one seven three four six eight united states of america versus marc anthony brown arguments not to exceed fifteen minutes for side mr shand foretelling good afternoon your honour's may please the court my name is kevin shad on here representing mark brown who is the defendant in court below i would like to reserve for my minutes for a bout of the fund i thank you i raised four issues in the briefs in this case but i'd like to focus in on just one of those issues for purposes of argument today and that is that the district court in this case imposed a sentence in excess of the statutory maximum sentence in this case this is actually controlled by twenty one u s c section eight forty four and twenty s c section eight fifty one mr brown was convicted of one violation of eighteen u s c section eight forty four which requires a penalty of not more than twelve months and that is a misdemeanor under federal law unless the defendant has a quote one qualifying conviction which then can raise the statutory terms to fifteen days to two years and it makes it a felony now in order for the government to be able to get sense before trial absolutely they could of they could have fallen before trial they had their original charge was a charge under twenty one u s c section eight forty one with a lesser included offense which is always a always available so long as the evidence allows that but in this case there was nothing preventing them from filing any fifty one on the eve of the forty one or the fact that there could have been eight forty four instruction certainly nothing prevented them from doing that but more than that once eight forty four was in play which was no later than the jury instruction conference in this case at that point they certainly would have had notice been in better shape than they are today which is to they have still not filed an enhancement as of today they didn't file it during trial they didn't file it after trial they didn't file it before sentencing they never follow  notice we did not have actual notice of it we had actual notice that there was a prior conviction in this case that was tied to the nine twenty two g offense but that doesn't put this defendant in any different place than any other criminal test whether or not the prior felony conviction was valid and whether it fit the parameters that statute absolutely but the but the requirement for us to even file those objections doesn't come into play until they filed a notice because the plain language of fifty one says that we challenge the validity of that prior conviction once they file the existing one notice which they never did in this case what about the sentencing memorandum did not serve as a notice the sentencing memorandum couldn't serve as notice because it was apt number one it was after twelve and first and foremost it was after truck second at that point we already had a jury conviction and the jury conviction was for a misdemeanor  offense so the problem here is that the sentencing judge turned a misdemeanor into a felony without even relying on the jury's findings in this case it's permitted pursuant to tourists right yet there's still a print problem with what the judge did here as long as all he's relying on is the fact of a prior conviction i would agree i would agree with you that in it he was relying on the fact of a prior conviction the problem i and without violating a prendre so i can see that this would this would be a problem if the judge was were turning misdemeanor into a felony increasing the penalty based on some fact other than a prior conviction that would be in a pretty problem but a pretty itself says other than the fact of a prior conviction you can't judge judges can't find facts so you don't have that problem well your   closest case that i cited to is united states versus williams which is a case that's in my brief in that case just as in this case that they never filed a need fifty one enhanced men in that case just as this case they in that case they actually there was a plea and in the plea they actually gave the defendant actual notice of the of the inherent penalty so they said you're pleading guilty to ten to life even though this is a five to forty but they didn't file the fifty one notice and in williams's published case out of this court they reversed that because there was no actual notice of the fifty one despite the fact that there was more than constructive notice with the plea agreement itself and the defendant didn't penalty it was that they the government didn't follow twenty one u s c section eight fifty one and that's really it you can't get around the plain language of the statute in this case you what the government's seeking to do in this case is simply ask you to ignore eight fifty one altogether instances where the defendant has some kind of constructive notice that he could be on the hook for an enhanced penalty and so in the future if this court were to find that this was this was sufficient under age fifty one let's say we have my my exact client only he's also charged with the one twenty four c so he's found guilty of the eight forty one charge not the forty four charge twenty years he's acquitted of the one twenty two jean which gave him constructive notice of the prior and he's acquitted of the nine twenty four c which would have given him five years consecutive in future cases the governor could come in and say give him twenty five years and you can give him twenty five years because we could have follow and eat fifty one and he answered to give him a zero to thirty on the eight forty one charge but we didn't but he was on notice that he was facing five years to life on the one twenty four c anyway and he was on notice that he had this prior conviction therefore even though we've never found any fifty one notice give him twenty five years on this year to twenty case and if this court upholds this then they can do that in future cases and that's the problem with this case the jury  says that this is a misdemeanor that's