                  United States Court of Appeals
                              For the Eighth Circuit
                         ___________________________

                                 No. 19-2440
                         ___________________________

                               United States of America

                          lllllllllllllllllllllPlaintiff - Appellee

                                             v.

                               Javier Corona-Verduzco

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                              Submitted: April 17, 2020
                                Filed: June 24, 2020
                                   ____________

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.
                              ____________

BENTON, Circuit Judge.

       A jury convicted Javier Corona-Verduzco of (1) possession with intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A),
and (2) re-entry of a removed alien after an aggravated felony in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). On appeal, he argues for the first time that the district court
failed to inquire about his past convictions, claiming prejudice because by his
interpretation of the First Step Act, he has only one conviction, not two. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                          I.

       The First Step Act of 2018 amended the law on enhanced sentences under
certain statutes, as relevant here, 21 U.S.C. § 841. See First Step Act, Pub. L. No.
115-391, 132 Stat. 5194, 5220. If a defendant is convicted under 21 U.S.C. § 841(a)
for a violation involving “50 grams or more of methamphetamine” and “commits
such a violation after a prior conviction for a serious drug felony or serious violent
felony has become final, such person shall be sentenced to a term of imprisonment
of not less than 15 years.” 21 U.S.C. § 841(b)(1)(A)(viii). “[A]fter 2 or more prior
convictions for a serious drug felony or serious violent felony” the mandatory
minimum is “not less than 25 years.” Id. A “serious drug felony” is defined as an
offense for which “the offender served a term of imprisonment of more than 12
months.” 21 U.S.C. § 802(57)(A).

       Before trial, the government filed an Amended Notice and Information of
Intent to Use Prior Convictions to Enhance Punishment, indicating it would “seek
to enhance the punishment . . . pursuant to the new provisions” of the First Step Act.
The Notice listed two prior convictions for “serious drug felonies” and a
corresponding mandatory minimum sentence of 25 years. The convictions were for
separate offenses in separate cases consolidated for sentencing. Corona-Verduzco
was sentenced on the same day for both offenses to concurrent sentences of 135
months. He appealed the sentences to this court, which modified but affirmed the
judgments. See United States v. Corona-Moret, 256 Fed. Appx. 873, 873-74 (8th
Cir. 2007). He now argues that he has only one serious drug felony conviction, not
two.

      By 21 U.S.C. § 851(b), the district court is required to inquire about past
convictions before enhancing a sentence under § 841(b):


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      If the United States attorney files an information under this section, 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,
      and shall inform him that any challenge to a prior conviction which is not
      made before sentence is imposed may not thereafter be raised to attack the
      sentence.

21 U.S.C. § 851(b). The district court did not inquire about past convictions as
required by § 851(b).

       A jury convicted Corona-Verduzco. The Presentence Investigation Report
determined his minimum term of imprisonment as 25 years based on his two prior
convictions. He did not object. In his sentencing memorandum, he stated, “The
statutory range of punishment for the Court to consider is not less than twenty-five
years and not more than life imprisonment as to count one.” At sentencing, he did
not object to the Guidelines calculation or the mandatory minimum, which he
requested. The court sentenced him to 360 months.

       Corona-Verduzco appeals, arguing the district court erred in failing to conduct
the § 851(b) inquiry and finding he was subject to the 25-year, rather than 15-year,
mandatory minimum.

                                         II.

       The government believes Corona-Verduzco waived his right to the § 851(b)
inquiry. Waiver requires the “intentional relinquishment or abandonment of a
known right.” United States v. Olano, 507 U.S. 725, 733 (1993). “This is to be
distinguished from a forfeiture, which is a ‘failure to make the timely assertion of a
right.’” United States v. Wisecarver, 598 F.3d 982, 988 (8th Cir. 2010), quoting
Olano, 507 U.S. at 733.




                                        -3-
       The government asserts waiver because Corona-Verduzco did not contest the
government’s Notice indicating its intent to seek an enhanced sentence based on two
prior convictions. At a pre-trial conference—the only mention of the Notice before,
during, or after trial—the government reiterated that Corona-Verduzco faced a
minimum of 25 years in prison, and the district court asked defense counsel if he had
anything to say about the Notice. Defense counsel answered, “No.” The district
court replied “there’s nothing really I would expect you to say. It’s just that’s a
notice that’s required to be filed to make sure everybody knows what we’re looking
at.” This colloquy is not an intentional relinquishment or abandonment of the right
to a § 851(b) inquiry.

