United States v. Michael Francis DiFalco

Case: 15-14763 Date Filed: 09/20/2016 Page: 1 of 37

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 15-14763

B.C. Docket No. 8:13-cr-00072-SDM-MAP-l

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

versus

MICHAEL FRANCIS DIFALCO,

Defendant - Appellant.

Appeal from the United States District Court
for the Middle District ofFlorida

Before MARCUS and WILLIAM PRYOR,Circuit Judges, and LAWSON,
District Judge.

MARCUS,Circuit Judge:

* Honorable Roger H. Lawson, Jr., United States District Judge for the Middle District of
Georgia, sitting by designation.
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Michael DiFaIco appeals his 240-inonth sentence imposed after pleading

guilty to one count ofconspiracy to distribute and possess with intent to distribute
50 grams or more of methamphetamine. He claims that his sentence was imposed
in error because the government did not file a proper information under 21 U.S.C.
§ 851 to support his enhanced sentence. But DiPalco signed a plea agreement
waiving his right to appeal his sentence. Because we hold that a defendant may
waive § 851's requirements, and the record before us establishes that DiFalco
knowingly waived his right to appeal his sentence, we dismiss his appeal. But,
even if we found that the defendant had not knowingly waived his right to

challenge his sentence in this Court, DiFalco has failed to meet his burden of
establishing that the district court erred, plainly or otherwise, in imposing a 240-
month sentence.

I.

DiFalco was arrested and charged by a federal grand jury sitting in the

Middle District ofFlorida for his role acting as the "source" of approximately 81
grams of methamphetamine for co-defendant Cheyenne Bryant who,in turn,sold
the drugs on two occasions to a confidential informant working with federal law
enforcement agents. DiFalco initially pled not guilty to a two-count indictment
charging both him and Bryant. Bryant subsequently pled guilty to the charges
leveled against her for conspiracy to distribute and possess with intent to distribute
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50 grams or more of a substance containing a detectable amount of

methamphetamine, and possession with intent to distribute and distribution of50

grams or more of a substance containing a detectable amount of

methamphetamine. The government then filed a two-count superseding indictment

charging DiFalco with:(1)conspiracy to distribute and possess with intent to
distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C.

§§ 846, 841(a)(1), 841(b)(l)(A)(viii), 851, and 18 U.S.C. § 2; and(2)possession
with intent to distribute and distribution of50 grams or more of methamphetamine,

in violation of21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(viii), 851, and 18 U.S.C. § 2.

Shortly after the superseding indictment was returned, DiFalco and the
government began negotiating a possible plea agreement. As court filings from
both sides indicated, DiFalco faced the possibility of a mandatory life sentence

based on his multiple prior state-court drug convictions. On June 17, 2013,the
Assistant United States Attorney responsible for prosecuting DiFalco informed the
district court that he had received approval from his supervisor to enter into a plea
agreement whereby the government would file only one 21 U.S.C. § 851
enhancement against the defendant,thereby reducing his potential sentence
exposure from a mandatory term of life in prison to a mandatory minimum of20
years of incarceration.
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Three days later, DiFalco signed a plea agreement with the United States.

Pursuant to the terms ofthe deal, DiFalco agreed to plead guilty to Count 1 ofthe

superseding indictment, and the government agreed to dismiss Count 2 and refrain
from charging DiFalco with any other federal crimes known to the government and
related to the conduct giving rise to the agreement. The agreement also provided

that, by entering a plea of guilty, DiFalco admitted to the charge alleged in Count 1
and that he had "previously [been] convicted of a felony drug offense." The

agreement also accurately noted that, by pleading guilty, DiFalco would be
punished "by a mandatory minimum term of20 years and a maximum term of life
imprisonment, a term ofsupervised release of at least 10 years, a fine of up to
$20,000,000, and a special assessment of$100, said special assessment to be due
on the date of sentencing."

Notably, the plea agreement also included an appeal waiver that read this
way:

The defendant agrees that this Court has jurisdiction and
authority to impose any sentence up to the statutory
maximum and expressly waives the right to appeal
defendant's sentence on any ground, including the
ground that the Court erred in determining the applicable
guidelines range pursuant to the United States Sentencing
Guidelines, except (a) the ground that the sentence
exceeds the defendant's applicable guidelines range as
determined bv the Court pursuant to the United States
Sentencing Guidelines; (b) the ground that the sentence
exceeds the statutory maximum penalty; or (c) the
ground that the sentence violates the Eighth Amendment
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to the Constitution; provided, however, that if the
government exercises its right to appeal the sentence
imposed, as authorized by 18 U.S.C. § 3742(b), then the
defendant is released from his waiver and may appeal the
sentence as authorized by 18 U.S.C. § 3742(a).

DiFalco initialed each page ofthe agreement and signed the final page. DiFalco

acknowledged in the agreement that he was pleading guilty freely and voluntarily.
On June 27, 2013, before the defendant entered a plea of guilty, the

government filed an "Information and Notice ofPrior Conviction" pursuant to 21
U.S.C. §§ 851 and 841(b)(1) notifying DiFalco that he was subject to an enhanced
mandatory minimum sentence based on a prior felony drug conviction.
Specifically, the information said that "[o]n or about July 19, 2007,the defendant
was convicted of sale and possession with the intent to sell Amphetamine and
Marijuana,in and for the Tenth Circuit Court ofBartow County,Florida, Case
Number 2000CF8119[.]" The details set forth in the information, however, do not
precisely align with the conviction contained in DiFalco's record as set forth in his
Presentence Investigation Report("PSI"). Rather, DiFalco had a prior conviction
entered on July 19, 2002 for trafficking in amphetamine, manufacture of cannabis,
possession of MDMA (ecstasy), possession of Alprazolam, use or possession of
drug paraphernalia, and driving with a suspended license in the Circuit Court in
Polk County, Florida under case number OO-CF-8119. The PSI noted that DiFalco
was also charged with possession of cannabis with intent to sell in that case, but
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that no action was taken on that charge. DiFalco's record, as set forth in the PSI in

