                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3800
                                    ___________

United States of America,                *
                                         *
                    Appellee,            *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska
Pablo Stallings,                         *
                                         *
                    Appellant.           *
                                         *
                                    ___________

                              Submitted: May 13, 2002

                                   Filed: August 23, 2002
                                    ___________

Before McMILLIAN, FAGG, and MELLOY, Circuit Judges.
                            ___________

MELLOY, Circuit Judge.

       Pablo Stallings was convicted of conspiracy to possess with intent to distribute
cocaine base. The government filed an information seeking to enhance Stallings’s
sentence to life imprisonment. The district court, relying upon the convictions set out
in the notice, imposed the enhancement and sentenced Stallings to life imprisonment.
Stallings now appeals his conviction and sentence. We affirm the conviction but
reverse and remand the sentence imposed.
                                           I.

       Stallings challenges his enhanced sentence contending the procedure and
notice were defective and the two prior felony convictions were not proved beyond
a reasonable doubt. “Because resolution of this claim requires us to interpret the
statute, we review de novo the district court’s use of the two prior convictions for
enhancement purposes.” United States v. Johnston, 220 F.3d 857, 860 (8th Cir.
2000). We first consider the procedural and notice challenges to the § 851(a)
information. A prerequisite for sentence enhancement under 21 U.S.C. § 841(b) is
a timely filed information detailing the prior convictions the government intends to
rely upon for sentence enhancement. See 21 U.S.C. § 851(a)(1). To satisfy the
procedural and notice requirements of the § 851(a) information, “the government
must file its information before jury selection begins, thus allowing the defendant
‘ample time [. . .] to go to trial, and to plan his trial strategy with full knowledge of
the consequences of a potential guilty verdict.’” United States v. Robinson, 110 F.3d
1320, 1327-28 (8th Cir. 1997) (quoting United States v. Johnson, 944 F.2d 396, 407
(8th Cir. 1991)). The government filed the § 851(a) information on Friday, July 13,
2001. Stallings’s trial commenced on Tuesday, July 17, 2001. Stallings’s procedural
contentions are without merit. Stallings received timely notice of the government’s
intent to seek the § 851(a) enhancement before trial and had an opportunity to
challenge the convictions before the sentence was imposed. 21 U.S.C. § 851(b), (c);
see also Robinson, 110 F.3d at 1328 (filing of information minutes before voir dire
satisfied requirements of § 851(a)(1)).

      Stallings contends the government failed to prove the two prior convictions
beyond a reasonable doubt. The two predicate convictions offered by the government
for enhancement purposes were a 1993 California conviction and a 1987 Nevada
conviction. At sentencing, defense counsel entered a valid objection to the prior
convictions on the basis of “identity, relevance, and foundation.” Therefore, under
21 U.S.C. § 851(c)(1), the government had the burden to prove the two prior felony

                                          -2-
drug convictions beyond a reasonable doubt. Stallings does not challenge on appeal
the use of the 1987 Nevada conviction. However, he raises a variety of challenges
to the use of the 1993 California conviction. Based upon the record, we conclude
judgment was never properly entered against Stallings in connection with the
California conviction, and, consequently, reliance on that conviction for purposes of
21 U.S.C. § 841(b)(1)(A)(viii) sentence enhancement was improper.1

       At the sentencing hearing, the government introduced a number of exhibits in
an attempt to prove up the California conviction. These exhibits show that the
defendant was charged with felony possession for sale of cocaine base in violation
of section 11351.5 of the Health and Safety Code of California. The defendant
entered a plea of nolo contendere. He was sentenced to three years probation, subject
to the serving of 78 days in the county jail, and ordered to pay restitution and court
costs. The sentencing documents also show that "imposition of sentence was
suspended." Subsequently, a revocation of probation proceeding was commenced in
the Superior Court of California, County of Alameda. However, the record made at
the sentencing hearing indicates no further action was taken on the California
probation officer’s revocation recommendation. The remaining reference to the
California conviction is in an Oregon Presentence Report, introduced into evidence
at the sentencing hearing, which states that California “revocation proceedings are
unlikely given Stallings’s conviction in Federal Court.”2


      1
       Stallings made a valid objection at sentencing to his California conviction.
The grounds relied upon in this opinion to invalidate the sentence were raised through
questioning by Judge McMillian at oral argument. The parties were then given the
opportunity to file supplemental briefs on the issue of whether there was ever a
judgment entered by the California courts. The court is now in receipt of the
supplemental briefing on that issue.
      2
       The referenced federal court conviction is a 1995 conviction for Interstate
Travel in Aid of a Crime of Racketeering prosecuted in the United States District
Court for the District of Oregon.

