                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 02-50381
                Plaintiff-Appellee,                 D.C. No.
               v.                                CR-97-00269-
JERRY WAYNE MAYFIELD,                               CAS-01
             Defendant-Appellant.
                                                  OPINION

        Appeal from the United States District Court
            for the Central District of California
        Christina A. Snyder, District Judge, Presiding

                Submitted September 13, 2004*
                    Pasadena, California

                      Filed August 10, 2005

    Before: David R. Thompson, Barry G. Silverman, and
           Kim McLane Wardlaw, Circuit Judges.

                  Opinion by Judge Thompson




  *This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                10357
                UNITED STATES v. MAYFIELD           10359


                       COUNSEL

David R. Evans, Pasadena, California, for the defendant-
appellant.

Tresa Mack, Assistant United States Attorney, Los Angeles,
California, for the plaintiff-appellee.
10360             UNITED STATES v. MAYFIELD
                          OPINION

THOMPSON, Senior Circuit Judge:

   This opinion replaces our previous opinion, United States
v. Mayfield, filed October 29, 2004, and published at 386 F.3d
1301 (9th Cir. 2004), which has been withdrawn.

   Defendant-appellant Jerry Wayne Mayfield appeals his sen-
tence, imposed following his conviction after a jury trial, for
possession of cocaine base with intent to distribute in viola-
tion of 21 U.S.C. § 841(a). Mayfield contends the enhanced
mandatory minimum sentence required by 21 U.S.C.
§ 841(b)(1)(A) may not be imposed consistent with due pro-
cess when the government fails to refile an information charg-
ing a prior felony drug conviction before a second trial. We
conclude the government is not required to refile an informa-
tion charging a prior felony drug conviction, which informa-
tion it filed before the first trial, for purposes of applying a
sentencing enhancement under 21 U.S.C. § 841(b)(1)(A). We
nevertheless remand for the district court’s further consider-
ation of Mayfield’s sentence in light of United States v.
Booker, 125 S. Ct. 738 (2005), and United States v. Ameline,
409 F.3d 1073 (9th Cir. 2005) (en banc).

                     I.   BACKGROUND

   On March 25, 1997, an indictment was filed in the Central
District of California charging Jerry Wayne Mayfield and
Manyale D. Gilbert with possession with the intent to distrib-
ute 552.8 grams of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). On April 19, 1997, Mayfield and Gilbert entered
pleas of not guilty. On July 18, 1997, the government filed an
information pursuant to 21 U.S.C. § 851(a) “Establishing [a]
Prior Felony Narcotics Conviction” as to Mayfield. Beginning
September 23, 1997, Mayfield and Gilbert were tried jointly
on the charge set forth in the indictment. After four days of
trial, the jury returned a verdict of guilty as to both defen-
                  UNITED STATES v. MAYFIELD               10361
dants. The district court sentenced Mayfield to 360 months in
prison.

   Mayfield appealed his conviction. We held that the district
court abused its discretion by failing to sever his trial from
Gilbert’s trial, and by not employing alternative means of mit-
igating the risk of prejudice. United States v. Mayfield, 189
F.3d 895 (9th Cir. 1999). We reversed Mayfield’s conviction
and remanded for a new trial. Upon remand, Mayfield was
individually retried on the indictment and was once again
found guilty by jury verdict.

   At his sentencing hearing, Mayfield objected to the Presen-
tence Report’s proposed application of an enhanced penalty
under 21 U.S.C. § 841(b)(1)(A) on the basis of his alleged
prior felony drug conviction. Defense counsel argued that the
enhanced 20-year mandatory minimum term of imprisonment
should not apply because the government did not refile the
information alleging the prior felony drug conviction before
Mayfield’s second trial. The district court rejected defense
counsel’s argument, finding that Mayfield had received timely
and adequate notice of the prior conviction.