paragraphs 45 and 46, also reveals two other sets ofconvictions on July 19, 2002:
one for operating a chop shop and grand theft of a motor vehicle under case
number Ol-CF-676; and another for possession of methamphetamine, possession

of cannabis, and use or possession of drug paraphernalia under case number 01-

CF-677. DiFalco also had been convicted of another series of drug and vehicle

related crimes on October 11, 2010, including possession of methamphetamine

with intent to sell or deliver; possession ofcannabis with intent to sell; possession
of Oxycodone; possession of drug paraphernalia; actual or constructive possession
of a structure used for trafficking, sale, or manufacture ofa controlled substance;
possession ofa firearm or ammunition by a convicted felon; possession or sale of a
vehicle with an altered vehicle identification number; and possession of a vessel

with an altered hull identification number. The PSI did not indicate that DiFalco

had any convictions for any crimes in 2007. The final page ofthe § 851
information included a certification that the assistant United States attorney had
"electronically filed the foregoing with the Clerk ofthe Court by using the
CM/ECF system which will send a notice of electronic filing to the counsel of
record."

Later that day, DiFalco appeared at a change-of-plea hearing before a
magistrate judge to enter a plea of guilty to the federal drug conspiracy count. The
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magistrate judge first ascertained that DiFalco was not under the influence of any
type of drug or alcoholic beverage. The magistrate judge then explained the terms
ofthe plea agreement to DiFalco in order to ensure that he understood the terms of
the agreement. Among other things, the magistrate judge explained that the plea
agreement provided that DiFalco would plead guilty to the first count ofthe
indictment, that the government would dismiss the remaining counts against him,

that the government would recommend he receive a sentence within the Guidelines
range,that the government would recommend a downward adjustment in that
range based on his acceptance of responsibility, that DiFalco agreed to cooperate
hilly with the government in its investigation and prosecution of others, and that
DiFalco would forfeit any and all assets subject to forfeiture as a consequence of
his illegal activity.

The magistrate judge also reviewed with DiFalco the penalties he would face
upon pleading guilty to the conspiracy charge. Thus, he explicitly told DiFalco
that he faced a minimum mandatory penalty of20 years in prison and up to a

maximum sentence of life imprisonment, a term ofsupervised release of at least 10
years, a fine of up to $20 million, and a special assessment in the amount of$100.
The magistrate judge explained to DiFalco that the government had filed a notice
ofinformation and so DiFalco potentially faced an enhanced prison term because
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of one of his prior drug convictions. DiFalco said that he understood these

penalties.

The magistrate judge also explained the appeals waiver found in the plea
agreement,telling DiFalco what the waiver meant and what exceptions applied.
Specifically, the defendant was told that although he would ordinarily have the
right to appeal his sentence to the Eleventh Circuit Court of Appeals, he was
waiving his right to do so unless his sentence exceeded the applicable Guideline
range, his sentence exceeded the statutory maximum penalty, or the sentence
violated the Eighth Amendment prohibition against cruel and unusual punishment.
Once again, DiFalco said that he understood.
The judge then explained the many trial rights that DiFalco would surrender
by entering a plea of guilty. Among them were included the right to ajury trial at
which the government would have to prove its case beyond a reasonable doubt,the
right to be represented by counsel, the right to cross-examine witnesses against
him,the right to testify or not testify as he wished, and the right to invoke
subpoena power to compel witnesses to testify on his behalf. DiFalco said that he
understood this too. Finally, after the magistrate judge explained the elements of
the charge ~ including that DiFalco had conspired to distribute and possess with
intent to distribute 50 or more grams of methamphetamine and that he had a prior
conviction for a felony drug offense subjecting him to a minimum mandatory
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enhancement- DiFalco pled guilty. DiFalco's counsel said that he was satisfied

his client was pleading guilty knowingly and voluntarily and with a full

understanding ofthe consequences. Finding that the plea had been entered both
knowingly and voluntarily, the magistrate judge recommended that it be accepted
by the district court. The district court did so on July 15, 2013.
The district court conducted a sentencing hearing on September 16, 2013. It

overruled DiFalco's objections that some of his prior convictions that the PSI

treated as separate offenses ought to be classified as one offense for purposes of
calculating DiFalco's criminal history category. The district court calculated that
DiFalco had an offense level of34 and a criminal history category of VI, yielding a

Guidelines range of262 to 327 months. DiFalco's attorney argued that the district
court should enter a downward variance based on DiFalco's abused childhood and

the fact that he had turned to drugs as a coping mechanism for dealing with a series
of serious injuries. Twice during the course of his argument,the defendant's
counsel acknowledged that DiFalco faced a mandatory minimum term of20 years'
imprisonment. Indeed, DiFalco himself also noted that fact during his own
remarks to the court, saying,"My crime carries ten years, but my past of being a
drug addict doubles it to 20." The defendant also acknowledged having seen the
PSI and discussing it with counsel.
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The district court did vary downward from the guidelines range, sentencing

DiFalco to the mandatory minimum of240 months' imprisonment followed by 10

years ofsupervised release. The district court waived imposition ofa fine, but
levied a special assessment of$100. Notably, defense counsel offered no objection
to the sentence or the manner of its announcement when asked by the district court

at the conclusion ofthe proceeding.

No appeal was filed within the time period permitted under Fed. R. App.P.
4(b)(1). But, in 2014,the district court granted DiFalco's 28 U.S.C. § 2255
application claiming that he had received ineffective assistance of counsel because
his lawyer failed to file a notice of appeal despite having been directed to do so.
The district court vacated the judgment so that the sentence could be re-imposed,
thereby allowing DiFalco to file a timely notice of appeal to this Court. On
October 23,2015,the district court re-imposed the same sentence on DiFalco.
This timely appeal followed.

11.

DiFalco argues broadly that the government has failed to comply with
§ 851(a)(l)'s notice requirements, rendering his enhanced sentence invalid. He
asks this Court not to "vacate his entire guilty plea or plea agreement, but only his

agreement to an enhanced minimum penalty." Moreover, DiFalco says that the
district court failed to ensure during the plea colloquy that he understood he was

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pleading to an enhanced minimum sentence; and that it also erred by failing to
comply with § 85l(b)'s requirement that he be given the opportunity to affirm or
deny the particular prior conviction that was used to enhance his sentence.
A.