what they found in this case the no one hits what was ever given to any point in time under what they're under the requirements of a fifty one and this is easier to twelve misdemeanor case as i minute that is not correct under the law i mean i i agree that he loses all sorts of things that conversion from a misdemeanor to a felony is serious but i'm still struggling with how your client was prejudiced what would you have done differently where you try counsel no right so what what do you imagine that trial counsel would have done differently if the notice had been filed in what you would consider a timely fashion so let's say the notice was filed during the jury instruction conference certainly there would have been objection raised immediately at that point that it was too late under the statute anyway because the statute requires part of try that so that would have been preserved that but not finally you need fifty one we don't need to show prejudice we don't need to show prejudice at all so in order for you for your client to prevail you need to convince this court that eight fifty one compliance with this statute is structural air they did a superseding indictment that added the eight forty one charge it was like one point some odd grams of crack cocaine so that the cost of it of this being a simple possession offense was already apparent to all of the litigants any including you all think obviously including us all because we're the ones that asked for the jury instruction on an eight forty four i'm struggling with this the law says you have to file the notice before trial starts and at the end of trial you all move for a different offense to be charged and there was no way that they could file the notice before trial started so under these unique circumstances we look at actual notice and whether you're arguing that the enhanced mend is based on an inappropriate conviction i mean you sandbagged him but your honor if i can see my time's up if i can answer the question so i don't believe that we we see him bag them in any event because number one they agreed to the instruction if you look at page id number eight forty nine they were fine with the simple possession instruction they did not raise an objection to it so i'm in a position where they were called upon to do something pursuant to statute that they couldn't do by law before trial that they could have done it before trial but i would agree that that it became much more in play in the middle of triumph but there again your honor there remedy at that point was to file it at some point before sentencing so we can at least have that to talk about what we're dealing with now is eight fifty one's never been filed did in this memory that that's not an eight fifty one notice provided but if they had just  u know you had the time but i guess i'm in the center chair so if they had just label that sentencing memorandum and section eight fifty one notice we'd be ok now we certainly wouldn't be ok because i'd still be arguing that it was of what you fifty one requires and what gives us the new case here is how the lesser included offense interacts with a fifty one's requirements and based on what the court has already said in other contexts like plea agreements it's clear that the fifty one should be interpreted as applied to the government's charges and to pick up on planting judge like you made at the end of my colleagues argument the united states had no reason to file a need fifty one notice before trial in this case mr brown was charged with the eight forty one b one c offense that does not carry any mandatory minimums the only under the charged offense were about twenty seven to forty months in the united states few was a twenty year sentence let alone a thirty year sentence would have been greatly disproportionate in the circumstances of this case realistically mr brown was never facing anywhere close to a twenty year sentence because of the it should have been raised at least when they talked about leisure and klute of it for the jury instruction so that the jury the lesser included came up at the charging conference that was less than an hour before closing arguments a trial in a perfect situation i think that we would agree yes that it's possible to get something on file immediately you had counsel present maybe it was you or somebody else but close to losing arguments the better practice would have been to get something on file understandably but as the court was suggesting earlier as the question suggested perhaps that the sentencing memorandum combined with the actual notice this was a nine twenty two g case there's indisputable it's indisputable that the defendant was convicted of a qualifying prior conviction under the terms of eight forty four the charge of conviction the count conviction he mr brown was eligible to be treated as a felon and the only thing stopping that was whether or not the government complied with the fifty one and in the context of this case with a lesser included sprung right at the onset of closing arguments combined with the actual notice already filed in the case earlier under those circumstances the purposes of the fifty one are met because these are not the government's charges these are the defense requested the lesser included as to show the judge never did that right we never did because as he indicated how it even that after the charging conference it's still technically to the letter of the fifty one would have been out of time and so the argument was that there has to be some sort of not overly cramped reading of the fifty one but that in light of the lesser included offense that the defense requested in view of their circumstances but the purposes of the fifty one that is to allow the defendant to challenge the conviction and to be aware of the possible unhand were met is your argument that the government complied with the statute or that the government failed to comply with the statute but any error is harmless more along the former your honor killing you