United States Court of Appeals 

For the First Circuit 

No. 18-1597 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

ALFREDO GONZALEZ, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Paul J. Barbadoro, U.S. District Judge] 

Before 

Kayatta, Selya, and Stahl, 

Circuit Judges. 

Tina Schneider for appellant. 

Seth R. Aframe, Assistant United States Attorney, with whom 

Scott W. Murray, United States Attorney, and Kasey A. Weiland, 

Assistant United States Attorney, were on brief, for appellee. 

January 31, 2020 
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SELYA, Circuit Judge. Defendant-appellant Alfredo 

Gonzalez argues that his federal drug-trafficking conviction 

should be set aside because an ineligible juror was seated on his 

jury. In the alternative, he argues that his twenty-year mandatory 

minimum recidivist sentence should be vacated. Concluding that 

the appellant's asseverational array lacks merit, we affirm both 

his conviction and his sentence. 

I. BACKGROUND 

We start by rehearsing the travel of the case. On 

October 5, 2016, a federal grand jury sitting in the District of 

New Hampshire indicted the appellant, along with fifteen codefendants, on a charge of conspiracy to distribute and to possess 

with intent to distribute controlled substances. See 21 U.S.C. 

§§ 841(a), 846. Pertinently, the indictment alleged that the 

appellant's conduct as a member of the conspiracy "involved one 

kilogram or more of a mixture or substance containing a detectable 

amount of heroin" in violation of 21 U.S.C. § 841(b)(1)(A)(i). 

The appellant entered a "not guilty" plea to the indictment. 

While the case was awaiting trial, the government filed 

an Information pursuant to 21 U.S.C. § 851(a) (the Information). 

Through the Information, the government placed on record the 

appellant's 1997 New Hampshire state conviction for possession of 

a narcotic drug with intent to sell. See N.H. Rev. Stat. Ann. 

§ 318-B:2(I) (1990). It is undisputed that the appellant received 
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a prison sentence of three-and-one-half to seven years in the state 

case. The government asserted that the state conviction and 

sentence rendered the appellant subject to a mandatory minimum 

recidivist sentence of twenty years if found guilty of the federal 

drug-conspiracy charge. See 21 U.S.C. § 841(b)(1)(A) (2012). 

A jury trial ensued in the district court, and the 

appellant was convicted of the conspiracy charge on November 9, 

2017. The jury found specially that the weight of heroin involved 

in the conspiracy and attributable to the appellant was one 

kilogram or more. Within a matter of days, though, the district 

court notified the parties of a nascent issue involving the 

residency of Juror No. 127. Insofar as they are pertinent here, 

we sketch the facts summarized in the court's memorandum: 

 Before jury empanelment began, the parties received 

a packet of information from the district court 

clerk's office regarding the jury venire. This 

packet included a jury selection list, compiled by 

the clerk's office, which recounted each juror's 

self-reported permanent address (city and state). 

It also included supplemental questionnaires filled 

out by the prospective jurors. 

 The jury selection list noted, next to the name of 

Juror No. 127, "Derry NH." In contrast, his 

supplemental questionnaire indicated that he had 
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been working in Massachusetts and had been a 

Massachusetts resident for the last fifteen months. 

 Prior to the voir dire, Juror No. 127 spoke with 

two district court staff members about how to 

describe his residency. Court staff instructed the 

juror to address this matter with the judge (which 

he apparently failed to do). 

From aught that appears from the record, neither the 

parties nor the judge were aware of any problem with Juror No. 

127's residency either before or during the trial. The problem 

came to light only on the final day of the trial (after the jury 

had returned its verdict and been discharged).1 When the 

appellant's counsel reviewed the court's memorandum and belatedly 

perused Juror No. 127's supplemental questionnaire, he concluded 

that Juror No. 127 was, in fact, not a resident of New Hampshire 

at the time of the trial. Rather, Juror No. 127 was a New Hampshire 

 1 The problem surfaced when Juror No. 127 went to the clerk's 

office after the verdict had been returned and the jury had been 

discharged. He explained that he had stayed with his sister (a 

New Hampshire resident) during the trial; complained that his car 

was towed from a "resident only" parking spot at his sister's 

building; and inquired whether the court could resolve his towing 

charges. In the course of this discussion, court staff realized 

that Juror No. 127 had no current residence in New Hampshire and 

alerted the judge. The chief deputy clerk prepared a memorandum 

summarizing relevant facts, and the judge directed that the parties 

be notified about the residency issue. 
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native who had been residing for over a year in neighboring 

Massachusetts. 

