
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1353                                               HENRY L. TORRES,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Henry L. Torres on brief pro se.               _______________               Edwin J.  Gale,  United  States  Attorney,  and  Kenneth  P.               ______________                                   ___________          Madden, Assistant United States Attorney, on brief for Appellee.          ______                                  __________________                                  November 30, 1993                                  __________________                      Per  Curiam.   Pro se  inmate Henry  Torres appeals                      ___________    ___ __            from  a district  court judgment  that  denied his  motion to            vacate, set  aside, or correct  his sentence under  28 U.S.C.             2255.  We affirm.                                          I.                 The relevant facts are not in dispute.  On May 23, 1989,            Torres and six  codefendants were indicted  on two counts  of            possession with intent to distribute  more than 100 grams  of            heroin in  violation of 21 U.S.C.    841(a)(1) and (b)(1)(B),            and  conspiracy  to distribute  and  possess  with intent  to            distribute  the said heroin  in violation of  21 U.S.C.  846.            On October 4, 1989, Torres pled guilty to the possession with            intent to distribute charge pursuant to a plea agreement with            the government.   That offense was punishable  by a mandatory            minimum  of five years' imprisonment and  at least four years            of supervised release if the crime did not result in death or            serious  bodily   injury  and  the  offender   had  no  prior            convictions for  violations of  841(a) or  for other felonies            relating to narcotic  drugs.   However, if  the offender  had            such a  prior conviction,  the offense was  punishable by  an            enhanced mandatory minimum of  ten years' imprisonment and at            least  eight  years of  supervised release,  assuming neither            death nor  serious bodily injury resulted  from the offense.1                                            ____________________            1.  21 U.S.C.  841(b)(1)(B) provides,  in relevant part, that            a  person convicted of an offense involving 100 grams or more            of a substance containing heroin:                                         -2-            The record indicates that, in return  for Torres' guilty plea            on  count one, the government agreed to dismiss count two and            to recommend that Torres receive ten years' imprisonment.2                   On December 7, 1989, the district court sentenced Torres            to the enhanced mandatory  minimum of ten years' imprisonment            and  eight years of supervised release.   The enhancement was            based  on Torres'  prior  Rhode Island  state conviction  for            possession of  cocaine.  The conspiracy  charge was dismissed            on  the government's  motion.   Although Torres  appealed his            sentence, that appeal was  subsequently dismissed for lack of            prosecution.                 On December 24,  1992, Torres filed the  28 U.S.C.  2255            motion  that is  the subject  of this  appeal.   That motion,                                            ____________________                 ... shall  be sentenced  to a term  of imprisonment                 which may not  be less  than 5 years  and not  more                 than  40 years  ... If  any  person commits  such a                 violation after one or  more prior convictions  for                 an offense punishable under this paragraph or for a                 felony under any other provision of this subchapter                 or  subchapter II of this chapter or other law of a                 State,  the United  States,  or  a foreign  country                 relating to narcotic  drugs ... have  become final,                 such  person  shall  be  sentenced  to  a  term  of                 imprisonment which  may not  be less than  10 years                 and  not  more  than  life  imprisonment   ...  Any                 sentence  imposed under this subparagraph shall, in                 the absence  of such a prior  conviction, include a                 term of supervised release of  at least 4 years  in                 addition to such term of imprisonment and shall, if                 there was  such a prior conviction,  include a term                 of  supervised  release  of  at least  8  years  in                 addition to such term of imprisonment.              2.  The government  further agreed to  make no recommendation            as to an appropriate fine or supervised release term.                                         -3-            which  was  supported  by  a   memorandum,  attacked  Torres'            sentence  on three grounds.  First, Torres alleged that state            convictions could not support a sentence enhancement under 21            U.S.C.  841(b).   In support of this  assertion, Torres cited            United States v. Johnson, 506 F.2d 305 (7th Cir. 1974), cert.            _____________    _______                                _____            denied,  420 U.S.  1005 (1975),  a case  which held  that the            ______            double penalty  provisions of  21 U.S.C.   841(b)(1)(A) could            only be applied if a prior conviction had been obtained under            federal law.   See 506 F.2d at 307.   In connection with this                           ___            first point, Torres also  contended that his prior conviction            for  simple possession  of cocaine  was  the equivalent  of a            violation  of 21  U.S.C.   844, which  describes the  federal            penalties  for  simple possession  of  controlled substances.            Torres asserted that no federal  law allowed violations of 21            U.S.C.  844 to  be used as  a basis for  invoking the  double            penalties  prescribed in 21  U.S.C.  841,  therefore, Torres'            prior conviction, treated as a  violation of 21 U.S.C.   844,            could not support his enhanced sentence.                   