           Case: 12-11744   Date Filed: 03/19/2013   Page: 1 of 8

                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-11744
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:11-cr-00356-JSM-EAJ-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

VALARIAN JAYMONN BROWN,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (March 19, 2013)

Before DUBINA, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Appellant Valarian Brown appeals his convictions and sentences. A jury

convicted Brown of conspiracy to possess with intent to distribute at least 5

kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and

846; conspiracy to possess with intent to distribute marijuana, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; and possession with intent to distribute at

least 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii),

and 18 U.S.C. § 2. Before trial, the government filed a 21 U.S.C. § 851 notice of

enhanced sentence, asserting that Brown had prior Washington state convictions

for possession of a controlled substance with intent to distribute and possession of

a controlled substance without a prescription.


                                              I.

      The evidence at trial showed that Brown, a Florida resident, participated in

an extensive and ongoing conspiracy aimed at purchasing and transporting large

quantities of cocaine and marijuana from Texas to Florida, where Brown and his

co-conspirators would further distribute the drugs. The evidence showed that

Brown engaged in conduct related to the conspiracy between 2003 and 2007 and

from 2010 until his 2011 arrest. Although some of the participants entered and left

the conspiracy at various times, other participants, including Brown, two of his

codefendants, and two of his Texas drug suppliers, were involved throughout the

entire duration of the relevant conduct. Brown requested a jury instruction on
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multiple conspiracies, asserting that the evidence showed there was a conspiracy

that occurred in 2005, and another conspiracy in 2011. The district court,

concluding that there was not an adequate evidentiary predicate, did not give the

multiple-conspiracies instruction.

      At sentencing, Brown objected to the § 851 notice on the grounds that the

notice misidentified the nature of his prior offenses, both of which actually were

convictions for simple possession of cocaine. The court overruled his objection,

concluding that the notice was sufficient and the purpose of providing notice under

§ 851 was satisfied because Brown had demonstrated that he was able to identify,

without confusion, the prior convictions upon which the government was relying.

Based on the § 851 notice, Brown’s sentence was enhanced pursuant to

§ 841(b)(1)(A). The court imposed a mandatory life term of imprisonment on

Count 1, 30 years on Count 2, and 364 months on Count 3.

      On appeal, Brown argues that the district court (1) erred in denying his

request that the jury be instructed on multiple conspiracies because he was charged

in two separate counts for the cocaine and marijuana conspiracies and because the

evidence showed that some of the relevant conduct involved one of his

co-defendants but not Brown; and (2) incorrectly determined that the government’s

information complied with the notice requirements of § 851, a necessary predicate




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to imposition of an enhanced sentence under § 841, when it misidentified the

nature of his prior offenses.


                                           II.

      We review the legal correctness of a jury instruction de novo. United States

v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). As to a district court’s rejection

of a requested jury instruction, however, we review a properly preserved claim for

an abuse of discretion. United States v. Moore, 525 F.3d 1033, 1046 (11th Cir.

2008). A claim is properly preserved for appellate review when the party objects

before the jury retires, “stating distinctly the specific grounds for the objection.”

United States v. Starke, 62 F.3d 1374, 1380-81 (11th Cir. 1995). If a specific

objection was not made at trial, “we will only review for plain error.” Id. at 1381.

Furthermore, even if a defendant objects to a jury instruction at trial, if “the

argument he advanced at trial is not the argument he advances on appeal,” we

review the argument raised on appeal for plain error. Id. at 1380-81. When

reviewing for plain error, we may reverse only if: (1) there is an error; (2) which is

plain; (3) that seriously affects the substantial rights of the defendant; and (4)

failure to correct the error would seriously affect the fairness of the judicial

proceeding. Moore, 525 F.3d at 1048.

      Although the district court has “broad discretion” in formulating its

instructions, “a defendant is entitled to have presented instructions relating to a
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theory of defense for which there is any foundation in the evidence, even though

the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.”

