FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 02-50381

Plaintiff-Appellee, D.C. No.

v.  CR-97-00269-

CAS-01 JERRY WAYNE MAYFIELD,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Submitted September 13, 2004*

Pasadena, California

Filed August 10, 2005

Before: David R. Thompson, Barry G. Silverman, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Thompson

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

10357
COUNSEL

David R. Evans, Pasadena, California, for the defendantappellant. 

Tresa Mack, Assistant United States Attorney, Los Angeles,

California, for the plaintiff-appellee.

UNITED STATES v. MAYFIELD 10359
OPINION

THOMPSON, Senior Circuit Judge: 

This opinion replaces our previous opinion, United States

v. Mayfield, filed October 29, 2004, and published at 386 F.3d

1301 (9th Cir. 2004), which has been withdrawn. 

Defendant-appellant Jerry Wayne Mayfield appeals his sentence, imposed following his conviction after a jury trial, for

possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a). Mayfield contends the enhanced

mandatory minimum sentence required by 21 U.S.C.

§ 841(b)(1)(A) may not be imposed consistent with due process when the government fails to refile an information charging a prior felony drug conviction before a second trial. We

conclude the government is not required to refile an information charging a prior felony drug conviction, which information it filed before the first trial, for purposes of applying a

sentencing enhancement under 21 U.S.C. § 841(b)(1)(A). We

nevertheless remand for the district court’s further consideration of Mayfield’s sentence in light of United States v.

Booker, 125 S. Ct. 738 (2005), and United States v. Ameline,

409 F.3d 1073 (9th Cir. 2005) (en banc). 

I. BACKGROUND

On March 25, 1997, an indictment was filed in the Central

District of California charging Jerry Wayne Mayfield and

Manyale D. Gilbert with possession with the intent to distribute 552.8 grams of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1). On April 19, 1997, Mayfield and Gilbert entered

pleas of not guilty. On July 18, 1997, the government filed an

information pursuant to 21 U.S.C. § 851(a) “Establishing [a]

Prior Felony Narcotics Conviction” as to Mayfield. Beginning

September 23, 1997, Mayfield and Gilbert were tried jointly

on the charge set forth in the indictment. After four days of

trial, the jury returned a verdict of guilty as to both defen10360 UNITED STATES v. MAYFIELD
dants. The district court sentenced Mayfield to 360 months in

prison. 

Mayfield appealed his conviction. We held that the district

court abused its discretion by failing to sever his trial from

Gilbert’s trial, and by not employing alternative means of mitigating the risk of prejudice. United States v. Mayfield, 189

F.3d 895 (9th Cir. 1999). We reversed Mayfield’s conviction

and remanded for a new trial. Upon remand, Mayfield was

individually retried on the indictment and was once again

found guilty by jury verdict. 

At his sentencing hearing, Mayfield objected to the Presentence Report’s proposed application of an enhanced penalty

under 21 U.S.C. § 841(b)(1)(A) on the basis of his alleged

prior felony drug conviction. Defense counsel argued that the

enhanced 20-year mandatory minimum term of imprisonment

should not apply because the government did not refile the

information alleging the prior felony drug conviction before

Mayfield’s second trial. The district court rejected defense

counsel’s argument, finding that Mayfield had received timely

and adequate notice of the prior conviction. 

The district court thereupon arraigned Mayfield on the

information which charged him with the prior felony drug

conviction. Mayfield initially pled “not guilty” to that charge,

but after he was shown a transcript of testimony he had given

at the first trial (in which he admitted to having been convicted of the prior felony drug offense), Mayfield admitted

that prior conviction and changed his plea to the information

to “guilty.” Based upon this admission, the court determined

that the 20-year mandatory minimum sentence of

§ 841(b)(1)(A) applied. The court found that Mayfield’s total

offense level was 38 and his criminal history category was II,

resulting in a Guidelines range of 262 to 327 months. The

court imposed a sentence of imprisonment of 262 months, a

10-year term of supervised release, and a $100 special assessment. 

UNITED STATES v. MAYFIELD 10361
In this appeal, we first consider Mayfield’s contention that

21 U.S.C. § 851(a) required the government, after our remand

following the first trial and prior to the second trial, to refile

the information charging the prior felony drug conviction. As

a result of the government’s failure to do so, Mayfield argues,

the district court violated his due process rights by applying

the enhanced mandatory minimum penalties of 21 U.S.C.

§ 841(b)(1)(A). 

We conclude in following Part A that the district court did

not err by applying the enhanced mandatory minimum penalties of 21 U.S.C. § 841(b)(1)(A). In following Part B, however, we remand to the district court for further consideration

of Mayfield’s sentence in light of Booker, 125 S. Ct. at 769

(opinion of Breyer, J.), and Ameline, 409 F.3d at 1084-85.

II. DISCUSSION

A.