Torres' second ground for   2255 relief alleged that the            government failed to file  an information notifying Torres of            its intent to seek to enhance his sentence based on his prior            conviction,  as required  by 21  U.S.C.  851(a)(1).3   Third,                                            ____________________            3.   28 U.S.C.  851(a)(1) provides, in relevant part, that:                 No person who stands  convicted of an offense under                 this  part   shall   be  sentenced   to   increased                 punishment  by   reason  of   one  or   more  prior                                         -4-            Torres argued that the  probation officer engaged in improper            double  counting in computing  Torres' criminal history under            the  United  States  Sentencing  Guidelines  (U.S.S.G.,  Nov.            1989).   Torres  specifically  complained  that  points  were            improperly added  under  4A1.1(c) and  4A1.1(d).  Marshalling            these  claims, Torres asked the district  court to reduce his            enhanced sentence  to seventy  months' imprisonment  and four            years of supervised release.                 The government  filed an objection to  Torres' 28 U.S.C.             2255  motion and a supporting memorandum which is not in the            record before us.   On February 19, 1993, the  district court            issued an order denying relief.  The court specifically found            that  the government  had filed and  served the  requisite 21                                  _________            U.S.C.   851(a)(1) information, that  21 U.S.C.  841(b)(1)(B)            expressly  authorizes sentence  enhancements  based on  prior            state   convictions,  and  that   Torres'  objection  to  the            calculation of  his criminal history  category was  meritless            since U.S.S.G.  5G1.1(b) required that Torres be sentenced to            the mandatory statutory minimum prison and supervised release                                            ____________________                 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....                                         -5-            terms,    thus   rendering   his   criminal   history   score            irrelevant.4     Judgment  entered   for  the  government  on            February 22, 1993.                   The record indicates  that Torres filed  a reply to  the            government's objection  to his   2255 motion which  set forth            additional  arguments   in  favor  of  Torres'   request  for            resentencing.   Specifically,   Torres   alleged   that   the            "Information" which the government purportedly filed under 21            U.S.C.   851  in  fact had  been  filed  in  response to  the            defendants'  discovery  requests,  had  no  nexus  with  that            information  required  by 21  U.S.C.   851,  and was  fatally            defective under United  States v. Wirsing, 662  F. Supp. 199,                            ______________    _______            200  (D.  Nev. 1987),  because it  did  not mention  that the            government intended  to seek an enhanced  sentence.5  Torres'            certificate of service indicates that he mailed this reply on                                            ____________________            4.  U.S.S.G   5G1.1(b) provides that, "[w]here  a statutorily            required minimum sentence is greater than the  maximum of the            applicable  guideline range, the statutorily required minimum            sentence shall be the guideline sentence."             5.  Torres  also  alleged that  he had  received ineffective            assistance  of counsel  since  his attorney  had allowed  his            direct appeal of  his sentence  to be dismissed  for lack  of            prosecution and failed to  file an Anders brief.   This claim                                               ______            was not properly before  the district court since it  was not            raised  in  Torres'  2255  motion.   Thus,  we are  unable to            effectively review this claim.  See Barrett v. United States,                                            ___ _______    _____________            965 F.2d 1184, 1188  (1st Cir. 1992)(holding plaintiff failed            to  raise Jencks  Act claim  in a  timely manner  below where            claim was first asserted in plaintiff's reply to government's            response  to plaintiff's  amended  2255  motion).   Moreover,            Torres'  filings with this court do not seek appellate review            of this issue.  Thus, we do not address it.                                           -6-            February 17, 1993, two days before  the district court issued            its  order denying relief  and four days  before judgment for            the government  was entered.   It  appears that  the district            court  did  not consider  this  reply before  it  entered its            decision, for the  docket sheet indicates that  the reply was            not docketed  until March 2,  1993, after  judgment had  been            entered and the  case had been closed.   In any event, Torres            filed a timely notice of appeal.                                         II.                 We have allowed Torres  to proceed on the  memorandum he            filed in  the district  court in  lieu of  filing a  brief on            appeal.6  Having reviewed  the record thoroughly, we conclude            that the district court's  analysis was correct.  It  is true            that when  21 U.S.C.  841(b)  was originally enacted,  it did            not   subject   defendants  with   prior  state   court  drug            convictions   to  enhanced  penalties  as  repeat  offenders.            Rather, this statute initially allowed  sentence enhancements            only for  prior federal  felony-drug violations.   