In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1924

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEROME WILLIAMS, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:08-CR-72 RLM—Robert L. Miller, Jr., Chief Judge.

ARGUED SEPTEMBER 11, 2009—DECIDED OCTOBER 14, 2009

Before EASTERBROOK, Chief Judge, and POSNER and

WOOD, Circuit Judges.

POSNER, Circuit Judge. A jury convicted the defendant

of drug and firearms offenses. He had two prior felony

drug convictions and therefore received a mandatory

life sentence. 21 U.S.C. § 841(b)(1)(A). The only questions

presented by his appeal that require discussion (the defendant’s other grounds for appeal are either foreclosed

by recent circuit precedent or frivolous) are whether the

government complied with 21 U.S.C. § 851(a)(1), the
2 No. 09-1924

“notice of enhancement” statute, and if not whether

the defendant is entitled to be resentenced.

The statute 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 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. Upon a

showing by the United States attorney that facts

regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a

plea of guilty, the court may postpone the trial or

the taking of the plea of guilty for a reasonable period

for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any

time prior to the pronouncement of sentence.

The purposes of the statute are to give the defendant an

opportunity to contest the use of his prior conviction or

convictions to enhance his sentence, and to give him

enough information about the potential sentence to

enable him to decide intelligently whether to plead guilty

or throw the dice by going to trial. E.g., United States v.

Cooper, 461 F.3d 850, 854-55 (7th Cir. 2006); Kelly v. United

States, 29 F.3d 1107, 1109-10 (7th Cir. 1994), overruled on

other grounds by United States v. Ceballos, 302 F.3d 679, 689-

92 (7th Cir. 2002); United States v. Morales, 560 F.3d 112, 115-
No. 09-1924 3

16 (2d Cir. 2009) (per curiam); United States v. Williams,

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

The defendant argues that the notice the government

filed did not comply with the statute. It reads as follows:

Comes now the United States of America . . . to

hereby inform the defendant . . . that, if he is convicted

of offenses under Title 21, United States Code, Section

841(a)(1), he will be subject to the enhanced penalty

provisions of . . . Section 841(b). This Information and

notice is filed pursuant to the provisions of . . . .

Section 851. The United States further specifically

informs the defendant that it will use his conviction

in St. Joseph County . . . in 2002 for dealing in

cocaine . . . and all other [convictions] applicable to

qualify him for sentencing under the enhanced

penalty provisions of . . . Section 841(b).

Further information concerning the defendant’s

criminal history can be obtained from the United

States Probation Office and specifically the Pretrial

Services Report in this matter . . . .

The notice was sent to the defendant on June 17, 2008.

The pretrial services report was not attached to the information. It was not filed with the district court until

March 23, 2009, as an exhibit to the government’s

response to the defendant’s objection to a life sentence;

this was after the defendant’s trial and before the sentencing hearing, which was held on April 3. The defendant’s lawyer could have obtained a copy of the report

from the district court’s probation office; we don’t know

whether he did or not. The government does not
4 No. 09-1924

contend, and there is nothing in the record to suggest, that

either the lawyer or his client was sent a copy of the

report; there is no information about the practice in that

regard of the probation office of the Northern District

of Indiana.

A section of the report captioned “Prior Record” lists 19

sets of charges, identifies each charge, and lists the disposition. Three of the 19 dispositions are convictions for a

felony because they involve prison sentences (though in

one case it was suspended) of more than a year. But only

two of the three are drug convictions and therefore

could be used to enhance the defendant’s sentence

under section 841(b). One of them is the St. Joseph County

offense mentioned in the notice of enhancement. At the

sentencing hearing the prosecutor cited the other felony

drug conviction as another basis for enhancement; that

made two; hence the mandatory life sentence.

The defendant argues that the notice did not

comply with section 851(a)(1). The statute is explicit in

requiring that the government in advance of trial or

guilty plea file a document with the court that lists the

convictions on which it intends to rely in arguing for an

enhanced sentence. The government did not list the

second conviction on the basis of which the defendant’s

sentence was enhanced, which jacked up his minimum

sentence from 20 years to life. The notice refers the reader

to another document, but it is not attached and was not

(so far as we can determine) otherwise conveyed to the

defendant or his lawyer, and it contains a lengthy list

of charges and dispositions without indicating which
No. 09-1924 5

one or ones the government intended to use to enhance

the defendant’s sentence.

The excuse that the government’s lawyer gave us

for these omissions does not reflect well on the Department of Justice. He said that he prepared the notice in

haste—long before it was due (for it was filed only six

days after the defendant was indicted, yet was not due

until the eve of trial, many months later)—because he

was afraid he’d forget about it. He thus has offered an allpurpose excuse for premature filings in federal courts

of any and all documents.