Based on this anomaly, the appellant moved for a new 

trial. See Fed. R. Crim. P. 33. The government opposed the 

motion, and the district court conducted an evidentiary hearing. 

The court reserved decision and thereafter, in a thoughtful 

rescript, denied the appellant's motion. See United States v. 

Gonzalez, No. 16-cr-162-12-PB, 2018 WL 1936473 (D.N.H. Apr. 24, 

2018). 

In due course, the district court received the 

presentence investigation report (the PSI Report). When 

chronicling the appellant's criminal record and calculating his 

criminal history score, the PSI Report included the appellant's 

1997 New Hampshire conviction for possession of a narcotic drug 

with intent to sell. The appellant did not object to the inclusion 

of the 1997 New Hampshire drug conviction in his criminal history, 

and, predicated on that conviction and the Information previously 

filed by the government, the PSI Report concluded that the 

appellant was subject to a twenty-year mandatory minimum 

recidivist term of immurement. At the disposition hearing, the 

district court accepted this conclusion and imposed a twenty-year 

sentence. This timely appeal followed. 
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II. ANALYSIS 

The centerpiece of the appellant's asseverational array 

is his claim that his conviction and sentence must be vacated 

because the jury that convicted him included a nonresident. The 

appellant's remaining claims of error are focused on his sentence. 

We first address his "nonresident juror" claim and then confront 

his various sentence-related challenges. 

A. The Nonresident Juror Claim. 

The appellant asserts that he is entitled to a new trial 

because one of the seated jurors was not a New Hampshire resident. 

This assertion rests on both the Jury Selection and Service Act 

(JSSA), see 28 U.S.C. § 1865(b)(1), and the Sixth Amendment. The 

district court denied the appellant's motion for a new trial, 

rejecting both his statutory and constitutional arguments. In the 

court's view, the appellant advanced his claim too late and, in 

all events, could not show any prejudice flowing from the 

nonresident juror's participation in the trial. 

Federal Rule of Criminal Procedure 33 permits a district 

court to "vacate any judgment and grant a new trial if the interest 

of justice so requires." We review a denial of a motion for a new 

trial for abuse of discretion. See United States v. Connolly, 504 

F.3d 206, 211 (1st Cir. 2007). Where, as here, the judge who hears 

the motion for a new trial is the same judge who presided over the 

trial, substantial deference is due to the judge's perceptions. 
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See id.; United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 

1991). Of course, a material error of law is always an abuse of 

discretion. See Connolly, 504 F.3d at 211. 

The JSSA premises eligibility for jury service on, among 

other things, residency for at least one year in the judicial 

district in which the trial is to be held. See 28 U.S.C. 

§ 1865(b)(1). In this case, though, it is undisputed that Juror 

No. 127 was not a New Hampshire resident at the time of the trial 

and, therefore, was not then eligible for jury service in the 

District of New Hampshire. Even so, the JSSA requires a defendant 

to raise any residency issue "before the voir dire examination 

begins, or within seven days after the defendant discovered or 

could have discovered" such issue, "by the exercise of diligence 

. . . whichever is earlier." Id. § 1867(a); see United States v. 

Uribe, 890 F.2d 554, 561 (1st Cir. 1989). This timing requirement 

serves an eminently practical purpose: when an objection to a 

juror's lack of the required residency is made on a timely basis, 

the court can rectify the situation by the simple expedient of 

replacing the ineligible juror with an eligible juror. See United 

States v. Novod, 923 F.2d 970, 978 (2d Cir.), aff'd in part, rev'd 

in part on reh'g on other grounds, 927 F.2d 726 (2d Cir. 1991); 

cf. United States v. Gale, 109 U.S. 65, 69-70 (explaining that 

when objection regarding juror ineligibility is made timely, "the 

irregularity might be corrected by reforming the panel"). 
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In this instance, the appellant had available to him — 

before voir dire — Juror No. 127's supplemental questionnaire. 

This document clearly indicated that Juror No. 127 was not a New 

Hampshire resident. But the appellant's counsel neglected to 

review this form, relying instead on a summary jury selection list 

that set forth "City & State" for each prospective juror 

(information extracted from the prospective jurors' self-reported 

permanent addresses on other forms). Juror No. 127 had reported 

that his permanent address was in Derry, New Hampshire, so that 

city and state appeared opposite his name on the jury selection 

list. And even though the supplemental questionnaire made it plain 

that Juror No. 127 had been a resident of Massachusetts for at 

least fifteen months prior to jury empanelment, the appellant's 

counsel did not object when Juror No. 127 was seated on the jury. 

