United States v. Hatcher

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 17, 1997
• Docket: 96-60488
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 96-60173 & 96-60488

Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus EVERETT HATCHER, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Mississippi USDC Nos. 1:92-CR-009-B-D & 3:94-CV-157-B

July 15, 1997

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Everett Hatcher, federal prisoner #09612-042, was convicted of

distributing LSD after pleading guilty to counts two and four of

the indictment, which alleged violations of 21 U.S.C. §§ 841(a) and

841(b)(1)(C), and 21 U.S.C. §§ 841(a) and 843(b) respectively. We

granted his motion for a certificate of appealability after the

district court dismissed his 28 U.S.C. § 2255 petitions. The

certificate limits the issues for appeal to two: whether the

district court erred in enhancing his sentence for prior

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. convictions, and whether his attorney provided ineffective

assistance by failing to object to the enhancements.

Hatcher argues that the term of supervised release imposed on

count two and the term of imprisonment imposed on count four should

not have been enhanced because the government failed to comply with

21 U.S.C. § 851(a)(1). Under § 851(a)(1), “[n]o person who stands

convicted of an offense under this part [§§ 841-852] 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.”

“If the prosecution fails to comply with § 851’s procedural

requirements, a district court cannot enhance a defendant’s

sentence.” United States v. Steen, 55 F.3d 1022, 1025 (5th Cir.),

cert. denied, 116 S. Ct. 577 (1995). Indeed, a court has no

authority to impose an enhancement when the government does not

file an information before entry of the plea. United States v.

Noland, 495 F.2d 529, 533 (5th Cir.), cert. denied, 419 U.S. 966

(1974). See also United States v. Levay, 76 F.3d 671, 674 (5th

Cir. 1996) (“[S]ince the government withdrew its notice of intent

to prove prior convictions as a part of the plea agreement, the

court was precluded from considering prior convictions as a factor

under § 841(b)(1)(A).”); Steen, 55 F.3d at 1025 n.2 (citing cases

2 holding that failure to file a § 851(a) information deprives the

district court of jurisdiction to impose a statutory enhancement

based on prior convictions); United States v. Cevallos, 538 F.2d

1122, 1125 n.4 (5th Cir. 1976) (“In Noland, . . . the failure to

file the information of previous conviction prior to trial deprived

the District Court of jurisdiction to impose an enhanced sentence

(and obviously the opportunity to file such an information before

trial had been irretrievably lost) . . . .”); Kelly v. United

States, 29 F.3d 1107, 1110 (7th Cir. 1994) (“[A] court does not

even have jurisdiction to impose an enhanced sentence unless notice

is served.”). Just as a court may not enter a conviction without

a formal indictment, it may not impose an enhancement under 21

U.S.C. §§ 841-852 without a filing from the government. See United

States v. Olson, 716 F.2d 850, 853 (11th Cir. 1983) (explaining

that a court without a § 851(a) information “can no more enhance

the sentence than it could impose imprisonment under a statute that

only prescribes a fine”).

Because of the jurisdictional nature of § 851(a) filings, we

review de novo in spite of Hatcher’s failure to raise the issue on

direct review or in the district court on collateral review. See

United States v. Fitzgerald, 89 F.3d 218, 221 & n.1 (5th Cir.)

(explaining that a defendant cannot forfeit his right to de novo

review of the sufficiency of an indictment), cert. denied, 117

S. Ct. 446 (1996). As the government concedes, the trial court

should not have enhanced Hatcher’s sentence. Furthermore, the

3 prosecution may not go back and cure its omission. Cevallos, 538

F.2d at 1125 n.4; Noland, 495 F.2d at 533-34. We must vacate the

sentence and remand for re-sentencing without consideration of

enhancement for prior offenses.

In light of this result, we need not reach Hatcher’s

ineffective-assistance claim.

Hatcher’s sentences on counts two and four are VACATED, and

the case is REMANDED for re-sentencing.