[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 11744 Non

- Argument Calendar

________________________ D.C. Docket No. 8:11

- cr - 00356

- JSM

- EAJ

- 3

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus VALARIAN JAYMO NN BROWN, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ (March 19, 2013) Before DUBINA, Chief Judge, MARCUS a nd KRAVITCH , Circuit Judges. PER CURIAM:

Case: 12-11744 Date Filed: 03/19/2013 Page: 1 of 82 Appellant Valarian Brown appeals his conviction s and sentence s . A jury convicted Brown of conspiracy to possess with intent to distribute at least 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 841( a)(1), (b)(1)(A)(ii), and 846; conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; and possession with intent to distribute at least 500 grams of cocaine , in violation of 21 U.S.C. §§ 841(a )(1), (b)(1)(B)(ii), and 18 U.S.C. § 2

. Before trial, the government filed a 21 U.S.C. § 851 notice of enhanced sentence, asserting that Brown had prior Washington state convictions for possession of a controlled substance with intent to distribute and po ssession of a controlled substance without a prescription.

I. The evidence at trial showed that Brown, a Florida resident, participated in

a n extensive and ongoing conspiracy aimed at purchasing and transporting large quantities of cocaine and marijuana from Texas to Florida, where Brown and his

co - conspirators would further distribute the drugs. The evidence showed that Brown engaged in conduct related to the cons piracy between 2003 and 2007 and
f

rom 2010 until his 2011 arrest. A lthough some of the participants entered and left the conspiracy at various times , other participants, including Brown, two of his codefendants, and two of his Texas drug suppliers, were i nvolved throughout the entire duration of the relevant conduct. Brown requested a jury instruction on

Case: 12-11744 Date Filed: 03/19/2013 Page: 2 of 83 multiple conspiracies, asserting that the evidence showed there was a conspiracy that occurred in 2005, and another conspiracy in 2011 . The district cou rt, concluding that there was not an adequate evidentiary predicate, did not give the multiple

- conspiracies instruction

. At sentencing, Brown objected to the § 851 notice on the grounds that the notice misidentified the nature of his prior offenses, both of which actually were convictions for simple possession of cocaine. The court overruled his objection, concluding that the notice was sufficient and the purpose of providing notice under § 851 was satisfied because Brown had demonstrated that he was able to identify, without confusion, the prior convictions upon which the government was relying. Based on the § 851 notice , Brown’s sentence was enhanced pursuant to § 8 41(b)(1)(A). T he court imposed a mandatory life term of imprisonment on Count 1, 30 years on Count 2, and 364 months on Count 3

. On appeal, Brown argues that the district court (1) erred in denying his request that the jury be instructed on multiple conspiracies because he was charged in two separate counts for the cocaine and marijuana conspiracies and because the evidence showed that some of the relevant conduct involved one of his

co - defendants but not Brown; and (2) incorrectly determined that the government’s information complied with the notice requirements of § 851, a necessary pre dicate

Case: 12-11744 Date Filed: 03/19/2013 Page: 3 of 84 to imposition of an enhanced sentence under § 841 , when it misidentified the nature of his prior offenses.

I I . We review the legal correctness of a jury instruction de novo

. United States v. Prather , 205 F.3d 1265, 1270 (11th Cir. 2000). As to a district court’s rejection of a requested jury instruction, however, we review a properly preserved claim for an abuse of discretion. United States v. Moore , 525 F.3d 1033, 1046 (11th Cir. 2008). A claim i s properly preserved for appellate review when the party objects before the jury retires, “stating distinctly the specific grounds for the objection.” United States v. Starke , 62 F.3d 1374, 1380

- 81 (11th Cir. 1995). If a specific obj ection was not made a t trial, “we will only review for plain error.” Id . at 1381. Furthermore, even if a defendant objects to a jury instruction at trial, if “the argument he advanced at trial is not the argument he advances on appeal,” we review the argument raised on appea l for plain error. Id . at 1380

- 81. When reviewing for plain error, we may reverse only if: (1) there is an error; (2) which is plain; (3) that seriously affects the substantial rights of the defendant; and (4) failure to correct the error would seriously affect the fairness of the judicial proceeding. Moore , 525 F.3d at 1048. Although the district court has “broad discretion” in formulating its instructions, “a defendant is entitled to have presented instructions relating to a