       The government also claims waiver because Corona-Verduzco requested the
mandatory minimum sentence of 25 years based on his two prior convictions.
However, he did so without the benefit of the § 851(b) inquiry. The court never
asked whether he affirmed or denied his previous convictions and did not “inform
him that any challenge to a prior conviction which is not made before sentence is
imposed may not thereafter be raised to attack the sentence.” 21 U.S.C. § 851(b).
See United States v. Harrison, 393 F.3d 805, 808 (8th Cir. 2005) (holding defendant
waived his right to object to the sentence because the district court “repeatedly
identified the issues, and defense counsel took no action other than to request the
sentence given”). Moreover, the court did not impose the requested mandatory
minimum sentence. See United States v. Thompson, 289 F.3d 524, 526 (8th Cir.
2002) (holding defendant waived appeal by withdrawing all objections and
requesting the sentence imposed). Because the court did not discuss the § 851(b)
right or impose the requested sentence, there was no waiver.

      Corona-Verduzco did not waive, but rather forfeited, his right to the § 851(b)
inquiry.




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                                          III.

       Citing United States v. House, the government contends that if Corona-
Verduzco did not waive his right to review, this court should review for plain error.
See House, 923 F.3d 512, 514-15 (8th Cir. 2019) (reviewing for plain error where
the district court failed to inquire about the defendant’s prior convictions under 21
U.S.C. § 851(b)). However, earlier cases reviewed § 851(b) violations for harmless
error. See United States v. Rounsavall, 115 F.3d 561, 566 (8th Cir. 1997) (“All
courts of appeals which have considered the question presently hold that failure to
engage in the colloquy required by section 851(b) is subject to ‘harmless error’
analysis.”). As the later case, House does not control. See Mader v. United States,
654 F.3d 794, 800 (8th Cir. 2011) (en banc) (holding this court follows the earliest
opinion because it “should have controlled the subsequent panels that created the
conflict”). Reviewing for harmless error, the government has the burden to show
the district court’s error did not substantially influence the outcome of the sentencing
proceeding. See United States v. Ashburn, 865 F.3d 997, 999 (8th Cir. 2017), citing
Fed. R. Crim. P. 52(a) (harmless-error rule); United States v. Pirani, 406 F.3d 543,
550 (8th Cir. 2005) (en banc) (burden).

        Corona-Verduzco’s belief that he served one, not two, terms of imprisonment
relies in large part on one statement this court made in his prior appeal. See Corona-
Moret, 256 Fed. Appx. at 873. There, this court said he was sentenced to “a ‘total’
term of 135 months.” Id. He believes this statement—with the singular “a,” “total,”
and “term”—shows he served only one term of imprisonment. However, he ignores
that this court also used the plural: there were “sentences . . . in two consolidated
cases.” Id. The district court also contemplated two separate terms of imprisonment,
imposing terms of 135 months in each case and ordering them to run concurrent to
one another. See Judgment in a Criminal Case, ECF No. 85 at 2, United States v.
Corona-Moret, No. 4:05-CR-00194 (W.D. Mo. July 13, 2006), (imposing term of
imprisonment of 135 months); Judgment in a Criminal Case, ECF No. 29 at 2,
United States v. Corona-Moret, No. 4:05-CR-00368 (W.D. Mo. July 13, 2006) (“The
sentence imposed in this case to run current with the sentence imposed in case

                                         -5-
number 05-00194-01-CR-W-GAF.”), amended after appeal by Amended
Judgment in a Criminal Case, ECF No. 50 at 2 (W.D. Mo. Jan. 11, 2008)
(clarifying that the term of imprisonment is 135 months).

       Regardless, this court need not focus on an issue that was not before the prior
panel because Corona-Verduzco’s interpretation is not correct. The Supreme Court
has said that the phrase “term of imprisonment” can mean “the sentence that the
judge imposes” or “the time that the prisoner actually serves,” depending on the
context. Barber v. Thomas, 560 U.S. 474, 484 (2010). By its plain language, the
phrase “the offender served a term of imprisonment of more than 12 months,” 21
U.S.C. § 802(57)(A), “almost certainly” refers to the sentence imposed, not the time
served. See id. at 483 (conceding that, as the petitioners asserted, the words “term
of imprisonment” in the phrase “a prisoner who is serving a term of imprisonment
of more than 1 year other than a term of imprisonment for the duration of the
prisoner’s life” “almost certainly refer to the sentence imposed, not to the time
actually served”), interpreting prior version of 18 U.S.C. § 3624(b)(1), before
amendments by First Step Act, § 102(b), Pub. L. No. 115-391, 132 Stat. 5194, 5210
(adopting petitioners’ position and clarifying that “term of imprisonment” means
“sentence imposed by the court”). See also United States v. Means, 787 Fed. Appx.
999, 1000 (11th Cir. 2019) (referring to “term of imprisonment” as “sentence
imposed” in holding that “[a] district court may modify a defendant’s term of
imprisonment if the defendant was sentenced based on a sentencing range that has
subsequently been lowered by the Sentencing Commission” (emphasis added)).

