191 F.3d 486 (D.C. Cir. 1999)
United States, Appelleev.Eddie Brown Appellant
No. 99-3015
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed October 22, 1999

Appeal from the United States District Court for the District of Columbia(No. 90CR00177)
Before:  Ginsburg, Henderson, and Garland, Circuit  Judges.
JUDGMENT
PER CURIAM:


1
This appeal was considered on the record from the United  States District Court for the District of Columbia and on the  briefs of the parties.  The court has determined that the issues presented occasion no need for oral argument.  See  D.C. Cir. Rule 34(j).  It is


2
ORDERED AND ADJUDGED that the district court's  order denying Brown's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 be affirmed.


3
The district court granted a certificate of appeal ability  pursuant to 28 U.S.C. § 2253(c)(1) on a single issue:  whether  Brown's trial counsel rendered ineffective assistance at his  sentencing.  On appeal, Brown argues that his trial counsel  was ineffective in failing to assert that Brown's sentence  could not be enhanced under 21 U.S.C. § 841 because of  ambiguity in the notice provision of 21 U.S.C. § 851.  In  order to seek an enhanced sentence under § 841, the United  States Attorney is required to file an information under  § 851.  Section 851(a)(2) provides, however, that "[a]n information may not be filed under this section if the increased  punishment which may be imposed is imprisonment for a  term in excess of three years unless the person either waived  or was afforded prosecution by indictment for the offense for  which such increased punishment may be imposed."  Brown  claims that the requirement of an indictment applies to the  predicate convictions rather than to the present conviction; alternatively, he argues that the proper application of this  requirement is so ambiguous that the rule of lenity would  have barred enhancement of his sentence.  Brown claims that  his counsel's failure to raise these arguments during sentencing fell below an objective standard of reasonableness, and  that he was prejudiced because this court would have reversed the district court on the sentence enhancement either  by adopting Brown's interpretation of the statute or by  applying the rule of lenity.  See Strickland v. Washington,  466 U.S. 668, 687 (1984) (holding that a claim of ineffective  assistance of counsel requires both objective deficiency by  counsel and prejudice to the defendant).


4
We reject Brown's appeal because he has failed to demonstrate prejudice.  We join the nine other circuits that have  considered this issue and hold that the requirement of an  indictment in 21 U.S.C. § 851(a)(2) applies to the present conviction.  See United States v. Ortiz, 143 F.3d 728, 732 (2d  Cir. 1998), overruling United States v. Collado, 106 F.3d 1097  (2d Cir. 1997);  United States v. Lynch, 158 F.3d 195, 199 (3d  Cir. 1998);  United States v. Lampton, 158 F.3d 251, 256 (5th  Cir. 1998);  United States v. Gaitan-Acevedo, 148 F.3d 577,  594 (6th Cir. 1998);  United States v. Burrell, 963 F.2d 976,  993 (7th Cir. 1992);  United States v. Trevino-Rodriguez, 994  F.2d 533, 536 (8th Cir. 1993);  United States v. Espinosa, 827  F.2d 604, 617 (9th Cir. 1987);  United States v. Adams, 914  F.2d 1404, 1407 (10th Cir. 1990);  United States v. Harden, 37  F.3d 595, 601 (11th Cir. 1994).  Nor is this section ambiguous  such that the rule of lenity would preclude the enhancement  of Brown's sentence.  See Ortiz, 143 F.3d at 731-32.


5
The clerk is directed to withhold issuance of the mandate  herein until seven days after disposition of any timely petition  for rehearing.  See D.C. Cir. Rule 41.

