                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 07a0576n.06
                                Filed: August 10, 2007

                                            No. 05-5261

                            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 WESTERN DISTRICT OF
GEORGE D. MELTON,                                           TENNESSEE

          Defendant-Appellant.


                                                        /

Before:          MARTIN and ROGERS, Circuit Judges; HOOD, District Judge.*

          PER CURIAM. George D. Melton appeals his sentence entered pursuant to a plea agreement

under which he pled guilty to one count of conspiracy to possess with intent to distribute in excess

of 50 grams of methamphetamine, and one count of possession of a firearm during and in furtherance

of a drug trafficking crime. Melton argues that the government’s notice of its intent to rely on a prior

conviction to enhance his sentence failed the mandatory requirements of 21 U.S.C. § 851, and that

the district court’s finding at sentencing that he had been previously convicted (thus increasing his

mandatory minimum sentence) violated the Sixth Amendment.

                                                   I.




          *
       The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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       On December 15, 2003, Melton, along with eight others, was indicted in the Western District

of Tennessee. He was named in Count 1 for conspiracy to possess with intent to distribute in excess

of 50 grams of methamphetamine in violation of 21 U.S.C. § 846; in Count 4 for possession with

intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1); in Counts 5 and 12 for

possession of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C.

§ 924(c); and in Counts 6 and 13 for being a convicted felon in possession of a firearm in violation

of 18 U.S.C. § 922(g).

       On October 5, 2003, the government filed and served the following information, entitled

“NOTICE PURSUANT TO 21 U.S.C. § 851:”

       COMES NOW, the United States of America, by and through Terrell L. Harris,
       United States Attorney, and R. Leigh Grinalds, Assistant United States Attorney for
       the Western District of Tennessee, Eastern Division, and would show the following:

              On or about April 18, 1991, the defendant pled nolo contendere to Unlawful
       Possession of a Controlled Substance, Amphetamine, and received a five year
       sentence in Case No. CF 90-1694, in the 7th Judicial Circuit Court for St. Johns
       County, Florida.

       On October 8, 2004, Melton pled guilty to Counts 1 and 5, with the remaining counts

dismissed pursuant to the plea agreement.

       On January 31, 2005, the district court sentenced Melton to 240 months on Count 1 and 60

months on Count 5, to run consecutively, for a total term of 300 months imprisonment.

                                                II.

A.     Whether the government’s notice filed pursuant to 21 U.S.C. § 851 was

       sufficient.
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       This Court reviews de novo the sufficiency of the government’s notice filed pursuant to 21

U.S.C. § 851. United States v. Layne, 192 F.3d 556, 576 (6th Cir. 1999).

       In pertinent part, 21 U.S.C. § 851(a)(1) states as follows:

               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.

       Melton concedes that the government timely filed under section 851, and that this

information put him on notice of the government’s intent to rely on his prior conviction to enhance

his sentence. He nevertheless argues that the filed information fails because it “did not adequately

indicate the government’s expressed intent to enhance the defendant’s sentence.” Defendant’s Br.

9. Melton contends that the strictures of section 851 are mandatory, and any information filed by

the government thereunder must contain an express statement of its intent to rely on the prior

conviction, not simply a recitation of the prior conviction.

       The Eleventh Circuit has held that the purpose of section 851 is two-fold. First, it allows a

defendant to “contest the accuracy of the information,” and second, it allows a defendant “to have

ample time to determine whether to enter a plea or go to trial and plan his trial strategy with full

knowledge of the consequences of a potential guilty plea.” United States v. Williams, 59 F.3d 1180,

1185 (11th Cir. 1995). Section 851(a)(1) does not state that the government must specifically

express its intent to enhance the defendant’s sentence based on the prior conviction contained in the

information. Section 851(a)(1) simply provides that the United States attorney must file an

information that states the previous conviction to be relied upon. Accordingly, the question is not
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whether the notice contained the specific technical language that Melton argues is required, but

rather “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.” United States v. King,

127 F.3d 483, 488-89 (6th Cir. 1997) (internal quotation marks and alterations omitted).

       We believe that the notice filed in this case meets the requirements of section 851(a)(1) by

providing reasonable notice and a meaningful opportunity for Melton to be heard. This conclusion

is evidenced by Melton’s own concession that the government’s information put him on notice that

his sentence could be enhanced due to the prior conviction. In fact, Melton timely objected to the

government’s notice, further evidencing his awareness of the possibility of an enhanced sentence.

Additionally, there appears to be no other reason to file a notice under section 851(a)(1) than to

inform a defendant of the government’s intent to use a prior conviction to enhance a sentence.

Accordingly, we find the government’s filed information did not violate section 851(a)(1).

B.     Whether the district court’s finding that Melton had a prior conviction, and

       consequent increase of his mandatory minimum sentence under 21 U.S.C. §

       841(b)(1)(A), was a violation of the Sixth Amendment.

       Melton argues that the district court violated his Sixth Amendment right to a trial by jury

when it made factual findings that triggered an enhanced sentence under section 841(b)(1)(A),

though he concedes this argument is contrary to both Sixth Circuit and Supreme Court precedent and

only raises it to preserve it in case the Supreme Court revisits the issue.

       In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court held that

recidivism is a sentencing factor rather than an element of the crime, and thus is not required to be
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found beyond a reasonable doubt by a jury. The Court has yet to stray from the Almendarez-Torres

rule and has excluded the fact of a prior conviction from those issues that must be tried to a jury or

admitted by a defendant. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (questioning the

validity of Almendarez-Torres, but declining to overturn the decision). Melton relies on the fact that

at least one member of the Almendarez-Torres majority, Justice Thomas, has indicated that the case

was wrongly decided, and that the Supreme Court should reconsider “its continuing viability.”

Shepard v. United States, 544 U.S. 13, 27-28 (2005) (Thomas, J., concurring in part and concurring

in judgment). While the prior conviction exception may be in tension with “the spirit of Booker,”

i.e., “that all facts that fix mandatorily a defendant’s sentence should be found by a jury or admitted

by the defendant,” United States v. Estrada, 428 F.3d 387, 391 (2d Cir. 2005), Almendarez-Torres

remains the law and “the Court of Appeals [must leave] to [the Supreme] Court the prerogative of

overruling its own decisions,” United States v. Hill, 440 F.3d 292, 299 n.3 (6th Cir. 2006) (internal

quotation marks omitted). Accordingly, we reject Melton’s Sixth Amendment claim.

                                                 III.

       Based on the foregoing reasons, we AFFIRM Melton’s sentence.
