                             NOT RECOMMENDED FOR PUBLICATION
                                     File Name: 10a0286n.06
                                                                                                     FILED
                                                  No. 08-3700                                   May 12, 2010
                                                                                          LEONARD GREEN, Clerk
                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,            )
                                     )
      Plaintiff-Appellee,            )
                                     )                    ON APPEAL FROM THE UNITED
v.                                   )                    STATES DISTRICT COURT FOR THE
                                     )                    SOUTHERN DISTRICT OF OHIO
ROBERT WHITELAW,                     )
                                     )
      Defendant-Appellant.           )
                                     )                    OPINION
_____________________________________)


        Before: BOGGS and GILMAN, Circuit Judges; and McCALLA, Chief District Judge.*

        RONALD LEE GILMAN, Circuit Judge. Robert Whitelaw pled no contest to the charge

of conspiring to possess and distribute 1,000 kilograms or more of marijuana. Before Whitelaw

entered his plea, the government filed a notice pursuant to 21 U.S.C. § 851, seeking an enhanced

sentence due to Whitelaw’s prior conviction for a felony drug offense. This notice had the effect of

increasing the mandatory minimum sentence that Whitelaw faced from 10 years of imprisonment

to 20 years. Whitelaw nonetheless pled no contest without a plea agreement. At the conclusion of

Whitelaw’s sentencing hearing, the district court imposed the 20-year mandatory minimum sentence.




        *
           The Honorable Jon P. McCalla, Chief United States District Judge for the W estern District of Tennessee,
sitting by designation.

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No. 08-3700
United States v. Whitelaw

       Whitelaw now seeks to invalidate his conviction and sentence, challenging the propriety of

the § 851 notice, disputing the quantity of drugs attributed to him, and objecting to the finding that

he had a supervisory role in the conspiracy. For the reasons set forth below, we AFFIRM the

judgment of the district court.

                                       I. BACKGROUND

       In May 2006, Whitelaw was charged with participating in a drug conspiracy involving 100

kilograms or more of marijuana. A superseding indictment was issued four months later that

upgraded the charge to a drug conspiracy involving 1,000 kilograms or more of marijuana. Shortly

after the superseding indictment was issued, three of Whitelaw’s coconspirators agreed to plead

guilty and cooperate with the government. Whitelaw, however, evaded arrest until August 2007.

Before his arraignment the following month, the government filed a notice, pursuant to 21 U.S.C.

§ 851, informing Whitelaw that the government intended to seek an enhanced sentence due to his

prior felony drug conviction. Because of this notice and the severity of the charge, Whitelaw faced

a mandatory minimum sentence of 20 years of imprisonment if convicted.

       Whitelaw rejected a plea agreement that would have required him to cooperate with the

government and that would have resulted in a recommended sentence of 17 years of imprisonment.

Instead, he opted to plead no contest. The district court accepted this plea over the government’s

objection. At his plea hearing, the court asked Whitelaw a series of questions about the rights that

he was waiving and the potential charges that he faced. In particular, the court inquired whether

Whitelaw understood that “there [was] a mandatory minimum of 20 years imprisonment.” Whitelaw

responded: “Yes, I understand.”

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       In addition, the government presented a federal agent who testified to the factual basis of the

charges against Whitelaw. The agent specified that all three of Whitelaw’s coconspirators had

“stated that [during the period covered in the superseding indictment] they conspired with . . .

Whitelaw to transport multiple shipments of marijuana, totaling more than 1000 kilograms, from

Arizona to Columbus, Ohio for distribution,” and he further informed the court that Whitelaw had

a prior felony drug conviction. At the conclusion of the agent’s testimony, the court engaged in the

following exchange with Whitelaw:

       THE COURT:             Thank you. Mr. Whitelaw, did you hear what Agent
                              Heufelder said?

       THE DEFENDANT: Yes, Your Honor, I did.

       THE COURT:             Is what he said concerning your activity correct?

       THE DEFENDANT: No contest, Your Honor.

       THE COURT:             And would you—is there anything that you would—I am not
                              sure how to say this. Is there anything that you would
                              disagree with or not contest? Or you would contest? Is there
                              anything that you would contest in the facts?

       THE DEFENDANT: I don’t know how I could, Your Honor. Not from the position
                      of no contest, I don’t know how I could.

After receiving these sworn statements from Whitelaw, the district court accepted his plea of no

contest.

       A Presentence Report (PSR) was then prepared by the U.S. Probation Office. The PSR stated

that the applicable U.S. Sentencing Guidelines range was 121 to 151 months of imprisonment, with

a mandatory minimum sentence of 10 years. But because of the § 851 notice of Whitelaw’s prior


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United States v. Whitelaw

conviction filed by the government, the PSR further noted that the mandatory minimum sentence that

Whitelaw faced was in fact 20 years of imprisonment. Whitelaw raised a number of objections to

the PSR, many of which contested the validity of the government’s § 851 notice. After hearing

arguments from Whitelaw and the government, the district court overruled Whitelaw’s objections

and sentenced him to the mandatory minimum of 20 years’ imprisonment.

