
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 91-2136                                               WILFREDO GONGORA                                a/k/a PEDRO GUERRERO,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Wilfredo Gongora on brief pro se.               ________________               Daniel F. Lopez-Romo,  United States  Attorney, and Luis  A.               ____________________                                ________          Plaza, Assistant United States Attorney, on brief for appellee.          _____                                  __________________                                    July 13, 1993                                  __________________                      Per  Curiam.    Wilfredo  Gongora  appeals  from  a                      ___________            judgment dismissing his  motion to vacate his  sentence under            28 U.S.C.  2255.   He claims that his  sentence was illegally            enhanced  in  violation  of  21 U.S.C.   851.1    Finding  no            illegal enhancement, we affirm.                                       I.                      On September  24, 1987,  Gongora and  eight others  were            arrested on the high seas  aboard the COLOSO II, a Panamanian            tugboat.  The  Coast Guard  made the  arrest after  observing            numerous  bales of marijuana  being thrown from  the tugboat.            Gongora and the captain and  other crew members of the COLOSO            II were charged with violating 46 U.S.C. App.  1903(a) and 18            U.S.C.  2  (aiding and  abetting the  unlawful possession  of            5818  kilograms of marijuana,  with the intent  to distribute            same, on  board a vessel  subject to the jurisdiction  of the            United  States).      A   jury  convicted  Gongora  and   his            codefendants on December 16, 1987.                 The  statute   the  defendants   were  convicted   under            incorporates the  penalty provisions  of 21  U.S.C.  960  for                                            ____________________            1.   21 U.S.C.  851(a)(1) provides, in relevant part, that:                 No  person who stands convicted of an offense under                 this part [i.e., 21  U.S.C.  841 et seq.] 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....                                         -2-            first  offenders and the penalty provisions of 21 U.S.C.  962            for  second  offenders.2     Under  21  U.S.C.    960,  first            offenders are  subject to a mandatory minimum  penalty of ten            years' imprisonment and five years of supervised release, and            a maximum term of life imprisonment.  A person convicted of a            second  or subsequent  offense "is  punishable by  a  term of            imprisonment twice that otherwise  authorized" and "twice the            term  of supervised release otherwise authorized."  21 U.S.C.             962(a). Thus, repeat offenders  of 46 U.S.C. App.   1903 are            subject  to a  mandatory minimum  sentence  of twenty  years'            imprisonment and ten  years of supervised release.   However,            to subject  a repeat offender to that  mandatory minimum, the            government  must first  file  an  information  notifying  the            offender of the prior convictions  it intends to rely upon in            seeking an  enhanced sentence  under 21  U.S.C.  851. See  21                                                                  ___            U.S.C.   962(c)("Section 851 of  this title shall  apply with                                            ____________________            2.   46 U.S.C. App.  1903 (g) provides:                 (1) Any person who commits an offense under this            section shall be punished in accordance with the            penalties set forth in section 1010 of the            Comprehensive Drug Abuse Prevention and Control Act            of 1970 (21 U.S.C.  960).                 (2) Notwithstanding paragraph (1) of this            subsection, any person convicted of an offense under            this chapter shall be punished in accordance with            the penalties set forth in section 1012 of the            Comprehensive Drug Abuse Prevention and Control Act            of 1970 (21 U.S.C.  962) if such offense is a second            or subsequent offense as defined in section 1012(b)            of that Act.                                         -3-            respect to  any proceeding  to sentence a  person under  this            section.")  See also United States v. Craveiro, 907 F.2d 260,                        ___ ____ _____________    ________            262  &  n.  4  (1st   Cir.),  cert.  denied,  498  U.S.  1015                                          _____  ______            (1990)(noting that double penalties for second or  subsequent            conviction  under 21 U.S.C.  962 required proof of recidivism            under procedures set forth in 21 U.S.C.  851(a)(1)).                  The case was called for sentencing on February 25, 1988.            Six of  the crew  members had no  prior criminal  records and            received  sentences of ten years' imprisonment and five years            of  supervised  release,  the  mandatory  minimum  for  first            offenders under 21  U.S.C.  960(b)(1)(G).  Before  trial, the            prosecutor had  filed an  information  notifying the  captain            (defendant  Corpus) that the government would seek to enhance            his sentence pursuant to 21  U.S.C.  851 on the basis of  his            prior  marijuana  smuggling  conviction.     The  trial judge            sentenced  the captain to  a thirty-year prison  term and ten            years  of supervised release.   Another crew  member (Alfonso            Gonzalez) had a prior conviction for marijuana smuggling, but            the  government had not filed a  851 information with respect            to him.  Gonzalez received a thirty-year prison term and five            years of supervised release.                                                  Similarly,  the  government  also did  not  file  a  851            information on Gongora, the last to be called for sentencing.            