                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             Oct. 21, 2009
                              No. 08-15898                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 05-00206-CR-WS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MACK DAVID WOODYARD,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                       _________________________

                             (October 21, 2009)

Before BLACK, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

     Mack David Woodyard appeals his life sentence imposed upon resentencing
for conspiracy to distribute various drugs and two substantive counts related to the

sale of those drugs, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.

After review, we affirm.

                                I. BACKGROUND

      Woodyard and ten codefendants were charged in connection with a drug

distribution conspiracy. In Count 1 of the second superceding indictment,

Woodyard was charged with conspiracy to possess with intent to distribute

numerous drugs, including morphine, oxycodone, hydrocodone, methadone and

more than 50 grams of crack cocaine. Count 1 also charged several sentencing

enhancements, including a mandatory life sentence for the death of Jasen Johns

resulting from drugs distributed during the conspiracy. See 21 U.S.C.

§ 841(b)(1)(A) (requiring a life sentence if the defendant has a prior felony drug

conviction and death or serious bodily injury resulted from the use of the

controlled substance in the § 841(a) offense). The indictment also charged

Woodyard with two substantive counts (Counts 4 and 5) related to the sale of

oxycodone on October 11 and October 12, 2002.

      Prior to trial, on September 9, 2005, the government filed an information,

pursuant to 21 U.S.C. § 851, advising Woodyard that he was subject to the

enhanced penalties in § 841(b)(1)(A) based on four prior felony drug convictions:



                                          2
(1) a 1982 Alabama conviction for possession of phencyclidine and/or cocaine

and/or marijuana (CC82-4173); (2) a 1985 Alabama conviction for possession of

marijuana (CC85-31); (3) a 2004 Alabama conviction for unlawful distribution of a

controlled substance (CC04-2309); and (4) a 2004 Alabama conviction for

possessing and receiving a controlled substance (CC04-3109). After a trial, a jury

convicted Woodyard on all three counts. Among other things, the jury found that

Johns’ death had occurred from the use of drugs distributed during the conspiracy.

      At Woodyard’s original sentencing, the district court imposed concurrent

mandatory life sentences for each count because Johns’ death resulted from the

offense and Woodyard had at least one prior felony drug conviction. On appeal,

this Court affirmed Woodyard’s convictions, but vacated his sentences because

there was no evidence establishing that Woodyard had been a member of the drug

conspiracy at the time of Johns’ death. See United States v. Westry, 524 F.3d

1198, 1220-21 (11th Cir.), cert. denied, Carter v. United States, 129 S. Ct. 251

(2008), and Hinton v. United States, 129 S. Ct. 902 (2009).

      On remand, the probation officer prepared a revised sentencing

memorandum stating, inter alia, that Woodyard’s sentence on Count 1, the drug

conspiracy offense, remained a mandatory life sentence under 21 U.S.C.

§ 841(b)(1)(A) because of his four prior felony drug convictions listed in the § 851



                                          3
information. See 21 U.S.C. § 841(b)(1)(A) (requiring a life sentence if the

defendant has two or more prior felony drug convictions). Woodyard filed a

written objection challenging the four prior felony drug convictions in the § 851

information. In response, the government submitted certified copies of the

judgments and other documents related to the prior convictions.

       At the resentencing hearing, the district court first considered and overruled

Woodyard’s objections to the § 851 information. The district court found that

Woodyard had four prior felony drug convictions, any combination of which

would support the mandatory life sentence under § 841(b)(1)(A). The district court

imposed the mandatory life sentence on Count 1 (the drug conspiracy offense) and

concurrent 324-month sentences on Counts 4 and 5 (the substantive drug

offenses).1 Woodyard filed this appeal.



       1
          At the sentencing hearing, the district court’s oral pronouncement of the sentence
imposed concurrent 60-year sentences as to Counts 4 and 5. Afterward, the district court
discovered a guideline miscalculation. On the same day Woodyard filed his notice of appeal, the
district court sua sponte entered an order pursuant to Federal Rule of Criminal Procedure 35(a)
reducing Woodyard’s sentences on Counts 4 and 5 to 324 months.
         When the court entered its judgment and commitment three days later, it mistakenly
stated that Woodyard’s sentences on Counts 4 and 5 were 405 months, not 324 months. Upon
Woodyard’s motion, the district court entered an order pursuant to Federal Rule of Criminal
Procedure 36, correcting this clerical error so that the judgment and commitment accurately
reflected the 324-month sentences as to Counts 4 and 5.
         We have jurisdiction to review this appeal even though Woodyard filed his notice of
appeal before the district court entered the judgment and commitment. See Fed. R. App. P.
4(b)(2). Also, the Rule 35(a) and Rule 36 orders related to only Counts 4 and 5, and those orders
did not affect the life sentence on Count 1 that Woodyard challenges in his notice of appeal. See
United States v. Cartwright, 413 F.3d 1295, 1299 (11th Cir. 2005).

