                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               MAY 24, 2010
                             No. 09-13599                       JOHN LEY
                         Non-Argument Calendar                    CLERK
                       ________________________

               D. C. Docket No. 08-00161-CR-ORL-22-GJK

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JONATHAN TERRELL BERNARD,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 24, 2010)

Before BIRCH, CARNES and MARTIN, Circuit Judges.

PER CURIAM:
      Jonathan Terrell Bernard appeals his conviction and 240-month sentence for

possession of cocaine with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A)(ii).

                                            I.

      After a narcotics dog gave a positive alert to two parcels, they were

delivered to a residence, one by the postal service and the other by a co-defendant.

Law enforcement agents then observed Bernard arrive at the residence, carrying

only a cell phone. He was seen leaving a few minutes later carrying a heavy black

bag, which he placed in the driver’s side rear seat area of his car. The agents

followed Bernard and stopped him at a red light. He was removed from his car,

handcuffed, and placed in the back of a DEA car. His car was then moved to an

adjacent parking lot where the same narcotics dog sniffed the exterior of the

vehicle and alerted to the presence of drugs near the driver’s side rear door. After

that alert, the agents searched the car and found 8 kilograms of cocaine in the black

bag, which was in the rear seat area.

      Before his jury trial, the court denied Bernard’s motion to suppress the

seized cocaine, which he contends was error. Bernard concedes that the agents

had reasonable suspicion to conduct an investigatory stop but argues that he was

illegally arrested, and for that reason the search of his car cannot be justified as



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incident to his arrest. Motions to suppress present questions of law and fact. We

review a district court’s factual findings only for clear error, and its application of

the law to those facts de novo. United States v. Ponce-Aldona, 579 F.3d 1218,

1221 (11th Cir. 2009). And “we may affirm the denial of a motion to suppress on

any ground supported by the record.” United States v. Caraballo, 595 F.3d 1214,

1222 (11th Cir. 2010).

      As Bernard concedes, the initial investigatory stop was valid. Law

enforcement agents observed Bernard carry a black bag capable of concealing

narcotics from a location where parcels reasonably believed to contain narcotics

had been delivered a short time earlier. As a result, the agents had at least “a

reasonable, articulable suspicion based on objective facts” that Bernard was

engaged in criminal activity. United States v. Nunez, 455 F.3d 1223, 1226 (11th

Cir. 2006); see id. (concluding that investigatory stops were supported by

reasonable suspicion where defendants were observed carrying containers from a

suspected marijuana grow house to their vehicles). After the initial stop of the

vehicle, the narcotics dog’s alert to the presence of drugs near the driver’s side rear

door, the same area of the car that the agents had seen Bernard place the bag,

provided probable cause to search it. See United States v. Tamari, 454 F.3d 1259,

1265 (11th Cir. 2006) (“We have long recognized that ‘probable cause arises when



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a drug-trained canine alerts to drugs.’ ”). Because the search of Bernard’s car was

justified under the automobile exception to the warrant requirement, id. at

1264–65, we do not need to decide whether the search would also be justified as a

search incident to arrest. The district court did not err in denying Bernard’s motion

to suppress the seized cocaine.

                                          II.

      Bernard also contends that the district court lacked jurisdiction to enhance

his sentence based on his earlier felony drug conviction. He argues that the

government’s 21 U.S.C. § 851 notice of enhancement was defective because it did

not cite 21 U.S.C. § 841(b)(1)(A) or state that he was subject to a mandatory

minimum sentence of 20 years imprisonment. “We review the adequacy of a

section 851 notice de novo.” United States v. Ramirez, 501 F.3d 1237, 1239 (11th

Cir. 2007). Section 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
      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.

21 U.S.C. § 851(a)(1). “We have held that the notice requirement is jurisdictional:

unless the government strictly complies, the district court lacks jurisdiction to

impose the enhanced sentence.” Ramirez, 501 F.3d at 1239. See also United

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States v. Thompson, 473 F.3d 1137, 1144 (11th Cir. 2006) (“The requirements of §

851 are not precatory; they must be followed in order for the § 841 enhancements

to be applied.”).

      On its face, § 851(a)(1) requires the government to file and serve on the

defendant an information “stating in writing the previous convictions to be relied

upon,” 21 U.S.C. § 851(a)(1), but there is no requirement in the statute that the

information include the statutory basis of the proposed enhancement or its length,

see id. The lack of an affirmative obligation on the government to provide that

information in the notice is not inconsistent with § 851(a)(1)’s purposes. The

purposes of the provision are to “allow the defendant to contest the accuracy of the

information” and to “allow [the] defendant to 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.” Ramirez, 501 F.3d at 1239

(some alterations omitted). As to the first purpose of the § 851(a)(1) requirement,

the failure to identify the statutory basis of a proposed enhancement or its length

does not interfere with a defendant’s ability to challenge the validity of the prior

convictions listed in the information. As to § 851(a)(1)’s second purpose, “a

description of the prior felony drug offense [in the information] . . . enable[s]

competent defense counsel to research applicable penalties and determine his or



                                           5
her client’s maximum exposure” when “[c]oupled with the statement of charges in

the indictment.” United States v. Morales, 560 F.3d 112, 116 (2d Cir. 2009) (first

and second alteration added). Accordingly, we conclude that the information filed

and served on Bernard was sufficient to satisfy the actual requirements of §

851(a)(1), and the district court did not err by enhancing his sentence under §

841(b)(1)(A).

      AFFIRMED.




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