                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-5017



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


PATRICK ANTHONY CLARKE, a/k/a Jamacian Tony,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:04-cr-00069-1)


Submitted:   June 27, 2007                  Decided:   July 30, 2007


Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed and remanded by unpublished per curiam opinion.


Krysia Carmel Nelson, NELSON & TUCKER, PLC, Charlottesville,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Jean B. Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Patrick Anthony Clarke pled guilty to conspiracy to

distribute cocaine base (crack), 21 U.S.C. § 846 (2000) (Count

One),      and    possession       of    cocaine      base   (crack)    with   intent    to

distribute, 21 U.S.C. § 841(a) (2000), 18 U.S.C. § 2 (2000) (Count

Three), and was sentenced to concurrent terms of life imprisonment.

Clarke appeals his sentence, contending that his mandatory life

sentence must be reversed because the government and district court

failed to comply with the procedural requirements of 21 U.S.C.

§   851     (2000)     and    Fed.      R.   Crim.    P.   32.     We   affirm   Clarke’s

sentence.1          We deny the government’s motion to correct or modify

the record and remand for conformation of the record.

                 On the day Clarke entered his guilty plea, the government

filed a § 851 information alleging that Clarke had been convicted

of felony drug offenses in 1990 and 1993.                      Clarke’s plea agreement

also specified in bold type that he had been convicted of felony

drug offenses in 1990 and 1993, which subjected him to a mandatory

life sentence pursuant to 21 U.S.C.A. § 841(b)(1)(A) (West 1999 &

Supp. 2007).          At the guilty plea hearing, the government stated

that       Clarke    had     two   prior     felony     drug     convictions,    and    the

government notified him that he was subject to a mandatory minimum



       1
      In his plea agreement, Clarke waived his right to appeal his
sentence.    However, because the government has not sought to
enforce the waiver in this appeal, we will not consider it. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).

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sentence of life imprisonment.            Clarke did not challenge the

information alleging his prior convictions.          Immediately following

the guilty plea hearing, the district court met with opposing

counsel in chambers and stated that Clarke should waive his right

to have the § 851 information presented to a grand jury.                 After

some   discussion,    the    government   agreed   instead     to    amend   the

information to style it as a notice rather than an information.

However, the government did not subsequently amend the information.

           The presentence report recommended a base offense level

of 34 under U.S. Sentencing Guidelines Manual § 2D1.1 (2004), a

four-level adjustment for leadership role, USSG § 3B1.1(a), and a

three-level adjustment for acceptance of responsibility under USSG

§ 3E1.1, which resulted in an offense level of 35.             Clarke was in

criminal history category V. The presentence report, as revised on

August 9, 2004, stated that “[t]he mandatory minimum and maximum

terms for each of Counts One and Three are 20 years to life

imprisonment.”       The    recommended   advisory   guideline       range   was

262-327 months.       The report failed to note that, under USSG

§ 5G1.1(b), when the “statutorily required minimum sentence is

greater than the maximum of the applicable guideline range, the

statutorily   required      minimum    sentence   shall   be   the   guideline

sentence.”

           At the sentencing hearing on August 18, 2006, Clarke and

his attorney assured the court that there were no issues in


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dispute.    However, the government informed the court that it had

raised one matter with the probation officer and that the “most

recent edition of the presentence report” correctly stated that the

guideline    sentence     was    life    imprisonment.       Defense     counsel

acknowledged that Clarke had entered his guilty plea with the

understanding that he would be subject to a mandatory minimum

sentence of life in prison unless he could provide substantial

assistance, which he had been unable to do.                In his allocution,

Clarke simply asked for mercy.              The court responded that the

sentence was mandatory, leaving it no discretion, and then imposed

a life sentence.