        Whitelaw now appeals, raising the same arguments that he raised at sentencing. These are

whether (1) the § 851 notice is defective for failing to refer specifically to the superseding indictment

in the case, (2) the government was barred from filing a § 851 notice because Whitelaw pled no

contest, (3) the notice is void because the trial court failed to ask Whitelaw if he affirmed or denied

his previous conviction, (4) § 851 represents an unconstitutional delegation of power to the executive

branch, (5) § 851 interferes with the judiciary’s power to issue sentences, (6) § 851 interferes with

the grand jury’s power to indict, (7) § 851 violates a criminal defendant’s right to a jury trial, and (8)

§ 851 undermines the Sentencing Guidelines. Whitelaw also contends that the district court erred

in enhancing his offense level by determining that he was responsible for conspiring to distribute

more than 1,000 kilograms of marijuana and that he had a supervisory role in the conspiracy.


                                            II. ANALYSIS

A.      Validity of the government’s § 851 notice

        We review the sufficiency of a § 851 notice de novo. United States v. Odeneal, 517 F.3d

406, 415 (6th Cir. 2008). Section 851 provides in relevant part:

        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,

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United States v. Whitelaw

       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)(1). The statute also requires a defendant to file a written objection if he “denies

any allegation of the information of prior conviction, or claims that any conviction alleged is

invalid.” 21 U.S.C. § 851(c)(1). Finally, § 851 mandates that, before imposing a sentence, the

district court must ask the defendant whether he affirms or denies his previous conviction. 21 U.S.C.

§ 851(b). A district court may not enhance the defendant’s sentence under § 851 unless these steps

are satisfied, United States v. King, 127 F.3d 483, 487 (6th Cir. 1997), although the court’s failure

to conduct the colloquy required by § 851 is subject to the harmless-error standard, United States v.

Denkins, 367 F.3d 537, 548-49 (6th Cir. 2004) (holding that the district court’s failure to ask a

defendant, as required by § 851(b), whether he admitted or denied the fact of his prior conviction was

harmless).

       1.      The § 851 notice’s failure to reference the superseding indictment

       Whitelaw first argues that the government’s § 851 notice is fatally flawed because it referred

to “the indictment” rather than to the superseding indictment. He asserts that the notice must be

strictly construed and, because he pled no contest to the charge in the superseding indictment, not

the original indictment, the notice is inapplicable. The government responds that the original

indictment in Whitelaw’s case had been replaced by the superseding indictment well before

Whitelaw was arrested and arraigned. As such, the government argues that “[e]very appearance

Whitelaw made in federal court in this case was based upon the charges in the superseding

indictment,” and thus the error in the notice’s wording was inconsequential.

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United States v. Whitelaw

           This court has previously explained that when a defendant contests the specificity of a § 851

notice, “the proper inquiry is whether the government’s information provided the defendant

reasonable notice of its intent to rely on a particular conviction and a meaningful opportunity to be

heard.” King, 127 F.3d at 488-89 (alteration, citation, and internal quotation marks omitted). In the

present case, there is no question that the § 851 notice provided Whitelaw with reasonable notice and

an opportunity to be heard. The government filed the notice more than two months before Whitelaw

pled no contest and nearly nine months before his sentencing. Furthermore, Whitelaw makes no

argument that the terminology used by the government in the § 851 notice actually confused him.

And even if he had, such an argument would be meritless. The superseding indictment in the present

case was filed well before Whitelaw was arrested and thus was the only indictment that was ever

relevant to him. This argument is therefore without merit.

           2.     No-contest pleas and § 851 notices

           Whitelaw next contends that § 851 does not permit notices to be filed in cases where the

defendant pleads no contest, noting that the statute states that such notices must be filed “before trial,

or before entry of a plea of guilty.” See 21 U.S.C. § 851(a)(1). The government responds by arguing

that reading the statute in the manner suggested by Whitelaw makes little sense, and that the

language “before trial, or before entry of a plea of guilty” simply refers to the appropriate timing of

a § 851 notice. If the statute were intended to exclude no-contest pleas, the government contends

that it would state that such notices may be filed “only before trial, or before entry of a plea of

guilty.”




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United States v. Whitelaw

        We believe that the government’s interpretation of the statute is the more reasonable one.

