In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3607

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CORTEZ COOPER,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 1078—Blanche M. Manning, Judge.

____________

ARGUED JUNE 1, 2006—DECIDED AUGUST 23, 2006

____________

Before FLAUM, Chief Judge, and MANION and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. Cortez Cooper appeals his

sentence after conviction for four offenses related to his

participation in a conspiracy to distribute cocaine and

cocaine base. In 2003, Cooper pled guilty to two counts of

possession of cocaine, for which he received a sentence,

enhanced on the basis on his prior narcotics conviction, of

120 months’ imprisonment. This plea represented only a

part of the conduct charged in the indictment, and the

Government continued to pursue its prosecution of the

rest of the indictment. In 2004, Cooper was convicted by

a jury on four additional cocaine-related counts. After the

conviction, the district court imposed a second enhanced
2 No. 05-3607

sentence of 240 months to run concurrently with the 120-

month sentence that he was already serving. In this appeal,

Cooper claims that the district court erred in enhancing his

second sentence pursuant to 21 U.S.C. § 851, and in

denying his motion for a downward departure on the basis

of vindictive prosecution. Because we agree with the district

court that Cooper had notice of the Government’s motion to

enhance his second sentence and that there was no vindictive prosecution, we affirm the district court’s ruling on

both issues.

I. BACKGROUND

Cooper was a member of the Black P Stone Nation gang

in Chicago and was involved in a conspiracy to distribute

cocaine from 1995 to 2001. After a two-year undercover

drug investigation, the Government filed a criminal complaint against Cooper and ten co-defendants, including

Hugh Rogers, the leader of the conspiracy, in 2001. On

December 12, 2001, federal agents arrested Cooper in his

apartment, where they recovered a .357 caliber handgun,

ammunition for a .22 caliber handgun, 32 grams of crack

cocaine, and 111 grams of marijuana.

On February 14, 2002, Cooper entered into a proffer

agreement with the Government. With his lawyer present,

Cooper provided detailed information concerning his

involvement with Hugh Rogers’s drug operation. On April

18, 2002, a grand jury returned a 39-count indictment

against Cooper and his ten co-defendants. The charges

against Cooper included cocaine and cocaine base possession with intent to distribute, in violation of 21 U.S.C.

§ 841(a), and conspiracy to possess with the intent to

distribute, in violation of 21 U.S.C. § 846.

Shortly after the indictment, the Government tendered a

plea agreement to Cooper. The agreement required Cooper

to plead guilty to both possession with intent to distribute
No. 05-3607 3

and conspiracy with the intent to “distribute quantities . .

. in excess of 50 grams of cocaine base.” In exchange, the

Government agreed to move for a downward departure

under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(c), to the

higher of either two-thirds of the low end of the applicable

Guidelines range or the 10-year statutory minimum

sentence. On May 3, 2002, Cooper pled not guilty to all

counts in the indictment, but the Government continued to

negotiate a possible plea resolution over the next ten

months. Cooper ultimately rejected the Government’s

proposed plea agreement on November 22, 2002.

On March 18, 2003, pursuant to 21 U.S.C. § 851, the

Government filed an information to give notice of its

intention to seek an enhanced sentence based on Cooper’s

prior narcotics conviction. An identical information was

filed against Cooper’s co-defendant Quentin Daniels, the

only other defendant who had not pled guilty. Cooper’s

attorney received a copy of the written notice.

Three weeks after the Government filed its notice of

intention to seek an enhanced sentence, Cooper pled guilty,

without the benefit of a plea agreement, to only counts

Twelve and Thirteen of the indictment, which charged him

with possession. He pled not guilty to the conspiracy count.

On April 17, 2003, the Government filed a superseding

indictment (“first superseding indictment”), which added

two counts of using a telephone to facilitate a drug offense

to the conspiracy and possession charges. The Government

advised Cooper that it was unwilling to withdraw the

Section 851 notice and would be seeking a mandatory

minimum 20-year enhanced sentence. Cooper pled not

guilty to the superseding indictment, and the court set a

sentencing date for Counts Twelve and Thirteen of the

original indictment.

