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D ock e t 98-1029

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. e du/thir dc ir c uit_1998/247Filed October 15, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1029

UNITED STATES OF AMERICA,

v.

JERRY JEFFREY LYNCH,

Appellant

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 95-cr-00559-1)

Submitted Under Third Circuit LAR 34.1(a) Friday, September 25, 1998

BEFORE: BECKER, Chief Judge, WEIS and GARTH, Circuit Judges

(Opinion filed October 15, 1998)Maureen Kearney Rowley

Chief Federal Defender David L. McColgin
Assistant Federal Defender Supervising Appellate Attorney Sylvia Russianoff
Assistant Federal Defender Defender Association of Philadelphia
Federal Court Division
437 Chestnut Street Lafayette Building, Suite 800 Philadelphia, Pennsylvania 19106-

2414

Attorneys for Appellant

Michael R. Stiles United States Attorney Eastern District of Pennsylvania Walter S. Batty, Jr. Assistant United States Attorney Chief of Appeals

Robert R. Calo Assistant United States Attorney
Criminal Division Office of the United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, Pennsylvania 19106

Attorneys for Appellee

OPINION OF THE COURT

GARTH, Circuit Judge:

Appellant Jerry Jeffrey Lynch appeals a prison sent ence of 168 months and 16 years supervised release impos ed upon him after conviction by guilty plea to an indi ctment charging drug related offenses on April 2, 1996.1

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1. By letter of January 30, 1998, the Clerk of the Court notified the parties in this case that this appeal might be dism issed due to a

2Specifically, Lynch pleaded guilty to his indictmen t for

conspiracy to distribute cocaine base, 21 U.S.C. S 846, distribution of cocaine base and aiding and abettin g the distribution of cocaine base, 21 U.S.C. S 841(a)(1) and 18 U.S.C. S 2, and distribution of cocaine base and ai ding and abetting the distribution of cocaine base within 1, 000 feet of a playground, 21 U.S.C. S 860 and 18 U.S.C.S 2. Each of these offenses provides for enhanced penalties i f the offender has a prior drug-related conviction.

Prior to Lynch's plea, the government had filed an information that charged Lynch with having been con victed of two state felony charges in the Court of Common Pleas of Bucks County, Pennsylvania. This information was filed pursuant to 21 U.S.C. SS 841(b), 851(a)(1). 2 Lynch neither

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jurisdictional defect. An appeal from a criminal ju dgment must be filed within ten days. Fed. R. App. P. 4(b). The judgment and commitment order was entered on October 17, 1997, but the noti ce of appeal was filed with the Court on October 29, 1997, twelve da ys later. Lynch is incarcerated, and thus may file a notice of appeal pursuant to the provisions in Fed. R. Civ. P. 4(c); see Houston v. Lack, 487 U.S. 266 (1988). Through his appellate counsel, Lynch submit ted to the Court a notarized statement verifying that he deposited the notice of appeal to the prison mail system on October 22, 1997, well wi thin the 10-day deadline. The requirements under Fed. R. Civ. P. 4( c) have been met, and this Court has jurisdiction over this timely filed appeal under 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a).

2. 21 U.S.C. S 841(b) provides in relevant part:

. . . [A]ny person who violates subsection ( a) of this section

shall be
sentenced as follows:

. . . such person shall be sentenced to a te rm of imprisonment which may not be less than 10 years or more than life . . . If any person commits such a violation after a prio r conviction for a felony drug offense has become final, such person s hall be sentenced to a term of imprisonment which may not be less t han 20 years and not more than life imprisonment . . . . If any p erson commits a
violation of this subparagraph or of section 849, 859, 860, or 861 of this
title after two or more prior convictions for a fe lony drug offense has become final, such person shall be sentenced to a mandatory term of life imprisonment without release . . . . Any sentence under
this subparagraph shall, in the absence of such a prior conviction,3waived nor was afforded prosecution by indictment f or

either of these two prior convictions. The district court enhanced Lynch's statutory sentences in light of th e two prior convictions, resulting in an increased senten cing range under the United States Sentencing Guidelines .3

At issue in this case is the construction of the it alicized portion of 21 U.S.C. S 851(a), which provides:

(1) No person who stands convicted of an off ense under this part shall be sentenced to increased pu nishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of g uilty, the United States attorney files an information with the court . . . stating in writing the previous convictions to be relied upon. . . .

(2) An information may not be filed under th is section if the increased punishment which may be imp osed is imprisonment for a term in excess of three y ears unless the person either waived or was afforded pro secution by indictment for the offense for which such increased punishment may be imposed.

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impose a term of supervised release of at le ast 5 years in addition to such term of imprisonment and shall, if t here was such a prior conviction, impose a term of supervised rele ase of at least 10

years in addition to such term of imprisonment.

Section 841(b) also provides for doubled maximum st atutory fines. 21 U.S.C. S 851(a)(1) is reproduced in text, infra.

3. The minimum sentence was increased from five to ten years; the maximum sentence was increased from eighty years to life imprisonment; the period of supervised release was increased from eight to sixteen years. Because the maximum sentence was increased to life imprisonment, Lynch's offense level was increased b y three points from 31 to 34. The applicable guideline range was 262 to 327 months after the enhancement, but would have been 188 to 235 mon ths without the enhancement. The district court granted the governm ent's motion made under U.S.S.G. S 5K1.1 based on Lynch's substantial assistance and cooperation to authorities. The district court ther efore sentenced Lynch to 168 months imprisonment and the mandatory minimu m term of supervised release of 16 years.

4Id. (italics added). This issue was not raised in t he district

court; we thus review Lynch's sentence for plain er ror. United States v. Felton, 55 F.3d 861, 869 n.3 (3d C ir. 1995).

