UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4339

DANIEL EDWARD KELLY, II, a/k/a

Danial Edward Kelly,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4360

STEVEN GEORGE KELLY,

Defendant-Appellant. 

Appeals from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CR-96-33-V)

Submitted: March 31, 2003

Decided: April 21, 2003

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. 
COUNSEL

Lyle J. Yurko, Charlotte, North Carolina; Aaron E. Michel, Charlotte,

North Carolina, for Appellants. Robert J. Conrad, Jr., United States

Attorney, Gretchen C.F. Shappert, Assistant United States Attorney,

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Steven and Daniel Kelly appeal their sentences of 262 months and

168 months imprisonment, respectively, which were imposed after

resentencing on remand from this court. We affirm the judgment of

the district court, grant Steven’s motion to file supplemental materials

under seal, and affirm the district court’s ex parte order in Steven’s

case. 

The Kellys were convicted in 1997 of conspiracy to possess with

intent to distribute and distribute a quantity of cocaine and cocaine

base (crack) in violation of 21 U.S.C. § 841(a), (b)(1)(A) (2000).

Each of them was initially sentenced as a career offender to a term

of 360 months imprisonment. In their first appeal, the Kellys challenged their convictions and sentences on multiple grounds.1

 We

affirmed the convictions, but vacated the sentences and remanded for

1

In their first appeal, the Kellys raised the following issues: sufficiency

of the evidence; district court’s refusal to recuse; admission of evidence

concerning Louisiana marijuana case; denial of motion for mistrial alleging prosecution’s use of conversations protected by attorney-client privilege; prosecutor’s threats to indict witnesses if they did not testify;

district court’s failure to instruct that showing of illegal agreement with

government witness insufficient for conviction; calculation of drug quantity attributable to each defendant. 

2 UNITED STATES v. KELLY
resentencing in accordance with Apprendi v. New Jersey, 530 U.S.

466 (2000), noting that, on remand, the district court could consider

the timeliness of the government’s pre-trial notices filed pursuant to

21 U.S.C. § 851 (2000), seeking the enhanced statutory maximum

sentence of thirty years under § 841(b)(1)(C) by reason of a prior drug

conviction. United States v. Kelly, Nos. 98-4522/4527, 2001 WL

866970 (4th Cir. Aug. 1, 2001) (unpublished).2

During resentencing, Daniel produced evidence that he no longer

qualified for sentencing as a career offender because one of his prior

Florida drug convictions had recently been reduced to a conviction for

simple possession of a controlled substance. He then argued that the

three of his remaining prior felony convictions should be counted as

one because the sentences were imposed on the same day. The district

court correctly determined that, because the offenses were separated

by intervening arrests, the cases were not related, see U.S. Sentencing

Guidelines Manual § 4A1.2(a)(2), comment. (n.3), and the sentences

were properly counted separately to determine Daniel’s criminal history score. On appeal, Daniel argues that, because the definition of

"common scheme or plan" or "same course of conduct" in USSG

§ 1B1.3 (Relevant Conduct) does not take into account intervening

arrests, the sentencing philosophy in § 1B1.3 conflicts with that in

§ 4A1.2 and the rule of lenity requires that the provision that benefits

him most should be applied. Daniel did not make this argument in the

district court. Consequently, our review is for plain error. United

States v. Olano, 507 U.S. 725, 732-37 (1993) (unpreserved error may

be corrected only if error occurred, that was plain, and that affects

substantial rights, and if failure to correct error would seriously affect

the fairness, integrity, or public reputation of judicial proceedings).

The claim is meritless. Section 1B1.3 applies to the calculation of a

defendant’s offense level, not to the determination of his criminal history. The district court did not plainly err in determining that Daniel’s

prior sentences should be counted separately. 

2Shortly after the Kellys were resentenced, the Supreme Court held

that, when the indictment failed to allege a drug quantity that increased

the statutory maximum sentence under § 841(b), such a sentence is plain

error, but not an error that need be corrected by the appeals court if the

evidence for the drug quantity is overwhelming and essentially uncontroverted. United States v. Cotton, 122 S. Ct. 1781, 1785-86 (2002) (internal

quotation omitted). We note that the Kellys contested the drug quantity.

UNITED STATES v. KELLY 3
At the Kellys’ original sentencing, the timeliness of the government’s § 851 notices was disputed. The district court did not resolve

the issue because the Kellys’ career offender sentences under

§ 841(b)(1)(A) mooted it. An enhanced statutory maximum sentence

under § 841 based on a prior drug conviction applies only when,

before the trial or entry of a guilty plea, the government has filed an

information stating in writing the prior convictions to be relied on and

served the information on the defendant. 21 U.S.C. § 851(a)(1). The

purpose of the requirement is to provide the defendant with "reasonable notice of the government’s intent to rely on a particular conviction and a meaningful opportunity to be heard." United States v.

Gonzalez-Lerma, 14 F.3d 1479, 1485 (10th Cir. 1994) (citing United

States v. Belanger, 970 F.2d 416, 418-19 (7th Cir. 1992), overruled

on other grounds by United States v. Ceballos, 302 F.3d 679, 692 (7th

Cir. 2002) (holding that § 851’s procedural requirements are not jurisdictional), cert. denied, 123 S. Ct. 924, 925 and 2003 WL 1448024,

1451726 (2003)). 

