                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0768n.06

                                            No. 08-5334                                     FILED
                                                                                        Dec 04, 2009
                           UNITED STATES COURT OF APPEALS
                                                                                  LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

   UNITED STATES OF AMERICA,               )
                                           )
         Plaintiff-Appellee,               )                   ON APPEAL FROM THE
                                           )                   UNITED STATES DISTRICT
   v.                                      )                   COURT FOR THE EASTERN
                                           )                   DISTRICT OF KENTUCKY
   GERALD A. FIELDS,                       )
                                           )
         Defendant-Appellant.              )                           OPINION
                                           )
                                           )
   _______________________________________ )


Before:        O’CONNOR,* Associate Justice (Ret.); GILMAN and GIBBONS, Circuit
               Judges.

       SANDRA DAY O’CONNOR, Associate Justice (Ret.). Defendant-Appellant Gerald

Fields pleaded guilty to one count of conspiracy to possess with intent to distribute cocaine, in

violation of 21 U.S.C. § 846. Fields was sentenced to a term of 151 months’ imprisonment, at the

bottom of his uncontested Guidelines range. Fields now argues that his sentence was unreasonable.

He also argues, for the first time on appeal, that the district court erred in failing to inquire as to

whether Fields admitted or denied a prior felony drug conviction used to enhance his sentence, as

required by 21 U.S.C. § 851(b). Finding no reversible error, we AFFIRM.

   *

         The Honorable Sandra Day O’Connor, Associate Justice (Ret.) of the United States
   Supreme Court, sitting by designation



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   United States v. Fields



                                        BACKGROUND

       On June 6, 2007, the Northern Kentucky Drug Strike Force intercepted a United Parcel

Service package that was found to contain more than four kilograms of cocaine. The package was

delivered to one of Fields’s co-defendants, Alberto Martinez, who was immediately detained by the

Strike Force. Martinez cooperated with authorities and arranged to meet Fields at a Red Roof Inn

to deliver the package. That evening, Fields and two other individuals arrived at the Red Roof Inn.

Fields was identified as the intended recipient of the drugs. Fields had $94,314 in currency with

him, and he was arrested by the Strike Force and subsequently indicted. While charges were

pending, the government filed a “prior conviction information” on September 7, 2007. The

information indicated that Fields had been convicted of felony possession of cocaine in 1999 and

that the government intended to use that conviction to enhance Fields’s exposure at sentencing.

       Fields pleaded guilty to conspiracy to possess with intent to distribute cocaine, in violation

of 21 U.S.C. § 846. Fields’s written plea agreement provided that his minimum sentence was 120

months’ imprisonment, in part because of his prior conviction for felony possession of cocaine. At

no point did Fields or his attorney challenge the fact of his prior felony drug conviction; each

repeatedly acknowledged that 120 months was the proper statutory minimum. Before accepting his

plea, the district judge asked Fields if he understood that he was facing a minimum of 120 months’

imprisonment, and Fields responded that he understood.

       At sentencing, the district judge adopted the presentence report’s calculation of Fields’s



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Guidelines range as 151 to 188 months. Fields filed a sentencing memorandum agreeing with the

presentence report’s calculation of his Guidelines range, but asking the court to depart downward

and impose what he acknowledged as the statutory minimum, 120 months. The government asked

for a sentence of 180 months. The court sentenced Fields to 151 months, at the bottom of the

Guidelines range. In announcing the sentence, the district judge reviewed the sentencing factors

provided in 18 U.S.C. § 3553, acknowledged that the Guidelines were merely advisory, and

determined that the 151-month sentence was appropriate under the circumstances of this case.

Fields now brings this appeal raising two challenges to his sentence. He first argues that the 151-

month sentence was unreasonable, and next that the district court erred when it failed to inquire as

to whether Fields admitted or denied his prior felony drug conviction.

                                           ANALYSIS

                                                 A.

       Fields first asks this Court to reverse his sentence because it was “unreasonable.” We review

all challenges to sentences, whether inside or outside the Guidelines range, for reasonableness. See

Gall v. United States, 552 U.S. 38, 51 (2007). We “first ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.

Fields alleges no defect in the district court’s sentencing procedures, and we find none.



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       Satisfied that the district court’s sentence was not procedurally unreasonable, we next

“consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard.” Id. This court presumes that a sentence within the Guidelines range, such as Fields’s,

is reasonable. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). Although Fields asserts

on appeal that his harsh upbringing warranted a statutory minimum sentence of 120 months, the

district court considered that factor and balanced it against his extensive criminal history and

determined that a bottom of the Guidelines sentence was appropriate under the factors listed in 18

U.S.C. § 3553. Fields does not even attempt to demonstrate how the 151-month sentence was

unreasonable, but simply asserts that conclusion after reiterating the very mitigating factors that the

district court considered. Having carefully reviewed the sentencing transcript, we are satisfied that

Fields has failed to rebut the presumption that his Guidelines sentence was reasonable.

                                                   B.

       Fields next argues, for the first time on appeal, that the district court failed to inquire whether

he admitted or denied his 1999 conviction for felony possession of cocaine, as required by 21 U.S.C.

§ 851(b). If the government files an information indicating it will rely on a prior conviction to

enhance a defendant’s sentencing exposure, as was done here, § 851(b) states that “the court shall

after conviction but before pronouncement of sentence inquire of the person with respect to whom

the information was filed whether he affirms or denies that he has been previously convicted as

alleged in the information.”



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       More than two months before Fields pleaded guilty, the government filed an information

with the court indicating that it would rely upon his prior conviction for felony possession of cocaine

at sentencing, as required by 21 U.S.C. § 851(a). Fields never raised any objection to that

information. In fact, Fields signed the plea agreement, which explicitly listed this prior conviction

as warranting a statutory minimum sentence of 120 months. Throughout Fields’s sentencing, his

counsel acknowledged that the 120-month sentence was the appropriate statutory minimum. The

government gave Fields ample notice that it intended to use his prior conviction as a sentencing

enhancement, and at every turn Fields seemed to admit to the prior conviction.

       Nonetheless, Fields is correct that the district court was required to directly inquire as to

whether he admitted or denied the fact of his prior conviction. 21 U.S.C. § 851(b); United States

v. Denkins, 367 F.3d 537, 548–49 (6th Cir. 2004) (“Defendant was given proper notice, in

accordance with the dictates of § 851(a)(1), of the Government’s intended reliance on these two

prior felony convictions. Nonetheless, Defendant correctly notes that the district court failed to

conduct the inquiry dictated by § 851(b).”).

       Still, “a failure to engage in the colloquy required by section 851(b) is subject to harmless

error analysis.” United States v. Hill, 142 F.3d 305, 313 (6th Cir. 1998). This Court has repeatedly

found the failure to inquire under § 851(b) to be harmless when a defendant receives adequate notice

of the government’s intent to use the prior conviction at sentencing and fails to file an objection

under § 851(c). See, e.g., Denkins, 367 F.3d at 549; Hill, 142 F.3d at 313. This case is on all fours



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with both Denkins and Hill, and we find the district court’s failure to inquire harmless under these

circumstances.

                                         CONCLUSION

       We AFFIRM the district court’s judgment and sentence.




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