United States Court of Appeals,
Eleventh Circuit.
No. 94-2288
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Rodney Cornelius BROWN, Defendant-Appellant.
March 16, 1995.
Appeal from the United States District Court for the Middle
District of Florida. (No. 92-221-Cr-T-24), Francis J. Boyle,
Visiting Judge.
Before EDMONDSON, COX and DUBINA, Circuit Judges.
PER CURIAM:
I.
A federal grand jury in the United States District Court for
the Middle District of Florida returned a two-count indictment
charging appellant Rodney C. Brown ("Brown") with one count of
possession of a firearm while being a convicted felon, in violation
of 18 U.S.C. §§ 922(g) and 924(e), and one count of possession of
crack cocaine with the intent to distribute, in violation of 21
U.S.C. § 841(a)(1).
Prior to trial, Brown filed a motion to suppress statements
and evidence that law enforcement officers had obtained from Brown
after they had conducted an investigatory stop of Brown's car. A
United States magistrate judge conducted a hearing on Brown's
motion and, following the hearing, the magistrate judge issued a
report and recommendation recommending that Brown's motion be
denied. The district court adopted the magistrate judge's report
and recommendation and denied the motion. Brown then filed a
motion for severance of charges under Rule 14, Fed.R.Crim.P.,
arguing that he was "substantially and specifically prejudiced by
the joinder of [the] offenses for trial." R1-28. The district
court also denied this motion.
After a trial by jury, Brown was found guilty of both of the
counts charged in the indictment. During his sentencing hearing
Brown argued that he should not be subject to the enhanced penalty
provisions of 21 U.S.C. § 851 because he had not been indicted for
or waived indictment for the prior state offenses that triggered
the application of those provisions. The district court rejected
that argument and sentenced Brown to mandatory concurrent terms of
life imprisonment. Brown then perfected this appeal.
II.
The issues Brown presents in this appeal are (1) whether the
district court erred in denying Brown's motion to suppress
evidence; (2) whether the district court erred in denying Brown's
motion to sever; and (3) whether 21 U.S.C. § 851(a)(2) requires
that a predicate offense underlying a sentence enhancement must be
the result of a prosecution by indictment.
Because we are persuaded by the record that there is no merit
to any of the arguments Brown makes in support of the first two
issues, we summarily affirm the district court's orders concerning
them. Because the third issue presents a question of first
impression in this circuit, it warrants discussion.
III.
Brown was sentenced under the mandatory statutory minimum set
forth in 21 U.S.C. § 841(b)(1)(A). The statute directs that a
defendant who has more than two prior convictions for a felony drug
offense and subsequently is convicted of possession with intent to
distribute more than five kilograms of cocaine is subject to life
imprisonment. See 21 U.S.C. § 841(b)(1)(A). In order to establish
the legitimacy of those prior convictions, 21 U.S.C. § 851 provides
that the government must file with the court an information stating
the previous convictions to be relied upon. In addition, the
statute states:
An information may not be filed under this section if the
increased punishment which may be imposed is imprisonment for
a term in excess of three years unless the person either
waived or was afforded prosecution by indictment for the
offense for which such increased punishment may be imposed.
21 U.S.C. § 851(a)(2).
Brown contends in this appeal that because his prior state
convictions were based upon the filing of informations, rather than
the return of indictments or waiver of indictments, the sentence
enhancement provisions of 21 U.S.C. §§ 841 and 851 do not apply.
This argument is meritless.
Pursuant to 21 U.S.C. § 841(b)(1)(A), a defendant who is
guilty of possessing with intent to distribute more than five
kilograms of cocaine is subject to a mandatory term of life
imprisonment if the offense was committed after two or more prior
convictions for felony drug offenses have become final. The term
"felony drug offense" includes "a felony under any law of a State
or a foreign country that prohibits or restricts conduct relating
to narcotic drugs, marijuana or depressant or stimulant
substances." 21 U.S.C. § 841(b)(1)(A).
If the government intends to ask the sentencing court to
enhance a defendant's sentence pursuant to section 841(b)(1)(A)
based on the defendant's prior convictions, the government must
file an information setting forth the prior convictions on which
the government intends to rely. 21 U.S.C. § 851(a)(1). Brown's
argument that these prior convictions must have been brought by
indictment or pursuant to waiver of indictment is premised on 21
U.S.C. § 851(a)(2).
Four circuit courts of appeals have addressed the argument
that Brown asserts in this case, and all four courts have agreed
that section 851(a)(2) permits the government to seek the enhanced
penalty so long as the current offense of conviction (rather than
the "triggering offenses") resulted from an indictment or the
waiver of an indictment.
In United States v. Espinosa, 827 F.2d 604 (9th Cir.1987),
cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988),
the Ninth Circuit held that the reference in section 851(a)(2) to
"prosecution by indictment" refers to the charge of conviction.
The court reached this conclusion for three reasons. First, "a
common-sense reading of the phrase "offense for which such
increased punishment may be imposed' is the current, or latest,
offense." Id. at 617. Second, the court recognized that, when
Congress used the term "offense" in section 851, it was referring
to the current offense. Whenever Congress referred to the "prior
conviction" or the so-called "triggering conviction," it used the
words "prior conviction" or "previous conviction." The court
reasoned, "Had Congress intended [the defendant's] interpretation,
it seems that the phrase simply would have read "prosecution by
indictment in the prior conviction.' " Id. Third, the court
recognized that it was Congress's intention in 1984 to broaden the
scope of enhancements in § 841(b) for prior convictions rather than
to limit the scope. Id. If the court had adopted Brown's
argument, the scope of the enhancement would have been severely
limited because many states do not charge by indictment but rather
use informations or complaints to charge felonies.
In United States v. Adams, 914 F.2d 1404 (10th Cir.), cert.
denied, 498 U.S. 1015, 111 S.Ct. 588, 112 L.Ed.2d 593 (1990), the
Tenth Circuit expressly adopted the reasoning employed by the Ninth
Circuit in Espinosa. The Adams court recognized that the words
"offense for which" in section 851 may be vague when read alone
but, in context, "the correct meaning is plainly discernible." Id.
at 1407. The court held that the triggering offense need not have
been charged by indictment or by information following a waiver of
indictment. Id.
In United States v. Burrell, 963 F.2d 976 (7th Cir.), cert.
denied, --- U.S. ----, 113 S.Ct. 357, 121 L.Ed.2d 270 (1992), the
Seventh Circuit also held that the prior convictions that trigger
the 21 U.S.C. § 851 enhancement need not have been brought by
indictment. Id. at 992. The court in Burrell followed the
analysis adopted by the Espinosa and Adams courts, characterizing
these decisions as "careful[ly] reason[ed]." Id. at 993.
Moreover, in United States v. Trevino-Rodriquez, 994 F.2d 533 (8th
Cir.1993), the Eighth Circuit adopted the same reasoning of the
other circuits stating, "We agree with our sister circuits and hold
that the language of 21 U.S.C. § 851(a)(2) refers to the
prosecution of the current offense." Id. at 536.
IV.
The reasoning adopted by each of our sister circuits in
holding that the language of 21 U.S.C. § 851(a)(2) refers to the
prosecution of the current offense is sound. Accordingly, we adopt
that same reasoning and reject Brown's claim that a defendant's
sentence may not be enhanced pursuant to section 851 unless the
"triggering offenses" were charged by indictment or by information
following waiver of indictment. Therefore, we affirm Brown's
convictions and sentences in all respects.
AFFIRMED.