                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                   September 12, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AM ERICA,
              Plaintiff - Appellee,
 v.                                                      No. 04-3206
 CARROLL JAM ES FLOW ERS,
              Defendant - Appellant.


                                     OR DER
                             Filed September 12, 2006


Before H E N RY, M cKA Y, and EBEL, Circuit Judges.



      Appellant’s petition for rehearing is granted for the purpose of revising the

published opinion filed on M arch 22, 2006. The revised opinion, filed nunc pro

tunc to M arch 22, 2006, is attached.



                                        Entered for the Court,
                                        Elisabeth A . Shumaker, Clerk of Court


                                        By:
                                              Deputy Clerk
                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                      PU BL ISH
                                                                      March 22, 2006
                    UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AM ERICA,
              Plaintiff - Appellee,
 v.                                                     No. 04-3206
 CARROLL JAM ES FLOW ERS,
              Defendant - Appellant.


          A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                         FOR T HE DISTRICT OF KANSAS
               (D .C . N o. 03-C V -3051-SAC; 00-CR-40024-08-SAC)



Submitted on the briefs: *

Carroll James Flowers, pro se.

Rudy E. Verner and Peter J. Krumholz of Davis Graham & Stubbs LLP, Denver,
Colorado, for Defendant-Appellant.

Eric F. M elgren, United States Attorney, and Anthony W . M attivi, Assistant
United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-
Appellee.


Before H E N RY, M cKA Y, and EBEL, Circuit Judges.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore submitted without oral argument.
M cK A Y, Circuit Judge.




      Appellant pled guilty to Count I of a multiple-count indictment for

conspiracy to manufacture or distribute more than one kilogram of

methamphetamine in violation of 21 U.S.C. § 841(a)(1). Prior to Appellant’s plea

of guilty and in an attempt to raise the statutory minimum applicable to

Appellant’s eventual sentence, the government filed an information with the

district court outlining Appellant’s prior felony drug conviction. Pursuant to 21

U.S.C. § 851(a)(1), the government was also required to serve the information on

Appellant before the entry of the plea agreement. In an attempt to do so, the

government faxed a copy of the information to Appellant’s attorney. The district

court accepted the guilty plea and set a date for sentencing. Supp. Rec., Vol. III,

at 21-22.

      At sentencing, based on Appellant’s total offense level and criminal

history, the sentencing range recommended by the United States Sentencing

Guidelines M anual (“Guidelines”) w as betw een 210 months and 262 months. Id.,

Vol. II, at 50. However, based on the prior felony conviction contained in the §

851(a)(1) information, the district court increased the statutory minimum

applicable to Appellant to 240 months. Accordingly, the effective sentencing

range considered by the district court was betw een 240 months and 262 months.

                                         2
Id.; see also id., Vol. IV, at 3. The district court sentenced Appellant to 240

months’ incarceration followed by a ten-year term of supervised release.

      On appeal Appellant argues, inter alia, that the district court was without

jurisdiction to impose an enhanced sentence under 21 U .S.C. § 851(a)(1) because

the government failed to properly serve the § 851(a)(1) information. Appellant

did not object to the district court’s reliance on the § 851(a)(1) enhancement

during sentencing or directly appeal on that ground. The matter is now before us

on collateral review .

      W hether § 851(a)(1) is considered jurisdictional is critical for A ppellant.

Jurisdictional defects cannot be procedurally defaulted or forfeited during the

course of litigation. See, e.g., United States v. Broce, 781 F.2d 792, 797 (10th Cir.

1986). Consequently, if § 851(a)(1) is not labeled jurisdictional, then Appellant

may not now advance the argument that he never received the § 851(a)(1)

information in a timely fashion.

      Section 851(a) provides:

      (1) N o 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 U nited 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.

      In interpreting whether this statutory provision should be construed as

jurisdictional, we are guided by the recent Supreme Court case of Eberhart v.


                                          3
United States, 126 S. Ct. 403, 546 U.S. ___ (2005) (per curiam), in which the

Court distinguished “‘between a rule governing subject-matter jurisdiction and an

inflexible claim-processing rule.’” Id. at 403 (quoting Kontrick v. Ryan, 540 U.S.