Gongora's Presentence Report (PSR) indicated that Gongora was                                         -4-            subject to  the ten  year-to-life range  applicable to  first            offenders  under 21 U.S.C.   960(b)(1)(G).  However,  the PSR            also identified  two prior arrests  for drug crimes.   One of            these resulted in  a 1983 conviction for  violating 21 U.S.C.             955a, the  predecessor to 46  U.S.C. App.   1903.3   Gongora            initially denied  that he  was the  person with the  criminal            record described in  the PSR.   The  district court continued            Gongora's  sentencing so that an evidentiary hearing could be            held.   Gongora's  counsel moved  to waive  the hearing.   On            March  3,  1988,  Gongora admitted  to  the  1983 conviction.            Nevertheless, the  district court proceeded  with the hearing            and an FBI fingerprint expert established that Gongora indeed            had been  convicted of  the 1983  marijuana smuggling  charge            under 21 U.S.C.  955a.                   The  trial  court  sentenced Gongora  to  thirty  years'            imprisonment  and  five  years of  supervised  release.   All            convictions  were  affirmed  on direct  appeal.    See United                                                               ___ ______            States v. Corpus, 882 F.2d  546 (1st Cir. 1989).  Thereafter,            ______    ______            the district  court entered  two  orders affecting  Gongora's            sentence.   On  September 6,  1989, it  ordered that  all the            defendants' supervised  release terms  should be  replaced by            terms of special parole.  Amended judgments issued.  On April                                            ____________________            3.  The 1983 conviction was for Gongora's participation in an            attempt  to import 57,265 pounds of marijuana into the United            States.  The  Puerto Rico federal district  court (Torruella,            J.)  sentenced Gongora to three years' imprisonment and three            years of special parole.                                           -5-            17,  1990,  the   court  clarified  its  previous   order  by            specifying that the  defendants were not eligible  for parole            under the 1986 amendments to  21 U.S.C.   960 and 962.   This            ruling was affirmed on  appeal.  See United States  v. De Los                                             ___ _____________     ______            Santos-Himitola, 924 F.2d 380 (1st Cir. 1991).4              _______________                 In  1991,   Gongora  filed  the  instant   2255  motion.            Relying on  Hardy v. United  States, 691 F.2d 39,  41-42 (1st                        _____    ______________            Cir.   1982)(vacating   sentence   where   record   suggested            government  may  not have  filed   851  information), Gongora            argued  that his sentence had been illegally enhanced because            the  district court  had relied  on his  prior conviction  in            imposing his thirty-year  prison term and the  government had            failed  to file a  pretrial enhancement information  under 21            U.S.C.   851.   Gongora maintained  that  the district  court            lacked jurisdiction  to impose  the thirty-year  sentence and            that his  sentence should be  reduced to the ten  year prison                                            ____________________            4.  In De Los Santos-Himitola, 924 F.2d at 381-82  & n. 2, we                   ______________________            observed that the  district court correctly left  the special            parole terms in place when it determined that  the defendants            were not eligible for parole,  but that the Supreme Court had            granted  certiorari review  on whether the  mandatory minimum            supervised  release terms required by the Anti-Drug Abuse Act            of 1986  applied to  offenses committed  between October  27,            1986 and November  1, 1987.  The Supreme  Court answered this            question in  the affirmative.   See  Gozlon-Peretz v.  United                                            ___  _____________     ______            States,   498  U.S.  395,   404-410  (1991).     Thus,  these            ______            defendants'  sentences  may  include  an  incorrect  term  of            special  parole. See Padilla  Palacios v. United  States, 932                             ___ _________________    ______________            F.2d 31, 32-34 (1st Cir. 1991)(per curiam)(holding supervised            release applied to  2255 petitioner convicted of violating 46            U.S.C. App.  1903). As the issue  has not been raised, we  do            not consider it.                                             -6-            term imposed on  the first offenders.  Gongora  filed several            documents  in  support  of his   2255  motion,  including the            district  court's  September  6,  1989  order   revoking  the            defendants' supervised release  terms.  Footnote one  of that            order  stated: "Defendants  with  prior criminal  convictions            were sentenced  under 21  U.S.C. section 962(a),  authorizing            sentences  twice the  length  of  those otherwise  provided."            Gongora  insists that this  notation shows that  the district            court impermissibly imposed  a twenty-year mandatory  minimum            term on  Gongora as  a repeat offender  under 21  U.S.C.  962            then added ten  years.  The government conceded  that no  851            information  had been  filed  on  Gongora,  but  argued  that            Gongora  had been sentenced under 21 U.S.C.  960(b)(1)(G) and            that  his sentence had not been  unlawfully enhanced since it            was within  the ten  year-to-life range  applicable to  first            offenders  under that statute.  The government further argued            that Gongora's five-year supervised release term  showed that            the district court  did not unlawfully enhance  his sentence,            as  a ten-year  term would  have been  required for  a repeat            offender.   