Suveges v. United States

• Court: Court of Appeals for the First Circuit
• Decided: October 14, 1993
• Docket: 92-2465
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

No. 92-2465

ROBERT E. SUVEGES, JR.,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________

                              _________________________

                                        Before

                       Selya, Boudin and Stahl, Circuit Judges.
                                                ______________

                              _________________________

               Robert E. Suveges, Jr. on brief pro se.
               ______________________
               Richard  S.  Cohen,  United  States Attorney,  and  F.  Mark
               __________________                                  ________
          Terison,  Assistant  United States  Attorney,  on  brief for  the
          _______
          United States.

                              _________________________

                                   October 14, 1993

                              _________________________

SELYA, Circuit Judge.   Petitioner-appellant Robert  E.
                    SELYA, Circuit Judge.
                           _____________

          Suveges, Jr., strives gallantly to  persuade us that the district

          court  erred  in  summarily  denying  a  petition  to vacate  his

          sentence brought pursuant to  28 U.S.C.   2255.   For the reasons

          discussed below, we affirm the judgment in its major aspects, but

          remand to permit further consideration of one related point.

                                          I
                                          I

                    On  August  14, 1990,  a  federal  grand jury  indicted

          Suveges on three counts of drug distribution, not involving death

          or injury, in  violation of 21 U.S.C.    841(a)(1).   The charges

          arose from  separate incidents in  which Suveges sold  cocaine to

          undercover  agents.  The aggregate amount  of cocaine involved in

          the three transactions totalled 10.19 grams.

                    On  November 1,  1990,  Suveges pleaded  guilty to  the

          charges pursuant  to a plea agreement which provided, inter alia,
                                                                _____ ____

          that the government would not oppose a two-level reduction in his

          offense level  for acceptance  of responsibility.1   The criminal

          docket  sheet indicates  that,  before Suveges  pled guilty,  the

          prosecution did not  file or serve  an information notifying  him

          that increased  punishment might  result  from certain  specified
                              
          ____________________

               1Notwithstanding that the probation office used the November
          1, 1989 version of the federal sentencing guidelines in preparing
          the  presentence report,  the  November 1,  1990  version of  the
          guidelines  applies  to  this  case.     See  United  States   v.
                                                   ___  ______________
          Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) ("Barring  any
          __________
          ex post facto problem, a defendant is to be punished according to
          __ ____ _____
          the  guidelines in  effect at  the time  of sentencing.").   This
          bevue is of no consequence, however,  as the guidelines affecting
          Suveges's  sentence  are  the  same  in  both  incarnations.   In
          particular, the  career offender guideline, quoted  infra note 4,
                                                              _____
          was not changed.

                                          2

prior  convictions.   See 21 U.S.C.    851(a)(1).2   Nonetheless,
                                ___

          paragraph one  of the plea  agreement specified that  Suveges was

          subject  to a  potential  30-year maximum  prison  term and/or  a

          $2,000,000  fine,  as  well  as  a  mandatory  six-year  term  of

          supervised release.  The statutory  mosaic makes clear that  this

          is an enhanced penalty regime prescribed for repeat offenders.3
                              
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               2The statute provides in relevant part:

                    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. . . .

          28 U.S.C.   851(a)(1).

               321  U.S.C.    841(b)(1)(C)  sets  forth  the penalties  for
          distributing less than 500  grams of cocaine.  In  relevant part,
          this  statute provides that, in instances  where death or serious
          injury  do not  follow the  use of  the controlled  substance, an
          offender:

                    shall be sentenced to  a term of imprisonment
                    of not more than 20 years . . . a fine not to
                    exceed . . .  $1,000,000 if the person is  an
                    individual  . .  . or  both.   If any  person
                    commits such a  violation after  one or  more
                    prior convictions  for .  . . a  felony under
                    any  other .  .  .  law of  a  State,  . .  .
                    relating to narcotic drugs, . . . such person
                    shall be sentenced to a term of  imprisonment
                    of not more than 30 years . . . a fine not to
                    exceed .  . . $2,000,000 if the  person is an
                    individual  .  . .  or  both.   Any  sentence
                    imposing  a term  of imprisonment  under this
                    paragraph shall,  in  the absence  of such  a
                    prior conviction, impose a term of supervised
                    release  of at least 3 years . . . and shall,
                    if there was such  a prior conviction, impose