            On appeal, Clarke first maintains that the court was

without    jurisdiction    to    impose    an   enhanced   sentence      of   life

imprisonment    because    the    district      court   rejected   the    §   851

information and the government failed to file a “notice” under

§ 851 as directed by the court.                 We discern no error.          The

government complied with the requirements of § 851.                    When the

government seeks an enhanced sentence under § 841, it must file an

information pursuant to 21 U.S.C. § 851, before trial or entry of

a guilty plea, stating the prior convictions it will rely on to

justify the enhancement.         21 U.S.C. § 851(a).       The purpose of the

information is to give the defendant notice and “an opportunity to

show that he is not the person previously convicted.”                     United

States v. Campbell, 980 F.2d 245, 252 (4th Cir. 1992) (internal


                                        - 4 -
quotation and citation omitted).    Thus, although § 851(a) requires

that the government file “an information,” the document is often

referred to as a “notice.”    See United States v. LaBonte, 520 U.S.

751, 754 n.1 (1997).

          The district court’s desire that the information be

restyled as a notice may have been prompted by uncertainty over the

effect of the Supreme Court’s then-recent decision in Blakely v.

Washington, 542 U.S. 296 (2004).         However, this Court has since

held that judicial factfinding under § 851 does not violate the

Sixth Amendment.     United States v. Smith, 451 F.3d 209, 224 (4th

Cir. 2006) (holding that § 851 factfinding falls within the prior

conviction exception set out in Apprendi v. New Jersey, 530 U.S.

466, 490 (2000)). Clarke suggests that the district court violated

Fed. R. Crim. P. 32(h) by departing from the guideline range

without reasonable notice.     This claim is baseless because the

district court did not depart.

          Clarke also argues that the sentencing court erred in

failing to conduct the colloquy required under § 851(b) before

imposing sentence.    Because Clarke did not raise this issue in the

district court, the plain error standard of review applies. United

States v. Ellis, 326 F.3d 593, 598 (4th Cir. 2003).              Under

§ 851(b), once an information is filed, the district court must,

before imposing sentence, ask the defendant “whether he affirms or

denies that he has been previously convicted as alleged in the


                                 - 5 -
information.”       Clarke is correct that the district court plainly

erred    in    failing     to      conduct    the    colloquy.       However,    like    the

defendant in Ellis, Clarke did not challenge the allegations in the

information as required under § 851(c).                        Nor does he do so on

appeal.2        Instead,      he    acknowledged       his    prior      convictions     and

conceded at sentencing that he was subject to a mandatory life

sentence. Therefore, the error did not affect Clarke’s substantial

rights.       Id. at 599.

               Finally,       the    parties        disagree        about    whether     the

presentence report was revised on August 18, 2006, the date Clarke

was sentenced.          The government maintains that it was, and has

submitted a revised version dated August 18, 2006, which shows the

guideline      range     as     life,   pursuant      to     USSG    §   5G1.1(b).       The

government      maintains        that   the    district       court      considered     that

revised       version    at     sentencing.          The   parties       agree   that    the

August 9, 2006, revision of the presentence report was the latest

version that was made part of the official record.                          The government

has moved to correct or modify the record by making the presentence

report dated August 18, 2006, a part of the official record.




     2
      Clarke mentions that the information about his prior
convictions in the plea agreement differs from the information in
the presentence report. The dates for the imposition of sentence
are slightly different, but the indictment number for each prior
conviction is the same in the plea agreement and in the presentence
report.

                                             - 6 -
           When there is a disagreement about what took place in the

district court, the proper procedure is for the difference to be

“submitted to and settled by that court and the record conformed

accordingly.”       Fed. R. App. P. 10(e).    Although this question need

not be resolved in order to affirm Clarke’s sentence, we conclude

that the best course of action is to remand this case to the

district court for the limited purpose of determining which version

of the presentence report was submitted to the sentencing court and

conforming the record if necessary.

           We therefore affirm the sentence imposed by the district

court.   We deny the government’s motion to correct or modify the

record   and   we    remand   the   case    for   the    limited   purpose   of

determining     whether    the   presentence      report    was    revised   on

August 18, 2006, and conforming the record if necessary.                     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 AND REMANDED




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