                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4551



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CARRIE B. HOUSER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-00-211)


Submitted:   July 29, 2005             Decided:   September 14, 2005


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Randolph M. Lee, Charlotte, North Carolina, for Appellant. Robert
James Conrad, Jr., C. Nicks Williams, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              A federal grand jury indicted Carrie B. Houser on one

count of conspiracy to possess with intent to distribute two

kilograms or more of cocaine after having been convicted previously

of felony possession of opium on or about November 19, 1987, in

violation of 21 U.S.C. §§ 846, 841, and 851 (2000), and one count

of conspiracy to import into the United States two kilograms or

more of cocaine after having been previously convicted of felony

possession of opium on or about November 19, 1987, in violation of

21   U.S.C.    §§   963   and    960      (2000).    The    government    filed   an

information     pursuant        to   21    U.S.C.    §   851,   stating    that   on

November 19, 1987, Houser was convicted in the Superior Court of

Essex County, New Jersey, of possession of opium.                On July 3, 2001,

Houser pled guilty without a plea agreement to both counts of the

indictment.

              The district court sentenced Houser to 120 months in

prison.   Houser timely appealed.                 Counsel has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), stating

that, in his opinion, there are no meritorious grounds for appeal,

but arguing that the district court erred in imposing an enhanced

sentence pursuant to 21 U.S.C. § 851.                    Counsel and Houser have

filed supplemental briefs addressing the impact of United States v.

Booker, 125 S. Ct. 738 (2005), on Houser’s sentence.                      We affirm

Houser’s convictions and sentence.


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            Under   21   U.S.C.   §§     841(b)(1)   and   960(b)(2)(B),   the

statutory sentence for possession of more than 500 grams of cocaine

is a minimum of five years and a maximum of forty years.              If the

defendant   has     a   prior   felony    drug   conviction,   however,    the

mandatory minimum sentence is ten years and the statutory maximum

sentence is life imprisonment.             Id.   The indictment, to which

Houser pled guilty, charged her with conspiracy to possess with

intent to distribute and to import two kilograms or more of

cocaine.    The district court, finding that Houser was responsible

for more than 500 grams but less than two kilograms of cocaine for

sentencing purposes, concluded that Houser was subject to the

enhancement based on her November 1987 conviction for possession

with intent to distribute a controlled substance.

            Houser argues that she is not subject to the enhanced

penalty for a prior felony conviction because the pretrial notice

she received pursuant to 21 U.S.C. § 851 was inadequate to support

an enhanced sentence in that it cited a charge that had been

dismissed rather than the offense for which she had been convicted.

Because Houser failed to challenge the § 851 enhancement in the

district court, it is reviewed for plain error.             Fed. R. Crim. P.

52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993).

            Section 851(a)(1) states in relevant part:

     No person . . . 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

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      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.

Id.   The purpose of § 851 is to allow the defendant an opportunity

to contest the validity of the prior convictions used to enhance

his sentence.     United States v. King, 127 F.3d 483, 489 (6th Cir.

1997); United States v. Gonzalez-Lerma, 71 F.3d 1537, 1541 (10th

Cir. 1995); United States v. Williams, 59 F.3d 1180, 1185 (11th

Cir. 1995); United States v. Steen, 55 F.3d 1022, 1026 (5th Cir.

1995); United States v. Campbell, 980 F.2d 245, 252 (4th Cir.

1992).    The § 851 notice must contain sufficient information to

enable the defendant to identify the prior conviction upon which

enhancement is based and make an informed decision regarding

whether to challenge the information.               United States v. Severino,

316 F.3d 939, 943 (9th Cir.), cert. denied, 540 U.S. 827 (2003);

United States v. Layne, 192 F.3d 556, 576 (6th Cir. 1999).                 Even if

there are errors in the § 851 information, “[i]f the defendant,

reading    the   information       in     context,    will    have   no    trouble

understanding    which     prior       conviction    the   prosecutor     means   to

identify, the information then has stat[ed] . . . the previous

convictions, and the statutory purpose of providing defendant

notice has been satisfied.” Severino, 316 F.3d at 943-44 (internal

citation and quotation omitted); Steen, 55 F.3d at 1028.