Now as it happens the date on which his office

received the pretrial services report was June 17, the very

day on which he filed the section 851 information in

the district court; and he does not remember whether

he had received the report, or read it, before or after he

filed the information. For all that appears, he attempted

to incorporate by reference a document that he had not

yet read, that his office had not received, and that for all

we know had not been completed by the probation

office when he submitted the information.

Apparently the U.S. Attorney’s office for the Northern

District of Indiana has no protocol for compliance

with section 851, perhaps because our opinion in

United States v. Tringali, 71 F.3d 1375, 1382 (7th Cir. 1995),

states that “section 851 does not specify the particular

form notice of an enhancement must take.” There is

similar language in many other cases. E.g., United States v.

Belanger, 970 F.2d 416, 419 (7th Cir. 1992), overruled on
6 No. 09-1924

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

at 689-92; United States v. Boudreau, 564 F.3d 431, 437-38

(6th Cir. 2009); United States v. Severino, 316 F.3d 939, 943-44

(9th Cir. 2003) (en banc); United States v. Weaver, 267

F.3d 231, 247 (3d Cir. 2001); Perez v. United States, 249 F.3d

1261, 1265-67 (11th Cir. 2001); United States v. Layne, 192

F.3d 556, 575-76 (6th Cir. 1999); United States v. GonzalesLerma, 14 F.3d 1479, 1485 (10th Cir. 1994), overruled on

other grounds by United States v. Botero-Ospina, 71 F.3d

783 (10th Cir. 1995) (en banc). Sometimes the notice

contains the wrong date of the offense sought to be used

to enhance the defendant’s sentence, or the wrong

offense, or the wrong date of the right offense, or otherwise misdescribes the offense, or fails to cite section

851. Sometimes the notice isn’t filed in court; sometimes

the notice and the list of convictions are separate documents. It is odd that U.S. Attorneys seem to have so

much difficulty in complying unambiguously with a

simple statute. But the cases say that as long as the defendant has actual notice of the intended use of a prior

conviction to enhance his sentence, the statute has been

substantially complied with and that is good enough.

United States v. Rutherford, 175 F.3d 899, 903-04 (11th

Cir. 1999), reached the opposite result, insisting that

providing the defendant with a list of convictions

separate from and not referred to in the section 851

notice did not comply with the statute. However, the

Eleventh Circuit’s later decision in Perez v. United States,

supra, while not overruling Rutherford, held that harmless

errors in the section 851 notice do not invalidate the
No. 09-1924 7

notice. Yet in cases like United States v. Olson, 71 F.2d

850, 852-53 (11th Cir. 1983), and United States v. Bowden,

No. 08-11935, 2009 WL 32755 (11th Cir. Jan. 7, 2009)

(unpublished), the Eleventh Circuit had gone further

than it had in Rutherford and held that a failure to comply

with section 851 deprives the sentencing judge of jurisdiction to enhance the defendant’s sentence on the basis

of a prior conviction. The Solicitor General has filed a

petition for certiorari in Bowden (No. 09-244, Aug. 27,

2009), noting that the Eleventh Circuit is in conflict with

all eight other circuits to have considered the issue. We

are one of the eight. United States v. Ceballos, supra, 302

F.3d at 689-92. And in any event Rutherford is contrary to

our decision in the Belanger case.

The defendant argues that the notice of enhancement

failed to comply with the statute in several respects.

The first is that it did not contain the information in the

pretrial services report about the second conviction that

would later be used to enhance his sentence—the information was in a separate document. The argument implies

that stapling the report to the notice would not have

complied with the statute. That is much too strict an

interpretation.

He argues next that even if a physically attached list of

convictions would satisfy the statutory requirement, a

physically separate list would not. Again we disagree.

The difference between stapling a list of convictions to

the notice and setting forth the convictions in a completely

separate document is too slight to matter, and several of

the cases that we have cited uphold that method of com-
8 No. 09-1924

plying with the statute (Tringali, Belanger, and Layne). This

case differs from them because the second document, the

list of convictions, was not (so far as appears) actually

given to the defendant. But it was incorporated by reference, and that was good enough, consistently with cases

such as Farmer v. Baldwin, 563 F.3d 1042, 1043-44 (9th Cir.

2009); United States v. Sealed Juvenile I, 225 F.3d 507, 508-09

(5th Cir. 2000), and United States v. Loya, 807 F.2d 1483,

1492 (9th Cir. 1987), that affirm in other contexts the

adequacy of notice that takes the form of incorporation

by reference.

