United States v. Isaac

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________

No. 08-4755
_________

UNITED STATES OF AMERICA

v.

PRINCE ISAAC
a/k/a Connect
a/k/a Connetti
a/k/a Boo

Prince Isaac,
Appellant
________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-05-cr-00576-001)
District Judge: Honorable Juan R. Sanchez
_______

Argued April 28, 2011

Before: SLOVITER, GREENAWAY, JR. and ROTH,
Circuit Judges

(Opinion Filed: August 23, 2011)
__________
Thomas A. Dreyer, Esq. (Argued)
Suite 106
6 Dickinson Drive
Building 100
Chadds Ford, PA 19317

Attorney for Appellant

Bernadette A. McKeon, Esq.
Mark S. Miller, Esq.
Robert Zauzmer, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA l9l06

Attorneys for Appellee

___________

OPINION OF THE COURT
___________

SLOVITER, Circuit Judge.

Among the various issues appellant Prince Isaac raises
in his challenge to his conviction and sentence is one that
requires us to consider once again the parameters of a
criminal defendant‟s right to represent himself. Prince Isaac
was convicted by a jury of fifteen counts arising out of his
role as the organizer of a drug trafficking ring in Lancaster,
Pennsylvania. Isaac contends that he was denied the right to
represent himself when he did not attend two sidebar
conferences concerning jury instructions and that the District
Court erroneously instructed the jury as to the continuing
criminal enterprise (“CCE”) count, which carried a life

2
sentence. Isaac also contends that the District Court made
several sentencing errors. We address each argument in turn.1

I.

On April 5, 2009, a grand jury issued a Second
Superseding Indictment charging Isaac with 25 counts. At
trial, the Government introduced evidence that Isaac and his
half-brother Shamek Hynson founded, organized, and
controlled a drug trafficking organization in Lancaster,
Pennsylvania. Isaac and Hynson employed several others to
help package and sell crack cocaine and heroin. As part of
this organization, Isaac used straw purchasers to obtain guns,
which he later sold. Guns were also used to protect the
operation. The Government offered testimony of several
coconspirators linking Isaac to several specific cocaine and
heroin transactions. Based on this evidence, Isaac was
ultimately convicted of fifteen of the charged counts.2

Each count and the corresponding sentence are as
follows: life imprisonment for engaging in a CCE in
violation of 21 U.S.C. § 848 (count 2), 360 months on each of
four counts of distribution of heroin and/or crack in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (counts 3, 6, 9 and 11),
120 months on each of four counts of distribution of crack in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (counts 5, 7,
8, and 10), 480 months for employment of a minor to
distribute drugs in violation of 21 U.S.C. § 861 (count 12),
480 months for distribution of crack within 1000 feet of a
public park in violation of 21 U.S.C. § 860(a) (count 14), 240
months on each of two counts of tampering with a witness in
violation of 18 U.S.C. § 1512(b)(1) & (2) (counts 23 and 24),
and a 10 year mandatory minimum consecutive sentence for

1
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291.
2
The jury originally convicted Isaac of 19 counts. Four
counts were set aside by the District Court following Isaac‟s
motion for judgment of acquittal.

3
possession of a firearm in furtherance of drug distribution in
violation of 18 U.S.C. 924(c) (count 17). All sentences were
to run concurrently with the CCE life imprisonment count
with the exception of count 17, possession of a firearm, which
by statute must run consecutively to the life imprisonment.3
See 18 U.S.C. § 924(c)(1)(D)(ii).

In reviewing the panoply of challenges raised by the
defendant, many of which coalesce into the claim that a life
sentence is a draconian penalty to impose on a young man
who embarked on his criminal activity when he was 15 years
old, it is necessary to keep in mind that Isaac formed and led
a violent organization that spewed guns, heroin and crack
onto the streets of Lancaster for years, shooting and
intimidating the population as members of the organization
proceeded through one criminal activity after another. We
are not unaware that the sentence imposed was significant,
particularly in light of Isaac‟s youth—Isaac was just twenty to
twenty-one years old at the time of the offense conduct and
twenty-four years old at sentencing.4 Thus, as we customarily
do, we treat each of Isaac‟s arguments on appeal with great
attention.