                                          3

During  the course of Suveges's change-of-plea hearing,

          the  district judge initially warned him that he would be subject

          to  a 20-year  maximum  prison term  and a  three-year supervised

          release term.  These are the maxima that 21 U.S.C.   841(b)(1)(C)

          prescribes for first  offenders.  See supra note 3.   Despite the
                                            ___ _____

          fact  that  the government  had  neither  filed an  informational

          notice  nor  sought  a sentence  enhancement,  Suveges's attorney

          informed  the judge  that a  30-year prison  term and  a six-year

          supervised release  term were available  in Suveges's case.   The

          judge accepted the  volunteered correction, warned Suveges  about

          these possible penalties, and, when Suveges reaffirmed his desire

          to plead guilty, accepted the changed plea.

                    On November  19, 1990, the probation  office prepared a

          presentence investigation report (PSI Report) which revealed that

          Suveges  had a  myriad of  prior convictions.   Among  these were

          state-court   convictions  for  armed  robbery  (1982),  unlawful

          trafficking  in drugs  (1983), and  reckless conduct  involving a

          dangerous weapon (1987).   As a result of these  convictions, the

          probation officer concluded that Suveges qualified for  treatment

          as  a  career  offender under  U.S.S.G.     4B1.1.4   The  career
                              
          ____________________

                    a term  of supervised  release of at  least 6
                    years   in   addition   to   such   term   of
                    imprisonment.

               4This guideline provides that:

                    A defendant  is a career offender  if (1) the
                    defendant was at least eighteen years  old at
                    the  time of  the  instant  offense, (2)  the
                    instant offense  of  conviction is  a  felony
                    that  is  either a  crime  of  violence or  a

                                          4

offender guideline  boosted Suveges's overall offense  level from

          ten to thirty-two and shifted  his criminal history category from

          V  to VI.   In turn,  these higher  integers yielded  a guideline

          sentencing range  (GSR)  of  210-262 months.    Had  Suveges  not

          qualified as a  career offender,  the GSR would  have been  21-27

          months.

                    Suveges and  his attorney  filed objections to  the PSI

          Report.   The  district court  considered  these objections  at a

          sentencing  hearing  held on  March  4,  1991.   Defense  counsel

          protested  the use  of  the  career  offender guideline  both  on

          constitutional grounds and because  Suveges had not been informed

          that he might  be treated as a career  offender before he changed

          his  plea.  The court inquired whether Suveges wished to withdraw

          his  guilty plea.   When he  declined,   the court  overruled his

          objections, applied the career  offender guideline, and sentenced

          him  to a prison term of 210 months.   The court also imposed the

          six-year  supervised  release  term   mandated  by  21  U.S.C.   

          841(b)(1)(C) for repeat offenders, see supra note 3, but declined
                                             ___ _____

          to levy  a fine due to Suveges's  straitened financial condition.

          Suveges did not appeal this sentence.

                    On October 2, 1992, Suveges filed this motion to vacate

          his sentence under U.S.C.    2255.  Read in conjunction  with his

____________________

                    controlled  substance  offense,  and (3)  the
                    defendant  has  at  least  two  prior  felony
                    convictions of either a crime of  violence or
                    a controlled substance offense.

          U.S.S.G.   4B1.1.

                                          5

supporting memorandum, Suveges's petition  limned a single claim:

          that his sentence  was unlawful because the  government, prior to

          the court's acceptance of his guilty plea, did  not file or serve

          an informational  notice  detailing the  prior convictions  which

          were  later used to  establish career  offender status.   Suveges

          contended  that the  absence of  such a  notice violated  both 21

          U.S.C.   851(a)(1) and the Due  Process Clause, thereby requiring

          that  he be  resentenced without  resort  to the  career offender

          guideline.    After  studying   the  government's  response,  the

          district court summarily denied the section 2255 petition.   This

          appeal followed.

                                          II
                                          II

                    On appeal, Suveges maintains that the government had an

          obligation to  file and serve an  informational notice specifying

          its  intent to  employ the  career offender guideline  before his

          guilty plea took  effect.  The government's failure to  do so, he

          contends,  disabled the  court from  sentencing  him as  a career

          offender.   The government demurs.   Relying on  United States v.
                                                           _____________

          Sanchez, 917 F.2d 607, 616 (1st  Cir. 1990), cert. denied, 111 S.
          _______                                      _____ ______

          Ct.  1625  (1991),  it asserts  that  21  U.S.C.    851(a)(1)  is

          inapposite  to career  offender status;  and that,  therefore, an

          informational notice  was not  essential because  Suveges's prior

          convictions  were used  merely to  establish his  career offender

          status  under  the  sentencing guidelines     not  to  expand the

          maximum  penalties  that Congress,  in  the  first instance,  had

          prescribed for the offense(s) of conviction.  