   The district court thereupon arraigned Mayfield on the
information which charged him with the prior felony drug
conviction. Mayfield initially pled “not guilty” to that charge,
but after he was shown a transcript of testimony he had given
at the first trial (in which he admitted to having been con-
victed of the prior felony drug offense), Mayfield admitted
that prior conviction and changed his plea to the information
to “guilty.” Based upon this admission, the court determined
that the 20-year mandatory minimum sentence of
§ 841(b)(1)(A) applied. The court found that Mayfield’s total
offense level was 38 and his criminal history category was II,
resulting in a Guidelines range of 262 to 327 months. The
court imposed a sentence of imprisonment of 262 months, a
10-year term of supervised release, and a $100 special assess-
ment.
10362              UNITED STATES v. MAYFIELD
   In this appeal, we first consider Mayfield’s contention that
21 U.S.C. § 851(a) required the government, after our remand
following the first trial and prior to the second trial, to refile
the information charging the prior felony drug conviction. As
a result of the government’s failure to do so, Mayfield argues,
the district court violated his due process rights by applying
the enhanced mandatory minimum penalties of 21 U.S.C.
§ 841(b)(1)(A).

   We conclude in following Part A that the district court did
not err by applying the enhanced mandatory minimum penal-
ties of 21 U.S.C. § 841(b)(1)(A). In following Part B, how-
ever, we remand to the district court for further consideration
of Mayfield’s sentence in light of Booker, 125 S. Ct. at 769
(opinion of Breyer, J.), and Ameline, 409 F.3d at 1084-85.

                      II.   DISCUSSION

                               A.

  The sufficiency of a 21 U.S.C. § 851(a) sentencing infor-
mation is a question of law which we review de novo. United
States v. Hamilton, 208 F.3d 1165, 1168 (9th Cir. 2000);
United States v. King, 127 F.3d 483, 487-88 (6th Cir. 1997).

   In his second trial, Mayfield was convicted of possession
with intent to distribute 522.8 grams of cocaine base in viola-
tion of 21 U.S.C. § 841(a)(1). Under 21 U.S.C. § 841(b)
(1)(A), that offense carries a minimum term of imprisonment
of 10 years, or 20 years if the defendant previously was con-
victed of a felony drug offense. In addition, if the defendant
previously was convicted of a felony drug offense, the sen-
tencing court must impose a term of supervised release of at
least 10 years.

   [1] A sentencing court cannot, however, enhance the sen-
tence of a defendant convicted of a drug offense under 21
U.S.C. § 841(a) on the basis of a prior felony drug conviction
                  UNITED STATES v. MAYFIELD                10363
unless the government complies with the requirements of 21
U.S.C. § 851(a). See United States v. Severino, 316 F.3d 939,
942-43 (9th Cir. 2003) (en banc).

    No person who stands convicted of an offense under
    this part shall be sentenced to increased punishment
    by reason of one or more prior convictions, unless
    before trial, or before entry of a plea of guilty, the
    United States attorney 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) (emphasis added).

   Although section 851(a) does not specifically address the
government’s obligation concerning filing an information and
giving the required notice in the event of a retrial, both a fair
reading of the language of the statute and an examination of
its purposes support the conclusion that the government is not
required to refile a section 851(a) information and again give
the required notice prior to a defendant’s retrial.

   [2] The only time-constraint fairly suggested by the plain
language of section 851(a) is the requirement that the infor-
mation be filed, and notice be given, “before trial.” The stat-
ute says nothing about refiling the information or regiving
notice in the event of a retrial. This is not surprising. Section
851(a) was enacted to fulfill the due process requirements of
reasonable notice and an opportunity to be heard with regard
to the prior conviction. United States v. Gonzalez-Lerma, 14
F.3d 1479, 1485 (10th Cir. 1994). As we have explained,
“Section 851(a) ensures proper notice so a defendant is able
to challenge the information. It allows a defendant to make an
informed decision about whether or not to plead guilty.”
Hamilton, 208 F.3d at 1168 (citation omitted). Thus, although
section 851(a) “requires strict compliance with the procedural
aspects[,] . . . [a]s long as the information provides clear
10364             UNITED STATES v. MAYFIELD
notice to a defendant of the prior convictions (and the court
gives an opportunity to attack convictions less than five years
old), then the statute has been satisfied.” Id. at 1169; see also
Kelly v. United States, 29 F.3d 1107, 1109 (7th Cir. 1994)
(“Section 851(a) serves a[n] . . . additional purpose, to inform
the defendant that she faces severe consequences if convicted.
This procedure, one would hope, should lead to better
informed decisions whether to proceed to trial.”), overruled in
part on other grounds by United States v. Ceballos, 302 F.3d
679, 690 (7th Cir. 2002).