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       The final disposition of the California conviction resulted in Stallings receiving
probation with the imposition of sentence suspended. Although probation revocation
proceedings were commenced by the probation office, the California court neither
revoked probation nor did it pronounce judgment. See Cal. Penal Code § 1203.2(b);
see also People v. Smith, 90 Cal. Rptr. 811, 814 (Cal. Ct. App. 1970) (“It is equally
clear that probation was revoked . . . and a bench warrant was issued so that judgment
and sentence could be imposed, imposition thereof having been suspended
approximately three years earlier . . . .”). If imposition of sentence was suspended,
and probation was never revoked, then there is no judgment entered against the
defendant. As explained in an early California Supreme Court case:

      When judgment is not pronounced and further proceedings are
      suspended, there is no judgment against [the defendant]. His activities
      are limited only by the terms of the probationary order, under the
      supervision of the probation officer. Upon revocation of probation the
      defendant is entitled to a hearing and to be sentenced, before he can be
      committed to the appropriate institution.

Stephens v. Toomey, 338 P.2d 182, 187 (Cal. 1959) (citation omitted); see also
People v. Pennington, 261 Cal. Rptr. 476, 478 (Cal. Ct. App. 1989) (“Where no
sentence is imposed at the time probation is granted, a subsequent decision
terminating probation requires that judgment be pronounced.” (citing Cal. Penal Code
§ 1203.2, subd. (c)); United States v. Qualls, 108 F.3d 1019, 1023 (9th Cir. 1997)
(“There is no judgment pending against a probationer when the court withholds
imposition of judgment and suspends further proceedings. Because the California
court granted [the defendant] probation and suspended further proceedings, [the
defendant] does not have a final or pending judgment against him in California.”
(internal citations omitted)), aff’d en banc, 140 F.3d 824, vacated and remanded, 525
U.S. 957, rev’d on other grounds, 172 F.3d 1136.




                                          -4-
       In United States v. Robinson, 967 F.3d 287 (9th Cir. 1992), the Ninth Circuit
concluded that under California law a probation order is not a “judgment” when the
imposition of sentence is suspended. See id. at 293. The Ninth Circuit noted that
California law provides: “[W]hen a sentencing court grants probation after a
conviction, it may suspend the imposition of sentence, in which case no judgment of
conviction is rendered, or it may impose sentence and order its execution to be stayed.
In the latter case only, a judgment of conviction is rendered.” Id. (citing People v.
Arguello, 381 P.2d 5, 6 (Cal. 1963)); see also United States v. Haggerty, 85 F.3d 403,
406 (8th Cir. 1996) (citing Robinson for the proposition that a probation order is not
a judgment). In Stallings’s case, there was no judgment of conviction entered and the
appropriate time for revoking his probation and entering judgment has lapsed. See
Cal. Penal Code §1203.3(a) (“The court shall have authority at any time during the
term of probation to revoke, modify, or change its order of suspension of imposition
or execution of sentence. . . .”); see also In re Perez, 418 P.2d 6, 11 (Cal. 1966) (“If
probation was timely revoked, judgment could be imposed at any time thereafter.”);
Smith, 90 Cal. Rptr. at 814 (“It is also settled that an order revoking probation, to be
valid, must be made within the period fixed in the order of probation. If not revoked
within that period, the probation terminates automatically on the last day.”).
Accordingly, no valid judgment has been entered against Stallings and, therefore, the
enhanced sentence imposed in reliance upon the California conviction was improper.

                                          II.

       Stallings also contends the evidence was insufficient to support his conviction.
We review sufficiency of the evidence challenges in the light most favorable to the
verdict, giving the government the benefit of all reasonable inferences. United States
v. Calderin-Rodriquez, 244 F.3d 977, 983 (8th Cir. 2001). Under this standard, we
find Stallings’s contentions without merit. Witnesses testified that Stallings shipped
cocaine through the mail and arranged for others to deliver crack on his behalf. The
government also introduced wiretap evidence linking Stallings with admitted drug

                                          -5-
distributors and physical evidence including two scales, an Exacto knife, a razor, and
a large amount of cash seized from a storage locker rented to Stallings. Stallings
contends that the drug dealers testifying against him were motivated to reduce their
sentences through cooperation with the government. Issues of witness credibility and
bias, however, were resolved by the jury and we do not reconsider these issues on
appeal. Id. at 918.

                                         III.

      Finally, Stallings contends that the sentencing disparity between crack cocaine
and powder cocaine crimes violates the Due Process Clause. This argument has been
repeatedly considered and rejected by this court. See United States v. Johnson, 108
F.3d 919, 922 (8th Cir. 1997) (citing United States v. Carter, 91 F.3d 1196 (8th Cir.
1996); United States v. Smith, 82 F.3d 241, 244 (8th Cir. 1996), cert. denied, 519
U.S. 856 (1996)). Only the court en banc can overrule an earlier panel decision.
United States v. Riza, 267 F.3d 757, 760 (8th Cir. 2001).

      Accordingly, we affirm the conviction, and remand for re-sentencing.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -6-
