                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2006

USA v. Bryant
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1263




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Recommended Citation
"USA v. Bryant" (2006). 2006 Decisions. Paper 821.
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APS-242                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     NO. 06-1263
                                  ________________

                           UNITED STATES OF AMERICA

                                             v.

                                TYRONE O. BRYANT,

                                        Appellant
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                                (D.C. No. 96-CR-00545)
                       District Judge: Honorable James T. Giles
                     _____________________________________

                       Submitted For Possible Summary Action
                     Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 8, 2006

             Before: SLOVITER, McKEE AND FISHER, Circuit Judges.

                                 (Filed: June 28, 2006)

                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Tyrone O. Bryant appeals from an order of the United States District Court for the

Eastern District of Pennsylvania, denying his “Motion to Compel the Court to Correct the
Defendant’s Sentence on its Own Motion in Reference to a Jurisdictional Defect in the

Government’s Information under 21 U.S.C. § 851(a)(1).” For the reasons that follow, we

will affirm.

       Bryant was convicted of controlled substance offenses after a jury trial in February

1997. In December 2005, Bryant filed the above-referenced motion. His motion argued

that the District Court lacked jurisdiction to impose a life sentence because he did “not

have the prior conviction stated in the government’s information paragraph one,” which

was filed in conjunction with his 1997 conviction. Bryant also argued that the District

Court lacked jurisdiction because an “Assistant” United States Attorney had sought to

have Bryant’s sentence enhanced pursuant to 21 U.S.C. § 851(a)(1), while § 851(a)(1)

provides that the “United States Attorney” is the one to file an information with the court.

The District Court denied the motion as frivolous on January 4, 2006, noting that the state

court record unequivocally established Bryant’s prior conviction.

       On appeal, Bryant argues again that the District Court lacked jurisdiction 1 to

enhance his sentence because the conviction stated in paragraph one of the Government’s




       1
       We note that a majority of courts to have considered the issue have found that the
requirements of § 851 are not “jurisdictional.” See e.g., United States v. Flowers, 441
F.3d 900, 903 (10th Cir. 2006) (listing cases).

                                             2
information was not his conviction,2 and that the “Assistant” U.S. Attorney lacked

authority to seek a statutory enhancement.

       As we noted today in a companion case, United States v. Bryant, C.A.

No. 06-1262; a § 2255 motion is the presumptive means for a federal prisoner to

challenge the validity of a conviction or sentence, unless such a motion would be

“inadequate or ineffective to test the legality of his detention.” Okereke v. United States,

307 F.3d 117, 120 (3d Cir. 2002); 28 U.S.C. § 2255. A § 2255 motion is inadequate or

ineffective only when “some limitation of scope or procedure” prevents a movant from

receiving an adjudication of his claim. Cradle v. United States ex rel. Miner, 290 F.3d

536, 538 (3d Cir. 2002). In Cradle, this Court noted that a claim that the Government did

not follow the procedures of 21 U.S.C. § 851 “falls within the purview of § 2255,” and

that § 2255 was not inadequate or ineffective simply because the petitioner was “unable

to meet the stringent gatekeeping requirements of the amended § 2255.” Id. at 539.

Thus, before his motion could have been entertained on the merits in the District Court,




       2
         It appears that Bryant was charged in the state court with several criminal
violations in four cases, numbered 0724, 0726, 0727 and 0728. Pursuant to a negotiated
plea, the charges of 0724 were dropped and he was sentenced concurrently on the
remaining three cases. Bryant apparently argues that because the Government mistakenly
listed his prior conviction as “CP 8903-0724” in its notice to seek a sentence
enhancement, the District Court lacked jurisdiction to enhance his sentence.

                                             3
Bryant (who had previously filed a § 2255 motion) was required to file an application

seeking permission to file a second or successive § 2255 motion in this Court.3

       We will therefore affirm the order of the District Court.




       3
        To the extent a certificate of appealability is required for this appeal, it is denied.
We further note that it does not appear that Bryant could meet the qualifications for filing
a second or successive motion, as his motion does not rely on new evidence or a new rule
of constitutional law. See 28 U.S.C. §§ 2244 and 2255.

                                               4
