                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-15-1998

United States v. Lynch
Precedential or Non-Precedential:

Docket 98-1029




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Recommended Citation
"United States v. Lynch" (1998). 1998 Decisions. Paper 247.
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Filed October 15, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1029

UNITED STATES OF AMERICA,

v.

JERRY JEFFREY LYNCH,

       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 95-cr-00559-1)

Submitted Under Third Circuit LAR 34.1(a)
Friday, September 25, 1998

BEFORE: BECKER, Chief Judge,
WEIS and GARTH, Circuit Judges

(Opinion filed October 15, 1998)
       Maureen Kearney Rowley
       Chief Federal Defender
       David L. McColgin
       Assistant Federal Defender
       Supervising Appellate Attorney
       Sylvia Russianoff
       Assistant Federal Defender
       Defender Association of Philadelphia
       Federal Court Division
       437 Chestnut Street
       Lafayette Building, Suite 800
       Philadelphia, Pennsylvania 19106-
       2414

       Attorneys for Appellant

       Michael R. Stiles
       United States Attorney
       Eastern District of Pennsylvania
       Walter S. Batty, Jr.
       Assistant United States Attorney
       Chief of Appeals
       Robert R. Calo
       Assistant United States Attorney
       Criminal Division
       Office of the United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, Pennsylvania 19106

       Attorneys for Appellee

OPINION OF THE COURT

GARTH, Circuit Judge:

Appellant Jerry Jeffrey Lynch appeals a prison sentence
of 168 months and 16 years supervised release imposed
upon him after conviction by guilty plea to an indictment
charging drug related offenses on April 2, 1996.1
_________________________________________________________________

1. By letter of January 30, 1998, the Clerk of the Court notified the
parties in this case that this appeal might be dismissed due to a

                                 2
Specifically, Lynch pleaded guilty to his indictment for
conspiracy to distribute cocaine base, 21 U.S.C. S 846,
distribution of cocaine base and aiding and abetting the
distribution of cocaine base, 21 U.S.C. S 841(a)(1) and 18
U.S.C. S 2, and distribution of cocaine base and aiding and
abetting the distribution of cocaine base within 1,000 feet
of a playground, 21 U.S.C. S 860 and 18 U.S.C.S 2. Each
of these offenses provides for enhanced penalties if the
offender has a prior drug-related conviction.

Prior to Lynch's plea, the government had filed an
information that charged Lynch with having been convicted
of two state felony charges in the Court of Common Pleas
of Bucks County, Pennsylvania. This information wasfiled
pursuant to 21 U.S.C. SS 841(b), 851(a)(1). 2 Lynch neither
_________________________________________________________________

jurisdictional defect. An appeal from a criminal judgment must be filed
within ten days. Fed. R. App. P. 4(b). The judgment and commitment
order was entered on October 17, 1997, but the notice of appeal was
filed with the Court on October 29, 1997, twelve days later. Lynch is
incarcerated, and thus may file a notice of appeal pursuant to the
provisions in Fed. R. Civ. P. 4(c); see Houston v. Lack, 487 U.S. 266
(1988). Through his appellate counsel, Lynch submitted to the Court a
notarized statement verifying that he deposited the notice of appeal to
the prison mail system on October 22, 1997, well within the 10-day
deadline. The requirements under Fed. R. Civ. P. 4(c) have been met, and
this Court has jurisdiction over this timely filed appeal under 28 U.S.C.
S 1291 and 18 U.S.C. S 3742(a).