443, 456 (2004)). In Eberhart, which concerns a Defendant convicted of

conspiring to distribute cocaine seeking to file an untimely post-trial motion, the

Court held that Federal Rule of Criminal Procedure 45(b)’s prohibition on

extension of time was not jurisdictional, but nevertheless required the district

court to “observe the clear limits of the Rules of Criminal Procedure when they

are properly invoked.” Id. at 406. The Court categorized Rule 45(b) as a claim-

processing rule and held that such limits are “forfeitable when they are not

properly invoked.” Id.

      The Court stated that “[i]t is implausible that the Rules considered in

Kontrick [holding that defenses made available by the time limitations of Federal

Rules of Bankruptcy Procedure may be forfeited] can be nonjurisdictional claim-

processing rules, while virtually identical provisions of the Rules of Criminal

Procedure can deprive federal courts of subject-matter jurisdiction.” Id. at 405.

Indeed, the Court went as far as to admonish those who referred to claim-

processing rules as jurisdictional, when this descriptor should be reserved “only

for prescriptions delineating the classes of cases (subject-matter jurisdiction) and

the persons (personal jurisdiction) falling within a court’s adjudicatory authority.”

Id. at 405 (internal quotation omitted).

                                           4
      Section 851(a) and its requirements fall neatly within the category of a

claim-processing rule. Section 851(a)(1) is the same type of rule as Rule 45(b)

discussed in Eberhart, where the requirement for timely-filing post-trial motions

controls the district court’s power to entertain a motion but does not govern the

court’s underlying authority to hear that type of case–it does not restrict the

district court’s subject-matter jurisdiction. Section 851(a)(1) directs the district

court in imposing a sentence, but it does not limit the district court’s subject-

matter jurisdiction over sentencing. See 18 U.S.C. § 3231 (conferring original

subject-matter jurisdiction over “all offenses against the laws of the United

States”).

      W e have sometimes confused the term “jurisdictional” and have held in

several cases that § 851’s requirements were in fact “jurisdictional.” In Eberhart,

the Court acknowledged that the imprecise use of the term, often “‘to describe

emphatic time prescriptions in rules of court,’” has led courts to improperly use

“jurisdictional” to describe rules that do not encompass subject-matter

jurisdiction. Eberhart, 126 S. Ct. at 406 (quoting Kontrick, 540 U.S. at 454). W e

now expressly overrule our previous decisions that have improperly designated

§ 851(a)’s requirements as jurisdictional. 1



      1
        W e have circulated this opinion to the en banc court pursuant to our rules.
Each member of the en banc court has concurred with our holding that § 851(a) is
not jurisdictional. We therefore overrule the following cases w ith regard to their
                                                                      (continued...)

                                           5
      W e are not alone in this conclusion. In Prou v. United States, the First

Circuit explained that “[o]nce subject-matter jurisdiction has properly attached

[through 18 U.S.C. § 3231], courts may exceed their authority or otherw ise err

without loss of jurisdiction. 199 F.3d 37, 45 (1999) (declining to hold that §

851(a)’s requirements go to the district court’s subject matter jurisdiction).

Likewise, the Seventh Circuit has held that § 851(a) “merely affects the district

courts’ power to impose penalties [and] has nothing to do with subject-matter

jurisdiction . . . .” United States v. Ceballos, 302 F.3d 679, 692 (2002); see also

Sapia v. United States, No. 03-2087, 2005 W L 3540098, at *4 (2d Cir. Dec. 28,

2005) (“W e agree with the prevailing view . . . that § 851 is not

‘jurisdictional.’”); United States v. M ooring, 287 F.3d 725, 727 (8th Cir. 2002)

(holding that § 851(a)’s requirements are not jurisdictional). But see Harris v.

United States, 149 F.3d 1304, 1306 (11th Cir. 1998) (holding that “a district court

lacks jurisdiction to enhance a sentence unless the government strictly complies

with the procedural requirements of § 851(a).”). Therefore, because we determine

that § 851(a)(1) is not jurisdictional, Appellant has forfeited his opportunity to


      1
        (...continued)
treatment of § 851(a) as jurisdictional: United States v. Ruiz-Castro, 92 F.3d
1519, 1536 (10th Cir. 1996); United States v. Wright, 932 F.2d 868, 882 (10th
Cir. 1991); United States v. Novey, 922 F.2d 624, 627 (10th Cir. 1991); United
States v. Guerrero, 89 F. App’x 140, 146 (10th Cir. 2004); United States v.
Bracamonte, No. 99-2101, 2000 W L 140004, at *1 (10th Cir. Feb. 8, 2000);
U nited States v. G onzalez-Lerm a, 71 F.3d 1537, 1540 (10th Cir. 1995); United
States v. Larsen, Nos. 90-8027, 90-8090, 1991 W L 240140, at *2 (10th Cir.
Nov. 12, 1991).
                                          6
raise, at the level of appellate review , the argument that he did not receive his

information.

