
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-2465                               ROBERT E. SUVEGES, JR.,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              _________________________                                        Before                       Selya, Boudin and Stahl, Circuit Judges.                                                ______________                              _________________________               Robert E. Suveges, Jr. on brief pro se.               ______________________               Richard  S.  Cohen,  United  States Attorney,  and  F.  Mark               __________________                                  ________          Terison,  Assistant  United States  Attorney,  on  brief for  the          _______          United States.                              _________________________                                   October 14, 1993                              _________________________                    SELYA, Circuit Judge.   Petitioner-appellant Robert  E.                    SELYA, Circuit Judge.                           _____________          Suveges, Jr., strives gallantly to  persuade us that the district          court  erred  in  summarily  denying  a  petition  to vacate  his          sentence brought pursuant to  28 U.S.C.   2255.   For the reasons          discussed below, we affirm the judgment in its major aspects, but          remand to permit further consideration of one related point.                                          I                                          I                    On  August  14, 1990,  a  federal  grand jury  indicted          Suveges on three counts of drug distribution, not involving death          or injury, in  violation of 21 U.S.C.    841(a)(1).   The charges          arose from  separate incidents in  which Suveges sold  cocaine to          undercover  agents.  The aggregate amount  of cocaine involved in          the three transactions totalled 10.19 grams.                    On  November 1,  1990,  Suveges pleaded  guilty to  the          charges pursuant  to a plea agreement which provided, inter alia,                                                                _____ ____          that the government would not oppose a two-level reduction in his          offense level  for acceptance  of responsibility.1   The criminal          docket  sheet indicates  that,  before Suveges  pled guilty,  the          prosecution did not  file or serve  an information notifying  him          that increased  punishment might  result  from certain  specified                                        ____________________               1Notwithstanding that the probation office used the November          1, 1989 version of the federal sentencing guidelines in preparing          the  presentence report,  the  November 1,  1990  version of  the          guidelines  applies  to  this  case.     See  United  States   v.                                                   ___  ______________          Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) ("Barring  any          __________          ex post facto problem, a defendant is to be punished according to          __ ____ _____          the  guidelines in  effect at  the time  of sentencing.").   This          bevue is of no consequence, however,  as the guidelines affecting          Suveges's  sentence  are  the  same  in  both  incarnations.   In          particular, the  career offender guideline, quoted  infra note 4,                                                              _____          was not changed.                                          2          prior  convictions.   See 21 U.S.C.    851(a)(1).2   Nonetheless,                                ___          paragraph one  of the plea  agreement specified that  Suveges was          subject  to a  potential  30-year maximum  prison  term and/or  a          $2,000,000  fine,  as  well  as  a  mandatory  six-year  term  of          supervised release.  The statutory  mosaic makes clear that  this          is an enhanced penalty regime prescribed for repeat offenders.3                                        ____________________               2The statute provides in relevant part:                    No person who stands convicted of an  offense                    under  this part  [i.e., 21  U.S.C.    841 et                                       ____                    __                    seq.]   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. . . .          28 U.S.C.   851(a)(1).               321  U.S.C.    841(b)(1)(C)  sets  forth  the penalties  for          distributing less than 500  grams of cocaine.  In  relevant part,          this  statute provides that, in instances  where death or serious          injury  do not  follow the  use of  the controlled  substance, an          offender:                    shall be sentenced to  a term of imprisonment                    of not more than 20 years . . . a fine not to                    exceed . . .  $1,000,000 if the person is  an                    individual  . .  . or  both.   If any  person                    commits such a  violation after  one or  more                    prior convictions  for .  . . a  felony under                    any  other .  .  .  law of  a  State,  . .  .                    relating to narcotic drugs, . . . such person                    shall be sentenced to a term of  imprisonment                    of not more than 30 years . . . a fine not to                    exceed .  . . $2,000,000 if the  person is an                    individual  .  . .  or  both.   