that comply with though to be clear the goal government is seeking a rule along the lines of where the defense request and a lesser included offense and so it's at the defense request and urge him and that's the count of conviction the purposes of the fifty one are satisfied in that the requirements of the fifty one are satisfied when the record shows indisputable your actual notice of a qualifying prior conviction so to be clear my colleague's hypothetical in this nine twenty four c are different case that would not be the government's position that the government's position here is that the lesser included offense changes everything here and that the what the government was seeking when this case went to trial at the start of trial was vastly different than what the jury was alternately deliberating on and so that changes everything and that changes the whole purpose of the fifty one well might change the purpose but it doesn't change the tax rate so how how are we going to say you complied with the statute when i suppose some judge might be willing to say you complied with the statute which says before trial if you filed the piece of paper as soon as it was clear that that charge was being added to the trial but you didn't do that either well so the text of the fifty one requires the u s attorney to file in writing what conviction one notice was contained in that charge and so a fifty one requires simply a writing that shows what the conviction was that we ultimately relied on and that's actually what happened here if the record shows that the probation office came back suggestion that mr brown had to product convictions that would have further it made him eligible for an additional mansmann under eight forty four the united states his position was only the one conviction that was identified in superseding indictment can qualify and that's ultimately what the district court agreed to the defendant is really prejudiced if you're going to go forward on this misdemeanor and there's no disclosure that we're seeking and handsome and and trying to term and whether to request the lesser included if d n a answer is going to be included that changes the calculus enormously i think you're either with that when the defense requests lesser included of instructions on actual notice that the defendant has qualifying prior convictions the purposes of  fifty one kind of fall away and they whether to prejudice the defendant because at the time the made the decision to request the lesser included they were under the impression it was zero to twelve because you hadn't told him you were go rely on a per conviction during his absence and so when they talked with their client very different than what should go i would not see prejudice in that circumstance in this circumstance because there was no reason for the united states to a filed the information up until that point and the defense had for knowledge were i'm sorry after you became aware that they were requesting the lesser included you had a responsibility to say hey management i don't disagree that that would be the better practice and that if possible in the heat of trial that's the reason the statute says you got to file it but under the terms of the statute that notice still would have been technically untimely and as opposing counsel suggested he would still argue that it was out of compliance so as a matter of dash torrie interpretation i'm not quite sure what to do with the statute that says before trial i mean you didn't file before trial you don't seem to want something that says you erred but it's harm us i mean are we supposed to read this maybe we just say a fifty one is inapplicable in these circumstances it doesn't apply in circumstances in which the charges change during trial i'm not quite sure how to square your issue has ever been presented before of a lesser included being the subject for an eight fifty one handsome and so while i don't think it's in a political ball i think it requires a careful reading of what the text requires the the before trial that obviously complicates how it could apply to lesser included and the purposes which are did the defendant have actual notice of acquired qualifying prior conviction and here all of that is satisfied there is indisputable record evidence of the prior conviction in fact that there was a stipulation a trial that mr brown had been convicted plus you have lesser included offenses that came late in the day that it would have been impossible for the government to a filed an eight fifty one that actually comply with the letter of the statute at that point it think that it's important to keep in mind how this case look differently before and that sentencing memorandum in the colloquy at the sentencing hearing all underscored there was no dispute that the prior conviction qualified and that he actually did sustain that conviction and so that perp of a fifty one to ensure there is a due process right to challenge the reliability of that conviction that falls away in this case since that's undisputed and so what's left is simply the notices the possible hants meant and here where there's actual the supersed indictment contains that prior notice an actual notice of that conviction and it's on the defense initiative to introduce a lesser included the purposes i think are deemed should be allowed that seems to me that you're both asking each of you is asking the other side to anticipate what might happen the defendant says the government should at the outset have anticipated that we my exercise our right to ask for a lesser included offense and therefore they should have anticipatory early filed the eight fifty one and hanson notification in case we would later move for a lesser included you say they should have anticipated our move that once they actually moved for the lesser included offense and that was granted they should have anticipated that we would then seek the statutory enhancement so if we view it that way which one of you should have been anticipating