DiFalco pled guilty to conspiring to distribute and possess with intent to
distribute 50 grams or more of methamphetamine in violation of21 U.S.C.
§§ 841(a)(1), 841(b)(l)(A)(viii), 846, and 851. Section 841 makes it a crime "to
manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1). Where the
controlled substance involves 50 grams or more of methamphetamine -- as was the
case here - the defendant faces a prison sentence ranging from a mandatory

minimum of 10 years to a maximum of life, followed by a five-year term of
supervised release. 21 U.S.C. § 841(b)(l)(A)(viii). If, however,the defendant had
previously been convicted of a felony drug offense, the mandatory minimum term
ofimprisonment rises to 20 years, followed by a 10-year term of supervised
release. Id The maximum term ofimprisonment remains life. Id Section 846
makes it a crime to attempt or conspire to commit any ofthe crimes defined in that
subchapter ofthe United States Code. 21 U.S.C. § 846.
Although § 841 provides for enhanced sentences for defendants previously
convicted offelony drug offenses, these enhancements are not automatic. Rather,

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the government is required by the terms of§ 851 first to file an information
providing notice ofthe previous conviction supporting the enhanced sentence.
Thus,§ 851 provides:

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.

21 U.S.C. § 851(a)(1). This notice allows the defendant to contest the accuracy of
the government's pleading as well as affording the defendant "ample time to
determine whether to enter a plea or go to trial and plan his trial strategy with full

knowledge ofthe consequences ofa potential guilty verdict." United States v.
Ramirez. 501 F.3d 1237, 1239(11th Cir. 2007)(quoting United States v. Williams,

59F.3d 1180, 1185 (11th Cir. 19951k accord United States v. DuffV. 179F.3d
1304, 1305 (11th Cir. 1999). These procedural safeguards are mandatory and must
be followed in all cases before a defendant's sentence may be enhanced under

§ 841. Carachuri-Rosendo v. Holder. 560 U.S. 563,569 & n.6(2010); United
States V. Thompson.473 F.3d 1137, 1144(11th Cir. 2006).

The statute also provides that after the § 851 information has been filed, the
district court shall inquire ofthe defendant whether he affirms or denies the
conviction alleged in the information and "inform him that any challenge to a prior
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conviction which is not made before sentence is imposed may not thereafter be

raised to attack the sentence." 21 U.S.C. § 851(b). A defendant who challenges

the convictions alleged in the information must file a written response to the

information, at which point the district court shall hold a hearing. 21 U.S.C.

§ 851(c)(1). But"[n]o person who stands convicted of an offense under this part

may challenge the validity ofany prior conviction alleged under this section which
occurred more than five years before the date ofthe information alleging such prior

conviction." 21 U.S.C. § 851(e).

B.

Before we turn to the merits of DiFalco's § 851 claims, we are obliged first

to address the government's argument that DiFalco waived his right to appeal this
issue in his plea agreement. Ifthat waiver applies, DiFalco would be barred from
raising his claim and we would be required to dismiss his appeal. United States v.
Johnson, 541 F.3d 1064, 1069(11th Cir. 2008); United States v. Howie, 166 F.3d

1166, 1168(11th Cir. 1999).

"We review the validity of a sentence appeal waiver de novo." Johnson, 541

F.3d at 1066; United States v. Bushert,997 F.2d 1343, 1352(11th Cir. 1993). In
order to be valid, the appeal waiver must be made knowingly and voluntarily.
Bushert,997 F.2d at 1350. To enforce an appeal waiver, the government must

establish either that "(1)the district court specifically questioned the defendant

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concerning the sentence appeal waiver during the Rule 11 colloquy, or(2)it is

manifestly clear from the record that the defendant otherwise understood the full
significance ofthe waiver." Id, at 1351; accord Johnson, 541 F.3d at 1066.
Significantly, a waiver of appellate rights applies not only to frivolous claims, but
also to difficult and debatable legal issues. Johnson, 541 F.3d at 1068; United

States V. Grinard-Henrv, 399 F.3d 1294, 1296(11th Cir. 2005); Howie, 166 F.3d at

1169. Indeed, it even "includes a waiver ofthe right to appeal blatant error."

Howie, 166 F.3d at 1169: accord Johnson, 541 F.3d at 1068; Grinard-Henrv, 399

F.3d at 1296. Thus,even issues that are vigorously disputed at sentencing are not

exempted from an otherwise valid and applicable appeal waiver. United States v.
Bascomb,451 F.3d 1292, 1296(11th Cir. 2006); United States v. Buchanan, 131

F.3d 1005, 1007, 1009(11th Cir. 1997).

That said, the parties may not waive a jurisdictional defect. McCov v.
United States, 266 F.3d 1245, 1249(11th Cir. 2001). Because the federal courts

are courts oflimited jurisdiction, deriving their power from Article III ofthe
Constitution and from the legislative acts of Congress,the parties cannot confer
upon the courts a jurisdictional foundation that they otherwise lack. Harris v.
United States, 149 F.3d 1304,1308(11th Cir. 1998). Thus, a party's waiver or

procedural default would be insufficient to confer subject-matter jurisdiction.
McCov,266 F.3d at 1249; Harris, 149 F.3d at 1308. A judgment tainted by a

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jurisdictional defect- even one that has been waived ~ must be reversed. McCoy,

266 F.3d at 1249.

1.