Any  sentence                    imposing  a term  of imprisonment  under this                    paragraph shall,  in  the absence  of such  a                    prior conviction, impose a term of supervised                    release  of at least 3 years . . . and shall,                    if there was such  a prior conviction, impose                                          3                    During  the course of Suveges's change-of-plea hearing,          the  district judge initially warned him that he would be subject          to  a 20-year  maximum  prison term  and a  three-year supervised          release term.  These are the maxima that 21 U.S.C.   841(b)(1)(C)          prescribes for first  offenders.  See supra note 3.   Despite the                                            ___ _____          fact  that  the government  had  neither  filed an  informational          notice  nor  sought  a sentence  enhancement,  Suveges's attorney          informed  the judge  that a  30-year prison  term and  a six-year          supervised release  term were available  in Suveges's case.   The          judge accepted the  volunteered correction, warned Suveges  about          these possible penalties, and, when Suveges reaffirmed his desire          to plead guilty, accepted the changed plea.                    On November  19, 1990, the probation  office prepared a          presentence investigation report (PSI Report) which revealed that          Suveges  had a  myriad of  prior convictions.   Among  these were          state-court   convictions  for  armed  robbery  (1982),  unlawful          trafficking  in drugs  (1983), and  reckless conduct  involving a          dangerous weapon (1987).   As a result of these  convictions, the          probation officer concluded that Suveges qualified for  treatment          as  a  career  offender under  U.S.S.G.     4B1.1.4   The  career                                        ____________________                    a term  of supervised  release of at  least 6                    years   in   addition   to   such   term   of                    imprisonment.               4This guideline provides that:                    A defendant  is a career offender  if (1) the                    defendant was at least eighteen years  old at                    the  time of  the  instant  offense, (2)  the                    instant offense  of  conviction is  a  felony                    that  is  either a  crime  of  violence or  a                                          4          offender guideline  boosted Suveges's overall offense  level from          ten to thirty-two and shifted  his criminal history category from          V  to VI.   In turn,  these higher  integers yielded  a guideline          sentencing range  (GSR)  of  210-262 months.    Had  Suveges  not          qualified as a  career offender,  the GSR would  have been  21-27          months.                    Suveges and  his attorney  filed objections to  the PSI          Report.   The  district court  considered  these objections  at a          sentencing  hearing  held on  March  4,  1991.   Defense  counsel          protested  the use  of  the  career  offender guideline  both  on          constitutional grounds and because  Suveges had not been informed          that he might  be treated as a career  offender before he changed          his  plea.  The court inquired whether Suveges wished to withdraw          his  guilty plea.   When he  declined,   the court  overruled his          objections, applied the career  offender guideline, and sentenced          him  to a prison term of 210 months.   The court also imposed the          six-year  supervised  release  term   mandated  by  21  U.S.C.             841(b)(1)(C) for repeat offenders, see supra note 3, but declined                                             ___ _____          to levy  a fine due to Suveges's  straitened financial condition.          Suveges did not appeal this sentence.                    On October 2, 1992, Suveges filed this motion to vacate          his sentence under U.S.C.    2255.  Read in conjunction  with his                                        ____________________                    controlled  substance  offense,  and (3)  the                    defendant  has  at  least  two  prior  felony                    convictions of either a crime of  violence or                    a controlled substance offense.          U.S.S.G.   4B1.1.                                          5          supporting memorandum, Suveges's petition  limned a single claim:          that his sentence  was unlawful because the  government, prior to          the court's acceptance of his guilty plea, did  not file or serve          an informational  notice  detailing the  prior convictions  which          were  later used to  establish career  offender status.   Suveges          contended  that the  absence of  such a  notice violated  both 21          U.S.C.   851(a)(1) and the Due  Process Clause, thereby requiring          that  he be  resentenced without  resort  to the  career offender          guideline.    After  studying   the  government's  response,  the          district court summarily denied the section 2255 petition.   This          appeal followed.                                          II                                          II                    On appeal, Suveges maintains that the government had an          obligation to  file and serve an  informational notice specifying          its  intent to  employ the  career offender guideline  before his          guilty plea took  effect.  The government's failure to  do so, he          contends,  disabled the  court from  sentencing  him as  a career          offender.   