It was not until after the verdict was returned that the appellant 

mounted a residency-based challenge. That was too late, see 28 

U.S.C. § 1867(a), and the district court determined that the 

appellant's challenge was unavailing. 

We discern no abuse of discretion. Before voir dire 

commenced, the appellant's counsel easily could have discovered, 

through the exercise of due diligence, that Juror No. 127 was not 

a New Hampshire resident.2 All that he had to do was review the 

 2 Here, as in other contexts, the sins of the lawyer are 

visited upon the client. See Taylor v. Illinois, 484 U.S. 400, 
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completed questionnaire that had been given to him. A party who 

chooses not to read a document in his possession scarcely can be 

heard to complain that he was unaware of the contents of the 

document. See id. (charging defendant with notice of defect when 

he "could have discovered" it "by the exercise of diligence"); 

Uribe, 890 F.2d at 561 (finding waiver when basis for objection 

could have been gleaned from jury questionnaires available to 

counsel on motion). 

The appellant attempts to sidestep the effects of his 

waiver. He suggests that his failure to raise a timely challenge 

to Juror No. 127's eligibility should be excused because the 

district court provided inconsistent information about the juror's 

place of residence; court staff had more information about the 

juror's residence than did the appellant; and court staff shirked 

their responsibility of getting to the bottom of the residency 

issue after Juror No. 127 made an initial inquiry. 

The plain language of the statute, though, precludes the 

appellant from relying on these excuses to overcome his waiver. 

The JSSA provides that following the statutory procedure 

(including the timing requirement) constitutes "the exclusive 

means" for a defendant to raise a challenge to jury composition 

based on noncompliance with the JSSA. 28 U.S.C. § 1867(e). In 

 

416-18 (1988); Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 762 

n.12 (1st Cir. 1994). 
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comparable contexts, courts consistently have found waiver when 

defendants failed to comply strictly with JSSA requirements. See, 

e.g., United States v. Foxworth, 599 F.2d 1, 3 (1st Cir. 1979) 

(concluding that appellant's "failure to comply with the express 

statutory requirement . . . precludes his statutory challenge to 

the jury selection process"); United States v. Marrapese, 610 

F. Supp. 991, 997 (D.R.I. 1985) (Selya, J.) ("Under the statutory 

scheme, § 1867 ministers to the vigilant — not to those who sleep 

upon their perceptible rights."). This principle holds sway even 

when — as in this case — the objecting party proffers an excuse 

based on some idiosyncratic circumstance. See United States v. 

Hawkins, 566 F.2d 1006, 1013-14, 1013 n.13 (5th Cir. 1978) 

(explaining why the JSSA should not be interpreted as "impliedly 

excusing compliance with the timeliness requirement" even when 

"potential irregularity in the jury selection process" is known to 

court and government but not to defendant). 

We add, moreover, that the appellant's claim under the 

JSSA is doubly barred: even if the residency glitch had been 

entirely unknowable prior to verdict, the appellant would still 

have to carry the burden of establishing prejudice. See Uribe, 

890 F.2d at 562. The district court found no prejudice, and its 

assessment is entitled to substantial deference. See id. The 

appellant has pointed to nothing that calls the district court's 

assessment into legitimate question. 
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The parties agree that, in this case, the existence of 

prejudice depends on whether there is any good reason to believe 

that Juror No. 127 may have been biased. Struggling to make such 

a showing, the appellant argues that Juror No. 127 was less than 

candid about his residency and, thus, should be deemed biased. 

But in order to obtain a new trial based on a juror's lack of 

forthrightness regarding a statutory qualification during voir 

dire, a party ordinarily must demonstrate harm. See id. In most 

instances — and this case is no exception — a claim based on a 

statutorily ineligible juror's lack of candor "reduces to one based 

on actual or likely bias." Id. 

In Sampson v. United States, 724 F.3d 150 (1st Cir. 

2013), we addressed the issue of bias when examining a claim that 

a new trial was required because a seated juror had been dishonest 

during voir dire. See id. at 163-66. There, we made pellucid 

that an "inquiry into potential bias . . . . depends on whether a 

reasonable judge, armed with the information that the . . . juror 

failed to disclose . . . would conclude under the totality of the 

circumstances that the juror lacked the capacity and the will to 

decide the case based on the evidence." Id. at 165-66. Although 

the Sampson court was dealing with a dishonest juror, see id. at 

162-63, the same inquiry applies where a juror is confused or 

mistaken rather than dishonest, see McDonough Power Equip., Inc. 

v. Greenwood, 464 U.S. 548, 555-56 (1984) (establishing 
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impartiality test when juror gave "mistaken, though honest, 

response" to voir dire question). 

