United States v. Jerry Wayne Mayfield

This opinion replaces our previous opinion, United States v. Mayfield, filed October 29, 2004, and published at 386 F.3d 1301 (9th Cir.2004), which has been withdrawn.

Defendant-appellant Jerry Wayne May-field appeals his sentence, imposed following his conviction after a jury trial, for possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841 (a). Mayfield contends the enhanced mandatory minimum sentence required by 21 U.S.C. § 841 (b)(1)(A) may not be imposed consistent with due process when the government fails to refile an information charging a prior felony drug conviction before a second trial. We conclude the government is not required to refile an information charging a prior felony drug conviction, which information it filed before the first trial, for purposes of applying a sentencing enhancement under 21 U.S.C. § 841 (b)(1)(A). We nevertheless remand for the district court’s further consideration of Mayfield’s sentence in light of United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

I. BACKGROUND

On March 25, 1997, an indictment was filed in the…