United States Court of Appeals

For the First Circuit

No. 04-1087

UNITED STATES,

Appellee,

v.

JOSÉ SÁNCHEZ, a/k/a VICTOR ALBINO, a/k/a

JUAN CARLOS RODRIGUEZ, a/k/a SAMMY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

[Hon. Charles B. Swartwood, III, U.S. Magistrate Judge]

Before

 Lynch, Circuit Judge,

Campbell and Stahl, Senior Circuit Judges.

Edward L. Hayden for appellant.

David H. Hennessy, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief for

appellee.

November 24, 2004
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CAMPBELL, Senior Circuit Judge. Jose Sanchez was

convicted in the United States District Court for the District of

Massachusetts upon his plea of guilty to charges of drug-related

offenses and criminal forfeiture. Because Sanchez had been

previously convicted of felony drug offenses in the Pennsylvania

state courts, the district court imposed the mandatory minimum

sentence of twenty years' imprisonment pursuant to 21 U.S.C. §§

841(b) and 851. Sanchez argues that the mandatory minimum sentence

provision does not apply to him because his prior state convictions

were not prosecuted by indictment nor did he waive indictment for

those offenses. For the reasons stated below, we affirm.

I.

The relevant facts are not in dispute. On July 24, 2002,

a federal grand jury indicted Sanchez and three co-defendants, who

are not parties to this appeal, for conspiring to distribute 50

grams or more of cocaine base, in violation of 21 U.S.C. § 846.

The grand jury also indicted Sanchez on two counts of distribution

of 50 grams or more of a substance containing cocaine base, in

violation of 21 U.S.C. § 841(a); two counts of distribution of five

grams or more of a substance containing cocaine base, in violation

of 21 U.S.C. § 841(a); and one count of criminal forfeiture, in

violation of 21 U.S.C. § 853(a).

On February 7, 2003, the United States filed a previous

offender information under 21 U.S.C. § 851(a), giving notice of the
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prosecution's intention to seek the enhanced penalties prescribed

in 21 U.S.C. § 841, based on prior state convictions for a felony

drug offense. The information alleged that Sanchez had been

previously convicted of drug felonies in the Court of Common Pleas

of Berks County, Pennsylvania. The parties agree that those

felonies were not prosecuted by indictment nor was there a waiver

of indictment.

On September 25, 2003, Sanchez pleaded guilty. In

accordance with 21 U.S.C. § 851(b), the district court inquired of

Sanchez whether he affirmed or denied the prior convictions alleged

in the information. Sanchez affirmed the existence of the prior

convictions, but argued that they should not be used to enhance his

sentence because, in Sanchez's view, enhancement was appropriate

only where the prior state felonies were prosecuted by indictment

or he had waived indictment for those offenses, pursuant to a

provision in 21 U.S.C. § 851(a)(2), infra. At sentencing, the

district court ruled that the indictment requirement set out in §

851(a)(2) applied to the present federal offenses, and not to the

prior predicate convictions. Accordingly, the district court

imposed the mandatory minimum sentence of twenty years'
1The district court also ordered Sanchez to forfeit his

interest in certain property, consisting of cash exchanged for

crack cocaine, held jointly and severally with the three codefendants. Sanchez does not challenge this portion of the

sentencing decision.

221 U.S.C. § 841(b)(1)(A) imposes a 20-year mandatory minimum

sentence for cases involving 50 or more grams of crack cocaine if

the defendant commits the violation after a prior conviction for a

felony drug offense. Section 841(b)(1)(B) imposes a 10-year

mandatory minimum for cases involving five or more grams of cocaine

base if the defendant commits the violation after a prior

conviction for a felony drug offense.

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imprisonment based on Sanchez's prior drug felony convictions.1

See 21 U.S.C. §§ 841(b)(1)(A) and (b)(1)(B).2

II.

Disputes regarding the interpretation of a statute give

rise to legal questions subject to de novo review. United States

v. Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir. 2003). The statute here

in issue, 21 U.S.C. § 851(a), provides in pertinent part:

(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 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.