Case: 12-11744 Date Filed: 03/19/2013 Page: 4 of 85 theor y of defense for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.” United States v. Palma , 511 F.3d 1311, 1315 (11th Cir. 2008) ( internal quotation marks omitted). In reviewing “whether there is a proper evidentiary foundation for the instruction, the evidence must be viewed in the light most favorable to the accused.” Id

. Because the record demonstrates that Brown did not raise before the district
court the specific arguments he now raises on appeal , we review the jury instruction request for plain error. We conclude that t he district court did not plainly err by declining to give an instruction on multiple conspiracies because there was not adequate evidenc e to support Brown’s requested instruction. Even if the court had committed plain error, it was not prejudicial to Brown because, in light of the considerable evidence at trial showing Brown’s long

- standing involvement in the conspiracy as charged in the indictment , he cannot show that the outcome of his case would have been different had the jury received the requested instruction. 

### III

. We review de novo questions regarding the adequacy of a § 851 notice. United States v. Ramirez , 501 F.3d 1237, 1239 (11th Cir. 2007). Section 851(a) provides in part:

Case: 12-11744 Date Filed: 03/19/2013 Page: 5 of 86 No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior co nvictions, 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.

. . . Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence. 21 U.S.C. § 851(a)(1). W hen a person commits a violation pursuant to § 841(b)(1)(A) after two or more prior convictions for a felony drug offense have become final, such person shall be subject to a mandatory term of life imprisonment. 21 U.S.C. § 841(b)(1)(A). Harmless error does not apply to § 851(a) notice disputes. United States v.
James , 642 F.3d 1333, 1339 (11th Cir. ) cert. denied , 132 S. Ct. 438 (2011). However, the text of § 851 only requires the government to file a notice prior to trial, and it does not specify how to satisfy the notice requirement. See 21 U.S.C. § 851(a)(1). To answer this question, we conside r the purpose behind the notice requirement. Ramirez , 501 F.3d at 1239

- 40. The purposes of the § 851 notice are to allow a defendant to (1) “contest the accuracy of the information,” and (2) “have ample time to determine whether to enter a plea or go to trial and plan his trial strategy with full knowledge of the consequences of a potential guilty verdict.” Id. at 1239 (internal quotation marks omitted)

. We have found that a notice of enhancement containing minor errors was compliant with § 851 becaus e the notice, despite the errors, unambiguously

Case: 12-11744 Date Filed: 03/19/2013 Page: 6 of 87 signaled the government’s intent. See Perez v. United States , 249 F.3d 1261,
1266

- 67 (11th Cir. 2001) (affirming an enhanced sentence despite the fact that the § 851 notice contained an incorrect last digit in the year of a prior conviction because the conviction upon which the government relied was clear nonetheless, and the defendant did not allege any confusion as to which conviction the government referenced). In Perez , we different iated between § 851’s “filing and service” requirements, which require strict compliance, and the required contents of the notice, which we construe more liberally. Id . at 1265

- 67. However, when an enhancement notice failed to include the convictions upo n which the enhancement was based, we ruled that the government did not meet its burden of strict compliance, despite the government’s argument that it subsequently notified the defendant in other types of court filings of specific prior convictions it int ended to introduce at trial. United States v. Rutherford , 175 F.3d 899, 904 (11th Cir. 1999). In vacating the sentence, we further stated that, “[n]othing was filed to show which prior convictions, if any, the government intended to rely upon for enhance ment purposes. This was the purpose of the notification statute.” Id

. We conclude from the record that t he district court properly found that the government’s § 851 notice was sufficient because it served the purposes behind the notice requirement. Although Brown’s prior offenses were misidentified, the notice provided sufficient accurate details to enable him to research, identify, and

Case: 12-11744 Date Filed: 03/19/2013 Page: 7 of 88 potentially contest th e accuracy of the information. T he notice unambiguously signaled the government’s intent to seek a mandatory imprisonment term of life under § 841(b)(1)(A) based on his prior convictions, and thus allowed him to plan his defense strategy with this in mind. Because the notice was adequate, the district court was authorized to impose the enhanced sentence. For the aforementioned reasons, we affirm Brown’s convictions and
sentences. AFFIRMED. 1

1 We DENY Brown’s motion to withdraw initial appellate brief and for appoint ment of new counsel.

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