II.

A. Sixth Amendment Right to Self-Representation

Isaac contends that his Sixth Amendment right to self-
representation was violated when, while proceeding pro se, he
was not present at two sidebar conferences held during the
jury charge. Isaac was represented by counsel until the close
of the Government‟s case on the eighth day of trial when,

3
Although Isaac was convicted of conspiracy to distribute
cocaine in violation of 21 U.S.C. § 826 (count 1), no sentence
was imposed because Isaac was also convicted of CCE (count
2).
4
As the Government described it at argument, the
sentence in this case was “very, very severe.” Oral Argument
at 35:10.
4
after a lengthy colloquy with the District Judge, Isaac
knowingly waived his right to counsel. Isaac‟s appointed trial
counsel, Attorney Geoffrey Seay, was then appointed standby
counsel. Isaac chose not to provide any evidence in his
defense, and therefore represented himself only during
closing and at sentencing. Ostensibly for security reasons,
Isaac was not permitted to move about the courtroom during
closing, although he was permitted to stand at his desk.
Subsequently, a charging conference was held at which Isaac
was permitted to and indeed did raise objections to the
proposed charge, none of which are relevant on appeal.
Thereafter, the Judge delivered the charge to the jury.

At the close of the instructions, the Judge asked the
attorneys, including both Isaac and his standby counsel by
name, whether there was anything they wanted to discuss at
sidebar regarding the charge. Isaac did not indicate that he
had an objection, but the prosecutor did. A sidebar was held.
Attorney Seay attended, Isaac did not, but Isaac did not object
to this arrangement. After the sidebar, the Judge gave a
limiting instruction, directing the jury to consider testimony
regarding Isaac‟s alleged possession of a firearm only for the
purpose of determining whether the acts were in furtherance
of the alleged conspiracy—and not for any other purpose.
The Judge also reiterated the CCE charge. The Judge then
held another brief sidebar, where nothing of substance was
discussed, and then dismissed the jury for deliberations.

Based on these facts, Isaac contends that his inability
to participate in the two sidebar conferences violated his right
to self-representation. It is well settled that the Sixth
Amendment guarantees a criminal defendant the right to
proceed pro se equal to its guarantee of the right to counsel.
Faretta v. California, 422 U.S. 806, 820 (1975). In order for
the right to self-representation to be effective, that “right must
impose some limits on the extent of standby counsel‟s
unsolicited participation.” McKaskle v. Wiggins, 465 U.S.
168, 177 (1984). The Supreme Court has identified two
principal limitations. “First, the pro se defendant is entitled
to preserve actual control over the case he chooses to present
to the jury. . . . Second, participation by standby counsel
5
without the defendant‟s consent should not be allowed to
destroy the jury‟s perception that the defendant is
representing himself.” Id. at 178. The Supreme Court has
cautioned that “[i]n measuring standby counsel‟s involvement
against [these standards], it is important not to lose sight of
the defendant‟s own conduct. A defendant can waive his
Faretta rights. Participation by counsel with a pro se
defendant‟s express approval is, of course, constitutionally
unobjectionable. . . . [A] pro se defendant‟s solicitation of or
acquiescence in certain types of participation by counsel
substantially undermines later protestations that counsel
interfered unacceptably.” Id. at 182.

Other circuits have applied these principles in cases
where standby counsel participates at sidebar in lieu of the
pro se defendant. In Lefevre v. Cain, 586 F.3d 349, 355 (5th
Cir. 2009), the Fifth Circuit held that when a pro se
defendant, who was shackled behind the desk, failed to object
to standby counsel‟s participation in several sidebar
conferences, there was no Faretta violation because the
defendant acquiesced in standby counsel‟s participation in
lieu of the defendant‟s own. The court reasoned that because
the defendant “had the opportunity to object to his exclusion,
his absence from the bench conferences was not involuntary.”
Id. Similarly, in United States v. Mills, 895 F.2d 897, 904 (2d
Cir. 1990), the Second Circuit held that there was no
substantial violation of Faretta in excluding the pro se
defendant from the sidebar conferences before he voiced any
objection to the procedure. We take guidance from these
cases. 5