The government demurs.   Relying on  United States v.                                                           _____________          Sanchez, 917 F.2d 607, 616 (1st  Cir. 1990), cert. denied, 111 S.          _______                                      _____ ______          Ct.  1625  (1991),  it asserts  that  21  U.S.C.    851(a)(1)  is          inapposite  to career  offender status;  and that,  therefore, an          informational notice  was not  essential because  Suveges's prior          convictions  were used  merely to  establish his  career offender          status  under  the  sentencing guidelines     not  to  expand the          maximum  penalties  that Congress,  in  the  first instance,  had          prescribed for the offense(s) of conviction.                                            6                    While we agree that Sanchez defeats Suveges's attack on                                        _______          the  lower court's  use  of the  career  offender guideline,  the          record  indicates  that  the   district  judge  and  the  parties          incorrectly  assumed that  Suveges  was subject  to the  enhanced          penalties  provided by 21  U.S.C.   841(b)(1)(C)  even though the          government  had   not  sought  enhancement  under   21  U.S.C.             851(a)(1).    Consequently,  we think  it  is  important that  we          clarify the situation.                      In Sanchez, this court  held an informational notice to                       _______          be obligatory  under 21  U.S.C.    851 only  in  cases where  the          government  seeks to  enhance  the statutory  minimum or  maximum                                             _________          penalties that apply  to a  given defendant.   It follows,  then,          that  section 851 is not in play,  and an informational notice is          not required, in  a situation  where, as here,  the defendant  is          sentenced as a career offender to a prison term that falls within          a non-enhanced statutory minimum-maximum range.  For example, the          defendants  in Sanchez received 360-month prison terms.  As these                         _______          were within  the range  prescribed for  first offenders  under 21          U.S.C.   841(b)(1)(A), ten years to life, an informational notice          was not  required.  See Sanchez, 917 F.2d at 616; see also United                              ___ _______                   ___ ____ ______          States v.  Elwell, 984 F.2d  1289, 1297  (1st Cir.)  (reaffirming          ______     ______          position  adopted  in Sanchez),  cert.  denied, 113  S.  Ct. 2429                                _______    _____  ______          (1993).   Our  sister circuits  toe  the same  line.   See United                                                                 ___ ______          States v. Day, 969  F.2d 39, 48 (3d  Cir. 1992) (explaining  that          ______    ___          "the government is not required to file a pretrial information to          subject  a defendant  to sentencing  as  a career  offender under                                          7          U.S.S.G.    4B1.1"); United States v. Koller, 956 F.2d 1408, 1417                               _____________    ______          (7th Cir. 1992); United  States v. Whitaker, 938 F.2d  1551, 1552                           ______________    ________          (2d  Cir. 1991), cert.  denied, 112 S.  Ct. 977  (1992); Young v.                           _____  ______                           _____          United  States, 936 F.2d 533, 536 (11th Cir. 1991); United States          ______________                                      _____________          v.  McDougherty, 920 F.2d 569, 574 (9th Cir. 1990), cert. denied,              ___________                                     _____ ______          111 S. Ct. 1119 (1991); United States v. Marshall, 910 F.2d 1241,                                  _____________    ________          1245 (5th  Cir. 1990), cert. denied,  111 S. Ct.  976 (1991); see                                 _____ ______                           ___          generally United States v.  Novey, 922 F.2d 624, 629  (10th Cir.)          _________ _____________     _____          (holding  that   851 applies  when prior convictions  are used to          increase  the  minimum  or  maximum  statutory  sentence),  cert.                                                                      _____          denied, 111 S.  Ct. 2861  (1991); United States  v. Wallace,  895          ______                            _____________     _______          F.2d  487, 489-90  (8th  Cir. 1990)  (observing that,  although            851(a)(1) predates the  sentencing guidelines, the  guidelines do          not require  the  filing of  an informational  notice when  using          prior convictions for sentence-enhancement purposes).                    It would be pleonastic to repeat the reasoning of these          numerous cases.  Suffice  it to say that an  informational notice          under 21 U.S.C.    851(a)(1) was not a necessary  precondition to          either the change  of plea  or the imposition  of sentence  since          Suveges, even  after  the  career  offender  guideline  attached,          received an incarcerative sentence of 17 1/2 years, as opposed to          the  non-enhanced statutory  maximum  of 20  years applicable  to          first offenders under  the statute of conviction.   