21 U.S.C. § 851(a) (emphasis added).
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On appeal, Sanchez renews his argument, rejected by the

district court, that the phraseology in § 851(a)(2) requiring that

the person subject to increased punishment be afforded prosecution

by indictment, or else have waived indictment, "for the offense for

which such increased punishment may be imposed," is ambiguous as to

whether it refers to the present offense or to the prior predicate

convictions. Because of this ambiguity, Sanchez contends the rule

of lenity should be applied in his favor and his case remanded for

resentencing. The United States argues that the phrase "the

offense for which such increased punishment may be imposed" refers

logically to the federal offenses for which Sanchez has been

currently sentenced, and not to the prior state convictions used to

enhance the current sentence. It is undisputed that the instant

federal offenses were prosecuted by indictment.

The question posed is one of first impression in this

circuit. Sanchez concedes, however, that of the several other

federal courts of appeal that have construed 21 U.S.C. § 851(a)(2),

all have held that the indictment requirement applies to the

present offense of conviction, and not to the one or more prior

convictions that may be used to enhance the sentence. See United

States v. Brown, 191 F.3d 486, 487 (D.C. Cir. 1999); United States

v. Lampton, 158 F.3d 251, 256 (5th Cir. 1998); United States v.

Lynch, 158 F.3d 195, 198-99 (3d Cir. 1998); United States v. Ortiz,

143 F.3d 728, 732 (2d Cir. 1998), overruling United States v.
3The Ninth Circuit does not actually say, as has sometimes

been inferred and as the government implies here, that there would

be a double jeopardy or ex post facto concern with applying the

statute to the prior conviction. See, e.g., Harden, 37 F.3d at

601; Burrell, 963 F.2d at 992; Adams, 914 F.2d at 1407. Rather,

the Espinosa court seems to be saying simply that the language of

§ 851(a)(2) is most reasonably parsed to indicate that the

indictment requirement refers to the present offense, the sentence

for which is being enhanced because of the prior conviction. We

agree with others who have pointed out that there is no evident

double jeopardy or ex post facto problem with construing §

851(a)(2) as applying to the prior offenses. As stated by the

Second Circuit in Ortiz,

Enhanced sentencing for recidivism has long been approved

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Collado, 106 F.3d 1097 (2d Cir. 1997); United States v.

Gaitan-Acevedo, 148 F.3d 577, 594 (6th Cir. 1998); United States v.

Harden, 37 F.3d 595, 601 (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, 1407 (10th Cir. 1990); United States v.

Espinosa, 827 F.2d 604, 617 (9th Cir. 1987).

In the earliest of those decisions, Espinosa, the Ninth

Circuit gave three reasons for concluding that the indictment

requirement in § 851(a)(2) referred to the current offense of

conviction. Espinosa, 827 F.2d at 617. First, the court noted

that "although one may not be punished twice for the same crime,

punishment for a second crime may be enhanced by reason of a second

conviction." Id. It then concluded that "a common-sense reading

of the phrase 'offense for which such increased punishment may be

imposed' is the current, or latest, offense." Id.3 Second, the
notwithstanding that the prior offenses occurred prior to

passage of the enhancement provision; the lawfulness of

the procedure cannot depend on the semantic factor of

whether a recidivism statute refers to the first

conviction, or the second, or the combination of the two

as requiring the enhancement. In each case, the effect

would be exactly the same.

Ortiz, 143 F.3d at 730 (citation omitted).

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Ninth Circuit noted that the two other usages of the word "offense"

in § 851 refer to the current offense while the terms "prior

conviction" and "previous conviction" are employed to refer to the

earlier conviction. Id. Finally, the Ninth Circuit stated that

the defendant's proposed interpretation would result in an

anomalous situation. "Despite Congress's evident attempt in 1984

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

and foreign convictions (in addition to federal convictions), [the

defendant'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.

Other circuit courts have followed much the same path to

a similar result. See, e.g., Brown, 191 F.3d at 487 (agreeing with

the circuit courts that have interpreted the indictment requirement

to refer to the present offense); Lynch, 158 F.3d at 197-98 (same);

Gaitan-Acevedo, 148 F.3d at 594 (same); Harden, 37 F.3d at 601

(agreeing with Burrell, Adams and Espinosa); Trevino-Rodriguez,

994 F.2d at 536 (same); Burrell, 963 F.2d at 992-93 (adopting the
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"careful reasoning set forth in Adams and Espinosa"); Adams, 914

F.2d at 1407 (adopting the reasoning in Espinosa).