United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008) (internal quotation

marks omitted). In reviewing “whether there is a proper evidentiary foundation for

the instruction, the evidence must be viewed in the light most favorable to the

accused.” Id.

      Because the record demonstrates that Brown did not raise before the district

court the specific arguments he now raises on appeal, we review the jury

instruction request for plain error. We conclude that the district court did not

plainly err by declining to give an instruction on multiple conspiracies because

there was not adequate evidence to support Brown’s requested instruction. Even if

the court had committed plain error, it was not prejudicial to Brown because, in

light of the considerable evidence at trial showing Brown’s long-standing

involvement in the conspiracy as charged in the indictment, he cannot show that

the outcome of his case would have been different had the jury received the

requested instruction.

                                         III.

      We review de novo questions regarding the adequacy of a § 851 notice.

United States v. Ramirez, 501 F.3d 1237, 1239 (11th Cir. 2007). Section 851(a)

provides in part:

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      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 . . . stating in
      writing the previous convictions to be relied upon. . . . Clerical
      mistakes in the information may be amended at any time prior to the
      pronouncement of sentence.

21 U.S.C. § 851(a)(1). When a person commits a violation pursuant to

§ 841(b)(1)(A) after two or more prior convictions for a felony drug offense have

become final, such person shall be subject to a mandatory term of life

imprisonment. 21 U.S.C. § 841(b)(1)(A).

      Harmless error does not apply to § 851(a) notice disputes. United States v.

James, 642 F.3d 1333, 1339 (11th Cir.) cert. denied, 132 S. Ct. 438 (2011).

However, the text of § 851 only requires the government to file a notice prior to

trial, and it does not specify how to satisfy the notice requirement. See 21 U.S.C.

§ 851(a)(1). To answer this question, we consider the purpose behind the notice

requirement. Ramirez, 501 F.3d at 1239-40. The purposes of the § 851 notice are

to allow a defendant to (1) “contest the accuracy of the information,” and (2) “have

ample time to determine whether to enter a plea or go to trial and plan his trial

strategy with full knowledge of the consequences of a potential guilty verdict.” Id.

at 1239 (internal quotation marks omitted).

      We have found that a notice of enhancement containing minor errors was

compliant with § 851 because the notice, despite the errors, unambiguously

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signaled the government’s intent. See Perez v. United States, 249 F.3d 1261,

1266-67 (11th Cir. 2001) (affirming an enhanced sentence despite the fact that the

§ 851 notice contained an incorrect last digit in the year of a prior conviction

because the conviction upon which the government relied was clear nonetheless,

and the defendant did not allege any confusion as to which conviction the

government referenced). In Perez, we differentiated between § 851’s “filing and

service” requirements, which require strict compliance, and the required contents

of the notice, which we construe more liberally. Id. at 1265-67. However, when

an enhancement notice failed to include the convictions upon which the

enhancement was based, we ruled that the government did not meet its burden of

strict compliance, despite the government’s argument that it subsequently notified

the defendant in other types of court filings of specific prior convictions it intended

to introduce at trial. United States v. Rutherford, 175 F.3d 899, 904 (11th Cir.

1999). In vacating the sentence, we further stated that, “[n]othing was filed to

show which prior convictions, if any, the government intended to rely upon for

enhancement purposes. This was the purpose of the notification statute.” Id.

      We conclude from the record that the district court properly found that the

government’s § 851 notice was sufficient because it served the purposes behind the

notice requirement. Although Brown’s prior offenses were misidentified, the

notice provided sufficient accurate details to enable him to research, identify, and

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potentially contest the accuracy of the information. The notice unambiguously

signaled the government’s intent to seek a mandatory imprisonment term of life

under § 841(b)(1)(A) based on his prior convictions, and thus allowed him to plan

his defense strategy with this in mind. Because the notice was adequate, the

district court was authorized to impose the enhanced sentence.

           For the aforementioned reasons, we affirm Brown’s convictions and

sentences.

           AFFIRMED. 1




1
    We DENY Brown’s motion to withdraw initial appellate brief and for appointment of new counsel.
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