                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4098



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ERNEST MORDEAU DEAS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Anderson.    Henry M. Herlong, Jr., District
Judge. (8:05-cr-00524-HMH)


Submitted:   July 9, 2007                 Decided:   January 29, 2008


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


C. Rauch Wise, Greenwood, South Carolina, for Appellant. Reginald
I. Lloyd, United States Attorney, Regan A. Pendleton, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             A federal grand jury indicted Ernest Mordeau Deas on one

count of conspiracy to possess with intent to distribute five

kilograms or more of powder cocaine, in violation of 21 U.S.C.

§   846   (2000),    and    possession         with   intent      to    distribute    five

kilograms or more of powder cocaine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A) (2000).                  Prior to trial, the Government

filed an information pursuant to 21 U.S.C. § 851 (2000), notifying

Deas that it intended to seek an enhanced sentence because of Deas’

prior     convictions      for    drug    offenses.         The    §    851   information

enumerated     three     prior     drug    convictions:             a    conviction     for

possession        with   intent     to     distribute       marijuana         (“marijuana

conviction”)       and     two    convictions         for   possession        of   cocaine

(“cocaine convictions”).            The § 851 information noted the date of

arrest, the date of conviction, and the sentence imposed for each

conviction.        However, the § 851 information did not detail the

statutory     provisions         Deas    violated      or   the    maximum        penalties

applicable to those sections, nor did it explicitly state that any

of the convictions were for felony offenses.                      Deas neither filed a

written objection to the § 851 information nor denied having been

convicted of any of the enumerated offenses.

             At     sentencing,         Deas    argued      that        neither     cocaine

conviction qualified as prior felony drug offenses as required to

support an enhanced sentence.             The district court agreed, reducing


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Deas’ sentencing range from mandatory life imprisonment to twenty

years to life in prison.      The district court ultimately sentenced

Deas    to   240   months’   imprisonment   on   each   count,   to   run

concurrently.

             On appeal, Deas first argues that he is not subject to

the enhanced penalty for a prior felony conviction because the

Government never established that the marijuana conviction was for

a felony drug offense.       Because Deas raises this argument for the

first time on appeal, we review for plain error.        United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005); United States v.

Martinez, 277 F.3d 517, 524 (4th Cir. 2002).      Under the plain error

standard, Deas must show:      (1) there was error; (2) the error was

plain; and (3) the error affected his substantial rights.         United

States v. Olano, 507 U.S. 725, 732-34 (1993).

             In relevant part, § 851(a)(1) states:

       No person . . . 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.

21 U.S.C. § 851(a)(1) (2000).

             The purpose of § 851 is to provide notice to a defendant,

prior to trial, that he faces an increased punishment if convicted

of a qualifying offense such that the defendant has the opportunity

to contest the accuracy of the information and to allow the defense


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sufficient time to understand the full consequences of a guilty

plea or verdict.      United States v. King, 127 F.3d 483, 489 (6th

Cir. 1997); United States v. Williams, 59 F.3d 1180, 1185 (11th

Cir. 1995); United States v. Steen, 55 F.3d 1022, 1026 (5th Cir.

1995); United States v. Campbell, 980 F.2d 245, 252 (4th Cir.

1992).    The § 851 notice must contain sufficient information to

enable the defendant to identify the prior conviction upon which

the enhancement is based and to make an informed decision regarding

whether to challenge the information.           United States v. Severino,

316 F.3d 939, 943 (9th Cir. 2003); United States v. Layne, 192 F.3d

556, 576 (6th Cir. 1999).

           The § 851 information stated that Deas’ prior drug

offense was a March 4, 1994 conviction for possession with intent

to distribute marijuana.1      Although the § 851 information did not

explicitly   identify   this   offense     as   a   felony    or   provide   the

statutory provision involved, it did set forth the date of the

arrest, the date of conviction, and the sentence imposed.2                   The

record supports Deas’ assertion that the Government did not present

any   evidence   at   sentencing   to    establish     that    the   marijuana


      1
      Although the information listed three predicate convictions,
because the district court did not count either of the cocaine
convictions and the Government does not cross-appeal on this issue,
we limit our review to the district court’s consideration of the
marijuana conviction.
      2
      The presentence report prepared by the probation officer
provided additional information regarding this conviction,
including the court of conviction and the docket number.

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conviction    was   a   prior    “felony     drug    conviction”    within    the

applicable statutory definitions and that Deas never conceded this

was a felony offense.

           We have reviewed the record and conclude Deas fails to

establish that the district court committed plain error in finding

the marijuana conviction supported the enhanced punishment.                 Deas’

comments at sentencing were not sufficient to draw the court’s

attention to the argument Deas now advances on appeal:                 that the

Government did not meet its burden of proof in establishing that

the   marijuana     conviction     qualified    as    a   prior    felony    drug

conviction.    Nowhere in the record or in his pleadings does Deas

assert that the marijuana conviction was not a felony; moreover,

Deas presented no evidence below, and similarly fails to provide

any on appeal, to demonstrate that the marijuana conviction was

anything   other    than   a    felony.    Accordingly,     we     reject   Deas’

assertion that the district court committed plain error in finding

the marijuana conviction qualified as a predicate offense.

           Deas next challenges the district court’s failure to

comply with the requirements of § 851(b).             This provision states:

      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.


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21 U.S.C. § 851(b) (2000).       However, the district court failed to

conduct such a colloquy in this case.

            In United States v. Ellis, 326 F.3d 593 (4th Cir. 2003),

the defendant challenged the district court’s failure to conduct

the § 851(b) colloquy.      The Government notified the defendant that

it was seeking an enhanced sentence based on prior convictions.

Id. at 596.      The presentence report, which was compiled prior to

sentencing, again advised the defendant of the aggravating effect

of the prior convictions; yet, the defendant did not object to that

portion of the PSR.      Id. at 599.     The defendant acknowledged the

aggravating effect of the prior convictions at the sentencing

hearing.    Id..    We concluded that the district court’s failure to

comply with the notification requirement of § 851(b) was plain

error.     Id.     Nonetheless, we held that because the defendant

apparently was on notice of the enhancement and failed to object to

it, the error did not affect his substantial rights. Id. (applying

plain error analysis).

           Similarly, in this case, the § 851 information adequately

notified Deas of the prior drug offense upon which the Government

sought to enhance his sentence, but he did not formally object to

it.   The prior drug offense was also included in the presentence

report   (“PSR”),    both   in   the   convictions   section   and   in   the

discussion of Deas’ criminal history, yet Deas raised no objection

to the PSR.      Finally, the court made clear at sentencing that Deas


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faced a mandatory minimum sentence and gave Deas an opportunity to

address the court before pronouncing sentence.         Although Deas did

question whether either of the cocaine convictions should be

counted as predicate offenses in support of a mandatory life

sentence,    he   did   not   expressly    contend   that   the   marijuana

conviction was not a felony drug conviction.         Because it is clear

from the record that Deas would not have challenged his prior

conviction even if the district court had conducted the § 851

colloquy, we find that the district court’s failure to comply with

the § 851(b) requirements did not affect Deas’ substantial rights.

            For the foregoing reasons, we affirm Deas’ sentence.         We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                                   AFFIRMED




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