The sufficiency of a 21 U.S.C. § 851(a) sentencing information is a question of law which we review de novo. United

States v. Hamilton, 208 F.3d 1165, 1168 (9th Cir. 2000);

United States v. King, 127 F.3d 483, 487-88 (6th Cir. 1997).

In his second trial, Mayfield was convicted of possession

with intent to distribute 522.8 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). Under 21 U.S.C. § 841(b)

(1)(A), that offense carries a minimum term of imprisonment

of 10 years, or 20 years if the defendant previously was convicted of a felony drug offense. In addition, if the defendant

previously was convicted of a felony drug offense, the sentencing court must impose a term of supervised release of at

least 10 years. 

[1] A sentencing court cannot, however, enhance the sentence of a defendant convicted of a drug offense under 21

U.S.C. § 841(a) on the basis of a prior felony drug conviction

10362 UNITED STATES v. MAYFIELD
unless the government complies with the requirements of 21

U.S.C. § 851(a). See United States v. Severino, 316 F.3d 939,

942-43 (9th Cir. 2003) (en banc). 

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 (and serves a copy of such information on the

person or counsel for the person) stating in writing

the previous convictions to be relied upon.

21 U.S.C. § 851(a) (emphasis added). 

Although section 851(a) does not specifically address the

government’s obligation concerning filing an information and

giving the required notice in the event of a retrial, both a fair

reading of the language of the statute and an examination of

its purposes support the conclusion that the government is not

required to refile a section 851(a) information and again give

the required notice prior to a defendant’s retrial. 

[2] The only time-constraint fairly suggested by the plain

language of section 851(a) is the requirement that the information be filed, and notice be given, “before trial.” The statute says nothing about refiling the information or regiving

notice in the event of a retrial. This is not surprising. Section

851(a) was enacted to fulfill the due process requirements of

reasonable notice and an opportunity to be heard with regard

to the prior conviction. United States v. Gonzalez-Lerma, 14

F.3d 1479, 1485 (10th Cir. 1994). As we have explained,

“Section 851(a) ensures proper notice so a defendant is able

to challenge the information. It allows a defendant to make an

informed decision about whether or not to plead guilty.”

Hamilton, 208 F.3d at 1168 (citation omitted). Thus, although

section 851(a) “requires strict compliance with the procedural

aspects[,] . . . [a]s long as the information provides clear

UNITED STATES v. MAYFIELD 10363
notice to a defendant of the prior convictions (and the court

gives an opportunity to attack convictions less than five years

old), then the statute has been satisfied.” Id. at 1169; see also

Kelly v. United States, 29 F.3d 1107, 1109 (7th Cir. 1994)

(“Section 851(a) serves a[n] . . . additional purpose, to inform

the defendant that she faces severe consequences if convicted.

This procedure, one would hope, should lead to better

informed decisions whether to proceed to trial.”), overruled in

part on other grounds by United States v. Ceballos, 302 F.3d

679, 690 (7th Cir. 2002). 

[3] In sum, filing the information and giving the section

851(a) notice before Mayfield’s first trial obviated any need

to refile the information and regive that notice before his second trial. This view is supported by United States v. Williams,

59 F.3d 1180 (11th Cir. 1995). There, the Eleventh Circuit

considered the issue we confront in this case. The defendant

in Williams was charged with knowingly conspiring to possess with the intent to distribute marijuana and attempted possession with the intent to distribute marijuana in violation of

21 U.S.C. §§ 841 and 846. Id. at 1182. His first trial resulted

in a conviction that was subsequently reversed, his second

trial ended in a mistrial due to juror misconduct, and his third

trial resulted in a guilty verdict. Id. The government filed an

information alleging a prior felony drug conviction prior to

the first trial but did not refile the information prior to the

third trial. Id. at 1185. The district court refused to consider

the prior conviction for purposes of sentencing enhancement

and the government appealed. Id.

On appeal, the Eleventh Circuit held that the government

had complied with section 851(a) because the information

was filed “before trial.” Id. The court also commented that

there appeared to be no support in the statute, in the cases, or

in reason for a requirement that an information pursuant to

section 851(a) had to be filed, and notice served, before the

first trial and then refiled and re-served before any retrial.

“The established purposes of the filing and service are fully

10364 UNITED STATES v. MAYFIELD
met upon the first filing and service, at least where the case

involves the same attorneys, the same court, and the same

indictment.” Id.1

[4] We conclude that the government’s initial filing of the

information pursuant to 21 U.S.C. § 851(a) and its compliance

with the notice provision of that statute before Mayfield’s first

trial complied with the statute and satisfied Mayfield’s due

process rights; refiling the information and regiving the notice

after the first trial and before the second trial was not

required. 

B.

At the time of sentencing, pursuant to § 2D1.1(b)(1) of the

United States Sentencing Guidelines, the district court applied

a two-level enhancement to Mayfield’s offense level to arrive

at a total offense level of 38. The district court did this by

finding that in committing the charged drug offense, Mayfield

possessed a firearm. It is unclear from the record whether the

facts underlying this enhancement were found by the jury. 