If the statute were intended to exclude the use of § 851 notices in cases where the defendant pleads

no contest, it likely would have been written in a more explicit manner. Furthermore, a no-contest

plea is generally considered to be a hybrid form of a guilty plea because it avoids a trial, requires the

defendant to waive various trial rights, and results in the imposition of criminal liability. United

States v. Heller, 579 F.2d 990, 992 n.1 (6th Cir. 1978) (a no-contest plea “waive[s] non-jurisdictional

defects to the conviction”); Pharr v. United States, 48 F.2d 767, 770 (6th Cir. 1931) (“For all

practical purposes, the plea of nolo contendere is one of guilt.”). Given the similarity between a no-

contest plea and a guilty plea, we conclude that construing § 851 to apply in one circumstance but

not the other (without an explicit congressional directive to do so) would create a unjustified

disparity and would be inconsistent with the purpose of the statute—to impose longer sentences on

repeat offenders like Whitelaw. See Negusie v. Holder, 129 S. Ct. 1159, 1171 (2009) (Stevens, J.,

concurring) (explaining that “statutory interpretation is a multifaceted enterprise, ranging from a

precise construction of statutory language to a determination of what policy best effectuates statutory

objectives” (emphasis added)).

        3.      The district court’s failure to ask Whitelaw whether he admitted or denied the fact
                of his prior conviction

        Whitelaw’s third assertion is that the district court erred by failing to inquire directly whether

he admitted or denied the fact of his prior conviction, a requirement set forth in 21 U.S.C. § 851(b).

The record reveals, and the government admits, that the district court did not explicitly ask whether

Whitelaw admitted or denied the fact of his prior conviction.


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United States v. Whitelaw

       But “[t]his [c]ourt 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).” United States v. Fields, No. 08-5334, 2009

WL 4407636, at *3 (6th Cir. Dec. 4, 2009). Whitelaw, as noted above, received more than adequate

notice of the government’s intent to use his prior conviction at sentencing. Furthermore, the record

shows no evidence that he filed an objection to the notice under § 851(c). The district court’s failure

to explicitly ask Whitelaw whether he admitted or denied the fact of his prior conviction is therefore

harmless. See Denkins, 367 F.3d at 548-49; Fields, 2009 WL 4407636, at *3.

       4.      Improper delegation of authority to the executive branch

       Whitelaw next argues that § 851 violates the principle of separation of powers by allowing

“the executive branch to set criminal penalties.” Unfortunately for Whitelaw, this court has already

rejected his argument in the case of United States v. Crayton, 357 F.3d 560 (6th Cir. 2004), which

explicitly holds that “§ 851 does not violate the principle of separation of powers. The discretion

a prosecutor exercises in determining whether an enhanced statutory maximum applies under § 851

is similar to the initial discretion the prosecutor has in deciding which charges to bring against a

defendant, discretion that is obviously constitutional.” Id. at 572. As controlling precedent, Crayton

mandates the rejection of Whitelaw’s separation-of-powers argument. See Salmi v. Sec’y of Health

& Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (holding that a prior published decision of this

court is binding on all subsequent panels “unless an inconsistent decision of the United States

Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior

decision”).

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No. 08-3700
United States v. Whitelaw

       5.      Interference with the judiciary’s sentencing power

       Whitelaw’s fifth assertion is that § 851 gives the prosecution too much power to set sentences

and thus “is an impermissible intrusion on the judiciary’s power to sentence.” Again, the holding

of Crayton defeats Whitelaw’s argument. This court in Crayton explained that the prosecution has

the power to determine which charges to bring and, if applicable, whether to seek an enhanced

statutory minimum sentence under § 851. Crayton, 357 F.3d at 572. The right of the government

to seek an enhanced sentence pursuant to § 851 no more limits the judiciary’s sentencing power than

the statutory minimum and maximum punishments for various federal crimes limit that power, which

depend on the charges brought by the prosecution and the statutes enacted by Congress.

       In effect, the judiciary’s “power to impose a just sentence,” as Whitelaw puts it, is always

cabined by the decisions of the legislative and executive branches. The powers granted to the

prosecution by § 851 fit well within this framework and do not impermissibly intrude on the

judiciary’s power to sentence. See, e.g., United States v. LaBonte, 520 U.S. 751, 762 (1997)

(“Insofar as prosecutors, as a practical matter, may be able to determine whether a particular

defendant will be subject to the enhanced statutory maximum, any such discretion would be similar

to the discretion a prosecutor exercises when he decides what, if any, charges to bring against a

criminal suspect.”).

       6.      Interference with the grand jury’s power to indict

       Whitelaw next argues that § 851 interferes with the grand jury’s power to indict. This claim

is clearly without merit, since a § 851 notice can be filed only after the grand jury’s indictment has

issued. In this case, for example, Whitelaw was indicted well before the government filed its § 851

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United States v. Whitelaw

notice. Furthermore, a § 851 notice affects only the sentence to which a defendant is subject, not the

charges brought against the defendant as a result of the grand jury’s indictment.