See, e.g.,                                                               ___  ____            United States v. Gates, 807 F.2d 1075, 1082 (D.C. Cir. 1986),            _____________    _____                                            ____________________            6.  Torres  has also  filed  a reply  brief which  emphasizes            that,  in  his view,  Congress did  not  intend the  crime of            simple   possession  of   cocaine   to  trigger   a  sentence            enhancement.   This argument is based  on Torres' assumptions            that violations of 21 U.S.C.  844 cannot result in a sentence            enhancement and that, had Torres' prior possession of cocaine            offense  been  prosecuted under  21  U.S.C.   844, his  prior            conviction could not have  triggered the enhanced sentence he            now endures.                                         -7-            cert. denied, 481 U.S. 1006 (1987); United States v. Johnson,            _____ ______                        _____________    _______            supra.   However,  21  U.S.C.   841(b)  was  amended  by  the            _____            Comprehensive Crime Control Act of 1984.  See Pub. L. 98-473,                                                      ___            Tit. II,   502, 98 Stat. 1976, 2068.   See also United States                                                   ___ ____ _____________            v.  Rivera,   996  F.2d   993,  1000-01   &  n.4   (9th  Cir.                ______            1993)(dissenting  opinion  discussing legislative  history of             841).  At the  time of  Torres' offense,  as now,  21 U.S.C.             841(b)(1)(B) explicitly authorized enhanced penalties on the            basis  of  prior state  felony  convictions.   Possession  of            cocaine  is  a felony  under Rhode  Island  law.   See, e.g.,                                                               ___  ____            Amaral v.  INS, 977 F.2d 33,  36 n.3 (1st Cir.  1992).  Thus,            ______     ___            Torres'  contention that  he could  not be  subjected to  the            enhanced penalties in  21 U.S.C.  841(b)  based on his  prior            state conviction is plainly meritless.  The fact that Torres'            prior  offense may only have amounted  to a misdemeanor under            21  U.S.C.  844 is irrelevant  given the plain  wording of 21            U.S.C.  841(b)(1)(B).7                                                 ____________________            7.  Torres  errs in  asserting that  violations of  21 U.S.C.             844 may never support a sentence enhancement under 21 U.S.C.             841.    To  be   sure,  "absent  prior  convictions,  simple            possession is not  a felony  under federal law."   Amaral  v.                                                               ______            INS,  977 F.2d at 36.  Thus, under circumstances where simple            ___            possession  is only a  misdemeanor, a violation  of 21 U.S.C.             844  cannot be used to invoke the recidivist penalties of 21            U.S.C.   841, which  require  that prior  convictions be  for            felonies.   "However, one  prior conviction turns  possession            into a felony since  the maximum penalty increases to  over a            year."  Id.    Thus,  prior convictions for violations  of 21                    ___            U.S.C.  844  which constitute felonies  may support  sentence            enhancements under 21 U.S.C.  841.                                         -8-                 The record also  contradicts Torres' assertion that  the            prosecutor  failed to  file  the information  required by  21            U.S.C.  851(a)(1).  The information was filed on September 6,            1989  and served  by mail  on Torres'  counsel on  that date.            Moreover,  we think  that the  information  was substantively            adequate.   The  information  clearly specified the  date and            place  of  Torres'  prior  conviction,  that  the  conviction            involved a  felony (possession  of cocaine) and  the sentence            that Torres  received.8 Torres' reliance on  United States v.                                                         _____________            Wirsing, supra, is  misplaced, for the  851 information which            _______  _____            was held defective in that case wholly failed to identify the            defendant's  prior  conviction.    We  also  think  that  the            information's  reference to  21 U.S.C.   851 was  adequate to            place Torres, who was represented  by counsel, on notice that            the government intended to  seek a sentence enhancement based            on Torres' prior  conviction.  Cf. United States v. Belanger,                                           __  _____________    ________                                            ____________________            8.  The Information provided, in relevant part, that:                 The  said defendant,  on or  about the 13th  day of                 September, 1988, in the  state of Rhode Island, was                 duly convicted of possession of  cocaine, a felony,                 in violation of Rhode  Island General Laws, and was                 sentenced  on said  date to  a  three year  term of                 imprisonment,  sentence suspended, and a three year                 term of probation.   All in violation  of Title 21,                 United States Code, Section 851.                                          -9-            970 F.2d 416, 419 (7th Cir.  1992)(noting that "[s]ection 851            does  not  specify  the   particular  form  which  notice  of            enhancement must take...").                 Finally, we note that  the Presentence Report shows that            Torres  received   only  one  criminal  history  point  under             4A1.1(c), thus  there was no  double counting.   And,  since            Torres was subject to the enhanced mandatory minimum ten-year            prison  term, his criminal  history score did  not affect his            sentence.                 Accordingly,  the  judgment  of  the  district  court is            affirmed.                                      ________                                         -10-