   [3] In sum, filing the information and giving the section
851(a) notice before Mayfield’s first trial obviated any need
to refile the information and regive that notice before his sec-
ond trial. This view is supported by United States v. Williams,
59 F.3d 1180 (11th Cir. 1995). There, the Eleventh Circuit
considered the issue we confront in this case. The defendant
in Williams was charged with knowingly conspiring to pos-
sess with the intent to distribute marijuana and attempted pos-
session with the intent to distribute marijuana in violation of
21 U.S.C. §§ 841 and 846. Id. at 1182. His first trial resulted
in a conviction that was subsequently reversed, his second
trial ended in a mistrial due to juror misconduct, and his third
trial resulted in a guilty verdict. Id. The government filed an
information alleging a prior felony drug conviction prior to
the first trial but did not refile the information prior to the
third trial. Id. at 1185. The district court refused to consider
the prior conviction for purposes of sentencing enhancement
and the government appealed. Id.

   On appeal, the Eleventh Circuit held that the government
had complied with section 851(a) because the information
was filed “before trial.” Id. The court also commented that
there appeared to be no support in the statute, in the cases, or
in reason for a requirement that an information pursuant to
section 851(a) had to be filed, and notice served, before the
first trial and then refiled and re-served before any retrial.
“The established purposes of the filing and service are fully
                      UNITED STATES v. MAYFIELD                       10365
met upon the first filing and service, at least where the case
involves the same attorneys, the same court, and the same
indictment.” Id.1

   [4] We conclude that the government’s initial filing of the
information pursuant to 21 U.S.C. § 851(a) and its compliance
with the notice provision of that statute before Mayfield’s first
trial complied with the statute and satisfied Mayfield’s due
process rights; refiling the information and regiving the notice
after the first trial and before the second trial was not
required.

                                     B.

   At the time of sentencing, pursuant to § 2D1.1(b)(1) of the
United States Sentencing Guidelines, the district court applied
a two-level enhancement to Mayfield’s offense level to arrive
at a total offense level of 38. The district court did this by
finding that in committing the charged drug offense, Mayfield
possessed a firearm. It is unclear from the record whether the
facts underlying this enhancement were found by the jury.