On January 20, 2004, the district court sentenced Cooper

to ten years’ imprisonment for Counts Twelve and Thirteen.

This was the mandatory minimum for the quantities
4 No. 05-3607

involved in Counts Twelve and Thirteen, after the Section 851 enhancement. The mandatory minimum for the

quantities involved in the remaining counts was twenty

years’ imprisonment. The district court did not consider the

conspiracy count as relevant conduct at the sentencing. The

court scheduled a trial on the conspiracy count and on the

other pending counts in the first superseding indictment.

Before trial, on June 17, 2004, the Government filed

a second superseding indictment against Cooper, which

added one count of possession of a firearm in furtherance of

a drug trafficking crime to the distribution and conspiracy

counts. On August 9, 2004, Cooper entered a plea of not

guilty to the second superseding indictment. Four days

later, on August 13, 2004, the jury found Cooper guilty

on four counts (including the conspiracy count) and not

guilty on two counts. Importantly, the jury found that

it was foreseeable that the conspiracy “involved 50 grams or

more . . . of cocaine base.”

On August 2, 2005, the district court sentenced Cooper to

240 months’ imprisonment for his convictions resulting

from the second superseding indictment, to run concurrently with his 120-month sentence from the original

indictment. Cooper now appeals.

II. ANALYSIS

A. Enhancement under 21 U.S.C. § 851

Cooper argues that the Government was required to file

a second Section 851 notice prior to the second sentencing

in order to subject him to an enhanced penalty. In sentencing appeals, this court reviews the district court’s findings of fact for clear error and the legal conclusions de novo.

See United States v. Chamness, 435 F.3d 724, 726 (7th Cir.

2006).
No. 05-3607 5

Cooper was indicted under 21 U.S.C. § 841(a), which

states that a person who has a prior felony drug offense,

“shall be sentenced to a term of imprisonment which may

not be less than 20 years and not more than life imprisonment” when more than 50 grams of cocaine base are

involved. 21 U.S.C. § 841 (b)(1)(A) (emphasis added). A

defendant’s sentence may not be enhanced based on a prior

conviction unless the Government complies with the

requirements of 21 U.S.C. § 851, which states:

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 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.

Cooper concedes that the Government complied with the

requirements of this section as it pertains to his first

sentencing. But he argues that the superseding indictment,

the intervening sentencing, and trial required the Government to file a second information before he could

be subjected to a second enhanced sentence.

The plain language of the statute does not require the

Government to file a second notice in this situation. The

statute only requires that the Government file the information “before trial or before entry of a plea of guilty.” The

Government filed the Section 851 notice on March 18, 2003,

which was before Cooper’s trial (on August 9, 2004).

The Eighth, Ninth, Tenth, and Eleventh Circuits have

all concluded that a second information is not required

in situations similar to this one. See, e.g., United States v.

Mayfield, 418 F.3d 1017, 1020 (9th Cir. 2005) (“filing the

information and giving the section 851(a) notice before [the

defendant’s] first trial obviated any need to refile the
6 No. 05-3607

information and regive that notice before his second trial”);

United States v. Kamerud, 326 F.3d 1008, 1014 (8th Cir.

2003) (“the government is not required to re-file a notice

of enhanced sentence under 21 U.S.C. § 851 after the return

of the superseding indictment”) (citing United States v.

Wright, 932 F.2d 868, 882 (10th Cir. 1991)); United States

v. Williams, 59 F.3d 1180, 1185 (11th Cir. 1995) (the

government is not required to file a new Section 851

information for multiple trials in the same case). We have

not addressed this issue before, but we agree with

the circuits that have addressed this issue that, where

the Government files a timely Section 851 notice, it is not

required to file a second notice after an intervening event,

such as a trial or a superseding indictment, in the same

case.

Cooper argues that his case differs from the cases cited

above in that new charges were added to his superceding

indictments. He also argues that his case differs in that he

was sentenced twice, whereas the cases above address

retrials and superseding indictments. Neither of these

distinctions is relevant, however, when viewed in light

of the two purposes of the Section 851 notice provision.

