhancement. See United States v. Dodson, 288 F.3d 153, 159-60 and
n.9 (5th Cir. 2002); United States v. Cevallos, 538 F.2d 1122, 1125
n.4 (5th Cir. 1976).
In the instant case, County concedes that the Government
hand-delivered a copy of the notice of enhancement to his counsel
shortly before the entry of his guilty plea. The district court
did not err in concluding that service had been accomplished “prior
to” the entry of the guilty plea in accordance with 21 U.S.C.
§ 851(a)(1). See United States v. Gonzalez-Lerma, 14 F.3d 1479,
1484 (10th Cir. 1994); United States v. White, 980 F.2d 836, 842
(2nd Cir. 1992); United States v. Johnson, 944 F.2d 396, 406-07
(8th Cir. 1991); United States v. Weaver, 905 F.2d 1466, 1481 (11th
Cir. 1990).
County’s reliance on McCoy is misplaced because in McCoy
neither the defendant nor his counsel had received a copy of the
notice of enhancement prior to trial. McCoy, 1996 WL 351309 at *1.
In addition, in the instant case, the district court did not
endorse the method in which the Government served County and
recognized that it had misadvised County with respect to his
mandatory minimum sentence. As a result, the district court gave
County an opportunity to withdraw his guilty plea. County elected
to waive the court’s misadvisement and enter his guilty plea.
Although these additional precautions are not essential to our
decision, we conclude that the district court did not err in
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holding sufficient the Government’s service on County prior to the
entry of his plea under § 851(a)(1).
County also argues that the notice of enhancement under
21 U.S.C. § 851(a)(1) was insufficient because it did not provide
information about the sentence enhancement. The bill of informa-
tion related to the prior conviction identified the date and cause
number of the former conviction, the length of sentence, and that
the bill was filed pursuant to 21 U.S.C. §§ 851(a) and 841.
County’s argument is therefore unavailing. See Steen, 55 F.3d at
1028. Accordingly, the sentence of the district court is AFFIRMED.
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