The first question before us, then, boils down to whether § 851 is in fact a

jurisdictional requirement. This Court and its predecessor Court, the former Fifth
Circuit Court of Appeals, have repeatedly held that it is. Thus,for example, in

Harris v. United States, we relied on this Court's repeated and binding precedent in

concluding that a district court lacked jurisdiction to impose an enhanced § 851
sentence absent the government filing an information in accordance with the

requirements ofthe statute. 149 F.3d at 1306-07(citing United States v. Olson,
716 F.2d 850, 853(11th Cir. 1983); United States v. Cevallos, 538 F.2d 1122,

1125 n.4(5th Cir. 1976); United States v. Noland,495 F.2d 529, 533(5th Cir.
1974)). These precedents led us to conclude that"even where a defendant receives
actual notice that the government intends to rely on a previous conviction to
enhance his sentence, the district court lacks jurisdiction to impose an enhanced

sentence until the government files an information as required under § 851." Id. at
1307. We held, therefore, that a § 2255 applicant was not required to show cause

or prejudice to obviate a procedural default by failing to object to the § 851
information at trial because a jurisdictional defect could not be procedurally

defaulted or waived. Id. at 1308-09; see also United States v. Jackson, 544 F.3d

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1176, 1184-85 (11th Cir. 2008); Ramirez. 501 F.3d at 1239-40; Thompson.473

F.3d at 1144. We have since cast doubt on whether Harris's jurisdictional holding

remains good law in light ofsubsequent Supreme Court rulings. United States v.
Ladson.643 F.3d 1335, 1343 n.ll (11th Cir. 20111 Iciting Eberhart v. United

States. 546 U.S. 12,16(2005); Kontrick v. Ryan. 540 U.S. 443,455 (2004)).

We are required to adhere to our past decisions. United States v. Archer.

531 F.3d 1347, 1352(11th Cir. 20081: United States v. Steele. 147 F.3d 1316,
1317-18(11th Cir. 1998)(en banc). But the rule is not without exception. Thus,
we are not bound by the decisions ofour prior panels where those decisions have
been overruled or undermined to the point of abrogation by the Supreme Court or

by this Court sitting en banc. United States v. Whatlev. 719 F.3d 1206, 1216(11th
Cir. 2013); Archer. 531 F.3d at 1352; Chambers v. Thompson. 150 F.3d 1324,
1326(11th Cir. 1998). The exception applies only where the intervening decisions
"actually abrogate or directly conflict with, as opposed to merely weaken,the
holding ofthe prior panel." United States v. Kalev. 579 F.3d 1246,1255(11th Cir.
2009).

We hold today that our decisions that § 851 imposes ajurisdictional limit on
a district court's authority have been undermined to the point of abrogation by
subsequent decisions ofthe Supreme Court. First, in Kontrick v. Rvan.540 U.S.
443(2004),the Supreme Court considered Federal Rule of Bankruptcy Procedure

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4004's strict time limits on when a creditor may file an objection to a debtor's

discharge from bankruptcy. In that case, a creditor filed an untimely objection to a
debtor's discharge, but the debtor did not argue the untimeliness ofthe objection

until after the bankruptcy court had decided the issue on the merits. Id. at 446. If
the rule's requirements were jurisdictional, the debtor's delay in challenging the
objection would not matter because a jurisdictional defect may be raised at any
time in a civil action. Id. at 455. The Court concluded that, although the time limit

prescribed by the rule could not be altered by the parties' application, it was
nonetheless not a jurisdictional requirement because it did not "delineate what
cases bankruptcy courts are competent to adjudicate." Ift at 454. Indeed,the
bankruptcy courts'jurisdiction over objections to discharge had been statutorily
granted by Congress in 28 U.S.C. § 157. Id,at 453. Most significantly for our
purposes, the Supreme Court instructed us thatjurisdictional rules are reserved
"only for prescriptions delineating the classes ofcases(subject-matterjurisdiction)
and the persons(personal jurisdiction)falling within a court's adjudicatory
authority." Id,at 455. Thus, because Rule 4004 did not define the class ofcases or
persons subject to the bankruptcy courts' adjudicatory authority, it served as a
claim-processing rule rather than ajurisdictionally imposed requirement. Id The
significance ofthis distinction was that, unlike ajurisdictional rule, a claim-
processing rule can be forfeited by a party. Id. at 456. Because Rule 4004 did not

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fall within the Supreme Court's newly clarified conception ofjurisdictional

provisions, the debtor was not permitted to invoke it after he had litigated and lost
the case on the merits, as he would have been permitted to do had the rule been

jurisdictional. Id. at 460. The Supreme Court noted that its use ofthe term
"jurisdictional" in the past had been "less than meticulous," but indicated a firm
commitment to clarifying its use in the future. 1^ at 454.

The Supreme Court was given an opportunity to do so again the following
year when it decided Eberhart v. United States, 546 U.S. 12(2005). There,the
Court had to determine whether a defendant's failure to comply with Fed. R. Crim.

P. 33(b)(2)'s rigid seven-day deadline for moving for a new trial could be raised by
the government after the district court had ruled on the merits ofthe motion.^ Id at
13. Applying the same rationale it had used in Kontrick,the Supreme Court
highlighted the "critical difference between a rule governing subject-matter
jurisdiction and an inflexible claim-processing rule." Id.(quoting Kontrick,540
U.S. at 456). It reiterated that the label "jurisdictional" should be reserved only for
those issues that delineated a court's adjudicatory authority. Id at 16. Because

Rule 33 did not speak to the district court's authority over the subject-matter ofthe
case, nor did it limit the power ofthe district court to adjudicate the case, it was not
a jurisdictional rule immune to forfeiture. Id at 16, 19. This was so, even though

The deadline has since been extended to 14 days. Fed. R. Crim. P. 33(b)(2).

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Rule 33's timeliness requirement remained both unmistakable and mandatory. Id

at 16-17. Thus,the Court held that Rule 33 is a claim-processing rule that,

although mandatory, could be forfeited when, as in that case, it had not been timely
raised. Id. at 19.