Although Sanchez concedes that precedent is now entirely

against him, he relies upon the reasoning employed in a sinceabandoned case that supports his interpretation, to wit, United

States v. Collado. There, the defendant successfully argued to a

panel of the Second Circuit that the indictment requirement would

be "mere surplusage" if it referred to the present offense, because

"[a]ll federal felony prosecutions are required to proceed by

indictment." Collado, 106 F.3d at 1103. The panel agreed that the

language in § 851(a)(2) was ambiguous. Id. It invoked the rule of

lenity to hold that the defendant's sentence in that case should

not be enhanced based on a prior conviction prosecuted without

indictment or waiver of indictment. Id.

The Second Circuit, however, has since rejected the

decision in Collado. See Ortiz, 143 F.3d at 731-32. Writing for

the court in Ortiz, Judge Leval (a member of the earlier Collado

panel) explained the departure from Collado as being based upon

updated information presented by the government that "at the time

§ 851(a)(2) was formulated in 1970, federal felony narcotics

violations were prosecutable without indictment in the Virgin

Islands, and the Panama Canal Zone." Id. at 731. This information

undermined the Collado court's belief that all relevant federal

prosecutions were by indictment, a mistaken assumption that would
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have rendered § 851(a)(2) surplusage if applied to the current

offense. See id. The Ortiz panel went on to state that "[t]he

apparent redundancy of § 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 . . . in territorial jurisdictions

where federal prosecution by information is possible." Id. While

in Ortiz the Second Circuit characterized § 851(a)(2) as being "not

free of ambiguity," it found "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." Id. We agree.

Sanchez argues, however, that the updated information

discussed in Ortiz has done no more than continue to demonstrate

the inherent ambiguity of § 851(a)(2). Even if federal felony drug

offenses were prosecutable without indictment in the Virgin Islands

and the Panama Canal Zone in 1970, it is nonetheless still unclear,

he argues, whether Congress intended the indictment requirement to

apply to the present offense or to the prior convictions. In light

of the purported ambiguity, Sanchez insists we should invoke the

rule of lenity to preclude the enhancement of his sentence. 

We disagree. "The rule of lenity applies only if, 'after

seizing everything from which aid can be derived,' we can make 'no

more than a guess as to what Congress intended.'" Reno v. Koray,

515 U.S. 50, 65 (1995) (citations omitted). While the language of
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§ 851(a)(2) is less than crystal clear, it is not so unclear that

resort to the rule of lenity should follow. See Brown, 191 F.3d at

487 ("Nor is this section ambiguous such that the rule of lenity

would preclude the enhancement of [the defendant's] sentence.");

Lampton, 158 F.3d at 256 (rejecting defendant's rule of lenity

argument). The statutory language, "unless the person either

waived or was . . . [indicted] . . . for the offense for which such

increased punishment may be imposed," 21 U.S.C. § 851(a)(2)

(emphasis added), points most naturally to the current offense (the

offense for which the increased punishment will be imposed on

account of the prior convictions) rather than to the enhancing

prior convictions themselves. And we agree with the Ortiz court

that it is more reasonable to infer that Congress intended to

ensure that the instant prosecution, in which the defendant stands

in jeopardy of an enhanced punishment, is safeguarded by the grand

jury guarantee. Ortiz, 143 F.3d at 731-32. Given Congress' intent

to enhance sentences for second offenders, it is also unlikely that

Congress intended to create a varied system that would shield from

enhanced punishment those defendants, such as Sanchez, who commit

serious drug felony offenses simply because of the nature of the

charging instrument used in a particular state or other

jurisdiction. See id. at 732; Lynch, 158 F.3d at 198; Espinosa,

827 F.2d at 617.
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We see no need to say more, given the extensive analysis

already appearing in Ortiz and the other circuit opinions. We hold

that the district court's reading of 21 U.S.C. § 851(a)(2) was the

correct one, and that the indictment condition in § 851(a)(2)

refers to the current offense. Because Sanchez's current offenses

of conviction were prosecuted by indictment, § 851(a)(2) does not

preclude the use of the prior Pennsylvania convictions that were

not so prosecuted to trigger the enhanced mandatory minimum

penalty.

Affirmed.