Without the two-level increase, Mayfield’s total offense

level would have been 36, and the Guidelines sentencing

range, using his criminal history category of II, would have

been 210 to 262 months. Using the increased total offense

level of 38, Mayfield’s Guidelines sentencing range was 262

to 327 months. The district court sentenced Mayfield to 262

months, the minimum permissible Guidelines sentence with

the two-level enhancement. 

1

In the present case, the district court docket indicates that a different

attorney represented Mayfield after the remand from this court following

the first trial. However, the fact that Mayfield was not continuously represented by the same attorney makes no difference. Upon remand, the parties were returned to the same criminal proceedings based on the same

indictment and the same section 851(a) information before the same court

(albeit before a different judge). 

UNITED STATES v. MAYFIELD 10365
In our previous opinion filed October 29, 2004, we

affirmed Mayfield’s sentence. We held that because the district court could have imposed a 262-month sentence using an

offense level of 36, solely on the basis of the facts reflected

in the jury’s verdict, Mayfield’s sentence, although predicated

upon an offense level of 38, did not offend the Sixth Amendment as interpreted by the Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004), or by our three-judge panel in

United States v. Ameline, 376 F.3d 967 (9th Cir. 2004),

amended by 400 F.3d 646 (9th Cir. 2005), rev’d en banc, 409

F.3d 1073 (9th Cir. 2005).2

We then issued a stay of our decision while we awaited the

Supreme Court’s decision in United States v. Booker, and our

en banc court’s decision in Ameline. Those decisions have

now been filed, and in light of them we reconsider the propriety of Mayfield’s 262-month sentence, which the district

court imposed by relying in part upon its finding of fact that

during his drug crime of conviction, Mayfield possessed a

firearm. 

Because, at the time of sentencing, Mayfield did not object

to his sentence on the ground that the Guidelines are advisory,

2This holding in our previous opinion, published at 386 F.3d 1301,

would have been wrong if the Guidelines were mandatory, as opposed to

advisory, because a fact found by the court (Mayfield’s use of a gun), not

by the jury, would have increased Mayfield’s exposure to a greater sentence, even though the sentence imposed was within the lower, applicable

Guidelines range. Cf. United States v. Thomas, 355 F.3d 1191, 1201 (9th

Cir. 2004) (holding that although the defendant’s actual sentence was

below the statutory maximum, the jury was required to determine facts

underlying an enhancement exposing the defendant to a maximum penalty

of life imprisonment); United States v. Velasco-Heredia, 319 F.3d 1080,

1085 (9th Cir. 2003) (“ ‘[A]ny fact that . . . exposes the criminal defendant

to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone’ is a fact that must be

submitted to the relevant factfinder and determined beyond a reasonable

doubt.”) (citing Harris v. United States, 536 U.S. 545, 563 (2002) (emphasis in original)). The Supreme Court has since held that the Guidelines are

advisory, not mandatory. Booker, 125 S. Ct. at 756-57, 764. 

10366 UNITED STATES v. MAYFIELD
not mandatory, we review his sentence for plain error. Ameline, 409 F.3d at 1078; United States v. Moreno-Hernandez,

___ F.3d ___, No. 03-30387, slip op. at 7793-94 (9th Cir. July

5, 2005). Plain error exists if there is “(1) error, (2) that is

plain, and (3) that affects substantial rights.” Ameline, 409

F.3d at 1078 (quoting United States v. Cotton, 535 U.S. 625,

631 (2002)). If these conditions are met, the court may then

“exercise its discretion to notice a forfeited error that (4) ‘seriously affects the fairness, integrity, or public reputation of

judicial proceedings.’ ” Id.

[5] The district court committed an error that was plain by

imposing a sentence pursuant to the Guidelines as mandatory,

rather than advisory, in nature. Id. at 1078. We must thus

determine whether Mayfield’s substantial rights were

affected, that is, whether the record reveals a “reasonable

probability that [Mayfield] would have received a different

sentence had the district judge known that the sentencing

guidelines were advisory.” Id.

[6] Having considered the record before us, we cannot say

whether the district court would have imposed a materially

different sentence than it did had that court known that the

“Guidelines are advisory rather than mandatory.” Id. at 1083.

We therefore remand this case to the district court for its consideration of Mayfield’s sentence in accordance with the procedures set forth in Ameline. Id. at 1084-85. If the district

court determines the sentence originally imposed would have

been materially different had that district court been aware the

guidelines were advisory, “the original sentence will be

vacated and the district court will resentence with the defendant present.” Id. at 1085. If the sentence would not have been

materially different, or the defendant promptly notifies the

district court of his decision to opt out of resentencing, “the

district court judge should place on the record a decision not

to resentence, with an appropriate explanation.” Id. at 1085.

AFFIRMED IN PART and REMANDED.

UNITED STATES v. MAYFIELD 10367