5
Conversely, we find the Tenth Circuit‟s decision in
United States v. McDermott, 64 F.3d 1448 (10th Cir. 1995),
easily distinguishable. There, the District Court flatly forbade
the defendant from participating in bench conferences without
citing any security concerns for doing so. Id. at 1451-52. In
the end, McDermott was barred from attending thirty bench
conferences. Id. at 1452. The Ninth Circuit‟s holding in
Frantz v. Hazey, 533 F.3d 724, 744 (9th Cir. 2008), is also
inapposite because in that case the defendant had no
6
 Isaac contends that the earlier court-imposed limitation
on his movement during his closing implicitly prevented or
forbade him from attending the sidebar. This assertion is
belied by the record. As noted, the Judge specifically asked
Isaac by name if there was anything he wanted to discuss.
Isaac raised no objection and acquiesced to standby counsel‟s
participation in the conferences. Accordingly, Isaac waived
his right to participate in the sidebar conferences; his
constitutional right to proceed pro se was preserved.

B. CCE Jury Instruction

Isaac contends that the CCE jury instruction was
erroneous. The defendant failed to object to the instruction
and, thus, a new trial can only be granted if the mistake
constituted plain error. See United States v. Gambone, 314
F.3d 163, 182 (3d Cir. 2003). “[T]he relevant [plain error]
inquiry . . . is whether, in light of the evidence presented at
trial, the failure to instruct had a prejudicial impact on the
jury‟s deliberations.” United States v. Xavier, 2 F.3d 1281,
1287 (3d Cir. 1993) (quotations omitted). An errant
instruction constitutes plain error only if it produced a
miscarriage of justice; that is, if the error “seriously affect[ed]
the fairness, integrity or public reputation of judicial
proceedings.” Id. (quotations omitted).

In order to be convicted of CCE, a person must (1) be
found to have violated a federal drug distribution felony, and
(2) such violation must have been part of a continuing series
of drug violations, which (A) was undertaken with five or
more other persons whom the defendant organized,
supervised, or managed, and (B) from which the defendant
obtained substantial income or resources. 21 U.S.C. § 848(c).

Here, Isaac contends and the Government concedes
that the District Court erred when instructing the jury as to

opportunity to object to his exclusion from a chambers
conference.
7
which other counts would satisfy the first CCE element,
violation of an underlying federal drug distribution felony.
On several occasions, the District Court instructed that the
underlying offenses charged in “Counts 1, 3, Counts 5
through 12 and Counts 14 through 17” would satisfy the
predicate offense requirement for the CCE count. App. at
207. This was error. Counts 15 through 17 should not have
been included in the instruction because Isaac was not
charged in count 15 and counts 16 and 17 were both Section
924(c) firearm offenses which cannot serve as predicate drug
violations for a CCE offense.

Our inquiry therefore is whether this error affected the
integrity or result of the proceeding. In order to convict the
defendant for CCE, the jury was only required to find that the
defendant committed one of the predicate drug distribution
offenses. The instructions made that clear. The jury did not
limit its finding of guilt on the CCE count to specific
predicate offenses. Instead, the jury found the defendant
guilty of all nine drug distribution counts, easily satisfying the
requirement and ensuring that there was no prejudicial
impact.

Beyond that, the District Court made clear that the
CCE conviction was contingent upon the jury‟s finding that
Isaac engaged in a series of drug trafficking transactions. The
Court initially stated that “[i]n effect, the Government has
charged that the defendant has engaged in the business of
trafficking in prohibited drugs on a continuing series --
serious, widespread supervisor and substantial basis.” App. at
205. Moreover, the Court summarized the first element by
instructing that the jury must find that “the defendant
committed any of the offenses of conspiring to distribute
controlled substances or distribution of controlled
substances.” App. at 206. That instruction necessarily
excludes counts 15 to 17, which either do not involve the
defendant or do not involve distribution. Accordingly,
despite the erroneous references to counts 15 through 17, the
charge as a whole made it clear that the CCE count was
premised on an underlying drug distribution offense. The

8
error caused no prejudice and is not reversible under plain
error review.

