         10-732-cr
         United States of America v. Roman

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 12th day of March, two thousand and twelve.
 5
 6       PRESENT:        BARRINGTON D. PARKER,
 7                       RICHARD C. WESLEY,
 8                               Circuit Judges,
 9                       SIDNEY H. STEIN,*
10                               District Judge.
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                                                10-732-cr
18
19       MILTON ROMAN, AKA JUSTICE,
20
21                                     Defendant-Appellant.
22
23
24




                *
              Judge Sidney H. Stein, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
 1   FOR APPELLANT:    MARJORIE M. SMITH, Piermont, NY.
 2
 3   FOR APPELLEE:     ROBERT M. SPECTOR, Assistant United
 4                     States Attorney (Sandra S. Glover,
 5                     Assistant United States Attorney, on the
 6                     brief), for David B. Fein, United States
 7                     Attorney for the District of Connecticut,
 8                     New Haven, CT.
 9
10        Appeal from the United States District Court for the
11   District of Connecticut (Dorsey, J.)
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the judgment of the United States District

15   Court for the District of Connecticut be AFFIRMED.

16       Defendant-Appellant Milton Roman appeals from a

17   judgment of the United States District Court for the

18   District of Connecticut (Dorsey, J.), sentencing him to 240

19   months’ imprisonment and ten years of supervised release.

20   We assume the parties’ familiarity with the underlying facts

21   and procedural history.

22       This appeal arises out of the district court’s

23   sentencing proceeding following defendant’s plea of guilty

24   to one count of conspiracy to possess with intent to

25   distribute and distribution of 50 grams or more of cocaine

26   base and 5 kilograms or more of cocaine in violation of 21

27   U.S.C. §§ 841(a), 841(b)(1)(A), and 846.

28


                                  2
1        Roman contends that the district court failed to

2    satisfy the notice requirement of 21 U.S.C. § 851(b) and to

3    resolve disputed issues related to the calculation of his

4    Guidelines sentence.     In a supplemental pro se brief Roman

5    also contends that the court erred in imposing a second-

6    offender enhancement under     21 U.S.C. § 841(b)(1)(A) because

7    the prior convictions relied on by the government as

8    predicate felonies are not prior “felony drug offense[s]”

9    within the meaning of § 841(b)(1)(A).

10       The violation to which Appellant pled guilty ordinarily

11   carries a statutory minimum penalty of 10 years’

12   imprisonment and a statutory maximum of life imprisonment.

13   Id. § 841(b)(1)(A).    Section 841(b)(1)(A) also provides,

14   however, that “[i]f any person commits such a violation

15   after a prior conviction for a felony drug offense has

16   become final,” that person will be subject to a mandatory

17   minimum term of 20 years’ imprisonment and a maximum term of

18   life imprisonment.     Id.   To impose an enhanced sentence

19   based on a prior felony drug conviction under 21 U.S.C.

20   § 841(b), the court must follow the “specific, multistep

21   procedure” explained in 21 U.S.C. § 851.      United States v.

22   Espinal, 634 F.3d 655, 662 (2d Cir. 2011).      Part of that

23   procedure requires the court to ask the defendant, after he

                                      3
1    is found or pleads guilty but before a sentence is imposed,

2    “whether [the defendant] affirms or denies that he has been

3    previously convicted as alleged in the information.”     21

4    U.S.C. § 851(b).     “At the same time, the court also ‘shall

5    inform [the defendant] that any challenge to a prior

6    conviction which is not made before sentence is imposed may

7    not thereafter be raised to attack the sentence.’”      Espinal,

8    634 F.3d at 662 (quoting 21 U.S.C. § 851(b)).

9        Roman alleges, and the government concedes, that the

10   court failed to comply with the procedures required by

11   § 851(b).     In Espinal, we held that “failure to adhere to

12   the letter of § 851’s procedures does not automatically

13   invalidate the resulting sentence.”     Id. at 665.   We left

14   open the question of whether failure to adhere to § 851’s

15   procedures is subject to plain error or harmless error

16   review.     We need not decide the issue in this case because

17   Roman’s claim fails even under the more lenient harmless

18   error standard.

19       The purpose of § 851(b) is to alert defendants of their

20   right to challenge a second-offender enhancement.     In this

21   case, it is plain from the record that Appellant was fully

22   aware of his rights under § 851 because he acknowledged and

23   reserved those rights in his plea agreement and because he

                                     4
1    exercised those rights by challenging the second-offender

2    enhancement in his sentencing memorandum.    And, unlike in

3    Espinal, where there was a question as to whether defendant

4    was the person convicted of the crimes used to apply the

5    second-offender enhancement, Appellant here does not contest

6    that he was the defendant in the state convictions relied

7    upon by the government.   Furthermore, Appellant does not,

8    and could not, challenge the validity of the underlying

9    convictions.   21 U.S.C. § 851(e).

10       Appellant’s only challenge to the second-offender

11   enhancement, therefore, is that the convictions provided in

12   the second offender notice are not valid predicates for a

13   sentencing enhancement because they are not felony drug

14   offenses.   Appellant is wrong.   Appellant’s guilty plea

15   transcript from the 2000 Connecticut conviction for

16   violation of Conn. Gen. Stat. § 21a-279(a) qualifies as a

17   prior felony drug conviction under the modified categorical

18   approach, see United States v. Savage, 542 F.3d 959, 964 (2d

19   Cir. 2008), because Appellant admitted that he was pleading

20   guilty to committing a crime involving crack cocaine.       And

21   the 2002 New York conviction for violation of New York Penal

22   Law § 220.16(1) plainly qualifies as a felony drug offense

23   under the categorical approach, see United States v. Folkes,

                                   5
1    622 F.3d 152, 157 (2d Cir. 2010) (per curiam).    Therefore,

2    both prior state convictions relied on by the government

3    qualify as felony drug offenses under § 841(b)(1)(A) and

4    support the second-offender enhancement applied here.

5        Because Appellant has no valid challenge to the second-

6    offender enhancement and was aware of his rights under

7    § 851(b), the district court’s failure to engage in the

8    § 851(b) colloquy was harmless.

9        Roman also argues that the district court erred in

10   failing to resolve disputed issues regarding the calculation

11   of his Guidelines sentence and in failing to identify which

12   of the two convictions relied on by the government to

13   support a second-offender enhancement actually qualified as

14   a predicate felony.    Because the district court sentenced

15   Roman to the mandatory minimum, any error the court made in

16   failing to resolve these issues was necessarily harmless.

17   See United States v. Parker, 577 F.3d 143, 147-48 (2d Cir.

18   2009).   Similarly, the court did not err in failing to

19   specify which of the two convictions relied on by the

20   government satisfied the requirements of the second-offender

21   enhancement because both convictions were sufficient

22   predicates for the enhancement.

23       We have reviewed Roman’s other arguments and find them

24   to be without merit.

                                    6
1       For the foregoing reasons, the judgment of the district

2   court is hereby AFFIRMED.

3
4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk
6
7




                                 7