In as much as          application of  the career offender  guideline to Suveges  in the          circumstances of this case comported with Due Process Clause, the          lower  court's summary denial of   2255 relief was, by and large,                                          8          proper.5                                         III                                         III                    There remains  one small  stumbling block.   The record          indicates that Suveges did receive an enhanced supervised release          term.   The district court imposed the mandatory minimum six-year          supervision  term that  21 U.S.C.    841(b)(1)(C)  prescribes for          repeat offenders.  This constituted an increased punishment which          required the filing and service  of an informational notice under          section 851(a)(1).  Nonetheless,  the court ignored the statutory          requirement.   The  filing  of such  an  informational notice  is          jurisdictional.  See United States v. Belanger, 970 F.2d 416, 418                           ___ _____________    ________          (7th Cir. 1992)  ("Failure to  file the [   851] notice prior  to          trial  deprives the district  court of jurisdiction  to impose an          enhanced  sentence."); Novey,  922 F.2d  at 627 (same);  see also                                 _____                             ___ ____          Hardy v. United  States, 691 F.2d 39, 41 (1st  Cir. 1982) (noting          _____    ______________          that if the government  does not seek a sentence  enhancement the          district  court  "is without  authority  to  enhance on  its  own          motion.").   Thus, the  district  court lacked  the authority  to          enhance Suveges's supervised release term to six years.6                                        ____________________               5Suveges's due process argument is  inextricably intertwined          with his  statutory  argument.   Thus,  our  conclusion  that  no          violation   of  21   U.S.C.      851(a)(1)  occurred   serves  to          defenestrate Suveges's constitutional claim.               6In the  absence of other  statutory authority, 18  U.S.C.            3583 authorizes district  courts to  impose up to  five years  of          supervised  release  depending  upon  the  classification   of  a          defendant's  crimes.   The district  court categorized  Suveges's          crimes  as Class A  felonies.  This  appears to be  in error, for          Class  A  felonies are  felonies  punishable  by  death  or  life                                          9                    To  be  sure,  Suveges  did  not  object  below  to the          imposition  of the enhanced term of supervised release and he did          not  appeal his sentence  in the first instance.   The failure to          raise  this objection earlier  constitutes a  procedural default.          See, e.g.,  Ford v. United  States, 983  F.2d 897, 898  (8th Cir.          ___  ____   ____    ______________          1993) (per curiam).  Hence, Suveges must show cause and prejudice          to  obtain collateral relief at this juncture.  See United States                                                          ___ _____________          v. Frady, 456 U.S. 152, 167-68 (1982).  Yet, the record before us             _____          suggests that both cause and prejudice arguably might be present.          Defense counsel, seemingly  unaware that such  a penalty was  not          required   unless   the   government   sedulously   followed  the          enhancement  procedures  set  forth  in 21  U.S.C.     851(a)(1),          invited  the  court  to  apply the  enhanced  recidivist  penalty          embodied  in 21 U.S.C.    841(b)(1)(C).  Such  an oversight could          conceivably constitute sufficient cause  to excuse the procedural          default before the district court.  Cf., e.g., Hardy, 691 F.2d at                                              ___  ____  _____          42  (noting that a lesser showing  of cause is required where the          district court  lacked authority  to impose the  sentence because          the  requirements  of    851 were  not  met).   Prejudice appears          rather  obvious:     after  all,  Suveges   received  a  six-year          supervised release  term notwithstanding  that the governing  law          only authorized a maximum three-year term.  In  view of  the fact                                        ____________________          imprisonment.    See   18  U.S.C.      3559(a)(1).    Absent   an                           ___          informational notice  sufficient to trigger a    851 enhancement,          Suveges's  crimes were  punishable by  a maximum  prison term  of          twenty years and,  thus, constituted  Class C felonies.   See  18                                                                    ___          U.S.C.   3559(a)(3).  Under 18 U.S.C.   3583(b)(2), no  more than          three  years of supervised release  may be imposed  for a Class C          felony.                                          10          that  the parties did  not focus on  these issues the  first time          around, we think the most appropriate course is to remand so that          the  district court  may  reconsider this  aspect of  the matter.          Therefore, the  judgment below  is affirmed  in part and  vacated          only  in  respect  to the  imposition  of  the  six-year term  of          supervised release.  The matter is remanded to the district          court for further proceedings consistent with this opinion          It is so ordered.          It is so ordered.          ________________                                          11