It is manifest that a juror's ineligibility, premised on 

lack of residency, does not, in itself, impair the impartial 

performance of the juror's duties. See United States v. Haywood, 

452 F.2d 1330, 1332 (D.C. Cir. 1971). The appellant has shown 

nothing more: the record reflects genuine confusion, not outright 

dishonesty, concerning Juror No. 127's residency. The 

supplemental questionnaire, which was in the appellant's 

possession before voir dire, makes it apparent that the juror 

disclosed that he had been a Massachusetts resident for over a 

year. What is more, Juror No. 127 spoke to a pair of court 

employees about the complexities of determining his residency. 

So, too, Juror No. 127's self-report of a permanent address in 

Derry, New Hampshire, was not pulled out of thin air: he was a 

New Hampshire native and had maintained his New Hampshire address 

to register and insure his motor vehicle, retain his New Hampshire 

driver's license, and register to vote in that state. He even had 

instructed his employer to send the confirmations of the periodic 

direct deposits of his wages to his New Hampshire address. We 

hold, therefore, that the district court did not abuse its 

discretion in finding that Juror No. 127 had not intentionally 

furnished false information. 
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If more were needed — and we doubt that it is — there is 

nothing in the record that suggests any actual bias. The district 

court impliedly found that, apart from his nonresidency, Juror No. 

127 was fully qualified to serve. And it found no inkling of bias. 

We agree that, in light of the totality of the circumstances, 

neither Juror No. 127's Massachusetts residency nor his mistaken 

claim of New Hampshire residency would lead a reasonable judge to 

conclude that he would be unable or unwilling to weigh the evidence 

even-handedly. Given the absence of anything fairly suggesting 

bias on Juror No. 127's part, we affirm the district court's 

determination that the appellant did not suffer any prejudice. 

This leaves the appellant's constitutional claim. The 

Sixth Amendment affords a criminal defendant the right to a fair 

trial "by an impartial jury of the State and district" in which 

the crime was committed. U.S. Const. amend. VI. Much like a 

counterpart claim made under the JSSA, a Sixth Amendment challenge 

to the impartiality of a jury ordinarily must be proffered in a 

timely manner. See Novod, 923 F.2d at 978; see also Queen v. 

Hepburn, 11 U.S. (7 Cranch) 290, 297 (1813) (noting requirement 

that objection to juror qualification based on residence must be 

made before juror is sworn). 

When a party is aware — or ought to be — of a juror's 

nonresidence before the trial begins, and does not object timely, 

he waives his right to complain that seating the juror violates 
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the Sixth Amendment. See Novod, 923 F.2d at 978; see also 

Thornburg v. United States, 574 F.2d 33, 34-36 (1st Cir. 1978) 

(reaching same result when alleged disqualification was lack of 

English proficiency). As discussed above, the appellant's counsel 

had the supplemental questionnaire indicating Juror No. 127's 

Massachusetts residency before voir dire but did not interpose a 

timely objection. Thus, cloaking the residency issue in the 

raiment of the Sixth Amendment does not advance the appellant's 

quest for a new trial. 

B. Claims of Sentencing Error. 

None of the appellant's four claims of sentencing error 

were raised below. Consequently, our review is presumptively for 

plain error. See Fed. R. Crim. P. 52(b); United States v. Duarte, 

246 F.3d 56, 60 (1st Cir. 2001). "Review for plain error entails 

four showings: (1) that an error occurred (2) which was clear or 

obvious and which not only (3) affected the defendant's substantial 

rights, but also (4) seriously impaired the fairness, integrity, 

or public reputation of judicial proceedings." Duarte, 246 F.3d 

at 60. The appellant, as the proponent of plain error, bears the 

burden of persuasion on each facet of this quadripartite test. 

See United States v. Brown, 235 F.3d 2, 4 (1st Cir. 2000). 

With this standard in place, we turn to the appellant's 

claims of error. We discuss them one by one. 
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1. The Vagueness Claim. The appellant asserts that he 

should not have been subjected to a twenty-year mandatory minimum 

recidivist sentence. Here, though, the appellant was convicted of 

a felony: conspiracy to distribute and possess with intent to 

distribute one kilogram or more of a controlled substance. And 

the statute of conviction, as it read at the time, specifically 

provided that "[i]f any person commits such a violation after a 

prior conviction for a felony drug offense has become final, such 

person shall be sentenced to a term of imprisonment which may not 

be less than 20 years." 21 U.S.C. § 841(b)(1)(A) (2012). Given 

the appellant's 1997 New Hampshire conviction for possession of a 

narcotic drug with intent to sell, the mandatory twenty-year term 

of immurement imposed by the district court appears, on its face, 

to be appropriate. 