C. Failure to File § 851 Notice

As outlined above, the District Court imposed 360
month concurrent sentences on each of counts 3, 6, 9, and
11—all drug distribution counts for violations of 21 U.S.C. §
841(a)(1) and (b)(1)(C). Typically, the statutory maximum
for each such conviction is 20 years, or 240 months. 21
U.S.C. § 841(b)(1)(C). However, an enhanced statutory
maximum of 30 years exists when the defendant has
committed “a violation after a prior conviction for a felony
drug offense has become final.” Id. But this enhanced 30
year maximum is only available if, before trial, the
Government “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).

The Government concedes that no such information
was filed and docketed and “thus [it] did not comply with the
statutory requirements.” Appellee‟s Br. at 53. Nevertheless,
the Government contends that because Isaac did not object to
the sentence, the Government‟s neglect should be reviewed
for plain error. Several other circuits have held that plain
error applies when a defendant fails to object to the lack of a
§ 851 notice because the notice requirement is not
jurisdictional, but merely procedural. See United States v.
Lewis, 597 F.3d 1345, 1347 (7th Cir. 2010); United States v.
Beasley, 495 F.3d 142, 146 (4th Cir. 2007); United States v.
Dodson, 288 F.3d 153, 161 (5th Cir. 2002).6

6
In a non-precedential opinion, this court held similarly.
United States v. Johnson, 93 F. App‟x 416, 419-20 (3d Cir.
2004). However, under our Internal Operating Procedures
only precedential opinions are binding on the court. 3d Cir.
I.O.P. 5.7; 9.1.

9
 Other courts, including our own, have held that the §
851(a) notice requirement is jurisdictional, and thus cannot be
procedurally defaulted by a failure to object. See United
States v. Harris, 149 F.3d 1304, 1306 (11th Cir. 1998) (courts
lack jurisdiction to enhance a sentence unless the Government
strictly complies with § 851‟s filing requirement); United
States v. Allen, 566 F.2d 1193, 1196 (3d Cir. 1977) (failure to
comply with § 851 pretrial filing requirement is a
jurisdictional prerequisite to enhancement). See also United
States v. Baugham, 613 F.3d 291, 296 (D.C. Cir. 2010)
(noting that “[t]o penalize a defendant for not alerting the
district court to its failure to alert him would pervert the
statute and get it exactly backward”); United States v.
Severino, 316 F.3d 939, 952 (9th Cir. 2003) (en banc)
(Thomas, J., dissenting) (Ҥ 851(a) is not merely a procedural
statute, the violation of which might lend itself to an
examination under a plain error analysis”). Under this view,
absent compliance with § 851, a sentencing court lacks
authority to impose the enhancement and therefore plain error
review is not the appropriate standard.

The Second Circuit has sidestepped the issue of
whether plain error review should apply if the defendant fails
to object to § 851 deficiencies. United States v. Espinal, 634
F.3d 655, 665 n.7 (2d Cir. 2011). We will do the same. We
need not definitively decide whether plain error review
should apply when a defendant neglects to object to the
Government‟s failure to file a § 851 information because even
assuming the more stringent plain error review applies, we
find that the error was plain in this case.7

Under plain error review, a defendant will only prevail
if there was an error that was both clear and affected the
defendant‟s substantial rights, that is, it affected the outcome
of the proceedings. Fed. R. Crim. P. 52(b); Puckett v. United

7
We are particularly hesitant to definitively decide one
way or another whether plain error applies because defense
counsel does not brief the issue, depriving us of the benefits
accompanying an adversarial response.

10
States, 129 S. Ct. 1423, 1429 (2009). If those requirements
are met, the court of appeals has the discretion to remedy the
error if “the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Puckett, 129 S. Ct.
at 1429 (internal quotations and alterations omitted).