The defendant is on stronger ground in arguing that a

statute which states that the required notice shall list the

convictions on which the government intends to rely

should not allow the government to send the defendant’s

lawyer to rummage in the probation office and try to

guess which in a long list of “dispositions” the government might argue was a conviction usable for an enhancement—especially if the list has not yet been compiled,

which may have been the situation in our case, though

that is uncertain. And since the list contained only one

felony drug conviction besides the one mentioned in

the notice, we cannot fathom the failure to list it unless

the prosecutor hadn’t received or hadn’t read the

pretrial services report—either of which possibility

seems, however, quite likely.

Furthermore, the incorporated pretrial services report

provided the defendant with a list of “dispositions,” not

even a list of convictions (a number of the dispositions

listed in the defendant’s criminal history are dismissals),

leaving him to guess which might be the basis of an
No. 09-1924 9

enhancement. Not that it was a difficult guess; but there

is the added irregularity of the government’s having, for

all we can tell, not even seen the list before it issued

the information, and conceivably having attempted to

incorporate by reference a document that did not yet exist.

No doubt the defendant’s lawyer would want a list of

all his client’s previous criminal charges, and their dispositions, for they would figure in sentencing regardless

of any mandatory enhancement. They would also help

him decide how badly his client’s testimony would be

impeached by his previous convictions if he took the

stand. But the statute requires the government to indicate

which prior convictions it plans to use as the basis for

arguing for a longer sentence, and this could well be

thought to require the government to specify those convictions rather than, as we said, leave the defendant’s

lawyer to guess.

But even if the government failed to comply

with the statute, the notice adequately informed the

defendant of what he was facing and so fulfilled

the statutory purposes, and consequently there was no

reversible error. The defendant does not contend that

the second conviction was an improper basis for enhancement, and that takes care of the first purpose of the

statute. He does argue that “the Government’s failure to

list [both] previous convictions prejudiced [him] because

it did not allow him to make an informed decision of

whether to enter a plea or proceed to trial.” But the notice

says that the government would rely on all “applicable”

convictions in the pretrial services report, and it was
10 No. 09-1924

apparent that the second felony drug conviction was

“applicable,” that is, a basis for enhancement. It was the

only other felony drug conviction in the list of 19 dispositions; it was unequivocally a felony drug conviction;

a lawyer reading the list would notice that in about

fifteen seconds; and if the defendant’s lawyer had had

any doubt about which conviction the prosecutor was

planning to rely on for an enhancement he could

have sought clarification from the prosecutor, and

he didn’t—doubtless because it was clear. Nor can we

see how the defendant’s lawyer might have taken advantage in guilty-plea negotiations of knowledge that

his client was facing a mandatory life sentence.

We can imagine a notice and a list of convictions that

were so confusing that the defendant and his lawyer

could not be expected to pick out the one or ones that the

government might try to use to enhance the defendant’s

sentence. But in this case the lawyer could arrive at the

critical conviction in a simple two-step reading: the

notice itself, which referred him to the list of convictions

in the probation office; and the list itself, in which only

one eligible conviction (besides the one named in the

notice) appeared, as would be obvious from a quick

reading.

The government takes a risk by sloppy compliance

(or perhaps it is not compliance at all) with section

851(a)(1): the risk that either the court will hold that the

government failed to provide the defendant with

adequate notice or that the defendant will have a claim

that by failing to interpret a confusing notice correctly
No. 09-1924 11

his lawyer rendered ineffective assistance of counsel.

For these reasons and to spare us pointless appeals, the

U.S. Attorney’s office that prosecuted this case would

be well advised to get its act together and comply strictly

with section 851. It might also be wise for the Department of Justice to notify all the U.S. Attorneys of the

importance of strict compliance, as the problem of noncompliance or sloppy compliance seems to be widespread, judging from the number of cases. And it is not as

if strict compliance were difficult.

But the Supreme Court has been emphatic that a

criminal judgment is not to be reversed as a way of disciplining prosecutors for errors, even egregious ones.

United States v. Hasting, 461 U.S. 499, 504-05 (1983); see

also United States v. Johnson, 26 F.3d 669, 682-83 (7th

Cir. 1994). Some errors in criminal proceedings are not

excusable on grounds of harmlessness, but they are

errors (called “structural”) that strike at the heart of

criminal justice, like denial of counsel to a defendant who

wants representation. See United States v. Gonzales-Lopez,

548 U.S. 140, 149-150 (2006), for a list of such errors. We

cannot think of any reason why a violation of section

851(a)(1) should be thought such an error when it does

not confuse the defendant or his lawyer. See, e.g., United

States v. Morales, supra, 560 F.3d at 116-18; compare United

States v. Sperow, 494 F.3d 1223, 1228 (9th Cir. 2007); United

States v. Arnold, 467 F.3d 880, 887-89 (5th Cir. 2006).

AFFIRMED.

10-14-09