Lynch argues that the highlighted final clause requ iring "indictment" refers to his prior convictions and no t to the instant offense. In other words, Lynch believes the statute allows enhancements for prior convictions only if t hose prior convictions proceeded by indictment or if the defendant waived indictment. The government argues that the highlighted portion refers to the instant offen se, that is, that 21 U.S.C. S 851(a)(2) allows enhancements for prior convictions no matter how charged providing the pre sent
offense for which the defendant is to be sentenced has been charged by indictment or if the right to an indictm ent had
been waived.

Six sister courts of appeal have passed on this pre cise issue, and all have concluded that the government's interpretation is the correct one. United States v. GaitanAcevedo, 148 F.3d 557, 594 (6th Cir. 1998); United States v. Ortiz, 143 F.3d 728, 731-32 (2d Cir.), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Aug. 6, 1998) (No. 98 -5543), overruling United States v. Collado, 106 F.3d 1097 (2d Cir. 1997); United States v. Harden, 37 F.3d 595, 600-01 (11th Cir. 1994); United States v. Trevino-Rodriguez, 994 F.2d 533, 536 (8th Cir. 1993); United States v. Burrell, 963 F.2d 976, 992-93 (7th Cir. 1992); United States v. Adams , 914 F.2d 1404, 1406-07 (10th Cir. 1990); United States v. Espinosa, 827 F.2d 604, 617 (9th Cir. 1987).

We agree with the reasoning of those cases. If we w ere to adopt Lynch's reading of the statute, we would be o bliged to exclude many state and foreign prior convictions , which would be contrary to Congress's intent to broaden t he scope of prior convictions covered by the statute. See Espinosa, 827 F.2d at 617. As explained by the cour t in Espinosa,

[T]he government points out the anomalous si tuation that would result from Espinosa's interpreta tion. Despite Congress's evident attempt in 1984 t o broaden the scope of S 841(b) prior convictions to i nclude state and foreign convictions (in addition to fede ral

5convictions), Espinosa's interpretation woul d exclude

from the statute's ambit prior convictions i n those states or foreign countries that happen to u se a felony complaint system rather than a grand jury in dictment system.

Id. As the government argues, "Pennsylvania is one of those states [to which Espinosa refers]. There is no evid ence whatsoever that Congress intended to exclude from enhanced punishment those defendants who commit serious drug felony offenses because of the nature of the charging instrument used in a particular state." Ap pellee's
Br. at 6.

Moreover, as stated in Ortiz, in overruling an earl ier panel of the Second Circuit in Collado, the argument adva nced by the defendant in Collado is not persuasive in light of new information adduced by the government. The Collado defendant had argued that the underlined language w as surplusage if it referred to the instant offense be cause all federal felony narcotics prosecutions proceed by in dictment or by waiver of indictment. As the Ortiz court poin ted out, however, not all federal felony narcotics prosecuti ons proceeded by indictment when 21 U.S.C. S 851 was

enacted:

[A]t the time S 851(a)(2) was formulated in 1970, federal felony narcotics violations were prosecutabl e without indictment in the Virgin Islands, and the Pa nama Canal Zone. Moreover, in Guam, federal prose cutions proceeded without indictment until 1968. The apparent redundancy of S 851(a)(2) as applied to fede ral prosecutions evaporates in light of this inf ormation, because the provision confers a procedural s afeguard for offenders facing charges eligible for en hancement under SS 841-45 in territorial jurisdictions where federal prosecution by information is possib le.

. . . [L]iberated from the apparent redunda ncy of the statute as applied to federal prosecutions, we find it far
more sensible in terms of the structure and purpose of the statute that the grand jury guarantee re fers to the instant felony offense.

Ortiz, 143 F.3d at 731 (footnotes omitted).

6In the same vein, the government points out4 that t he

present offenses to which section 851 applies (thos e in part D of Title 21, ch. 13, subch. 1) do include offense s that need not proceed by indictment or waiver thereof, n amely
misdemeanors under 21 U.S.C. S 844. This further bo lsters the argument that the highlighted text is not redun dant if it refers to the instant offense. Accordingly we, i n common with the other courts of appeals that have been con fronted with this argument, conclude that the italicized ph rase reflects and is to be interpreted as congressional intent to include within the purview of S 851 serious recidiv ists as opposed to petty offenders charged only with
misdemeanors.

We thus hold that Lynch has not overcome the plain error threshold. See United States v. Retos, 25 F.3 d 1220, 1228-29 (3d Cir. 1994). Even if he had, we also hol d on the merits that the government may file an information to establish prior offenses under 21 U.S.C. S 851(a)(2 ) regardless of whether the prior offenses were charg ed by
indictment or whether the defendant waived indictme nt in the prior offenses. The government may file an info rmation detailing prior offenses under 21 U.S.C. S 851 if t he current offense was charged by indictment or if the defenda nt
waived indictment for the current offense.

We will therefore affirm the district court's order dated

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4. The government also argues that if we were to in terpret the italicized phrase to refer to the prior convictions and requir e that they be charged by indictment, an ex post facto problem might arise inasmuch as punishment may not be imposed on an earlier adjudic ated offense. See United States v. Adams, 914 F.2d 1404, 1407 (10th C ir. 1990):

[The] offense which requires indictment or w aiver thereof is "the offense for which such increased punishment may be imposed." Obviously the punishment for a past, prior o ffense cannot be subsequently increased ex post facto. But th e punishment for the current offense in the case at bar can appro priately be enhanced

and made more severe because the current off ense is not the appellant's first violation of the criminal law, but he is a
recidivist or "repeat offender."

Id. at 1407 (emphasis in original).

7October 16, 1997, which enhanced Lynch's sentence a s a

result of his two prior convictions.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

8