The appellant demurs. To begin, he challenges the 

mandatory minimum recidivist sentence on the grounds that the term 

"felony drug offense," as used in section 841, is void for 

vagueness. In mounting this challenge, the appellant relies 

heavily on the Supreme Court's decision in Johnson v. United 

States, 135 S. Ct. 2551 (2015), which held that the residual clause 

defining "violent felony" in the Armed Career Criminal Act offended 

the Due Process Clause. See id. at 2563. 

The residual clause defined "violent felony" as an 

offense that "otherwise involves conduct that presents a serious 
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potential risk of physical injury to another." 18 U.S.C. 

§ 924(e)(2)(B)(ii) (2012). The Court concluded that this 

definition was void for vagueness because it required judges to 

look beyond the elements of a crime and examine "a judicially 

imagined 'ordinary case' of a crime" rather than "real-world facts 

or statutory elements." Johnson, 135 S. Ct. at 2557. That 

process, the Court stated, not only left "grave uncertainty about 

how to estimate the risk posed by a crime" but also left 

"uncertainty about how much risk it takes for a crime to qualify 

as a violent felony." Id. at 2557-58. To shore up this argument, 

the appellant cites to other Supreme Court cases that held residual 

clauses defining the term "crime of violence" void for vagueness. 

See United States v. Davis, 139 S. Ct. 2319, 2336 (2019); Sessions 

v. Dimaya, 138 S. Ct. 1204, 1216 (2018). 

Building on this foundation, the appellant strives to 

persuade us that the term "felony drug offense" is void for 

vagueness because, as he envisions it, judges must look beyond the 

statutory elements of the charged crime in order to determine 

whether a prior conviction qualifies as a predicate. We are not 

convinced. As Congress has employed the term, a "felony drug 

offense" is "an offense that is punishable by imprisonment for 

more than one year . . . that prohibits or restricts conduct 

relating to . . . drugs." 21 U.S.C. § 802(44). In attempting to 
- 17 - 

draw a parallel to the Johnson line of cases, the appellant focuses 

on Congress's use of the word "conduct." This focus is misplaced. 

A federal law violates the Due Process Clause only if it 

is "so vague that it fails to give ordinary people fair notice of 

the conduct it punishes, or so standardless that it invites 

arbitrary enforcement." Johnson, 135 S. Ct. at 2556. We think it 

plain that "felony drug offense," as used in section 841, is 

neither vague nor standardless. Its definition and application 

require asking no more than three simple questions. See 21 U.S.C. 

§§ 802(44), 841(b)(1)(A). Those questions are: (1) Was there a 

prior conviction? (2) Was that conviction for a felony (that is, 

for an offense punishable by a year or more in prison)? and (3) Was 

that conviction for an offense that "prohibits or restricts conduct 

relating to" drugs, id. § 802(44)? All three of these questions 

have objectively ascertainable answers, and answering them 

requires nothing more than examining the statute of conviction. 

So long as these answers are all in the affirmative, the offense 

qualifies as a "felony drug offense" for the purpose of triggering 

the mandatory minimum. Seen in this light, the statute affords 

fair notice of the conduct leading to the sentencing enhancement, 

and the necessary analysis is not plagued by the need for judicial 

imagination and hypothesis that concerned the Johnson Court. 

The cases cited by the appellant do not deal either with 

the statutory provision at issue here or with any analogous 
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provision. See Davis, 139 S. Ct. at 2324; Dimaya, 138 S. Ct. at 

1210-11; Johnson, 135 S. Ct. at 2555-56. Put bluntly, their 

holdings are inapposite. In the absence of any on-point authority, 

there is no principled way for us to say that the district court 

committed a clear or obvious error in treating the statute as 

constitutional and following its dictates to impose a mandatory 

minimum recidivist sentence. See United States v. Morosco, 822 

F.3d 1, 21 (1st Cir. 2016) (concluding that challenged ruling 

"[wa]s not within a country mile of plain error" when no 

controlling precedent existed); United States v. CaraballoRodriguez, 480 F.3d 62, 73 (1st Cir. 2007) ("[S]ince we have not 

yet adopted the [statutory] construction [that the appellant] 

urges, there is no plain error."). We conclude, therefore, that 

the appellant's vagueness claim lacks force. 