other person's move and why should we call it one way or the other well i think is a policy matter it's not in anyone's interest for the government to file anticipatory eight fifty one informations because had this not been a a forty one b one c case but a b one b by virtue of filing that fifty one information the mandatory minimum jumps up it goes from five years to ten years mandatory minimum in a case where the united states didn't view that as the appropriate disposition but was only filing it in case a lesser included was brought to trial and in case the jury convicted only of the lesser included down the road that could have a very real impact on the defendant sentence so that's why i think the better view as a policy matter and in line with the t is to view it fifty one with the lens that it is ordinarily meant to apply to what the government's charges are and the lesser included offense of the defense initiative con complicates the matter and so you have to look at the purposes an actual notice through other record documents and withdraw all fifty one after the jury verdict i think that is possible yes but do it that way i think that it is possible anticipatory fifty one which increases the statutory range the defendant who might have wanted to exercise a right to jury trial thinking that they're facing a lesser sentence now might say oh my gosh maybe i better plead this out because i'm facing thirty years if i don't exactly know and the thing goes on the kind of the flip side in this case where this defendant already showed he was willing to go to trial facing at least up to a twenty year statutory maximum on the eight forty one and so to rely on the fact that the time is up time and i may finish absolute to rely on the lesser included that has a substantially reduced sentence there's much less if any prejudice between the twelve month and twenty four month mask as compared to the crimes and the possible sent an exposure like i said i think is advisory guidelines were up to about forty months so in that case there's kind of policy concerns are implicated there too so you didn't file the notice because you were looking out to protect the dependent i think that we didn't file the notice here because there is no virtually no impact that it could have had there's aspects of both right that in that where there's an advisory guidelines range that was how clear around twenty seven to forty months as a practical matter the government even if it wanted to was not likely to receive a sentence over twenty years and so in this case a pretrial in fifty one would have had virtually no impact on the realistic sentencing exposure the defendant less or they more questions i'll pass on the briefs that you my steam colleague make several policy arguments and those would be really good arguments if he was in front of congress but we in front of this core we have to deal with the language of the statute and the government has not argued that  fifty one is in big u s they've not argued that fifty one doesn't apply to this case they've not argued that it is unconstitutional therefore this court is stuck with the plain language of twenty one u section eight fifty one which requires that a notice be filed it was not done so in this case and therefore we're entitled to the relief that we seek or members of it's not form over well in order for in order for it to be for over substance there has to be at least some substance and in this case there was no substance because nothing's ever been filed and eight fifty one does have one which is that you have to go through you have to cite to fifty one a one and you have to  provide the notification of the prior conviction and there you are seeking the enhanced penalty under the on the bus controlled substances act that's that was never done in the indictment what they were seeking is to try to prove a nine twenty two geophones not to seek an enhanced penalty under age forty one and that's the that's the problem here it's unlike our gun cases that we have that don't require news we have a statute that absolutely requires notice in this case and it just wasn't done in this case and it does make a difference to the client because otherwise there wouldn't be here we're talking about eighteen months in jail versus twelve months in jail and a misdemeanor offense so it makes every difference in the world in this case regardless of the fact that it's only a short period of time incarceration the governments and bag you all given you the notice well i'm not going to say that they that they sandba g us but the fact is they believe that they were going to win the case they believe that they were going to get convictions on those counts and they didn't get all the convictions that they thought they were going to get and they're stuck with that that decision by the by the jury in this case that that's what the bottom line this case is they thought they were going to get a zero to twenty a zero to ten on and another zero to ten on this case they didn't get they got one that was a zero to twelve months and that's what they're stuck with  t for i mean it's it's hard for us to me anyway to understand how your client would be better off if they had filed the notice before trial that's exposing your client to potentially thirty years if your client had been convicted on possession with intent to distribute so i mean how would your kind of been better off if they had done exactly what you say you wish they had done well we  don't know i think with the answer is i really don't know what the client would have done or would not have done had they filed the eight fifty wanted the beginning of trial the only thing that i do know is what they didn't do right and since in your view there's no harmless error that would attach to this i mean that's another question i mean aren't we required to treat all errors as harmless structural errors or never harm a sentence in excess of the statutory maximum is per se reversible error that's the language of what state