One of the primary purposes of the § 851 notice
requirement is to inform the defendant that the Government
intends to seek an enhancement before the defendant decides
whether to enter a guilty plea or go to trial so that the
defendant can make an informed decision as to his or her
option. Lewis, 597 F.3d at 1347; Beasley, 495 F.3d at 149;
Dodson, 288 F.3d at 159-60.8 Accordingly, courts that have
applied the plain error standard to § 851 have focused on
whether there was actual notice. These courts have held that
the failure to file a § 851 notice does not prejudice the
defendant‟s substantial rights when the defendant had actual
notice of the Government‟s intent to seek an enhancement
prior to the decision to go to trial or plead. Lewis, 597 F.3d at
1347; Johnson, 93 F. App‟x at 419-20. See also Beasley, 495
F.3d at 149 (discussing the importance of filing the
information before trial); United States v. Ceballos, 302 F.3d
679, 693 (7th Cir. 2002) (noting that defendant‟s actual,
pretrial knowledge that prosecutor intended to seek
enhancement permitted imposition of the enhancement).9

Nothing in the record indicates that Isaac had actual
notice prior to trial. During the colloquy regarding Isaac‟s
request to proceed pro se, which did not occur until the close
of the Government‟s case-in-chief, the Court briefly noted
that the statutory maximum could be increased from twenty to
thirty years because of Isaac‟s prior conviction. The
presentence report (“PSR”) unquestionably discussed the

8
The Government agrees that § 851‟s objective is “to give
a defendant an opportunity to contest the accuracy of his prior
convictions and to inform his decision on whether to plead
guilty or proceed to trial.” Appellee‟s Br. at 54 n.18.
9
At argument, the Government agreed that pretrial notice
was key to fulfilling the purposes of § 851.
11
enhanced penalties, but, of course, the PSR was not created
until after trial. PSR ¶¶ 8, 149. Thus, Isaac had no actual
pretrial notice. The only evidence of pretrial notice is the
Government‟s assertion that “the prosecutor recalls that he
provided Isaac with a Section 851 notice at a pretrial motions
hearing.” Appellee‟s Br. at 56. However, the Government
concedes that “it does not appear in the record.” Id.

Assuming the plain error standard applies in this case,
the error here satisfies the plain error requirements because
there is no record evidence that Isaac received pretrial notice,
actual or otherwise, regarding the Government‟s intent to
seek an enhancement. Isaac was prejudiced because he was
not so-informed and therefore was deprived of the
opportunity to consider the effect of the enhancement on his
decision to go to trial—a substantial right enshrined by
Congress.10

Our conclusion in this regard is buttressed by our
characterization of the § 851 notice requirement in United
States v. Weaver, 267 F.3d 231 (3d Cir. 2001). There, we
noted, in no uncertain terms, that “[t]he requirements set out
in § 851 are mandatory and a district court may not impose an
enhanced sentence unless the defendant has been notified of
the „strikes‟ in compliance with these provisions.” Id. at 246.
Specifically, we noted that courts “continually emphasiz[e]
the need for strict compliance with § 851(a)(1)‟s filing and
service requirements,” because such requirements are
“explicit in the statute.” Id. at 247. See also Severino, 316
F.3d at 955 (Thomas, J., dissenting) (“[T]he government‟s

10
We note that in addition to showing lack of actual
notice, some courts have suggested that in order to satisfy the
prejudice element of plain error review, a defendant must
actually contest the validity of some of the prior convictions
used to support the § 851 enhancement. See, e.g., Dodson,
288 F.3d at 162. We are not convinced that such a showing is
necessary given § 851‟s purpose of empowering the
defendant to make an informed decision about whether to
proceed to trial or plea, which may be affected particularly if
the underlying convictions are valid.
12
failure to comply with the service provisions of § 851(a)
deprived the district court of the authority to impose an
enhanced sentence. In exceeding its statutory sentencing
power, the district court necessarily committed plain error and
vacation of the sentence is required.”).