       Moreover, the fact that the sentences were imposed concurrently supports that
Corona-Verduzco served more than one term of imprisonment. “Concurrent”
requires, by law, multiple terms. See 18 U.S.C. § 3584(a) (“Multiple terms of
imprisonment imposed at the same time run concurrently. . . .” (emphasis added)).
Cf. 18 U.S.C. § 3584(c) (“Multiple terms of imprisonment ordered to run
consecutively or concurrently shall be treated for administrative purposes as a
single, aggregate term of imprisonment.” (emphasis added)). As this court has
noted, “concurrent sentences are separate and distinct sentences;” “that the sentences

                                        -6-
run concurrently merely means . . . the privilege of serving each day a portion of
each sentence.” Gerberding v. United States, 484 F.2d 1353, 1355 (8th Cir. 1973)
(adopting Ninth Circuit’s discussion of concurrent sentences).

      Additionally, this court has held that separate offenses in separate cases are
two prior convictions under § 841(b)(1)(A). See United States v. Gray, 152 F.3d
816, 821-22 (8th Cir. 1998) (holding that concurrent sentences imposed for the same
length of time, on the same day but not part “of a single criminal episode” are
separate convictions under § 841(b)(1)(A)). Other circuits agree: “Two prior felony
drug convictions should be treated as one if and only if the conduct underlying both
convictions was part of a ‘single criminal episode.’” United States v. Powell, 404
F.3d 678, 682 (2d Cir. 2005) (reviewing concurrent, identical-length sentences, and
agreeing with Gray and similar cases from five other circuits). See United States v.
Beckstrom, 647 F.3d 1012, 1017 (10th Cir. 2011) (agreeing with the quoted Powell
proposition, like all other circuits “to have considered the issue”).

       Corona-Verduzco argues Gray (and similar cases) “have no bearing on this
novel issue” because they were decided before the First Step Act. But, while the Act
reduced mandatory minimums, it did not amend the structure and procedure for the
§ 841(b)(1)(A) enhancements or the general purpose of the statute. See, e.g., 21
U.S.C. §§ 802(13) (definition of “felony”), 841(a) (unlawful acts), 851 (proceedings
to establish prior convictions). Because the purpose of the statute is to target
recidivism, Gray and similar cases are relevant to the interpretation of “term of
imprisonment.” See Gray, 152 F.3d at 821 (“The structure of this section [§ 841(b)]
indicates that the purpose of this statute is to target recidivism . . . a legitimate and
long-held goal of our criminal justice system.”). See also Etchu-Njang v. Gonzales,
403 F.3d 577, 582 (8th Cir. 2005) (interpreting unchanged part of statute to include
the interpretation adopted by “[a]t least seven circuits”), citing Cannon v. University
of Chicago, 441 U.S. 677, 696-97 (1979) (interpreting statute based on decisions by
“at least a dozen other federal courts” because “[i]t is always appropriate to assume
that our elected representatives, like other citizens, know the law”).


                                          -7-
       Finally, Corona-Verduzco makes a brief plea for the rule of lenity. However,
that rule applies only if, “after considering text, structure, history, and purpose, there
remains a grievous ambiguity or uncertainty in the statute, such that the Court must
simply guess as to what Congress intended.” Barber, 560 U.S. at 488 (cleaned up).
On the facts here, the rule does not apply. See Burgess v. United States, 553 U.S.
124, 135-36 (2008) (not applying the rule of lenity to the definition of the First Step
Act’s predecessor term “felony drug offense”).

      Because Corona-Verduzco received and served “a term of imprisonment of
more than 12 months” for two serious drug felonies—even though he served them
concurrently—he has two, not one prior convictions. A § 851(b) inquiry would not
have changed his mandatory minimum. The § 851(b) error is harmless.

                                      *******

      The judgment is affirmed.
                      ______________________________




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