This more-focused conception ofjurisdiction was anticipated by our Court

in its en banc decision in United States v. Sanchez, 269 F.3d 1250(11th Cir. 2001)

(en banc), abrogated on other grounds by United States v. Duncan,400 F.3d 1297,
1308(11th Cir. 2005). In Sanchez, we rejected the defendants' claims that an
Apprendi error is structural or jurisdictional in the course of concluding that
harmless error review applies. Id at 1272-75. We wrote that"[a]jurisdictional
defect occurs only where a federal court lacks power to adjudicate at all." Id at
1273(emphasis added). Significantly, this is wholly consonant with the Supreme
Court's admonition in Kontrick that the label "jurisdictional" should be reserved

only for those prescriptions delineating the court's adjudicatory authority over
classes of cases and persons. See Kontrick, 540 U.S. at 455. It should not be
applied to prescriptions(or proscriptions) limiting a court's actions in a case in
which the court's underlying authority to decide the matter is unquestioned.
Most recently, in Santiago-Lugo v. Warden,785 F.3d 467,471 (11th Cir.
2015), we determined that the Supreme Court had abrogated our prior case law
holding that a habeas petitioner's failure to exhaust all available administrative

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remedies created a jurisdictional defect. We noted that the "term 'jurisdiction' has
become 'a word of many,too many, meanings,'"id. at 472(quoting Steel Co. v.
ritiVftns for a Better Env't. 523 U.S. 83,90(1998)), and does not apply to "claim-

processing rules" that"seek to promote the orderly progress of litigation by
requiring that the parties take certain procedural steps at certain specified times,"
id.(quoting Henderson ex rel. Henderson v. Shinseki. 562 U.S. 428,435 (2011)).
In short, we said,"where Congress does not say there is a jurisdictional bar,there
is none." Id at 473(citing Reed Elsevier. Inc. v. Muchnick.559 U.S. 154,161-62
(2010)).

It is clear that the Supreme Court's holdings in Kontrick and Eberhart and
their rationale have undermined to the point of abrogation our prior holdings that
the requirements found in § 851 are jurisdictional in nature. There is no way to
reconcile our holding in Harris and the other decisions we have cited with the
understanding of what makes a statute "jurisdictional" announced by the Supreme
Court. For starters, it is clear that § 851's notice requirement does not affect the
district court's subject-matter jurisdiction over cases involving offenses against the
laws ofthe United States. To the contrary, that authority is plainly vested in the
district courts by Congress. Thus,in 18 U.S.C. § 3231 Congress legislated:"The
district courts ofthe United States shall have original jurisdiction, exclusive ofthe
courts ofthe States, of all offenses against the laws ofthe United States."

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Moreover,this jurisdictional grant necessarily includes the requirement to sentence

pursuant to the penalties as codified by Congress. Any deficiency found in a § 851
notice cannot and does not mean that the district court lacks the power to

adjudicate the case at all. Cf Sanchez.269 F.3d at 1273. Rather,§ 851 provides
a procedural step that may be required before a statutorily enhanced sentence may
be imposed. The failure to abide by that mandated procedural step does not mean
that the court is left without the power to act at all - it simply means that the court
may be erroneously exercising its power if it wrongly applies a § 851
enhancement. The erroneous exercise of a § 851 enhancement is plainly subject to

correction on review by the appellate courts without resorting to the obviously
erroneous suggestion that the district court lacked all authority to decide the
criminal case or to impose a sentence in the first instance. The essential point is
that a court's jurisdiction, or power to adjudicate a case, derives from the court s
statutory or constitutional authority. Section 851 is essentially a claim-processing
rule that has no impact on the district court's subject-matter jurisdiction.
That § 851 is denuded ofany jurisdictional component is evidenced by the
fact that the district court had the lawful power to accept DiFalco's plea and
impose a sentence upon him. And,indeed, it had the statutory authority to impose
the very same 240-month sentence even without the filing ofany § 851

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information. The enhancements made possible by § 851 only limited the district

court's ability to impose a sentence lower than the one it imposed on DiFalco.

In holding that our prior opinions on this point have been undermined to the

point of abrogation, we join at least one of our sister circuits in concluding that the
Supreme Court rulings require that we disregard previous decisions declaring the
requirements found in § 851 to be jurisdictional. See United States v. Flowers,464
F.3d 1127,1130(10th Cir. 2006)("We now expressly overrule our previous

decisions that have improperly designated § 851(a)'s requirements as

jurisdictional."). In holding that § 851 is not a jurisdictional requirement, we join
the unanimous opinion of nine other circuit courts of appeals to have ruled on the
subject, both before and after the Supreme Court's recent explication ofthe
difference between a jurisdictional requirement and a claim-processing rule. S^
United States v. Pritchett. 496 F.3d 537, 546(6th Cir. 2007)("This Circuit now

joins the majority ofits sister circuits in holding that the section 851(a)
requirements are notjurisdictional.")^ United States v. Beasley, 495 F.3d 142, 146
(4th Cir. 2007)("We conclude that 21 U.S.C. § 851 is notjurisdictional and
therefore is subject to the usual rules of procedural default."); Flowers,464 F.3d at
1129("Section 851(a)and its requirements fall neatly within the category of a
claim-processing rule."); Sapia v. United States,433 F.3d 212, 217(2d Cir. 2005)
("We thus hold that the fulfillment of§ 851(a)(1)is not 'jurisdictional.' "); United

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States V. Ceballos, 302 F.3d 679,692(7th Cir. 2002)("In sum,today we hold that

§ 851(a)'s procedural requirements are notjurisdictional, and our prior cases

holding otherwise are expressly overruled on that issue."); United States v.

Dodson,288 F.3d 153, 160 & n.9(5th Cir. 2002)("Considering the right protected

by § 851, we see no reason why the rights afforded under that statute may not be
waived."); United States v. Mooring,287 F.3d 725,727(8th Cir. 2002)("Having
considered the case law on each side, we conclude the prosecution's

noncompliance with § 851(a)(1) does not affect the court's jurisdiction."); Prou v.
United States. 199 F.3d 37,46(1st Cir. 1999)("Accordingly, we hold that

noncompliance with the procedural regime established by section 851(a)(1)
deprives the sentencing court of authority to impose an enhanced sentence ~ no
more and no less."); United States v. Vanness, 85 F.3d 661,663 n.2(D.C. Cir.
1996)("'Jurisdiction' is a word of many,too many, meanings. We prefer to put
the matter in different terms. A prosecutor's compliance with § 851(a)(1)is simply
a necessary condition to a judge's imposing an enhanced sentence on the basis ofa
defendant's prior convictions."); but see United States v. Severino, 316 F.3d 939,
953 n.4(9th Cir. 2003)(declining to consider whether § 851's requirements were
jurisdictional because, in either event, reversal was required).
Lest there be any confusion, our holding today that § 851 is not a

jurisdictional provision does not in any way affect our holdings that § 851 imposes

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mandatory requirements on the government before a court may enhance a sentence

under § 841. See Ladson,643 F.3d at 1343-44("Today, we hold that the statutory

language of§ 851(a)(1)requires the Government to strictly comply with the
service requirement before trial."); Thompson.473 F.3d at 1144("The

requirements of§ 851 are not precatory; they must be followed in order for the
§ 841 enhancements to be applied.").