   Without the two-level increase, Mayfield’s total offense
level would have been 36, and the Guidelines sentencing
range, using his criminal history category of II, would have
been 210 to 262 months. Using the increased total offense
level of 38, Mayfield’s Guidelines sentencing range was 262
to 327 months. The district court sentenced Mayfield to 262
months, the minimum permissible Guidelines sentence with
the two-level enhancement.
   1
     In the present case, the district court docket indicates that a different
attorney represented Mayfield after the remand from this court following
the first trial. However, the fact that Mayfield was not continuously repre-
sented by the same attorney makes no difference. Upon remand, the par-
ties were returned to the same criminal proceedings based on the same
indictment and the same section 851(a) information before the same court
(albeit before a different judge).
10366                 UNITED STATES v. MAYFIELD
   In our previous opinion filed October 29, 2004, we
affirmed Mayfield’s sentence. We held that because the dis-
trict court could have imposed a 262-month sentence using an
offense level of 36, solely on the basis of the facts reflected
in the jury’s verdict, Mayfield’s sentence, although predicated
upon an offense level of 38, did not offend the Sixth Amend-
ment as interpreted by the Supreme Court in Blakely v. Wash-
ington, 124 S. Ct. 2531 (2004), or by our three-judge panel in
United States v. Ameline, 376 F.3d 967 (9th Cir. 2004),
amended by 400 F.3d 646 (9th Cir. 2005), rev’d en banc, 409
F.3d 1073 (9th Cir. 2005).2
   We then issued a stay of our decision while we awaited the
Supreme Court’s decision in United States v. Booker, and our
en banc court’s decision in Ameline. Those decisions have
now been filed, and in light of them we reconsider the propri-
ety of Mayfield’s 262-month sentence, which the district
court imposed by relying in part upon its finding of fact that
during his drug crime of conviction, Mayfield possessed a
firearm.
   Because, at the time of sentencing, Mayfield did not object
to his sentence on the ground that the Guidelines are advisory,
  2
    This holding in our previous opinion, published at 386 F.3d 1301,
would have been wrong if the Guidelines were mandatory, as opposed to
advisory, because a fact found by the court (Mayfield’s use of a gun), not
by the jury, would have increased Mayfield’s exposure to a greater sen-
tence, even though the sentence imposed was within the lower, applicable
Guidelines range. Cf. United States v. Thomas, 355 F.3d 1191, 1201 (9th
Cir. 2004) (holding that although the defendant’s actual sentence was
below the statutory maximum, the jury was required to determine facts
underlying an enhancement exposing the defendant to a maximum penalty
of life imprisonment); United States v. Velasco-Heredia, 319 F.3d 1080,
1085 (9th Cir. 2003) (“ ‘[A]ny fact that . . . exposes the criminal defendant
to a penalty exceeding the maximum he would receive if punished accord-
ing to the facts reflected in the jury verdict alone’ is a fact that must be
submitted to the relevant factfinder and determined beyond a reasonable
doubt.”) (citing Harris v. United States, 536 U.S. 545, 563 (2002) (empha-
sis in original)). The Supreme Court has since held that the Guidelines are
advisory, not mandatory. Booker, 125 S. Ct. at 756-57, 764.
                   UNITED STATES v. MAYFIELD                 10367
not mandatory, we review his sentence for plain error. Ame-
line, 409 F.3d at 1078; United States v. Moreno-Hernandez,
___ F.3d ___, No. 03-30387, slip op. at 7793-94 (9th Cir. July
5, 2005). Plain error exists if there is “(1) error, (2) that is
plain, and (3) that affects substantial rights.” Ameline, 409
F.3d at 1078 (quoting United States v. Cotton, 535 U.S. 625,
631 (2002)). If these conditions are met, the court may then
“exercise its discretion to notice a forfeited error that (4) ‘seri-
ously affects the fairness, integrity, or public reputation of
judicial proceedings.’ ” Id.
   [5] The district court committed an error that was plain by
imposing a sentence pursuant to the Guidelines as mandatory,
rather than advisory, in nature. Id. at 1078. We must thus
determine whether Mayfield’s substantial rights were
affected, that is, whether the record reveals a “reasonable
probability that [Mayfield] would have received a different
sentence had the district judge known that the sentencing
guidelines were advisory.” Id.
   [6] Having considered the record before us, we cannot say
whether the district court would have imposed a materially
different sentence than it did had that court known that the
“Guidelines are advisory rather than mandatory.” Id. at 1083.
We therefore remand this case to the district court for its con-
sideration of Mayfield’s sentence in accordance with the pro-
cedures set forth in Ameline. Id. at 1084-85. If the district
court determines the sentence originally imposed would have
been materially different had that district court been aware the
guidelines were advisory, “the original sentence will be
vacated and the district court will resentence with the defen-
dant present.” Id. at 1085. If the sentence would not have been
materially different, or the defendant promptly notifies the
district court of his decision to opt out of resentencing, “the
district court judge should place on the record a decision not
to resentence, with an appropriate explanation.” Id. at 1085.
   AFFIRMED IN PART and REMANDED.
