United States v. Felix Severino

dissenting:

The conclusion that a district court has authority to proceed with sentencing despite the government’s admitted failure to comply with the strict procedural requirements of 21 U.S.C. § 851 (a) conflicts with the decisions of eight other circuits, the plain statutory language and legislative history. It also cannot be reconciled with our Circuit’s conclusion that the statute imposes mandatory requirements that preclude sentence enhancement if not observed. United States v. Hamilton, 208 F.3d 1165, 1168 (9th Cir.2000), cert. denied, 531 U.S. 867 , 121 S.Ct. 164 , 148 L.Ed.2d 111 (2000). Thus, I must respectfully dissent.

I

The requirements of 21 U.S.C. § 851 (a) are unambiguous and specific:

The consequences for neglecting to adhere to the statutory procedures are also clear. “The requirement is mandatory, and a district court cannot enhance a defendant’s sentence based on a prior conviction unless the government satisfies the requirement.” United States v. Layne, 192 F.3d 556, 575 (6th Cir.1999) (citing United States v. Williams, 899 F.2d 1526, *862 1529 (6th Cir.1990)), cert. denied, 529 U.S. 1029 , 120 S.Ct. 1443 , 146 L.Ed.2d 330 (2000).

Eight other circuits…

Opinion by Judge RYMER; Dissent by Judge THOMAS

Felix Severino appeals his sentence for one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846 , and seven counts of distributing a controlled substance in violation of 21 U.S.C. § 841 (a)(1). The district court sentenced him to a mandatory minimum term of 120 months as a recidivist under 21 U.S.C. § 841 (b)(1)(B). Severino argues that his sentence was improperly enhanced without the due process required by 21 U.S.C. § 851 because the information was defectively filed and served. We disagree, and affirm.

I

Severino and 17 others were charged in a Superseding Indictment filed December 13, 1995 with conspiracy to distribute cocaine and related charges of distribution and possession in violation of 21 U.S.C. §§ 846 and 841(a)(1). He and the United States entered into a written plea agreement under Fed.R.Crim.P. 11(e)(1)(C) on January 9, 1996. Severino admitted guilt on the eight drug counts for which he had been indicted. Among other things, the agreement provides that “[a]ny prior record including any drug convictions will be brought to the attention of the court”; and it acknowledges that “[i]f…

268 F.3d 850 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. FELIX SEVERINO, DEFENDANT-APPELLANT. No. 00-30161 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 9, 2001 Filed September 28, 2001 Bruce L. Brown, Anchorage, Alaska, for the defendant-appellant. Stephen Cooper, Assistant United States Attorney, Fairbanks, Alaska, for the plaintiff-appellee. Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief District Judge, Presiding. D.C. No. CR-95-00065-F-JKS Before: Rymer, Thomas and McKeown, Circuit Judges. Opinion by Judge Rymer; Dissent by Judge Thomas Rymer, Circuit Judge: 1 Felix Severino appeals his sentence for one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. &#167 846, and seven counts of distributing a controlled substance in violation of 21 U.S.C. &#167 841(a)(1). The district court sentenced him to a mandatory minimum term of 120 months as a recidivist under 21 U.S.C. &#167 841(b)(1)(B). Severino argues that his sentence was improperly enhanced without the due process required by 21 U.S.C. &#167 851 because the information…