Gongora v. United States

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

___________________

No. 91-2136

WILFREDO GONGORA
                                a/k/a PEDRO GUERRERO,
                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,
                                Respondent, Appellee.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos  Antonio Fust , U.S. District Judge]
                                              ___________________

___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ___________________

               Wilfredo Gongora on brief pro se.
               ________________
               Daniel F. Lopez-Romo,  United States  Attorney, and Luis  A.
               ____________________                                ________
          Plaza, Assistant United States Attorney, on brief for appellee.
          _____

__________________

                                    July 13, 1993
                                  __________________


Per  Curiam.    Wilfredo  Gongora  appeals  from  a
                      ___________

            judgment dismissing his  motion to vacate his  sentence under

            28 U.S.C.  2255.   He claims that his  sentence was illegally

            enhanced  in  violation  of  21 U.S.C.   851.1    Finding  no

            illegal enhancement, we affirm.

                                       I.     

                 On September  24, 1987,  Gongora and  eight others  were

            arrested on the high seas  aboard the COLOSO II, a Panamanian

            tugboat.  The  Coast Guard  made the  arrest after  observing

            numerous  bales of marijuana  being thrown from  the tugboat.

            Gongora and the captain and  other crew members of the COLOSO

            II were charged with violating 46 U.S.C. App.  1903(a) and 18

            U.S.C.  2  (aiding and  abetting the  unlawful possession  of

            5818  kilograms of marijuana,  with the intent  to distribute

            same, on  board a vessel  subject to the jurisdiction  of the

            United  States).      A   jury  convicted  Gongora  and   his

            codefendants on December 16, 1987.

                 The  statute   the  defendants   were  convicted   under

            incorporates the  penalty provisions  of 21  U.S.C.  960  for

                                
            ____________________

            1.   21 U.S.C.  851(a)(1) provides, in relevant part, that:

                 No  person who stands convicted of an offense under
                 this part [i.e., 21  U.S.C.  841 et seq.] 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 United 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....

                                         -2-


first  offenders and the penalty provisions of 21 U.S.C.  962

            for  second  offenders.2     Under  21  U.S.C.    960,  first

            offenders are  subject to a mandatory minimum  penalty of ten

            years' imprisonment and five years of supervised release, and

            a maximum term of life imprisonment.  A person convicted of a

            second  or subsequent  offense "is  punishable by  a  term of

            imprisonment twice that otherwise  authorized" and "twice the

            term  of supervised release otherwise authorized."  21 U.S.C.

             962(a). Thus, repeat offenders  of 46 U.S.C. App.   1903 are

            subject  to a  mandatory minimum  sentence  of twenty  years'

            imprisonment and ten  years of supervised release.   However,

            to subject  a repeat offender to that  mandatory minimum, the

            government  must first  file  an  information  notifying  the

            offender of the prior convictions  it intends to rely upon in

            seeking an  enhanced sentence  under 21  U.S.C.  851. See  21
                                                                  ___

            U.S.C.   962(c)("Section 851 of  this title shall  apply with

                                
            ____________________

            2.   46 U.S.C. App.  1903 (g) provides:

                 (1) Any person who commits an offense under this
            section shall be punished in accordance with the
            penalties set forth in section 1010 of the
            Comprehensive Drug Abuse Prevention and Control Act
            of 1970 (21 U.S.C.  960).

                 (2) Notwithstanding paragraph (1) of this
            subsection, any person convicted of an offense under
            this chapter shall be punished in accordance with
            the penalties set forth in section 1012 of the
            Comprehensive Drug Abuse Prevention and Control Act
            of 1970 (21 U.S.C.  962) if such offense is a second
            or subsequent offense as defined in section 1012(b)
            of that Act.

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respect to  any proceeding  to sentence a  person under  this

            section.")  See also United States v. Craveiro, 907 F.2d 260,
                        ___ ____ _____________    ________

            262  &  n.  4  (1st   Cir.),  cert.  denied,  498  U.S.  1015
                                          _____  ______

            (1990)(noting that double penalties for second or  subsequent

            conviction  under 21 U.S.C.  962 required proof of recidivism

            under procedures set forth in 21 U.S.C.  851(a)(1)). 

                 The case was called for sentencing on February 25, 1988.

            Six of  the crew  members had no  prior criminal  records and

            received  sentences of ten years' imprisonment and five years

            of  supervised  release,  the  mandatory  minimum  for  first

            offenders under 21  U.S.C.  960(b)(1)(G).  Before  trial, the

            prosecutor had  filed an  information  notifying the  captain

            (defendant  Corpus) that the government would seek to enhance

            his sentence pursuant to 21  U.S.C.  851 on the basis of  his

            prior  marijuana  smuggling  conviction.     The  trial judge

            sentenced  the captain to  a thirty-year prison  term and ten

            years  of supervised release.   Another crew  member (Alfonso

            Gonzalez) had a prior conviction for marijuana smuggling, but

            the  government had not filed a  851 information with respect

            to him.  Gonzalez received a thirty-year prison term and five

            years of supervised release.                                 