       7.      Interference with the petit jury’s power to decide the facts

       Whitelaw’s seventh claim is that § 851 “interferes with [the] petit jury’s power to decide the

facts that could be used for sentencing” and thus violates his Sixth Amendment right to a jury trial.

But Supreme Court precedent holds to the contrary. In Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), the Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.” The Supreme Court has thus explicitly carved out an

exception in its Sixth Amendment jurisprudence by holding that prior convictions may be used to

increase the statutory range that a defendant faces without a jury determining the existence of such

prior convictions beyond a reasonable doubt. See Crayton, 357 F.3d at 571 n.8 (“Apprendi

specifically states that a jury need not decide prior convictions for a defendant to receive an enhanced

sentence.”).

       Furthermore, Apprendi applies only to statutory maximums. See Apprendi, 530 U.S. at 490

(holding that “any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury” (emphasis added)). In the present case, the § 851 notice had

the effect of increasing only the statutory minimum that Whitelaw faced, not the statutory maximum.

Here, the statutory maximum is far higher than the 20-year sentence he received. See 21 U.S.C.

§ 841(b)(1)(A) (fixing the maximum penalty for federal crimes involving 1,000 kilograms or more

of marijuana as life imprisonment). Whitelaw’s Sixth Amendment claim is therefore groundless.

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United States v. Whitelaw

See Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009) (“Apprendi’s rule does not apply to

judicial factfinding that increases a minimum sentence so long as the sentence does not exceed the

applicable statutory maximum.”).

        8.      Undermining of the Sentencing Guidelines

        Whitelaw’s final argument attacking § 851 is that the statute “undermines the development

of the sentencing guidelines and Congress’s stated goal of uniformity.” This argument—that one

federal statute is somewhat inconsistent with the purposes of another federal statute—does not

provide Whitelaw with a legal basis for relief from a § 851 notice. Indeed, many federal sentencing

policies are somewhat inconsistent with each other. The disparities in the statutory sentencing

ranges for crack-cocaine offenses verses powder-cocaine offenses stand as one frequently discussed

example. See Kimbrough v. United States, 552 U.S. 85, 97-98 (2007) (discussing the crack/powder

cocaine sentencing disparity and how it frustrates the goals of the Sentencing Reform Act). As such,

Whitelaw is making an argument as to general sentencing policy, which does not entitle him to relief

in this particular case.

B.      The quantity of marijuana attributable to Whitelaw

        In addition to his contesting of the government’s § 851 notice, Whitelaw claims that the

district court erred by determining that he was responsible for conspiring to distribute more than

1,000 kilograms of marijuana. He also contends that he did not admit to the existence of such

evidence.

        Whitelaw has waived this argument. Specifically, by pleading no contest, Whitelaw is

prevented from contesting the sufficiency of the evidence against him. This is because a defendant

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United States v. Whitelaw

who pleads no contest waives all “non-jurisdictional defects to the conviction.” United States v.

Heller, 579 F.2d 990, 992 n.1 (6th Cir. 1978). “Like a plea of guilty, a plea of [no contest]

constitutes a waiver of all so-called ‘non-jurisdictional defects’ or, more accurately, any claims not

logically inconsistent with the issue of factual guilt, as well as the right to contest the factual merits

of the charges against him.” United States v. Freed, 688 F.2d 24, 25 (6th Cir. 1982). Whitelaw’s

claim that there was no evidence that he conspired to distribute more than 1,000 kilograms of

marijuana is exactly the kind of claim—one that seeks “to contest the factual merits of the charges

against him”—that a defendant may not challenge after entering a plea of no contest. See id.

C.      Whitelaw’s sentencing enhancement for his supervisory role

        The final issue on appeal is Whitelaw’s challenge to the district court’s finding that he played

a supervisory role in the conspiracy. This finding was used by the court to give Whitelaw a two-

level enhancement under the Sentencing Guidelines.

        We find this issue to be moot. The factual finding that Whitelaw played a supervisory role

has no effect on his mandatory minimum sentence. Even with the two-level enhancement that

resulted from this factual finding, Whitelaw’s Sentencing Guidelines range of 135 to 168 months

of imprisonment, see U.S. Sentencing Guidelines Manual Ch. 5, pt. A, was still well under the

statutory minimum sentence of 20 years’ imprisonment (240 months) that was applicable after the

government filed its § 851 notice. As a result, even if we were to agree with Whitelaw that the

district court erred by finding that he had a supervisory role in the conspiracy (and we reach no such

conclusion), his sentence would be unaffected because there is no reversible error with regard to the



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United States v. Whitelaw

government’s § 851 notice or Whitelaw’s conviction. We thus find no basis to invalidate

Whitelaw’s 20-year mandatory minimum sentence.




                                     III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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