                      NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 File Name: 09a0718n.06

                                           No. 07-3509                                   FILED
                                                                                      Nov 05, 2009
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

        Plaintiff-Appellee,                               ON APPEAL FROM THE
                                                          UNITED STATES DISTRICT
v.                                                        COURT FOR THE NORTHERN
                                                          DISTRICT OF OHIO
MUHAMMED DYE,

        Defendant - Appellant.

                                                      /

Before: MARTIN, ROGERS, and COOK, Circuit Judges.

        BOYCE F. MARTIN, JR., Circuit Judge. Muhammed Dye appeals his sentence, claiming

that he did not receive proper notice of the government’s sentencing enhancement under 18 U.S.C.

§ 851. The government claims that it proper notice of the enhancement was served upon Dye

through counsel on October 18, 2006 and that he did not become a pro se litigant until December

6, 2006. Thus, the government contends that it complied with the notice requirements of Section

851 and that Dye received proper notice. For the following reasons, we AFFIRM the judgment of

the district court.

                                                 I.

        On June 14, 2006, the grand jury returned a 49-count indictment against Dye and his co-

defendants for activities related to the possession and sale of crack cocaine within 1,000 feet of a

public school. Dye was indicted on several counts of conspiracy to distribute and distribution of
No. 07-3509
United States of America v. Dye
Page 2

cocaine base, crack. On June 15, 2006, Michael J. Goldberg, Esq. was appointed to represent Dye.

On July 26, 2006, Dye filed a motion to proceed pro se. Though Dye claims that the district court

granted his motion on August 1, 2006, it appears from the record that the court granted his motion

for an attorney conference regarding his pro se representation on that date. On August 17, following

the August 16th attorney conference, the court issued an order for a competency evaluation pursuant

to 18 U.S.C. § 4241. It appears that Dye was still represented by counsel at this hearing.

       On October 18, 2006, the government filed an Information pursuant to 18 U.S.C. § 851 to

establish Dye’s prior convictions. The government served a copy of this notice on attorney

Goldberg. From August through December 2006, trial documents continue to refer to Goldberg as

Dye’s counsel and Goldberg appears to have continued to act in that capacity, including providing

representation at Dye’s competency hearing on December 6, 2006. On December 6, 2006, the

district court filed an order noting that Dye wished to proceed pro se and appointing Goldberg to

serve as Dye’s legal advisor only. Dye immediately filed a number of motions pro se. Dye had filed

no pro se motions prior to December 2006.

       The jury trial, at which Dye acted as his own counsel, began on January 16, 2007. On

January 23, 2007, the jury returned a guilty verdict on multiple counts and, on March 30, 2007, Dye

was sentenced to 292 months in prison with a term of supervised release of ten years and a $500

special assessment. At the sentencing hearing, Dye argued that he had not received any written

notice of the prior conviction relied on in the Section 851 enhancement. The district court overruled

his objection upon learning that the Information had been served on Dye’s attorney and was included

in the discovery packet so “Dye was certainly aware of his conviction” and the government’s
No. 07-3509
United States of America v. Dye
Page 3

intention to use it at sentencing. The district court entered judgment on April 3, 2007. Dye timely

appealed on April 20, 2007.

         Dye moved for appointment of appellate counsel which we granted April 26, 2007. On May

7, 2007, Goldberg’s motion to withdraw as counsel of record for Dye was granted.

                                                    II.

         We review de novo the sufficiency of notice about a sentencing enhancement under 21 U.S.C.

§ 851. 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,
         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 further dictates that a defendant must file a written response 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, the statute imposes a duty of inquiry upon the district

court:

         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). As these are requirements, a district court may not enhance a defendant’s

sentence unless the government and the court has satisfied them. United States v. King, 127 F.3d
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United States of America v. Dye
Page 4

483, 487 (6th Cir. 1997). “Section 851 was designed to satisfy the requirements of due process and

provide the defendant with ‘reasonable notice and an opportunity to be heard regarding the

possibility of an enhanced sentence for recidivism.’” King, 127 F.3d at 490 (quoting United States

v. Belanger, 970 F.2d 416, 418 (7th Cir. 1992)).

                                                 III.

       Though Dye claims that he did not receive proper notice of a sentencing enhancement

because he was acting pro se as of June 15, 2006, the record does not corroborate this story. His

attorney, Goldberg, who had been appointed to represent him on June 15, 2006, received a copy of

the United States’ information establishing a prior conviction on October 18, 2006. The record

indicates that Goldberg continued to serve as Dye’s attorney during this period while the court held

his motion to proceed pro se in abeyance pending a competency evaluation, including representing

him at that competency hearing on December 6, 2006. It does not appear that Dye actually

proceeded pro se until the court granted his motion to do so, on December 6, 2006, more than six

weeks after the Section 851 Information was served upon Dye through his counsel. Because the

district court had found reasonable cause to believe that Dye was incompetent to stand trial, requiring

a competency evaluation before permitting Dye to proceed pro se was not error. See United States

v. Klat, 156 F.3d 1258, 1263 (D.C. Cir. 1998) (“[W]here a defendant’s competence to stand trial is

reasonably in question, a court may not allow that defendant to waive [his] right to counsel and

proceed pro se until the issue of competency has been resolved.”). Thus, the district court properly

overruled Dye’s objection at sentencing because he was represented by counsel at the time the

Information was filed.
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United States of America v. Dye
Page 5

                                             IV.

       For the foregoing reasons, we AFFIRM the judgment of the district court.