                                                4
                                      II. DISCUSSION

       Section 841(b)(1)(A) provides that a defendant convicted under that section

who previously has been convicted of two or more felony drug offenses shall be

sentenced to life imprisonment. 21 U.S.C. § 841(b)(1)(A). After the government

files an information pursuant to 21 U.S.C. § 851 identifying the prior convictions

relied upon to support the § 841(b)(1)(A) enhancement, the defendant may deny a

conviction or claim that a conviction is invalid by filing a written response. See 21

U.S.C. § 851(a), (c). The government must prove beyond a reasonable doubt any

issue of fact raised by the defendant’s written response. Id. § 851(c)(1); see also

United States v. Sanchez, 138 F.3d 1410, 1416 (11th Cir. 1998). The defendant

must prove by a preponderance of the evidence that a prior conviction is

constitutionally invalid and must set forth such claims and their factual basis with

particularity. 21 U.S.C. § 851(c)(2).2 However, a defendant cannot challenge the


       2
         Section 851 requires the district court to hold an evidentiary hearing if the defendant’s
written response denies any allegation in the § 851 information or claims that a prior conviction
is invalid. See 21 U.S.C. § 851(c)(1). Woodyard claims that the district court erred by holding
the § 851 hearing at the beginning of his sentencing hearing. Woodyard did not
contemporaneously object to holding the § 851 hearing just prior to his sentencing or move the
court to hold a separate § 851 hearing. Indeed, Woodyard’s counsel indicated at the sentencing
hearing that he was prepared to address the § 851 challenges. Therefore, our review of this §
851 hearing claim is for plain error. See United States v. Taylor, 417 F.3d 1176, 1183 (11th Cir.
2005). Nothing in § 851 or binding precedent requires the district court to hold the § 851
hearing separate from the sentencing hearing. Thus, the alleged error, if any, was not plain. See
United States v. Schultz, 565 F.3d 1353, 1356-57 (11th Cir. 2009) (“An error is not plain unless
it is contrary to explicit statutory provisions or to on-point precedent in this Court or the
Supreme Court.”).

                                                5
validity of a prior conviction that occurred more than five years before the date that

the § 851 information was filed. Id. § 851(e).

       On appeal, Woodyard argues that it is impossible to tell, based on the

documents submitted by the government, whether his guilty pleas in the 1982 and

1985 felony drug possession convictions (CC82-4173 and CC85-31, respectively)

were voluntarily and intelligently entered. However, the government’s § 851

information was filed in 2005, more than five years after these two convictions,

and thus Woodyard is barred from challenging their validity. See 21 U.S.C.

§ 851(e). We note, in any event, that Woodyard bore the burden to show that his

1982 and 1985 convictions were unconstitutional, but failed to present any

evidence on this issue and, as a result, failed to overcome the presumption of

regularity afforded state court convictions. See 21 U.S.C. § 851(c)(2); United

States v. Medlock, 12 F.3d 185, 189 (11th Cir. 1994).

       Woodyard also argues that the district court erred in finding that he was the

defendant in the 1985 drug possession conviction (CC85-31).3 Woodyard points to

the Case Action Summary printed from the Alabama Judicial Information System

(“AJIS”) indicating that the defendant convicted in CC85-31 is named “Mark D.

Woodyard.” Woodyard stresses his name is “Mack David Woodyard.” However,


       3
         We review a district court’s findings of fact supporting a sentencing enhancement for
clear error. United States v. Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003).

                                                6
this document states that the defendant was born on March 3, 1955, which is

Defendant Mack David Woodyard’s birthday. The document also contains a

handwritten notation “AKA: Mack Woodyard.” Another document related to the

1985 conviction listing cash receipts has an entry dated 1985 identifying “Mack

Woodyard” as one of Mark D. Woodyard’s AKAs. The Case Action Summary

also indicates that at least four times the defendant’s bond was paid by Pairzetty

Woodyard, and identifies Pairzetty as “Defendant’s sister.” Paragraph 91 of the

PSI in this case identifies one of Defendant Mack Woodyard’s sisters as Pairzetty

Woodyard. Finally, page 5 of the Case Action Summary contains a notation

indicating that a second payment schedule had been sent to the defendant and that

the defendant “must also pay “CC 90 001134 after this case.” This case number

corresponds to Defendant Mack Woodyard’s 1990 Alabama conviction listed in

the paragraph 75 of the PSI with the case number CC90-1134.4 Under the totality

of the circumstances, we cannot say the district court clearly erred in finding that

Defendant Woodyard was the man convicted of felony possession of marijuana in

case number CC85-31.

       Woodyard’s 1982 and 1985 felony drug possession convictions are


       4
         Because Woodyard did not object to paragraphs 75 and 91 of the PSI, his 1990 Alabama
conviction in case number CC90-1134 and his sister’s name are deemed admitted. See United
States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009), cert. denied, ___ S. Ct. ___, No. 09-5482,
2009 WL 2240546 (Oct. 5, 2009).

                                                7
sufficient to support the § 841(b)(1)(A) mandatory life sentence. Therefore, we

need not, and do not, address Woodyard’s arguments relating to his 2004 felony

drug convictions.

      AFFIRMED.




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