Because we conclude that the error in this case
affected the fairness of the proceeding, we exercise our
discretion to vacate the 360 month sentences imposed on
counts 3, 6, 9, and 11, drug distribution counts for violations
of 21 U.S.C. § 841(a)(1) and (b)(1)(C). We direct the District
Court on remand to impose the otherwise applicable statutory
maximum sentence of 20 years on each of those counts.11 We
are fully aware that this decision will not alter Isaac‟s overall
sentence. Nevertheless, § 851 is not merely hortatory; it is
important to hold the Government to the congressionally
imposed requirements.

D. Other Sentencing Claims

Isaac raises several other challenges to his sentence,
none of which are meritorious. First, Isaac contends that it
was error under the terms of 18 U.S.C. § 924(c)(1) to impose
the 10 year mandatory minimum sentence for possession of a
firearm in furtherance of a drug crime (count 17) as a
consecutive sentence to the life imprisonment sentence. This
argument is foreclosed by the Supreme Court‟s recent
decision in Abbott v. United States, 131 S. Ct. 18 (2010),
affirming this court‟s decision rejecting this precise argument.
The Court held, “that a defendant is subject to a mandatory,
consecutive sentence for a § 924(c) conviction, and is not
spared from that sentence by virtue of receiving a higher
mandatory minimum on a different count of conviction.” Id.
at 23.

Second, Isaac contends that two errors were made in
calculating his criminal history points. Because Isaac did not

11
This is the remedy Isaac seeks. He does not contend
that the Government‟s failure to comply with § 851 should
result in a new trial.
13
object to the District Court‟s criminal history calculation, we
review for plain error. United States v. Russell, 564 F.3d 200,
206 (3d Cir. 2009). The PSR and the District Court
concluded that Isaac had nine criminal history points, putting
Isaac in criminal history category IV. Isaac rightly contends
that pursuant to Guideline § 4A1.2(d)(2)(A) he should have
received only two points, instead of three, for a September 21,
1999 drug offense that occurred when Isaac was only 15
years old. However, the error was completely harmless
because even with the one point reduction, Isaac would
remain in criminal history category IV and the same
Guideline range would have applied.
Isaac‟s argument that the District Court erred in adding
one criminal history point pursuant to § 4A1.1(e) of the
Guidelines is also without merit. This provision required the
addition of a point if the defendant committed the instant
offense within two years of release from imprisonment (a so-
called “recency point”). Last year, the Sentencing
Commission deleted this provision, effective November 1,
2010. The Sentencing Commission did not make the
amendment retroactive. Under statute and our precedent, we
do not have the authority to reduce a final sentence based on
non-retroactive amendments. United States v. Thompson, 70
F.3d 279, 281 (3d Cir. 1995). There was no error here, plain
or otherwise.

Isaac contends that it was plain error for the District
Court not to depart downward from criminal history category
IV because it substantially overrepresents the seriousness of
Isaac‟s criminal history. Isaac never moved for a downward
departure on this ground. Even if he had, in contrast to
determining whether a sentence is reasonable, appellate
courts lack jurisdiction over the merits of a district court‟s
discretionary decision not to depart downward from the
Guidelines once it is determined that the district court
properly understood its authority to grant a departure. United
States v. Minutoli, 374 F.3d 236, 239 (3d Cir. 2004).

Finally, we reject Isaac‟s claim that the sentence was
procedurally unreasonable. Notwithstanding the severity of
the sentence and the defendant‟s youth, the record
14
demonstrates that the District Court meaningfully considered
all of the relevant § 3553(a) factors.12

III.

For the foregoing reasons, we will affirm the judgment
of conviction on all counts. We also affirm the sentence as to
all counts except counts 3, 6, 9, and 11, drug distribution
counts for violations of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
We vacate the sentences as to those counts and remand to the
District Court to impose the otherwise applicable statutory
maximum sentence of 20 years on each of those counts.

12
We also reject Isaac‟s argument, raised in his pro se
supplemental brief, that the evidence was insufficient to
support his CCE conviction.
15