2. 21 U.S.C. S 841(b) provides in relevant part:

       . . . [A]ny person who violates subsection (a) of this section
shall be
       sentenced as follows:

         . . . such person shall be sentenced to a term of imprisonment
         which may not be less than 10 years or more than life . . . If any
         person commits such a violation after a prior conviction for a
felony
       drug offense has become final, such person shall be sentenced to a
       term of imprisonment which may not be less than 20 years and not
       more than life imprisonment . . . . If any person commits a
violation
       of this subparagraph or of section 849, 859, 860, or 861 of this
title
       after two or more prior convictions for a felony drug offense has
       become final, such person shall be sentenced to a mandatory term
       of life imprisonment without release . . . . Any sentence under
this
       subparagraph shall, in the absence of such a prior conviction,
3
waived nor was afforded prosecution by indictment for
either of these two prior convictions. The district court
enhanced Lynch's statutory sentences in light of the two
prior convictions, resulting in an increased sentencing
range under the United States Sentencing Guidelines.3

At issue in this case is the construction of the italicized
portion of 21 U.S.C. S 851(a), which provides:

        (1) 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 . . . stating in writing the previous convictions to
        be relied upon. . . .

       (2) An information may not be filed under this section
       if the increased punishment which may be imposed is
       imprisonment for a term in excess of three years unless
       the person either waived or was afforded prosecution
       by indictment for the offense for which such increased
       punishment may be imposed.
_________________________________________________________________

        impose a term of supervised release of at least 5 years in addition
        to such term of imprisonment and shall, if there was such a prior
        conviction, impose a term of supervised release of at least 10
years
        in addition to such term of imprisonment.

Section 841(b) also provides for doubled maximum statutory fines. 21
U.S.C. S 851(a)(1) is reproduced in text, infra.

3. The minimum sentence was increased from five to ten years; the
maximum sentence was increased from eighty years to life
imprisonment; the period of supervised release was increased from eight
to sixteen years. Because the maximum sentence was increased to life
imprisonment, Lynch's offense level was increased by three points from
31 to 34. The applicable guideline range was 262 to 327 months after
the enhancement, but would have been 188 to 235 months without the
enhancement. The district court granted the government's motion made
under U.S.S.G. S 5K1.1 based on Lynch's substantial assistance and
cooperation to authorities. The district court therefore sentenced Lynch
to 168 months imprisonment and the mandatory minimum term of
supervised release of 16 years.

                                4
Id. (italics added). This issue was not raised in the district
court; we thus review Lynch's sentence for plain error.
United States v. Felton, 55 F.3d 861, 869 n.3 (3d Cir. 1995).

Lynch argues that the highlighted final clause requiring
"indictment" refers to his prior convictions and not to the
instant offense. In other words, Lynch believes the statute
allows enhancements for prior convictions only if those
prior convictions proceeded by indictment or if the
defendant waived indictment. The government argues that
the highlighted portion refers to the instant offense, that is,
that 21 U.S.C. S 851(a)(2) allows enhancements for prior
convictions no matter how charged providing the present
offense for which the defendant is to be sentenced has been
charged by indictment or if the right to an indictment had
been waived.

Six sister courts of appeal have passed on this precise
issue, and all have concluded that the government's
interpretation is the correct one. United States v. Gaitan-
Acevedo, 148 F.3d 557, 594 (6th Cir. 1998); United States
v. Ortiz, 143 F.3d 728, 731-32 (2d Cir.), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. Aug. 6, 1998) (No. 98-5543),
overruling United States v. Collado, 106 F.3d 1097 (2d Cir.
1997); United States v. Harden, 37 F.3d 595, 600-01 (11th
Cir. 1994); United States v. Trevino-Rodriguez, 994 F.2d
533, 536 (8th Cir. 1993); United States v. Burrell, 963 F.2d
976, 992-93 (7th Cir. 1992); United States v. Adams, 914
F.2d 1404, 1406-07 (10th Cir. 1990); United States v.
Espinosa, 827 F.2d 604, 617 (9th Cir. 1987).

We agree with the reasoning of those cases. If we were to
adopt Lynch's reading of the statute, we would be obliged
to exclude many state and foreign prior convictions, which
would be contrary to Congress's intent to broaden the
scope of prior convictions covered by the statute. See
Espinosa, 827 F.2d at 617. As explained by the court in
Espinosa,

       [T]he government points out the anomalous situation
       that would result from Espinosa's interpretation.
       Despite Congress's evident attempt in 1984 to broaden
       the scope of S 841(b) prior convictions to include state
       and foreign convictions (in addition to federal

                                5
       convictions), Espinosa's interpretation would exclude
       from the statute's ambit prior convictions in those
       states or foreign countries that happen to use a felony
       complaint system rather than a grand jury indictment
       system.