2.

Having concluded that § 85rs requirements are notjurisdictional - and,
thus, subject to waiver ~ we turn to whether DiFalco did knowingly and
voluntarily waive his right to challenge the § 851 notice when he signed the plea
agreement. Upon a fair review ofthis record, we are satisfied that DiFalco
knowingly and voluntarily waived his right to appeal his sentence. Thus, we
dismiss his appeal. There is no dispute - and it is abundantly clear in the record -
that the magistrate judge specifically engaged in an extensive colloquy with
DiFalco about the nature and function ofthe sentence appeal waiver found in his

plea agreement during the Rule 11 colloquy. The magistrate judge explained that
DiFalco would ordinarily have the right to appeal his sentence, but that if he
entered a plea of guilty he would be waiving his right to appeal unless one ofthe
three exceptions outlined in the agreement had been met. DiFalco said he
understood that he was giving up his right to appeal his sentence unless one of

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those exceptions was met. None ofthose exceptions are applicable here and we
have little difficulty concluding that DiFalco entered into this appeal waiver

knowingly and voluntarily. See Bushert, 997 F.2d at 1351; Johnson, 541 F.3d at
1066.

To the extent that DiFalco claims that his plea was not entered knowingly

and voluntarily because the magistrate judge never clarified that his prior felony
drug conviction qualified him for an enhanced minimum sentence, we remain
unpersuaded. This argument is unsupported by the record. In the course of
explaining the elements ofthe crime that the government would have to prove
should DiFalco wish to exercise his right to go to trial, the magistrate judge

explained "out ofan abundance of caution" that"the government would be
required to prove that you have a prior conviction for a felony drug offense
subjecting you to the minimum mandatory enhancement." DiFalco said that he
understood this.

The long and short of it is, the § 851 errors that DiFalco highlights were
properly waivable and were knowingly and voluntarily waived by him.
III.

Moreover, and as an independent basis for our ruling, we hold that even if
the defendant did not knowingly waive his right to challenge his enhanced
sentence, his claim fails on the merits. DiFalco cites to four errors in the § 851

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proceeding:(1)the inaccuracies in the government's § 851 notice rendered it
insufficient;(2)the government did not timely file the notice;(3)the magistrate

judge failed to conduct an appropriate Rule 11 colloquy; and(4)the district court
erred by not making a § 851(b)inquiry. None ofthese claims were raised in the
district court. Therefore, we may review them only for plain error. United States

V. Williams,469 F.3d 963,965 (11th Cir. 2006).

We may correct a plain error only when(1)an error has occurred,(2)the
error was plain, and(3)the error affected substantial rights. See United States v.
Williams, 527 F.3d 1235, 1240(11th Cir. 2008). An error is plain where it is

"clear" or "obvious." United States v. Qlano,507 U.S. 725, 734(1993). "Under

plain-error review, the silent defendant has the burden 'to show the error plain,
prejudicial, and disreputable to the judicial system.' United States v. Monroe,
353 F.3d 1346, 1349-50(11th Cir. 2003)(quoting United States v. Vonn,535 U.S.
55,65 (2002)); United States v. Rodriguez,398 F.3d 1291, 1299(11th Cir. 2005).

^ DiFalco argues that plain error review does not apply to a challenge to the sufficiency of
§ 851 notice and that de novo review applies to such a challenge. But the cases DiFalco cites in
support ofthe application ofde novo review are cases in which the issue had been
contemporaneously raised before the trial court. See Ladson,643 F.3d at 1340( Ladson s
sentencing counsel objected to the sentence enhancement, arguing that the second information
was not properly filed and served in accordance with § 85l(a)(l).")'»Jackson, 544 F.3d at 1180
("In his objections to the PSI, Jackson argued, inter alia, the four prior convictions listed in the
§ 851 notice were invalid and moved to dismiss the § 851 notice."); Ramirez, 501 F.3d at 1238-
39(applying de novo review on the government's appeal ofthe district court's decision that
§ 851 notice had not been timely filed under the appropriate case number). The purpose behind
imposing the requirements of plain error review is to enforce the requirement that these kinds of
objections should first be made in district court so that the trial court may address and resolve
them contemporaneously.
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"If all three conditions are met, an appellate court may then exercise its discretion

to notice a forfeited error, but only if(4)the error seriously affect[ed] the fairness,

integrity, or public reputation ofjudicial proceedings." United States v. Cotton,
535 U.S. 625,631-32(2002)^quoting Johnson v. United States, 520 U.S. 461,467

(1997)). The plain error test is "difficult to meet" and places "a daunting obstacle
before the appellant." Rodriguez. 398 F.3d at 1298 (alteration adopted)(quoting
United States v. King. 73 F.3d 1564, 1572(11th Cir. 1996)); United States v.

Pielago. 135 F.3d 703,708(11th Cir. 1998)). Thus,"[t]he Supreme Court has

instructed us that plain error review should be exercised 'sparingly,' and only 'in
those circumstances in which a miscarriage ofjustice would otherwise result.'"

Id,(citation omitted)(quoting Jones v. United States. 527 U.S. 373,389(1999);
Qlano. 507 U.S. at 736). DiFalco has failed to meet his burden to establish error,
let alone error that was plain or obvious, that affected his substantial rights, or the
fairness and integrity ofthe judicial proceedings.
A.

