1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-15-1998

United States v. Lynch

Precedential or Non-Precedential:

Docket 98-1029

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Lynch" (1998). 1998 Decisions. Paper 247.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/247
Filed 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 sentence 

of 168 months and 16 years supervised release imposed 

upon him after conviction by guilty plea to an indictment 

charging drug related offenses on April 2, 1996.1 

_________________________________________________________________ 

1. By letter of January 30, 1998, the Clerk of the Court notified the 

parties in this case that this appeal might be dismissed due to a 

 2 
Specifically, Lynch pleaded guilty to his indictment for 

conspiracy to distribute cocaine base, 21 U.S.C. S 846, 

distribution of cocaine base and aiding and abetting 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 aiding 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 if 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 convicted 

of two state felony charges in the Court of Common Pleas 

of Bucks County, Pennsylvania. This information wasfiled 

pursuant to 21 U.S.C. SS 841(b), 851(a)(1). 2 Lynch neither 

_________________________________________________________________ 

jurisdictional defect. An appeal from a criminal judgment 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 notice of appeal was 

filed with the Court on October 29, 1997, twelve days 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 submitted to the Court a 

notarized statement verifying that he deposited the notice of appeal to 

the prison mail system on October 22, 1997, well within 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 term of imprisonment 

 which may not be less than 10 years or more than life . . . If 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 and not 

 more than life imprisonment . . . . If any person 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 felony 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, 
 3 
waived nor was afforded prosecution by indictment for 

either of these two prior convictions. The district court 

enhanced Lynch's statutory sentences in light of the two 

prior convictions, resulting in an increased sentencing 

range under the United States Sentencing Guidelines.3 

At issue in this case is the construction of the italicized 

portion of 21 U.S.C. S 851(a), which provides: 

 (1) 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 . . . stating in writing the previous convictions to 

 be relied upon. . . . 

 (2) An information may not be filed under this section 

 if the increased punishment which may be imposed is 

 imprisonment for a term in excess of three years unless 

 the person either waived or was afforded prosecution 

 by indictment for the offense for which such increased 

 punishment may be imposed. 

_________________________________________________________________ 

 impose a term of supervised release of at least 5 years in addition 

 to such term of imprisonment and shall, if there was such a prior 

 conviction, impose a term of supervised release of at least 10 

years 

 in addition to such term of imprisonment. 

Section 841(b) also provides for doubled maximum statutory 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 by 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 months without the 

enhancement. The district court granted the government's motion made 

under U.S.S.G. S 5K1.1 based on Lynch's substantial assistance and 

cooperation to authorities. The district court therefore sentenced Lynch 

to 168 months imprisonment and the mandatory minimum term of 

supervised release of 16 years. 

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

court; we thus review Lynch's sentence for plain error. 

United States v. Felton, 55 F.3d 861, 869 n.3 (3d Cir. 1995). 

Lynch argues that the highlighted final clause requiring 

"indictment" refers to his prior convictions and not to the 

instant offense. In other words, Lynch believes the statute 

allows enhancements for prior convictions only if those 

prior convictions proceeded by indictment or if the

defendant waived indictment. The government argues that 

the highlighted portion refers to the instant offense, that is, 

that 21 U.S.C. S 851(a)(2) allows enhancements for prior 

convictions no matter how charged providing the present 

offense for which the defendant is to be sentenced has been 

charged by indictment or if the right to an indictment had 

been waived. 

Six sister courts of appeal have passed on this precise 

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 were to 

adopt Lynch's reading of the statute, we would be obliged 

to exclude many state and foreign prior convictions, which 

would be contrary to Congress's intent to broaden the 

scope of prior convictions covered by the statute. See 

Espinosa, 827 F.2d at 617. As explained by the court in 

Espinosa, 

 [T]he government points out the anomalous situation 

 that would result from Espinosa's interpretation. 

 Despite Congress's evident attempt in 1984 to broaden 

 the scope of S 841(b) prior convictions to include state 

 and foreign convictions (in addition to federal 

 5 
 convictions), Espinosa's interpretation would exclude 

 from the statute's ambit prior convictions in those 

 states or foreign countries that happen to use a felony 

 complaint system rather than a grand jury indictment 

 system. 

Id. As the government argues, "Pennsylvania is one of those 

states [to which Espinosa refers]. There is no evidence 

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." Appellee's 

Br. at 6. 

Moreover, as stated in Ortiz, in overruling an earlier panel 

of the Second Circuit in Collado, the argument advanced 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 was 

surplusage if it referred to the instant offense because all 

federal felony narcotics prosecutions proceed by indictment 

or by waiver of indictment. As the Ortiz court pointed out, 

however, not all federal felony narcotics prosecutions 

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 prosecutable without 

 indictment in the Virgin Islands, and the Panama 

 Canal Zone. Moreover, in Guam, federal prosecutions 

 proceeded without indictment until 1968. The apparent 

 redundancy of S 851(a)(2) as applied to federal 

 prosecutions evaporates in light of this information, 

 because the provision confers a procedural safeguard 

 for offenders facing charges eligible for enhancement 

 under SS 841-45 in territorial jurisdictions where 

 federal prosecution by information is possible. 

 . . . [L]iberated from the apparent redundancy 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 refers to the 

 instant felony offense. 

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

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

present offenses to which section 851 applies (those in part 

D of Title 21, ch. 13, subch. 1) do include offenses that 

need not proceed by indictment or waiver thereof, namely 

misdemeanors under 21 U.S.C. S 844. This further bolsters 

the argument that the highlighted text is not redundant if 

it refers to the instant offense. Accordingly we, in common 

with the other courts of appeals that have been confronted 

with this argument, conclude that the italicized phrase 

reflects and is to be interpreted as congressional intent to 

include within the purview of S 851 serious recidivists 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.3d 1220, 

1228-29 (3d Cir. 1994). Even if he had, we also hold 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 charged by 

indictment or whether the defendant waived indictment in 

the prior offenses. The government may file an information 

detailing prior offenses under 21 U.S.C. S 851 if the current 

offense was charged by indictment or if the defendant 

waived indictment for the current offense. 

We will therefore affirm the district court's order dated 

_________________________________________________________________ 

4. The government also argues that if we were to interpret the italicized 

phrase to refer to the prior convictions and require that they be charged 

by indictment, an ex post facto problem might arise inasmuch as 

punishment may not be imposed on an earlier adjudicated offense. See 

United States v. Adams, 914 F.2d 1404, 1407 (10th Cir. 1990): 

 [The] offense which requires indictment or waiver thereof is "the 

 offense for which such increased punishment may be imposed." 

 Obviously the punishment for a past, prior offense cannot be 

 subsequently increased ex post facto. But the punishment for the 

 current offense in the case at bar can appropriately be enhanced 

 and made more severe because the current offense 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). 

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

result of his two prior convictions. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 8