      Appellant also argues that his counsel’s failure to object at sentencing to

the government’s service by fax of the § 851(a) enhancement constituted

ineffective assistance of counsel. In Appellant’s collateral attack, the district

court, after conducting a fact-finding hearing, determined that “[t]he

uncontroverted facts establish that the government complied with § 851(a) when

it served by telefax a copy of the information on defense counsel prior to the

defendant’s entry of his plea.” M emorandum and Order, 19 (D. Kan. June 14,

2004). W e disagree with the district court and hold that the government failed to

comply with § 851(a)’s service requirements.

      Service by fax does not always substitute for traditional means of service.

The Federal Rules of Criminal Procedure do not have their own service

requirements and instead adopt the service requirements found in the Federal

Rules of Civil Procedure. Fed. R. Crim. P. 49(b). The Federal Rules of Civil

Procedure allow service by fax only when the party being served by fax has

consented to it in writing. Fed. R. Civ. P. 5(b)(2)(D ). Nowhere in the record is

there any indication that Appellant gave written consent to service by fax. The

government admits that it did not strictly comply with the rules governing service

by fax and instead urges us to hold that strict compliance with the service

requirements is not necessary when the government substantially complies with

                                           7
the service requirements. For support, the government looks to other circuits that

have not required absolute compliance with the Federal Rules of Civil Procedure

when the government uses § 851. See United States v. Weaver, 905 F.2d 1466,

1481 (11th Cir. 1990); United States v. Brown, 921 F.2d 1304, 1309 (D.C. Cir.

1990).

         W e have, however, always required strict compliance with § 851. The

language of the statute, though we do not now treat it as jurisdictional, does

impose strict requirements on the government before the government can seek an

increase in the statutory mandatory maximum or minimum sentence. 21 U.S.C. §

851(a) (“No person . . . shall be sentenced to increased punishment . . .

unless . . . .”). That Congress intended § 851 to “provide[] a measure of

protection” to defendants from the use of prior convictions to change the statutory

sentences for crimes also argues in favor of strictly enforcing § 851 against the

government. See United States v. Novey, 922 F.2d 624, 628 (10th Cir. 1991).

Because the Appellant did not consent in writing to service by fax, the

government did not comply with § 851(a).

         Appellant’s counsel’s failure to object to the faulty service does not,

however, constitute ineffective assistance of counsel. Appellant points to United

States v. Prou, 199 F.3d 37 (1st Cir. 1999), to show where failure to raise a §

851(a) objection constituted ineffective assistance of counsel. In Prou, the First

Circuit held that “[w]here . . . an attorney fails to raise an important, obvious

                                             8
defense without any imaginable strategic or tactical reason for the omission, his

performance falls below the standard of proficient representation that the

Constitution demands.” Id. at 48. In Prou, the failure to object occurred after a

jury trial and conviction and where there was no possible strategic value in not

making a § 851(a) objection that would have obviously been sustained. Id. In

Appellant’s case, the alleged failure to object occurred at the change of plea

hearing where there was a strategic reason for not objecting. The transcript of the

change of plea hearing leaves no doubt that Appellant understood that

acknowledging the prior conviction and its effect on his sentencing was part of

the plea agreement. In fact the plea agreement seems predicated on the fact that

the government would use only one prior conviction instead of two for § 851(a)

purposes. Any objection to the service would probably have resulted only in a

continuance and proper service. This was not a forfeiture of a “clear winner”

objection like in Prou but a strategic litigation decision that does not constitute

ineffective assistance of counsel.

      Finally, Appellant argues that his counsel’s performance was deficient

because counsel did not file a notice of appeal or object to the inclusion of

methamphetamine in the presentence report. As to the lack of appeal, we agree

with the district court that “after considering the totality of the circumstances,

including what defense counsel knew or should have known, that defense counsel

was not deficient in failing to consult with the Appellant about an appeal.” Order

                                           9
16. As to the inclusion of methamphetamine in the presentence report, we agree

with the district court that counsel was not “unreasonable” in deciding not to

challenge information included in the presentence report. Id. at 20.

      W e, therefore, A FFIR M the judgment of the district court.




                                         10