The government’s first notice was titled "Notice of Intent to Seek

Enhanced Penalties." It cited the wrong statute and did not state the

particular convictions to be relied upon. The government later filed

a supplemental notice in each case citing the correct statute. The supplemental notice was hand delivered to Daniel’s attorney the day

before trial and to Steven’s attorney before jury selection on the day

of trial. To Steven’s notice, the government attached a computer

printout of his Ohio criminal record. The court found in each case that

the form of the notice to each defendant was sufficient even though

it was not titled an "information," and that the content of each notice

was sufficient. Steven argues here that the supplemental notice did

not fulfill the statutory requirement. Questions of statutory interpretation are reviewed de novo. United States v. Meyers, 280 F.3d 407,

416 (4th Cir.), cert. denied, 123 S. Ct. 53 (2002). 

Steven first maintains that the term "before trial" means before the

trial term begins because the purpose of § 851 is to permit the defendant to make an informed decision as to whether to plead guilty or

proceed to trial by informing him what "actual statutory maximum"

sentence he faces. His position has no support in case law. The two

cases he cites in support of his argument agree that "before trial"

means before jury selection. See United States v. Prou, 199 F.3d 37,

4 UNITED STATES v. KELLY
48 (1st Cir. 1999); United States v. Kelly, 29 F.3d 1107, 1110 (7th

Cir. 1994); see also Ceballos, 302 F.3d at 692-93 (holding that either

actual notice of the government’s intention to seek an enhanced sentence or mailing of a § 851 information before trial (even if received

after trial begins) is sufficient to satisfy the requirements of § 851 and

discussing similar holdings from other circuits). Although we have

not addressed the question, given the weight of authority from other

circuits, we are persuaded that the district court did not err in determining that the § 851 notice delivered to Steven’s attorney before jury

selection was timely. 

Steven also argues that the government’s § 851 notice was insufficient because it was not titled an "information" and because it did not

state in writing the prior convictions on which the government relied.

However, because the government attached a computer printout of

Steven’s Ohio criminal record, thereby establishing that he had a

1991 conviction for attempted aggravated drug trafficking for which

he received an eighteen-month prison sentence, we conclude that this

document provided sufficient notice to him as to the conviction to be

relied upon. Moreover, the fact that the document was not titled an

"information" is not significant. See Belanger, 970 F.2d at 419

("Section 851 does not specify the particular form which notice of

enhancement must take . . ."). 

We find no error in the district court’s decision to apply the 2001

Guidelines Manual rather than the 1995 Guidelines Manual. Under

USSG § 1B1.11(b)(1), the manual in effect on the date of sentencing

is used unless its use would violate the Ex Post Facto Clause, in

which case the manual in effect on the date the offense was committed should be used. At his resentencing, Steven sought to persuade the

district court to apply the 1995 Guidelines Manual so that he could

benefit from Amendment 506, which was in effect from 1994 to

1997, and which would have fixed his base offense level at 32 rather

than 34 under § 4B1.1. Amendment 506 defined the term "offense

statutory maximum" in USSG § 4B1.1 to mean the statutory maximum without any enhancement for prior convictions. When Steven

was originally sentenced under § 841(b)(1)(A), the definition did not

concern him because his offense statutory maximum was automatically life imprisonment, making his base offense level 37 under

§ 4B1.1. By that time, the Supreme Court had already held that

UNITED STATES v. KELLY 5
Amendment 506 was inconsistent with 18 U.S.C. § 994(h) and was

therefore invalid. United States v. LaBonte, 520 U.S. 751, 762 (1997).

The district court did not err in refusing to apply the 1995 Guidelines Manual on remand. Steven was not affected by enactment of an

Ex Post Facto law. See United States v. Rice, 116 F.3d 267, 268 (7th

Cir. 1997) (Amendment 506 is not a "law," but an interpretive note

to a regulation). Moreover, he cannot show a due process violation

resulting from an unexpected enlargement of a criminal statute of the

sort addressed in Bouie v. City of Columbia, 378 U.S. 347, 353-54

(1964). 

On remand, the Kellys sought to religitate certain issues that had

been decided at the first sentencing and to raise new issues. The district court correctly determined that all these issues were foreclosed

by the mandate rule, United States v. Bell, 5 F.3d 64, 66 (4th Cir.

1993), because they had either been decided in the first appeal or

waived because they were not raised on appeal.3

We therefore affirm the Kellys’ convictions and sentences. We

grant Steven’s motion to file supplemental materials under seal and

affirm the district court’s ex part order in his case. We grant the government’s motion to submit the case on the briefs and dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

3These issues were: the district court’s refusal to recuse; drug type and

quantity; weapon enhancement; role adjustment; obstruction of justice

adjustment; denial of motion for acquittal or recalculation of sentence

based on Chapman v. United States, 500 U.S. 453 (1991); denial of

motion to dismiss indictment or for new trial based on Apprendi and

United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part

on reh’g en banc, 218 F.3d 310 (4th Cir. 2000). 

6 UNITED STATES v. KELLY