6

While we agree that Sanchez defeats Suveges's attack on
                                        _______

          the  lower court's  use  of the  career  offender guideline,  the

          record  indicates  that  the   district  judge  and  the  parties

          incorrectly  assumed that  Suveges  was subject  to the  enhanced

          penalties  provided by 21  U.S.C.   841(b)(1)(C)  even though the

          government  had   not  sought  enhancement  under   21  U.S.C.   

          851(a)(1).    Consequently,  we think  it  is  important that  we

          clarify the situation.  

                    In Sanchez, this court  held an informational notice to
                       _______

          be obligatory  under 21  U.S.C.    851 only  in  cases where  the

          government  seeks to  enhance  the statutory  minimum or  maximum
                                             _________

          penalties that apply  to a  given defendant.   It follows,  then,

          that  section 851 is not in play,  and an informational notice is

          not required, in  a situation  where, as here,  the defendant  is

          sentenced as a career offender to a prison term that falls within

          a non-enhanced statutory minimum-maximum range.  For example, the

          defendants  in Sanchez received 360-month prison terms.  As these
                         _______

          were within  the range  prescribed for  first offenders  under 21

          U.S.C.   841(b)(1)(A), ten years to life, an informational notice

          was not  required.  See Sanchez, 917 F.2d at 616; see also United
                              ___ _______                   ___ ____ ______

          States v.  Elwell, 984 F.2d  1289, 1297  (1st Cir.)  (reaffirming
          ______     ______

          position  adopted  in Sanchez),  cert.  denied, 113  S.  Ct. 2429
                                _______    _____  ______

          (1993).   Our  sister circuits  toe  the same  line.   See United
                                                                 ___ ______

          States v. Day, 969  F.2d 39, 48 (3d  Cir. 1992) (explaining  that
          ______    ___

          "the government is not required to file a pretrial information to

          subject  a defendant  to sentencing  as  a career  offender under

7

U.S.S.G.    4B1.1"); United States v. Koller, 956 F.2d 1408, 1417
                               _____________    ______

          (7th Cir. 1992); United  States v. Whitaker, 938 F.2d  1551, 1552
                           ______________    ________

          (2d  Cir. 1991), cert.  denied, 112 S.  Ct. 977  (1992); Young v.
                           _____  ______                           _____

          United  States, 936 F.2d 533, 536 (11th Cir. 1991); United States
          ______________                                      _____________

          v.  McDougherty, 920 F.2d 569, 574 (9th Cir. 1990), cert. denied,
              ___________                                     _____ ______

          111 S. Ct. 1119 (1991); United States v. Marshall, 910 F.2d 1241,
                                  _____________    ________

          1245 (5th  Cir. 1990), cert. denied,  111 S. Ct.  976 (1991); see
                                 _____ ______                           ___

          generally United States v.  Novey, 922 F.2d 624, 629  (10th Cir.)
          _________ _____________     _____

          (holding  that   851 applies  when prior convictions  are used to

          increase  the  minimum  or  maximum  statutory  sentence),  cert.
                                                                      _____

          denied, 111 S.  Ct. 2861  (1991); United States  v. Wallace,  895
          ______                            _____________     _______

          F.2d  487, 489-90  (8th  Cir. 1990)  (observing that,  although  

          851(a)(1) predates the  sentencing guidelines, the  guidelines do

          not require  the  filing of  an informational  notice when  using

          prior convictions for sentence-enhancement purposes).