The government maintained that Gongora's sentence            was unreviewable under United States v. Tucker, 404 U.S. 443,                                   _____________    ______            447  (1972)("... a  sentence imposed  by  a federal  district            judge, if within  statutory limits, is generally  not subject            to review.")        The district court ruled that Gongora had            not been sentenced  under 21 U.S.C.  962 but  rather had been                                         -7-            sentenced    to a  term  within  the  ten year-to-life  range            applicable  to  him  under  21  U.S.C.   960(b)(1)(G).    The            sentencing judge  acknowledged  that he  had  considered  the            prior conviction in imposing the  sentence.  However, in view            of the fact  that Gongora did not contend that  Fed. R. Crim.            P.  32(c)(governing disclosure of PSR) had been violated, the            judge discerned no illegality in the thirty-year sentence and            dismissed Gongora's  2255 motion.   This appeal followed.                                          II.                   "Congress enacted section  851(a)(1) and the procedure            for  filing   an  information  to   protect  defendants  from            receiving increased  statutory sentences  ... resulting  from            prior,  incorrectly   charged  offenses   ...  and  to   give            defendants the  opportunity to show  that they  were not  the            persons convicted." United  States v. Wallace, 895  F.2d 487,                                ______________    _______            489 (8th Cir. 1989) (citations  omitted).  In Hardy v. United                                                          _____    ______            States, 691  F.2d at  41, we observed  that a  district court            ______            lacks  jurisdiction  to   enhance  a  convicted   defendant's            sentence on its own motion if the government has not filed an            information seeking  a sentence  enhancement under 21  U.S.C.             851(a)(1).   See  also United States  v. Belanger,  970 F.2d                          ___  ____ _____________     ________            416,  418 (7th Cir. 1992)("Failure to file [ 851] information            before trial deprives  the district court of  jurisdiction to            impose  an enhanced sentence.");  United States  v. Williams,                                              _____________     ________                                         -8-            899  F.2d 1526,  1528-29 (6th  Cir.  1990); United  States v.                                                        ______________            Olson, 716 F.2d 850, 851-54 (11th Cir. 1983).            _____                 Nevertheless,  this  rule  is  not  dispositive  of  the            present case,  for it  is clear that  the district  court had            jurisdiction to impose Gongora's thirty-year prison  sentence            as it  was within  the ten  year-to-life range applicable  to            first  offenders. See 21  U.S.C.  960(b)(1)(G).   Section 851                              ___            applies  only where  the  government  seeks  to  enhance  the            mandatory  statutory  minimum   or  maximum  sentence  of   a            defendant.  See, e.g., United States v. French, 974 F.2d 687,                        ___  ____  _____________    ______            697-98 (6th Cir. 1992), cert.  denied, 113 S. Ct. 1431 (1993)                                    _____  ______            ( 851  applied  where  defendant's   mandatory  sentence  was            enhanced from twenty years to life under recidivist provision            of  21 U.S.C.  841(b)(1)(A));  United States v.  Sanchez, 917                                           _____________     _______            F.2d  607, 616 (1st Cir. 1990), cert. denied, 111 S. Ct. 1625                                            _____ ______            (1991) ("The section 851(a)(1) enhancement notice requirement            applies  'to  situations  in  which  a convicted  defendant's            statutory   minimum   or   maximum    penalty   is   enhanced            _________            ...'")(citation  omitted); United States v. Wallace, 895 F.2d                                       _____________    _______            at 490 (same).  The fact  that the government did not file  a             851 information on Gongora meant that the district court was            not compelled  to impose  the mandatory  minimum sentence  of            twenty years imprisonment and ten years of supervised release            required by  21 U.S.C.   962.  However,  the absence  of this            information did not rob the district court  of its discretion                                         -9-            to  impose  such  a sentence  under  the  statutory authority            vested in it under 21 U.S.C.  960(b)(1)(G).                   The absence of a   851 enhancement information does  not            preclude a  sentencing court from  considering a  defendant's            prior convictions in determining whether the defendant should            be   treated  as  a  Career  Offender  under  the  Sentencing            Guidelines. See  United States  v. Whitaker,  938 F.2d  1551,                        ___  _____________     ________            1552  (2d Cir. 1991)(per  curiam); United States  v. Sanchez,                                               _____________     _______            id.; United States v.  Marshall, 910 F.2d 1241,  1444-45 (5th            ___  _____________     ________            Cir. 1990).    While  this  is  a  pre-Guidelines  case,  the            rationale of  these authorities  applies with  like force  to            Gongora's   claim.     Thus,  the  district   court  lawfully            considered Gongora's prior conviction  in imposing a  thirty-            year prison term, see Corpus,  882 F.2d at 553, and correctly                              ___ ______            dismissed the   2255 motion.  Affirmed.                                                   _________                                         -10-