First, DiFalco objects to the sufficiency ofthe § 851 information, arguing
that it was rife with inaccuracies. While the § 851 notice was hardly a model to be
emulated by prosecutors in future cases,the notice was sufficient to satisfy the
mandatory requirements ofthe statute. See Ladspn,643 F.3d at 1343-44, United
States V. Rutherford, 175 F.3d 899,904(11th Cir. 1999). Notice under § 851 is

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required even where "the defendant is not surprised by the enhanced sentence, was

aware from the outset that his previous conviction could lead to an enhanced

sentence, never challenged the validity ofthe prior conviction, and admitted it at

the sentencing hearing." United States v. Weaver,905 F.2d 1466,1481 (11th Cir.

1990). Indeed, we have written that "[s]trict compliance would seem to be an easy
thing for the government to do." Rutherford, 175 F.3d at 904. That said, strict
compliance does not require perfection in the notice. Perez v. United States, 249
F.3d 1261, 1267(11th Cir. 2001). Thus, in Perez, we found that sufficient § 851

notice had been provided even though the information timely filed by the

government listed the incorrect year ofthe defendant's prior conviction. Id at
1263, 1267. We adopted the reasoning from our sister circuits that"an information
complies with the requirements of§ 851(a)(1)even if it contains an error in its
contents, provided that the information serves to signal unambiguously the
government's intent to seek an enhancement based on a particular prior
conviction." Id. at 1265.

Here,the § 851 information provided sufficient notice ofthe government's
intent to seek an enhancement based on a particular and defined prior felony drug

conviction. The notice stated that on or about July 19, 2007,the defendant was

convicted ofsale and possession with the intent to sell amphetamine and
marijuana, in and for the Tenth Circuit Court ofBartow County,Florida, under

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case number 2000CF8119. In fact, DiFalco was convicted on July 19,2002 for

trafficking in amphetamine under case number OO-CF-8119, in the Circuit Court of
Polk County, Florida. It is not at all clear that the district court's acceptance ofthe
notice was error at all, let alone one that was plain or obvious.

First, significantly, the information correctly listed the underlying case

number. That the case number in the information listed the full year ofthe arrest

(2000)instead of simply the last two digits ofthe year(00)did not make the listing
incorrect, let alone did it introduce any ambiguity as to which conviction the
government was relying upon. In the second place, we are hard pressed to see how
listing the court of conviction as the "Tenth Circuit Court ofBartow County,
Florida" would confuse DiFalco about the venue of his conviction which was in

Florida's Tenth Judicial Circuit, the circuit that encompasses Polk County and the

city ofBartow. Moreover, as we held in Perez, an incorrect last digit in the year of
the prior conviction is not enough to make the § 851 notice insufficient. id. at
1263. A scrivener's error does not warrant the vacatur of a sentence where the
evidence overwhelming establishes that the defendant plainly knew what prior
crime formed the foundation ofthe § 851 notice. This is particularly so where
DiFalco had no convictions in 2007 for any crime that might have led him astray.

Finally, the difference between DiFalco's listed conviction for sale and
possession with the intent to sell amphetamine and marijuana and his actual

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conviction for trafficking in amphetamine is minimal. This is particularly so where
Florida's trafficking in amphetamine statute at the time of DiPalco's conviction
read this way:

Any person who knowingly sells, purchases,
manufactures, delivers, or brings into this state, or who is
knowingly in actual or constructive possession of, 14
grams or more of amphetamine ... commits a felony of
the first degree, which felony shall be known as
"trafficking in amphetamine"....

Fla. Stat. Ann.§ 893.135(l)(f)(l)(2002). That the information listed the
conviction's elements rather than formal title oftrafficking appears to us to be

exceedingly unlikely to have caused DiFalco any confusion. This is especially true
where DiFalco's criminal record reveals only one conviction regarding

amphetamines(as opposed to methamphetamines). The erroneous listing ofa
marijuana conviction in the information(when,in fact, no action was taken on that
charge)is ofno moment because, in emy event, DiFalco had plainly and undeniably
been put on notice that the government was relying on his amphetamine
conviction. Any marginal puzzlement DiFalco may have experienced would have
been more than overcome by the bulk ofthe information accurately describing his
conviction.

As we see it, DiFalco had enough accurate information to enable him easily
to research, identify, and potentially contest the accuracy ofthe notice and
information. Had he been confused as to which conviction the government relied
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upon in seeking an enhanced sentence, he had many opportunities to make that
confusion known both at his change of plea hearing and at his sentencing. But he

failed to contest the information in any way until this appeal. Thus, while the

information was sloppily prepared by the government in this case, we do not

believe that DiFalco has met his burden ofshowing an error, let alone an error that

was plain or obvious.

But even ifthe error in the notice was plain or obvious, DiFalco has not

carried his burden ofshowing that the error affected his substantial rights. At the

outset, we note that DiFalco's Guidelines range, independent ofany § 851
enhancement, was 262 to 327 months' imprisonment based on his offense and
criminal history, none of which had been challenged by the defendant. Thus,even
without considering the enhancement, DiFalco faced a recommended prison
sentence longer than the one he actually received. To be sure, the district court
varied downward when it sentenced DiFalco to the mandatory 20 year minimum

term. But this does not require that we conclude that DiFalco has carried his
burden ofshowing that the district court likely would have departed dovraward still
further but for the application ofthe enhanced mandatory minimum. This is
particularly so where DiFalco can point to nothing in the record where the district
court lamented his inability to impose a lower sentence. To the contrary, the
district court noted that there were "a lot ofreasons" that DiFalco should be

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sentenced in the middle or even at the high end ofthe Guidelines range before

concluding that he was "confident that the sentence is sufficient, but not greater

than necessary to comply with the statutory purposes of sentencing." In fact, the

district court went out of its way to make sure DiFalco understood how close he

had come to serving a life sentence.

