U.S. Court of Appeals, Third Circuit
October 15, 1998
UNITED STATES OF AMERICA,
JERRY JEFFREY LYNCH, APPELLANT
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 95-cr-00559-1)
Before: Becker, Chief Judge, Weis and Garth, Circuit Judges
The opinion of the court was delivered by: Garth, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a)
Friday, September 25, 1998
OPINION OF THE COURT
Appellant Jerry Jeffrey Lynch appeals a prison sentence of 168 months and 16 years supervised release imposed upon him after conviction by guilty plea to an indictment charging drug related offenses on April 2, 1996.*fn1 Specifically, Lynch pleaded guilty to his indictment for conspiracy to distribute cocaine base, 21 U.S.C. § 846, distribution of cocaine base and aiding and abetting the distribution of cocaine base, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and distribution of cocaine base and aiding and abetting the distribution of cocaine base within 1,000 feet of a playground, 21 U.S.C. § 860 and 18 U.S.C.§ 2. Each of these offenses provides for enhanced penalties if the offender has a prior drug-related conviction.
Prior to Lynch's plea, the government had filed an information that charged Lynch with having been convicted of two state felony charges in the Court of Common Pleas of Bucks County, Pennsylvania. This information wasfiled pursuant to 21 U.S.C. §§ 841(b), 851(a)(1). *fn2 Lynch neither waived nor was afforded prosecution by indictment for either of these two prior convictions. The district court enhanced Lynch's statutory sentences in light of the two prior convictions, resulting in an increased sentencing range under the United States Sentencing Guidelines.*fn3
At issue in this case is the construction of the italicized portion of 21 U.S.C. § 851(a), which provides:
(1) No person who stands convicted of an offense under this part 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 . . . stating in writing the previous convictions to be relied upon. . . .
(2) An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.
Id. (italics added). This issue was not raised in the district court; we thus review Lynch's sentence for plain error. United States v. Felton, 55 F.3d 861, 869 n.3 (3d Cir. 1995).
Lynch argues that the highlighted final clause requiring "indictment" refers to his prior convictions and not to the instant offense. In other words, Lynch believes the statute allows enhancements for prior convictions only if those prior convictions proceeded by indictment or if the defendant waived indictment. The government argues that the highlighted portion refers to the instant offense, that is, that 21 U.S.C. § 851(a)(2) allows enhancements for prior convictions no matter how charged providing the present offense for which the defendant is to be sentenced has been charged by indictment or if the right to an indictment had been waived.
Six sister courts of appeal have passed on this precise issue, and all have concluded that the government's interpretation is the correct one. United States v. Gaitan-Acevedo, 148 F.3d 557, 594 (6th Cir. 1998); United States v. Ortiz, 143 F.3d 728, 731-32 (2d Cir.), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Aug. 6, 1998) (No. 98-5543), overruling United States v. Collado, 106 F.3d 1097 (2d Cir. 1997); United States v. Harden, 37 F.3d 595, 600-01 (11th Cir. 1994); United States v. Trevino-Rodriguez, 994 F.2d 533, 536 (8th Cir. 1993); United States v. Burrell, 963 F.2d 976, 992-93 (7th Cir. 1992); United States v. Adams, 914 F.2d 1404, 1406-07 (10th Cir. 1990); United States v. Espinosa, 827 F.2d 604, 617 (9th Cir. 1987).
We agree with the reasoning of those cases. If we were to adopt Lynch's reading of the statute, we would be obliged to exclude many state and foreign prior convictions, which would be contrary to Congress's intent to broaden the scope of prior convictions covered by the statute. See Espinosa, 827 F.2d at 617. As explained by the court in Espinosa,
[T]he government points out the anomalous situation that would result from Espinosa's interpretation. Despite Congress's evident attempt in 1984 to broaden the scope of § 841(b) prior convictions to include state and foreign convictions (in addition to federal convictions), Espinosa's interpretation would exclude from the statute's ambit prior convictions in those states or foreign countries that happen to use a felony complaint system rather than a grand jury indictment system.
Id. As the government argues, "Pennsylvania is one of those states [to which Espinosa refers]. There is no evidence whatsoever that Congress intended to exclude from enhanced punishment those defendants who commit serious drug felony offenses because of the nature of the charging instrument used in a particular state." Appellee's Br. at 6.
Moreover, as stated in Ortiz, in overruling an earlier panel of the Second Circuit in Collado, the argument advanced by the defendant in Collado is not persuasive in light of new information adduced by the government. The Collado defendant had argued that the underlined language was surplusage if it referred to the instant offense because all federal felony narcotics prosecutions proceed by indictment or by waiver of indictment. As the Ortiz court pointed out, however, not all federal felony narcotics prosecutions proceeded by indictment when 21 U.S.C. § 851 was enacted:
[A]t the time § 851(a)(2) was formulated in 1970, federal felony narcotics violations were prosecutable without indictment in the Virgin Islands, and the Panama Canal Zone. Moreover, in Guam, federal prosecutions proceeded without indictment until 1968. The apparent redundancy of § 851(a)(2) as applied to federal prosecutions evaporates in light of this information, because the provision confers a procedural safeguard for offenders facing charges eligible for enhancement under §§ 841-45 in territorial jurisdictions where federal prosecution by information is possible.
Ortiz, 143 F.3d at 731 (footnotes omitted).
In the same vein, the government points out*fn4 that the present offenses to which section 851 applies (those in part D of Title 21, ch. 13, subch. 1) do include offenses that need not proceed by indictment or waiver thereof, namely misdemeanors under 21 U.S.C. § 844. This further bolsters the argument that the highlighted text is not redundant if it refers to the instant offense. Accordingly we, in common with the other courts of appeals that have been confronted with this argument, conclude that the italicized phrase reflects and is to be interpreted as congressional intent to include within the purview of § 851 serious recidivists as opposed to petty offenders charged only with misdemeanors.
We thus hold that Lynch has not overcome the plain error threshold. See United States v. Retos, 25 F.3d 1220, 1228-29 (3d Cir. 1994). Even if he had, we also hold on the merits that the government may file an information to establish prior offenses under 21 U.S.C. § 851(a)(2) regardless of whether the prior offenses were charged by indictment or whether the defendant waived indictment in the prior offenses. The government may file an information detailing prior offenses under 21 U.S.C. § 851 if the current offense was charged by indictment or if the defendant waived indictment for the current offense.
We will therefore affirm the district court's order dated October 16, 1997, which enhanced Lynch's sentence as a result of his two prior convictions.
A True Copy: Teste:
Clerk of the United States Court of Appeals for the Third Circuit