Similarly,  the  government  also did  not  file  a  851

            information on Gongora, the last to be called for sentencing.

            Gongora's Presentence Report (PSR) indicated that Gongora was

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subject to  the ten  year-to-life range  applicable to  first

            offenders  under 21 U.S.C.   960(b)(1)(G).  However,  the PSR

            also identified  two prior arrests  for drug crimes.   One of

            these resulted in  a 1983 conviction for  violating 21 U.S.C.

             955a, the  predecessor to 46  U.S.C. App.   1903.3   Gongora

            initially denied  that he  was the  person with the  criminal

            record described in  the PSR.   The  district court continued

            Gongora's  sentencing so that an evidentiary hearing could be

            held.   Gongora's  counsel moved  to waive  the hearing.   On

            March  3,  1988,  Gongora admitted  to  the  1983 conviction.

            Nevertheless, the  district court proceeded  with the hearing

            and an FBI fingerprint expert established that Gongora indeed

            had been  convicted of  the 1983  marijuana smuggling  charge

            under 21 U.S.C.  955a.  

                 The  trial  court  sentenced Gongora  to  thirty  years'

            imprisonment  and  five  years of  supervised  release.   All

            convictions  were  affirmed  on direct  appeal.    See United
                                                               ___ ______

            States v. Corpus, 882 F.2d  546 (1st Cir. 1989).  Thereafter,
            ______    ______

            the district  court entered  two  orders affecting  Gongora's

            sentence.   On  September 6,  1989, it  ordered that  all the

            defendants' supervised  release terms  should be  replaced by

            terms of special parole.  Amended judgments issued.  On April

                                
            ____________________

            3.  The 1983 conviction was for Gongora's participation in an
            attempt  to import 57,265 pounds of marijuana into the United
            States.  The  Puerto Rico federal district  court (Torruella,
            J.)  sentenced Gongora to three years' imprisonment and three
            years of special parole.  

                                         -5-


17,  1990,  the   court  clarified  its  previous   order  by

            specifying that the  defendants were not eligible  for parole

            under the 1986 amendments to  21 U.S.C.   960 and 962.   This

            ruling was affirmed on  appeal.  See United States  v. De Los
                                             ___ _____________     ______

            Santos-Himitola, 924 F.2d 380 (1st Cir. 1991).4  
            _______________

                 In  1991,   Gongora  filed  the  instant   2255  motion.

            Relying on  Hardy v. United  States, 691 F.2d 39,  41-42 (1st
                        _____    ______________

            Cir.   1982)(vacating   sentence   where   record   suggested

            government  may  not have  filed   851  information), Gongora

            argued  that his sentence had been illegally enhanced because

            the  district court  had relied  on his  prior conviction  in

            imposing his thirty-year  prison term and the  government had

            failed  to file a  pretrial enhancement information  under 21

            U.S.C.   851.   Gongora maintained  that  the district  court

            lacked jurisdiction  to impose  the thirty-year  sentence and

            that his  sentence should be  reduced to the ten  year prison

____________________

            4.  In De Los Santos-Himitola, 924 F.2d at 381-82  & n. 2, we
                   ______________________
            observed that the  district court correctly left  the special
            parole terms in place when it determined that  the defendants
            were not eligible for parole,  but that the Supreme Court had
            granted  certiorari review  on whether the  mandatory minimum
            supervised  release terms required by the Anti-Drug Abuse Act
            of 1986  applied to  offenses committed  between October  27,
            1986 and November  1, 1987.  The Supreme  Court answered this
            question in  the affirmative.   See  Gozlon-Peretz v.  United
                                            ___  _____________     ______
            States,   498  U.S.  395,   404-410  (1991).     Thus,  these
            ______
            defendants'  sentences  may  include  an  incorrect  term  of
            special  parole. See Padilla  Palacios v. United  States, 932
                             ___ _________________    ______________
            F.2d 31, 32-34 (1st Cir. 1991)(per curiam)(holding supervised
            release applied to  2255 petitioner convicted of violating 46
            U.S.C. App.  1903). As the issue  has not been raised, we  do
            not consider it.    

                                         -6-


term imposed on  the first offenders.  Gongora  filed several

            documents  in  support  of his   2255  motion,  including the

            district  court's  September  6,  1989  order   revoking  the

            defendants' supervised release  terms.  Footnote one  of that

            order  stated: "Defendants  with  prior criminal  convictions

            were sentenced  under 21  U.S.C. section 962(a),  authorizing

            sentences  twice the  length  of  those otherwise  provided."