2. The Section 851(b) Claim. The appellant next argues 

that we must vacate his sentence because the district court did 

not comply with certain statutory prerequisites prior to imposing 

the mandatory minimum recidivist term of immurement. 

Specifically, he complains that the court did not engage in a 

colloquy with him inquiring whether he affirmed the prior 

conviction and advising him that any challenge to it must be raised 

before sentencing. See 21 U.S.C. § 851(b). 

21 U.S.C. § 851 delineates the procedures for seeking 

and imposing an enhanced recidivist sentence. First, the 
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government must "file[] an information with the court . . . stating 

in writing the previous convictions to be relied upon." 

Id. § 851(a)(1). The government did so here. Next, the court 

must "inquire of the person with respect to whom the information 

was filed whether he affirms or denies that he has been previously 

convicted as alleged" and "inform him that any challenge to a prior 

conviction which is not made before sentence is imposed may not 

thereafter be raised." Id. § 851(b). It is undisputed that the 

court below failed to engage in such a colloquy. 

Section 851(c) prescribes the procedures by which a 

defendant may seek to challenge a prior conviction — procedures 

that the appellant did not follow. Another statutory provision 

further limits a defendant's ability to challenge past 

convictions. See id. § 851(e) (prohibiting "challenge[s] [to] the 

validity of any prior conviction . . . which occurred more than 

five years before the date of the information"). 

Before reaching the merits of the appellant's argument, 

a threshold matter looms. Despite conceding that he did not object 

to the absence of the required colloquy in the district court, the 

appellant nonetheless protests the appropriateness of plain error 

review. Remarking that section 851(b) places the onus on the 

district court to inform a defendant of his right to affirm or 

deny a prior conviction, the appellant asserts that it makes no 

sense to require him to object contemporaneously to the court's 
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failure to provide the required warning. He exhorts us instead to 

review the absence of the required colloquy for harmless error, 

not plain error. See United States v. Lopez, 907 F.3d 537, 547-

48 (7th Cir. 2018), cert. denied, 139 S. Ct. 1612 (2019); United 

States v. Baugham, 613 F.3d 291, 295-96 (D.C. Cir. 2010) (per 

curiam). 

The appellant's standard-of-review argument runs 

headlong into the law of the circuit doctrine. As a general 

matter, that doctrine commands our adherence to our own prior panel 

decisions. See, e.g., United States v. Barbosa, 896 F.3d 60, 74 

(1st Cir.), cert. denied, 139 S. Ct. 579 (2018); United States v. 

Rodríguez, 527 F.3d 221, 224 (1st Cir. 2008); United States v. 

Lewis, 517 F.3d 20, 23 (1st Cir. 2008). Unless a litigant can fit 

his case into one of the narrow exceptions to this doctrine,3 prior 

circuit precedent controls. See Barbosa, 896 F.3d at 74. 

Here, none of the exceptions applies, and our prior 

circuit precedent teaches that we must review previously unraised 

claims regarding a district court's failure to conduct a section 

851(b) colloquy for plain error. See United States v. Curet, 670 

 3 We have said that "the exceptions to the law of the circuit 

doctrine are narrowly circumscribed and their incidence is 'hen'steeth-rare.'" Barbosa, 896 F.3d at 74 (quoting San Juan Cable LLC 

v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010)). For instance, 

an exception pertains "when the holding of a previous panel is 

contradicted by subsequent controlling authority, such as a 

decision by the Supreme Court, an en banc decision of the 

originating court, or a statutory overruling." Id. 
- 21 - 

F.3d 296, 300 (1st Cir. 2012) ("We review failure to conduct a 

§ 851(b) colloquy for harmless error where there is an objection, 

and for plain error in the absence of an objection."); United 

States v. Dickerson, 514 F.3d 60, 64-65, 65 n.4 (1st Cir. 2008). 

Accordingly, we are bound to review the appellant's section 851(b) 

claim for plain error. 

The appellant says that plain error occurred simply 

because the district court failed to adhere to the procedure limned 

in 21 U.S.C. § 851(b). The relevant facts are not in dispute: 

the district court neither made the required inquiry nor informed 

the appellant of the limited time available within which to 

challenge the prior conviction. Even so, the appellant's argument 

faces an insurmountable obstacle: his predicate conviction 

occurred some twenty years before the date of the Information in 

this case, and statutory law forecloses challenges to the validity 

of convictions that are more than five years old. See 21 U.S.C. 