The two purposes of the Section 851 notice provision are:

(1) to allow the defendant to contest the accuracy of the

prior conviction upon which the Government relies, and (2)

to ensure the defendant has full knowledge of a potential

guilty verdict. See Williams, 59 F.3d at 1185 (citing United

States v. Johnson, 944 F.2d 398 (8th Cir. 1991)); see also

Mayfield, 418 F.3d at 1020 (“Section 851(a) ensures proper

notice so a defendant can challenge the information. It

also allows a defendant to make an informed decision about

whether or not to plead guilty.”) (quoting United States v.

Hamilton, 208 F.3d 1165, 1168 (9th Cir. 2000)). In Williams, the Government filed a Section 851 notice prior to

the defendant’s first trial, which resulted in a conviction.

See Williams, 59 F.3d at 1182, 1185. The Eleventh Circuit
No. 05-3607 7

vacated the conviction because of an evidentiary error on

the part of the district court. After the defendant was

convicted in a subsequent trial, the district court concluded

that it could not enhance his sentence because the Government had failed to refile a new Section 851 notice. See

Williams, 59 F.3d at 1182. The Eleventh Circuit reversed,

reasoning that requiring a second notice would not serve

either of the two purposes outlined above.

In this case, the first purpose of the provision was

satisfied because Cooper had an opportunity to contest the

accuracy of the prior conviction when the Government

filed the Section 851 notice before the first sentencing. If

the Government had refiled the Section 851 information

prior to the second sentencing, it would have referenced the

same prior conviction. Cooper concedes that he had ample

time to check the accuracy of the information before the

first sentencing and did not dispute its validity.

Cooper was also aware that he could receive an enhanced

sentence if he was found guilty. Indeed, Cooper saw that his

sentence for counts Twelve and Thirteen of the original

indictment had been enhanced from a Guideline range

of 70-87 months to the 120-month mandatory minimum

with the use of the prior conviction. The Eleventh Circuit in

Williams considered such knowledge from a prior sentencing in concluding that it was not necessary to file a new

Section 851 notice before the subsequent trial. The court

reasoned that “[t]he same attorney represented Williams at

all three trials, knew that the information had been filed .

. . and had addressed that prior conviction at the sentencing

in the first trial.” See Williams, 59 F.3d at 1182. Based on

all of these factors, the Eleventh Circuit concluded that

“[t]he defendant knew the effect of such enhancement.” Id.

Like the defendant in Williams, Cooper was represented by
8 No. 05-3607

1

 Cooper was assigned three different attorneys during the four

years between his original indictment and his second sentencing,

but from the time that the Section 851 notice was filed until the

instant appeal, he had the same attorney.

the same attorney at the first and second sentencing.1 This

attorney received a copy of the Government’s Section 851

notice prior to Cooper’s April 3, 2003 plea and had informed

Cooper of the effect of the enhancement. The same attorney

also represented Cooper when he was faced with the

decision to either plead guilty or go to trial after the second

superseding indictment. Therefore, Cooper had notice of the

potential consequences of the enhancement before he made

his decision to go to trial.

Given that neither of the purposes of the Section 851

notice would be served by requiring a second information

after Cooper’s first sentencing, we see no reason to read

Section 851 as requiring additional notice here.

B. Vindictive prosecution claim

Cooper also argues that the district court failed to

recognize that it had the discretion to depart downward

from the Sentencing Guidelines and, consequently, did

not properly consider the vindictive prosecution claim.

Cooper’s claim is based on U.S.S.G. § 5K2.0, which

permits a downward departure from the Guidelines in

exceptional circumstances. Cooper argues that his case

presents an exceptional circumstance because the Government’s vindictive prosecution caused it to fall “outside of the

heartland of cases contemplated by the Sentencing Commission.” The “heartland” has been defined as the “set of

typical cases embodying the conduct that each guideline

describes.” United States v. Santoyo, 146 F.3d 519, 525 (7th

Cir. 1998) (quoting U.S.S.G. ch. 1, pt. A (4)(b), introductory
No. 05-3607 9

cmt. (1998)). Cooper has not advanced a direct vindictive

prosecution claim challenging his conviction’s comportment

with due process. See United States v. Jarrett, 447 F.3d 520,

524-25 (7th Cir. 2006). His claim is limited to his sentence.