            Gongora  insists that this  notation shows that  the district

            court impermissibly imposed  a twenty-year mandatory  minimum

            term on  Gongora as  a repeat offender  under 21  U.S.C.  962

            then added ten  years.  The government conceded  that no  851

            information  had been  filed  on  Gongora,  but  argued  that

            Gongora  had been sentenced under 21 U.S.C.  960(b)(1)(G) and

            that  his sentence had not been  unlawfully enhanced since it

            was within  the ten  year-to-life range  applicable to  first

            offenders  under that statute.  The government further argued

            that Gongora's five-year supervised release term  showed that

            the district court  did not unlawfully enhance  his sentence,

            as  a ten-year  term would  have been  required for  a repeat

            offender.   The government maintained that Gongora's sentence

            was unreviewable under United States v. Tucker, 404 U.S. 443,
                                   _____________    ______

            447  (1972)("... a  sentence imposed  by  a federal  district

            judge, if within  statutory limits, is generally  not subject

            to review.")        The district court ruled that Gongora had

            not been sentenced  under 21 U.S.C.  962 but  rather had been

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sentenced    to a  term  within  the  ten year-to-life  range

            applicable  to  him  under  21  U.S.C.   960(b)(1)(G).    The

            sentencing judge  acknowledged  that he  had  considered  the

            prior conviction in imposing the  sentence.  However, in view

            of the fact  that Gongora did not contend that  Fed. R. Crim.

            P.  32(c)(governing disclosure of PSR) had been violated, the

            judge discerned no illegality in the thirty-year sentence and

            dismissed Gongora's  2255 motion.   This appeal followed. 

                                         II.

                   "Congress enacted section  851(a)(1) and the procedure

            for  filing   an  information  to   protect  defendants  from

            receiving increased  statutory sentences  ... resulting  from

            prior,  incorrectly   charged  offenses   ...  and  to   give

            defendants the  opportunity to show  that they  were not  the

            persons convicted." United  States v. Wallace, 895  F.2d 487,
                                ______________    _______

            489 (8th Cir. 1989) (citations  omitted).  In Hardy v. United
                                                          _____    ______

            States, 691  F.2d at  41, we observed  that a  district court
            ______

            lacks  jurisdiction  to   enhance  a  convicted   defendant's

            sentence on its own motion if the government has not filed an

            information seeking  a sentence  enhancement under 21  U.S.C.

             851(a)(1).   See  also United States  v. Belanger,  970 F.2d
                          ___  ____ _____________     ________

            416,  418 (7th Cir. 1992)("Failure to file [ 851] information

            before trial deprives  the district court of  jurisdiction to

            impose  an enhanced sentence.");  United States  v. Williams,
                                              _____________     ________

-8-


899  F.2d 1526,  1528-29 (6th  Cir.  1990); United  States v.
                                                        ______________

            Olson, 716 F.2d 850, 851-54 (11th Cir. 1983).
            _____

                 Nevertheless,  this  rule  is  not  dispositive  of  the

            present case,  for it  is clear that  the district  court had

            jurisdiction to impose Gongora's thirty-year prison  sentence

            as it  was within  the ten  year-to-life range applicable  to

            first  offenders. See 21  U.S.C.  960(b)(1)(G).   Section 851
                              ___

            applies  only where  the  government  seeks  to  enhance  the

            mandatory  statutory  minimum   or  maximum  sentence  of   a

            defendant.  See, e.g., United States v. French, 974 F.2d 687,
                        ___  ____  _____________    ______

            697-98 (6th Cir. 1992), cert.  denied, 113 S. Ct. 1431 (1993)
                                    _____  ______

            ( 851  applied  where  defendant's   mandatory  sentence  was

            enhanced from twenty years to life under recidivist provision

            of  21 U.S.C.  841(b)(1)(A));  United States v.  Sanchez, 917
                                           _____________     _______

            F.2d  607, 616 (1st Cir. 1990), cert. denied, 111 S. Ct. 1625
                                            _____ ______

            (1991) ("The section 851(a)(1) enhancement notice requirement

            applies  'to  situations  in  which  a convicted  defendant's

            statutory   minimum   or   maximum    penalty   is   enhanced
            _________

            ...'")(citation  omitted); United States v. Wallace, 895 F.2d
                                       _____________    _______

            at 490 (same).  The fact  that the government did not file  a

             851 information on Gongora meant that the district court was

            not compelled  to impose  the mandatory  minimum sentence  of

            twenty years imprisonment and ten years of supervised release

            required by  21 U.S.C.   962.  However,  the absence  of this

            information did not rob the district court  of its discretion

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to  impose  such  a sentence  under  the  statutory authority

            vested in it under 21 U.S.C.  960(b)(1)(G).  

                 The absence of a   851 enhancement information does  not

            preclude a  sentencing court from  considering a  defendant's

            prior convictions in determining whether the defendant should

            be   treated  as  a  Career  Offender  under  the  Sentencing

            Guidelines. See  United States  v. Whitaker,  938 F.2d  1551,
                        ___  _____________     ________

            1552  (2d Cir. 1991)(per  curiam); United States  v. Sanchez,
                                               _____________     _______

            id.; United States v.  Marshall, 910 F.2d 1241,  1444-45 (5th
            ___  _____________     ________

            Cir. 1990).    While  this  is  a  pre-Guidelines  case,  the

            rationale of  these authorities  applies with  like force  to

            Gongora's   claim.     Thus,  the  district   court  lawfully

            considered Gongora's prior conviction  in imposing a  thirty-

            year prison term, see Corpus,  882 F.2d at 553, and correctly
                              ___ ______

            dismissed the   2255 motion.  Affirmed.         
                                          _________

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