Id. As the government argues, "Pennsylvania is one of those
states [to which Espinosa refers]. There is no evidence
whatsoever that Congress intended to exclude from
enhanced punishment those defendants who commit
serious drug felony offenses because of the nature of the
charging instrument used in a particular state." Appellee's
Br. at 6.

Moreover, as stated in Ortiz, in overruling an earlier panel
of the Second Circuit in Collado, the argument advanced by
the defendant in Collado is not persuasive in light of new
information adduced by the government. The Collado
defendant had argued that the underlined language was
surplusage if it referred to the instant offense because all
federal felony narcotics prosecutions proceed by indictment
or by waiver of indictment. As the Ortiz court pointed out,
however, not all federal felony narcotics prosecutions
proceeded by indictment when 21 U.S.C. S 851 was
enacted:

       [A]t the time S 851(a)(2) was formulated in 1970, federal
       felony narcotics violations were prosecutable without
       indictment in the Virgin Islands, and the Panama
       Canal Zone. Moreover, in Guam, federal prosecutions
       proceeded without indictment until 1968. The apparent
       redundancy of S 851(a)(2) as applied to federal
       prosecutions evaporates in light of this information,
       because the provision confers a procedural safeguard
       for offenders facing charges eligible for enhancement
       under SS 841-45 in territorial jurisdictions where
       federal prosecution by information is possible.

        . . . [L]iberated from the apparent redundancy of the
       statute as applied to federal prosecutions, we find it far
       more sensible in terms of the structure and purpose of
       the statute that the grand jury guarantee refers to the
       instant felony offense.

Ortiz, 143 F.3d at 731 (footnotes omitted).

                               6
In the same vein, the government points out4 that the
present offenses to which section 851 applies (those in part
D of Title 21, ch. 13, subch. 1) do include offenses that
need not proceed by indictment or waiver thereof, namely
misdemeanors under 21 U.S.C. S 844. This further bolsters
the argument that the highlighted text is not redundant if
it refers to the instant offense. Accordingly we, in common
with the other courts of appeals that have been confronted
with this argument, conclude that the italicized phrase
reflects and is to be interpreted as congressional intent to
include within the purview of S 851 serious recidivists as
opposed to petty offenders charged only with
misdemeanors.

We thus hold that Lynch has not overcome the plain
error threshold. See United States v. Retos, 25 F.3d 1220,
1228-29 (3d Cir. 1994). Even if he had, we also hold on the
merits that the government may file an information to
establish prior offenses under 21 U.S.C. S 851(a)(2)
regardless of whether the prior offenses were charged by
indictment or whether the defendant waived indictment in
the prior offenses. The government may file an information
detailing prior offenses under 21 U.S.C. S 851 if the current
offense was charged by indictment or if the defendant
waived indictment for the current offense.

We will therefore affirm the district court's order dated
_________________________________________________________________

4. The government also argues that if we were to interpret the italicized
phrase to refer to the prior convictions and require that they be charged
by indictment, an ex post facto problem might arise inasmuch as
punishment may not be imposed on an earlier adjudicated offense. See
United States v. Adams, 914 F.2d 1404, 1407 (10th Cir. 1990):

       [The] offense which requires indictment or waiver thereof is "the
       offense for which such increased punishment may be imposed."
       Obviously the punishment for a past, prior offense cannot be
       subsequently increased ex post facto. But the punishment for the
       current offense in the case at bar can appropriately be enhanced
       and made more severe because the current offense is not the
       appellant's first violation of the criminal law, but he is a
recidivist
       or "repeat offender."

Id. at 1407 (emphasis in original).

                               7
October 16, 1997, which enhanced Lynch's sentence as a
result of his two prior convictions.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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