As a preliminary matter, it is important to note that “the

concept of ‘departures’ has been rendered obsolete in the

post-Booker world.” United States v. Arnaout, 431 F.3d 994,

1003 (7th Cir. 2005) (citations omitted). Subsequent to the

Supreme Court’s decision in United States v. Booker, 543

U.S. 220, 261 (2005), this court reviews sentences

for “reasonableness.” Arnaout, 431 F.3d at 1003. We

continue to use prior departure law as a framework to

decide what is reasonable. See United States v. CastroJuarez, 425 F.3d 430, 434-46 (7th Cir. 2005). Therefore, to

evaluate reasonableness, “we necessarily must scrutinize,

as part of that review, the district court’s refusal to depart from the advisory sentencing range.” United States

v. Vaughn, 433 F.3d 917, 924 (7th Cir. 2006).

The issue then, is the reasonableness of Cooper’s sentence. Notwithstanding the new sentencing regime under

Booker, sentencing courts must still comply with the

statutory minimum penalty. See United States v. Duncan,

413 F.3d 680, 683 (7th Cir. 2005) (citing United States v.

Lee, 399 F.3d 864, 866 (7th Cir. 2005)).

Because the district court was bound by the statutory

minimum of 20 years on the basis of Cooper’s prior narcotics conviction, Cooper cannot demonstrate that the sentence

was unreasonable. A defendant may only be given

a sentence below the statutory minimum where one of

two exceptions applies—either the accused substantially

assisted the prosecution, see 18 U.S.C. § 3553(e), or qualified for the “safety valve” exception in § 3553(f). See United

States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005). Neither

exception applies and Cooper does not argue otherwise.

Since the district court had no authority to give a sentence
10 No. 05-3607

below the statutory minimum, it was unnecessary to

evaluate the merits of his vindictive prosecution argument.

The district court did, nevertheless, examine the merits

of Cooper’s vindictive prosecution argument and concluded that he could not prevail on this claim. Prosecution

is considered vindictive where it “was pursued in retaliation

for the exercise of a protected statutory or constitutional

right.” See United States v. Monsoor, 77 F.3d 1031, 1034

(7th Cir. 1996). For example, where a defendant succeeds in

obtaining a reversal on appeal and the Government brings

more serious charges, there is a presumption of vindictiveness that the Government must rebut. See United States v.

Goodwin, 457 U.S. 368, 376 (1982). This presumption of

vindictiveness does not apply to pretrial decisions by the

prosecution because “[a] prosecutor should remain free

before trial to exercise the broad discretion entrusted to him

to determine the extent of the societal interest in prosecution.” Id. at 382.

To create reasonable doubt regarding prosecutorial

motivations before trial, the defendant “must affirmatively

show through objective evidence that the prosecutorial

conduct at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome of the

case or an attempt to seek self-vindication.” United States

v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003) (citations

omitted). Cooper did not offer sufficient evidence of prosecutorial animus to meet this burden. He primarily relied on

the Government’s filing of the Section 851 enhancement

during the time that it was trying to convince Cooper to

plead guilty. There is nothing particularly suspicious in the

timing of this action. But even if there were, we held in

Falcon that “evidence of suspicious timing alone does not

indicate prosecutorial animus.” Falcon, 347 F.3d at 1005

(citing United States v. Bullis, 77 F.3d 1553, 1559 (7th Cir.

1996)). Moreover, that the Government contemporaneously

filed a Section 851 notice of enhancement against Cooper’s
No. 05-3607 11

co-defendant, Quentin Daniels, rebuts suspicion that the

Government was acting with personal animus against

Cooper.

The only other evidence of prosecutorial animus offered

by Cooper is the addition of the telephone use and gun

charges to the superceding indictments. This was well

within the range of appropriate, pre-trial, prosecutorial

discretion. Cooper has offered no evidence suggesting an

improper motive in the addition of these charges. Therefore,

the district court did not err in concluding that Cooper

could not prevail on his vindictive prosecution claim. Cooper

has failed to demonstrate any error in his sentencing.

III. CONCLUSION

The judgment of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-23-06