United States v. Felix Severino

Opinion by Judge KOZINSKI; Dissent by Judge THOMAS

Federal law imposes a mandatory minimum sentence for certain crimes, but only if the defendant has a felony drug prior. In order to render defendant eligible for the mandatory minimum, the government must allege the prior conviction in an information pursuant to 21 U.S.C. § 851 . We consider what the government must do to comply with this provision.

*942 I

The government charged Felix Severino for his role in a conspiracy to distribute cocaine and the related charges of possession and distribution. See 21 U.S.C. §§ 846 , 841(a)(1). After Severino and the United States entered into a plea agreement, the district court held a plea hearing in Anchorage, Alaska, with the Assistant United States Attorney appearing by telephone from Fairbanks.

Earlier that day, the prosecutor had filed an information in the Fairbanks federal courthouse alleging that Severino had had a prior felony drug conviction in Massachusetts, for “[possession of 1 ounce to 1 kñogram of cocaine[,] 1992-1993.” Sev-erino was, in fact, convicted in 1992 for felony possession of 1 ounce to 1 kilogram of cocaine, but in Rhode Island, not Massachusetts.

At the…

with whom Circuit Judges REINHARDT, BERZON, and RAWLINSON join, dissenting:

Congress has mandated that the government must comply with 21 U.S.C. § 851 (a) before a court may increase the sentence on the basis of a prior conviction. Because the government did not do so in this case, the district court erred in imposing the mandatory minimum sentence. Therefore, I respectfully dissent.

I

The requirements of 21 U.S.C. § 851 (a) are unambiguous and specific: Before a sentence is enhanced, the government must file an information “stating in writing the previous conviction or convictions upon which it intends to rely.” 1 Id. The consequences for neglecting to adhere to the statutory requirements are also clear: “If the requirement is not satisfied, a court may not enhance a sentence even if the defendant has prior felony drug convictions.” 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). In Hamilton , we restated the rule in our circuit that § 851(a) *949 “requires strict compliance with the procedural aspects.” Id. at 1169.

The primary difficulty with determining that the government complied with the…

316 F.3d 939 UNITED STATES of America, Plaintiff-Appellee, v. Felix SEVERINO, Defendant-Appellant. No. 00-30161. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 18, 2002. Filed January 14, 2003. COPYRIGHT MATERIAL OMITTED Bruce L. Brown, Anchorage, AK, argued for the defendant-appellant. Stephen Cooper, Assistant United States Attorney, Fairbanks, AK, argued for the plaintiff-appellee. Timothy M. Burgess, United States Attorney, Anchorage, AK, assisted on the brief. Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CR-95-00065-f-JKS. Before SCHROEDER, Chief Judge, REINHARDT, KOZINSKI, TROTT, RYMER, THOMAS, GOULD, PAEZ, BERZON, TALLMAN and RAWLINSON, Circuit Judges. Opinion by Judge KOZINSKI; Dissent by Judge THOMAS KOZINSKI, Circuit Judge. 1 Federal law imposes a mandatory minimum sentence for certain crimes, but only if the defendant has a felony drug prior. In order to render defendant eligible for the mandatory minimum, the government must allege the prior conviction in an information pursuant to 21 U.S.C. § 851 . We consider what the government must do to comply with this…