§ 851(e); see also Dickerson, 514 F.3d at 65. Thus, even though 

the section 851(b) colloquy was omitted, the appellant cannot 

demonstrate that its omission in any way affected his substantial 

rights. See United States v. Romero-Carrion, 54 F.3d 15, 18 (1st 

Cir. 1995). Plain error is plainly absent: the district court's 
- 22 - 

error was harmless, and a harmless error cannot be a plain one.4 

See Dickerson, 514 F.3d at 65. 

There is one loose end. The appellant suggests that 

even though he could not challenge the validity of the 1997 

conviction, he could still have challenged allegations in the 

Information by following the procedure outlined in section 851(c). 

See 21 U.S.C. § 851(c)(1). This is true as far as it goes — but 

it does not take the appellant very far. Neither in any filing in 

the district court nor in his appellate briefing did he raise any 

viable challenge to any specific allegation in the Information. 

The mere possibility that such a challenge might be open to him 

does not, without more, support a finding of plain error. 

At oral argument in this court, the appellant's 

appellate counsel attempted to fill this void. She suggested that 

the appellant may not have been the same "Alfredo Gonzalez" who 

was convicted in the 1997 New Hampshire drug case. This belated 

suggestion, presented without either an affidavit from the 

appellant or any other shred of documentation, is too little and 

too late. See id. § 851(c)(2); cf. United States v. SerranoMercado, 784 F.3d 838, 847 (1st Cir. 2015) (recognizing that 

 4 Given this conclusion, it is nose-on-the-face plain that 

the standard of review makes no meaningful difference in this 

instance. Because the section 851(b) error was patently harmless, 

the appellant's claim of error would founder even under his 

preferred standard of review. 
- 23 - 

defendant in categorical case who does not tender Shepard documents 

on appeal "could not meet the heightened prejudice showing plain 

error review requires"). And this suggestion strikes a 

particularly dissonant chord inasmuch as the appellant did not 

object to the inclusion of this conviction in his criminal history 

(as recounted in the PSI Report). And if, despite this seeming 

admission, he actually wishes to make and pursue a "not me" claim, 

he may do so by means of a petition for post-conviction relief, 

accompanied by appropriate documentation, under 28 U.S.C. § 2255. 

Battling on, the appellant's counsel suggests that 

"[b]ased on the scant details in the information, it is unclear 

even whether the prior conviction was a felony." This suggestion 

elevates hope over reason. A "felony drug offense" is one that is 

"punishable by imprisonment for more than one year under any law 

. . . of a State . . . that prohibits or restricts conduct relating 

to . . . drugs." 21 U.S.C. § 802(44). Here, the record makes 

manifest that the prison sentence received by the appellant in the 

New Hampshire drug case was for substantially more than one year. 

To cinch the matter, the nature of the offense — possession of a 

narcotic drug with intent to sell — indicates just as clearly that 

the conviction was for an offense "that prohibits or restricts 

conduct relating to narcotic drugs." Id.; see United States v. 

Burghardt, 939 F.3d 397, 406-09 (1st Cir. 2019) (holding that 

violation of N.H. Rev. Stat. Ann. § 318-B:2(I) is categorically a 
- 24 - 

"serious drug offense" under 18 U.S.C. § 924(e)(2) — holding that 

forecloses any argument that it is not a "felony drug offense" 

under the more broadly worded 21 U.S.C. § 802(44)). 

That ends this aspect of the matter. We conclude that 

the district court's error in failing to conduct the required 

section 851(b) colloquy was harmless and that, therefore, the 

appellant's assignment of error fails. 

3. The Apprendi Claim. As a further fallback, the 

appellant submits that using his 1997 New Hampshire drug conviction 

as the foundation for the twenty-year mandatory minimum recidivist 

sentence transgressed his Fifth and Sixth Amendment rights. In 

support, he points out that the federal indictment did not itself 

allege the prior conviction, nor did the government prove the fact 

of the conviction beyond a reasonable doubt. See Apprendi v. New 

Jersey, 530 U.S. 466, 490 (2000). 

In Apprendi, the Supreme Court held that "any fact that 

increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable 

doubt." Id. Apprendi, however, is not the Court's controlling 

precedent on the question of when a prior conviction may be used 

to enhance a defendant's sentence. "[T]he Supreme Court's decision 

in Almendarez-Torres v. United States, 523 U.S. 224 (1998), fairly 

construed, established that a sentencing enhancement may be 

grounded on prior criminal convictions neither separately charged 
- 25 - 

nor proven to a jury." United States v. Richards, 456 F.3d 260, 

262 (1st Cir. 2006). Since Almendarez-Torres has neither been 

overruled nor abrogated by the Supreme Court, we are bound by its 

specific holding. See id. 