Finally, DiFalco has fallen far short of establishing that any alleged error

seriously affected the fairness, integrity, or public reputation ofthe judicial
proceedings in his case. He simply cannot meet his burden when he received
exactly the benefit his attorney had spent months negotiating on his behalf.
Indeed, at sentencing, DiFalco's attorney actually thanked the government for

agreeing to the plea agreement with DiFalco rather than seeking the mandatory life
sentence DiFalco's lengthy criminal record entitled it to seek. Nor is there any

dispute that DiFalco actually had multiple drug convictions that would expose him
to an enhanced sentence. Even though the § 851 information in this case may have

left something to be desired, the fairness, integrity, or public reputation ofthe
judicial proceedings were in no way affected by holding DiFalco to the plea
agreement he knowingly and voluntarily entered into.
B.

Next, DiFalco says that the information was neither filed timely nor served
upon him because it was filed electronically on the district court's docket on the

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same day as his plea hearing, but, notably, before he entered his plea.

Section 851(a)(1)requires that the information be filed before trial or before the

entry of a guilty plea. 21 U.S.C. § 851(a)(1). We have held that § 851 requires the

information be filed and served before entry ofthe defendant's guilty plea. United

States V. DuffV. 179 F.3d 1304, 1305 (11th Cir. 1999). Thus,even notice filed and

served during the course ofthe plea hearing itself is timely provided it occurs

before the district court accepts the defendant's guilty plea. Id Here,the record is

clear that the notice was sent hours before the plea hearing and that notice had been

sent to defense counsel electronically. Moreover, at the plea colloquy, the

magistrate judge reminded everyone that the government had filed the § 851

information without provoking any objection from DiFalco or his attorney. To the

extent DiFalco argues that service was insufficient because it was not delivered by
hand, we know of no requirement that a § 851 notice be delivered by hand as
opposed to being delivered electronically. And,in any event, even ifsome error
lurked in the process offiling or delivering the notice, the error could not have
been plain or obvious in the absence of any law requiring that method of
communication. See United States v. Schultz, 565 F.3d 1353, 1357(11th Cir.

2009)("An error is not plain unless it is contrary to explicit statutory provisions or
to on-point precedent in this Court ofthe Supreme Court."). Nor,finally, has
DiFalco established his burden under plain error review ofshowing how his

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substantial rights were affected, let alone that the fairness and integrity ofthe

judicial proceeding had been undermined.

C.

DiFalco also argues that the magistrate judge erred by not informing DiFalco

that his prior conviction subjected him to an enhanced mandatory minimum

sentence. Under Fed. R. Crim P. 11, a judge accepting a guilty plea from a

defendant is required to inform the defendant of, and determine that the defendant

understands, the rights he is surrendering and the consequences of his plea as well

as determining that the plea is voluntary. Fed. R. Crim. P. 11(b). A judge is not

required to recite the list in Rule 11 verbatim, so long as he covers the substance of

the issues presented in the Rule. Monroe,353 F.3d at 1351. Thus, at bottom,the

judge must determine that(1)the guilty plea is free from coercion;(2)the

defendant understands the nature ofthe charges; and(3)the defendant understands

the consequences of his guilty plea. United States v. Gandy,710 F.3d 1234,1240

(11th Cir. 2013); Monroe,353 F.3d at 1354. To show that the judge committed

plain error under Rule 11, a defendant must show,among other things, a

reasonable probability that he would not have entered the plea but for the error.

Gandv,710 F.3d at 1240.

DiFalco has not shown that the magistrate judge committed any error at all

in conducting the Rule 11 colloquy, let alone plain error. First, contrary to

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DiFalco's claim, the magistrate judge informed him that his prior drug conviction

subjected him to an enhanced minimum sentence. DiFalco said that he understood

when the magistrate told him that, should he go to trial,"the government would be

required to prove that[he had] a prior conviction for a felony drug offense

subjecting [him]to the minimum mandatory enhancement." Moreover,the plea

colloquy addressed the core concerns of Rule 11. The magistrate judge reviewed

the penalties DiFalco faced, noting that the government had filed a notice of

information saying that DiFalco had a prior drug conviction and potentially faced

an enhanced sentence of20 years to life in prison. Neither DiFalco nor his

attorney indicated any confusion regarding his prior conviction or the

consequences it would carry for his sentence. DiFalco also affirmed that he had
not been promised anything different from his plea agreement, that he had not been
threatened into pleading guilty, and that he had decided to plead guilty only after
counseling with his attorney. Moreover,DiFalco has not even suggested that he
would not have pled guilty but for the claimed error in the plea colloquy. Indeed,
his attorney spent months diligently negotiating the beneficial plea deal he
received.

D.

Finally, DiFalco argues that the district court erred by failing to engage in a
§ 851(b)inquiry. Section 851(b)directs a district court to inquire ofa defendant

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against whom a § 851 information has been filed whether he affirms or denies that
he was previously convicted as alleged in the information. 21 U.S.C. § 851(b).
But § 851(b) need not be complied with in all cases. Indeed,"[a] trial court is not
required 'to adhere to the rituals of§ 851(b) where a defendant, as a matter oflaw,
is precluded [by § 851(e)]from attacking the conviction forming the basis ofthe
enhancement information.'"Weaver.905 F.2d at 1482(quoting United States v.

Nanez.694 F.2d 405,413(5th Cir. 1982)); accord United States v. Williams.438

F.3d 1272,1274(11th Cir. 2006). Section 851(e)provides that"[n]o person who
stands convicted of an offense under this part may challenge the validity of any

prior conviction alleged under this section which occurred more than five years
before the date ofthe information alleging such prior conviction." 21 U.S.C.

§ 851(e). DiFalco's conviction occurred in 2002, more than five years before the
government filed its § 851 notice. Even the incorrect conviction date cited by the
government in its information was more than five years before the government
filed the information. Because the conviction occurred more than five years before
the date ofthe information alleging the prior conviction, DiFalco was barred from
phallffnging the Validity ofthat conviction under § 851(e). See Williams,438 F.3d
at 1274; Weaver.905 F.2d at 1482. Thus, we can discern no error-let alone plain
error — in the district court's failure to engage in a § 851(b)inquiry.

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Accordingly, even ifDlFalco has not waived his right to contest his
sentence, the judgment ofthe district court must be afiSrmed.

DISMISSED.

37