            In this case, the § 851 notice identified Houser’s prior

felony    drug   offense    as     a    November    19,    1987   conviction      for


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possession of opium.       (R. 12).   In fact, Houser’s November 19, 1987

conviction   was     for    possession   with    intent     to    distribute   a

controlled substance; the possession charge had been dismissed.

Although the government incorrectly identified the conviction as

for   “possession”    instead    of    for    “possession    with    intent    to

distribute,” the information correctly identified the date of the

drug conviction and the court in which the conviction occurred.

Under these circumstances, we conclude that the § 851 notice

provided Houser with sufficient notice to identify the conviction

upon which the government relied in seeking the enhancement.

           Houser    also    argues    that   her   sentence     could   not   be

enhanced because the district court failed to comply with the

requirements of § 851(b).       This provision states:

      If the United States attorney files an information under
      this section, the court shall after conviction but before
      pronouncement of sentence inquire of the person with
      respect to whom the information was filed whether he
      affirms or denies that he has been previously convicted
      as alleged in the information, and shall inform him that
      any challenge to a prior conviction which is not made
      before sentence is imposed may not thereafter be raised
      to attack the sentence.

Id.   However, the district court failed to conduct such a colloquy

in this case.

           In United States v. Ellis, 326 F.3d 593 (4th Cir.), cert.

denied, 540 U.S. 907 (2003), the defendant challenged the district

court’s failure to conduct a § 851(b) colloquy.                  The government

notified the defendant that it was seeking an enhanced sentence


                                      - 5 -
based on prior convictions.      Id. at 596.      The presentence report

(“PSR”) again also advised the defendant of the aggravating effect

of the prior convictions.       The defendant did not object to that

portion of the PSR and acknowledged the aggravating effect of the

prior convictions at the sentencing hearing.            Id. at 599.   This

court concluded that the district court’s failure to comply with

the notification requirement of § 851(b) was plain error.              Id.

Nonetheless, the court held that, because the defendant apparently

was on notice of the enhancement and failed to object to it, the

error did not affect his substantial rights.           Id. (applying plain

error analysis).

             Similarly, in this case, Houser received § 851 notice

which, as stated above, adequately notified her of the prior felony

drug offense upon which the government sought to enhance her

sentence.    The prior felony drug offense was included in the PSR,

both in the career offender section and in the discussion of

Houser’s criminal history, yet Houser made no objection to the

validity of this conviction.        Finally, the court made clear at

sentencing that Houser faced a statutory mandatory minimum sentence

and   gave   Houser   an   opportunity    to   speak   before   pronouncing

sentence.    Even so, Houser did not object to the use of her prior

conviction to enhance her sentence.        Because it is clear from the

record that Houser would not have challenged her prior conviction

even if the district court had conducted the § 851 colloquy, we


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find   that    the    court’s   failure     to   comply    with    the   §   851(b)

requirements did not affect Houser’s substantial rights.

              In addition, Houser argues that her sentence is invalid

under Booker.        The Supreme Court held in Booker that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

Booker, 125 S. Ct. at 750.            The Court remedied the constitutional

violation     by   severing     two    statutory     provisions,    18   U.S.C.   §

3553(b)(1) (2000) (requiring courts to impose a sentence within the

applicable     guideline    range),      and    18   U.S.C.   §   3742(e)    (2000)

(setting forth appellate standards of review for guideline issues),

thereby making the guidelines advisory.               Id. at 756-57.      Houser’s

sentence did not implicate Booker because it was based on facts she

admitted in her guilty plea and the fact of a prior conviction.

See id. at 756.

               As required by Anders, we have examined the entire

record in this case and found no error.                 Accordingly, we affirm

Houser’s convictions and sentence.                   This court requires that

counsel inform his client in writing of her right to petition the

Supreme Court of the United States for further review.                   If Houser

requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation.                Counsel’s motion must


                                        - 7 -
state that a copy thereof was served on Houser.         We dispense with

oral   argument   because   the   facts   and   legal   contentions   are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                                AFFIRMED




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