In an effort to blunt the force of this reasoning, the 

appellant says that later Supreme Court decisions intimate that 

the Justices may be prepared to disavow Almendarez-Torres. See, 

e.g., United States v. Haymond, 139 S. Ct. 2369, 2376-79 (2019); 

Alleyne v. United States, 570 U.S. 99, 103 (2013); see also 

Apprendi, 530 U.S. at 520-21 (Thomas, J., concurring). But we are 

not at liberty to browse through these tea leaves and vaticinate 

what future holdings the Supreme Court may (or may not) make. 

Where, as here, a Supreme Court decision applies directly to a 

case before us yet arguably depends on a rationale called into 

question by a later decision, we must still follow the decision 

that directly applies. See Agostini v. Felton, 521 U.S. 203, 237 

(1997); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 

U.S. 477, 484 (1989). Consequently, we reject the appellant's 

Apprendi challenge to his mandatory minimum recidivist sentence. 

The district court hardly could have committed plain error by 

adhering to binding Supreme Court precedent. 

4. The First Step Act Claim. On December 21, 2018, 

Congress enacted the First Step Act of 2018 (the Act), Pub. L. No. 

115-391, 132 Stat. 5194 (to be codified in scattered sections of 
- 26 - 

18, 21, and 34 U.S.C.). Section 401(a)(2)(A)(i) of the Act amended 

the statute of conviction to reduce the mandatory minimum sentence 

applicable for this crime from twenty years to fifteen years. See 

§ 401, 132 Stat. at 5220 (to be codified at 21 U.S.C. § 841(b)(1)). 

The appellant contends that this reduction of the mandatory minimum 

sentence should be applied retroactively to his behoof. To 

undergird this contention, he notes that the Act became law while 

his appeal was pending. 

We do not write on a pristine page. Section 401(c) of 

the Act states precisely when and to what extent the Act's 

provisions apply to pending cases. See id. at 5221. Pertinently, 

"[t]his section, and the amendments made by this section, shall 

apply to any offense that was committed before the date of 

enactment of this Act, if a sentence for the offense has not been 

imposed as of such date of enactment." Id. (emphasis supplied). 

The appellant acknowledges that the district court 

sentenced him prior to the December 21, 2018, effective date. He 

nonetheless asserts that when "a defendant is appealing the 

sentence, it cannot yet be considered final." And because the 

sentence is not yet final, his thesis runs, it has not yet been 

"imposed," and the Act's reduced mandatory minimum should apply to 

him. 

The appellant's contention conflates finality with 

imposition, and the Act's plain language defeats it. The word 
- 27 - 

"imposed" is not specially defined in the Act, and we therefore 

give that word its ordinary meaning. See United States v. Gordon, 

875 F.3d 26, 33 (1st Cir. 2017); Stornawaye Fin. Corp. v. Hill (In 

re Hill), 562 F.3d 29, 32 (1st Cir. 2009). A sentence is 

customarily understood to be imposed either when it is pronounced 

or entered in the trial court, regardless of subsequent appeals. 

See United States v. Pierson, 925 F.3d 913, 927 (7th Cir. 2019) 

("In common usage in federal sentencing law, a sentence is 

'imposed' in the district court, regardless of later appeals."), 

petition for cert. filed, — U.S.L.W. — (U.S. Oct. 28, 2019) (No. 

19-566); United States v. Davis, 924 F.3d 899, 905 n.4 (6th Cir. 

2019) (observing that sentence is imposed when it is orally 

pronounced); see also United States v. Burgos-Andújar, 275 F.3d 

23, 32 n.6 (1st Cir. 2001) (indicating that First Circuit "has not 

decided" precisely "when a sentence is imposed" but noting that 

choice is between oral pronouncement of sentence and trial court's 

entry of judgment); Fed. R. Crim. P. 35 advisory committee's note 

to 2004 amendment (advocating oral announcement as sentencing 

date). We need not decide today whether a sentence is imposed on 

the date of its pronouncement or on the date of entry of judgment; 

either way, the sentence is imposed before an appeal from that 

sentence can be taken. 
- 28 - 

In the case at hand, the appellant's sentence was imposed 

in June of 20185 — several months before the Act was passed — so 

the appellant cannot reap the benefit of the Act's reduction of 

the mandatory minimum. His claim of error is, therefore, hopeless. 

III. CONCLUSION 

We need go no further. For the reasons elucidated above, 

the judgment of the district court is 

Affirmed. 

 5 The court below orally pronounced the appellant's sentence 

on June 14, 2018. The judgment was entered on the district court's 

docket the next day.