                    It would be pleonastic to repeat the reasoning of these

          numerous cases.  Suffice  it to say that an  informational notice

          under 21 U.S.C.    851(a)(1) was not a necessary  precondition to

          either the change  of plea  or the imposition  of sentence  since

          Suveges, even  after  the  career  offender  guideline  attached,

          received an incarcerative sentence of 17 1/2 years, as opposed to

          the  non-enhanced statutory  maximum  of 20  years applicable  to

          first offenders under  the statute of conviction.   In as much as

          application of  the career offender  guideline to Suveges  in the

          circumstances of this case comported with Due Process Clause, the

          lower  court's summary denial of   2255 relief was, by and large,

8

proper.5

III
                                         III

                    There remains  one small  stumbling block.   The record

          indicates that Suveges did receive an enhanced supervised release

          term.   The district court imposed the mandatory minimum six-year

          supervision  term that  21 U.S.C.    841(b)(1)(C)  prescribes for

          repeat offenders.  This constituted an increased punishment which

          required the filing and service  of an informational notice under

          section 851(a)(1).  Nonetheless,  the court ignored the statutory

          requirement.   The  filing  of such  an  informational notice  is

          jurisdictional.  See United States v. Belanger, 970 F.2d 416, 418
                           ___ _____________    ________

          (7th Cir. 1992)  ("Failure to  file the [   851] notice prior  to

          trial  deprives the district  court of jurisdiction  to impose an

          enhanced  sentence."); Novey,  922 F.2d  at 627 (same);  see also
                                 _____                             ___ ____

          Hardy v. United  States, 691 F.2d 39, 41 (1st  Cir. 1982) (noting
          _____    ______________

          that if the government  does not seek a sentence  enhancement the

          district  court  "is without  authority  to  enhance on  its  own

          motion.").   Thus, the  district  court lacked  the authority  to

          enhance Suveges's supervised release term to six years.6
                              
          ____________________

               5Suveges's due process argument is  inextricably intertwined
          with his  statutory  argument.   Thus,  our  conclusion  that  no
          violation   of  21   U.S.C.      851(a)(1)  occurred   serves  to
          defenestrate Suveges's constitutional claim.

               6In the  absence of other  statutory authority, 18  U.S.C.  
          3583 authorizes district  courts to  impose up to  five years  of
          supervised  release  depending  upon  the  classification   of  a
          defendant's  crimes.   The district  court categorized  Suveges's
          crimes  as Class A  felonies.  This  appears to be  in error, for
          Class  A  felonies are  felonies  punishable  by  death  or  life

                                          9

To  be  sure,  Suveges  did  not  object  below  to the

          imposition  of the enhanced term of supervised release and he did

          not  appeal his sentence  in the first instance.   The failure to

          raise  this objection earlier  constitutes a  procedural default.

          See, e.g.,  Ford v. United  States, 983  F.2d 897, 898  (8th Cir.
          ___  ____   ____    ______________

          1993) (per curiam).  Hence, Suveges must show cause and prejudice

          to  obtain collateral relief at this juncture.  See United States
                                                          ___ _____________

          v. Frady, 456 U.S. 152, 167-68 (1982).  Yet, the record before us
             _____

          suggests that both cause and prejudice arguably might be present.

          Defense counsel, seemingly  unaware that such  a penalty was  not

          required   unless   the   government   sedulously   followed  the

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

          invited  the  court  to  apply the  enhanced  recidivist  penalty

          embodied  in 21 U.S.C.    841(b)(1)(C).  Such  an oversight could

          conceivably constitute sufficient cause  to excuse the procedural

          default before the district court.  Cf., e.g., Hardy, 691 F.2d at
                                              ___  ____  _____

          42  (noting that a lesser showing  of cause is required where the

          district court  lacked authority  to impose the  sentence because

          the  requirements  of    851 were  not  met).   Prejudice appears

          rather  obvious:     after  all,  Suveges   received  a  six-year

          supervised release  term notwithstanding  that the governing  law

          only authorized a maximum three-year term.  In  view of  the fact
                              
          ____________________

          imprisonment.    See   18  U.S.C.      3559(a)(1).    Absent   an
                           ___
          informational notice  sufficient to trigger a    851 enhancement,
          Suveges's  crimes were  punishable by  a maximum  prison term  of
          twenty years and,  thus, constituted  Class C felonies.   See  18
                                                                    ___
          U.S.C.   3559(a)(3).  Under 18 U.S.C.   3583(b)(2), no  more than
          three  years of supervised release  may be imposed  for a Class C
          felony.

                                          10

that  the parties did  not focus on  these issues the  first time

          around, we think the most appropriate course is to remand so that

          the  district court  may  reconsider this  aspect of  the matter.

          Therefore, the  judgment below  is affirmed  in part and  vacated

          only  in  respect  to the  imposition  of  the  six-year term  of

          supervised release.  The matter is remanded to the district

          court for further proceedings consistent with this opinion

It is so ordered.
          It is so ordered.
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11