In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3278

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VALERIAN N. LEWIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 07 CR 20115—Michael P. McCuskey, Chief Judge.

ARGUED DECEMBER 3, 2009—DECIDED MARCH 15, 2010

Before EASTERBROOK, Chief Judge, and MANION and

EVANS, Circuit Judges.

EVANS, Circuit Judge. A jury convicted Valerian Lewis

on a charge of attempting to possess, with intent to distribute, over 500 grams of cocaine. See 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), 846. The jury also returned a

special verdict finding that the attempt to possess

involved over five kilograms of cocaine. Because this

was Lewis’s second felony drug conviction, the drug
2 No. 08-3278

quantity finding triggered the imposition of a mandatory minimum sentence of 20 years.

Prior to trial, the government neglected to file an information pursuant to 21 U.S.C. § 851, which would have

given Lewis notice of its intent to seek an enhanced

penalty. Lewis appeals his sentence, arguing that the

government’s failure to comply with § 851 stripped the

district court of its “authority” to impose the 20-year

mandatory minimum sentence. This is not quite right,

for even without a prior conviction Lewis faced a

statutory sentencing range of 10 years to life for a conviction involving more than five kilograms of cocaine.

So without regard to the filing of a § 851 information,

the district court had the “authority” to impose the

20-year sentence that it ordered. Whether it should have

done so, not its “authority” to do so, is the issue we consider on Lewis’s appeal.

Lewis first found himself in federal court in 2002 when

he was convicted of distributing cocaine and cocaine

base. He received a 57-month sentence. In 2007, while on

supervised release from his 2002 conviction, Lewis met

with Fidel Sanchez at a McDonald’s on Chicago’s South

Side. Lewis told Sanchez there was no cocaine to be

found in the Fort Wayne (Indiana) area where he lived,

so once Sanchez was “ready with the cocaine, he was

going to be ready with the money.” On December 3,

Lewis and Sanchez set up a deal over the phone—Lewis

would buy three kilograms of cocaine at the price of

$18,000 per kilogram and receive another three kilograms on a consignment basis. The following day, Lewis
No. 08-3278 3

drove from Fort Wayne to Kankakee (Illinois), a trip of

over 150 miles, to do the deal with Sanchez at a Hilton

Inn. He brought $47,465 in cash with him to pay for

the drugs. Unfortunately for Lewis, Sanchez was a confidential informant who had been working for the Drug

Enforcement Agency for nearly 20 years. After Lewis

arrived and met with Sanchez, DEA agents and Illinois

police arrested him.

During pretrial proceedings, Lewis’s prior conviction

was mentioned many times. The criminal complaint

issued the day after his arrest referred to it. Both the

government and Lewis’s defense counsel made note of

it at his initial appearance before the district court. The

magistrate judge detained Lewis prior to trial primarily

because he was on supervised release for the prior conviction when he was arrested. And at Lewis’s arraignment,

the judge advised him of the enhanced penalty he

faced given the 2002 conviction.

Additionally, Lewis filed two motions in limine seeking

to prevent the government from introducing the conviction as Rule 404(b) evidence during the trial. The government’s written response defended its use of the evidence and included the details of the 2002 prior conviction—the specific offense, jurisdiction, date of conviction,

sentence, and release date. The district court denied the

first motion in limine and granted the second one only

in part. Lewis then filed a motion to reconsider, which

the court granted, ruling that the government would not

be able to introduce evidence of the prior conviction

unless Lewis opened the door to it.
4 No. 08-3278

At sentencing, Lewis contested a two-level upward

adjustment to his guideline range for his role in the

offense. That was the only objection he lodged to the

presentence report (“PSR”). Lewis acknowledged that he

faced a mandatory minimum sentence greater than the

188 to 235 month range prescribed by the advisory guidelines under § 841(b) and the jury’s drug quantity finding.

No objection was made to the government’s failure to

file a § 851 information. The district court adopted the

findings of the PSR and imposed 20 years, the mandatory

minimum.

It is only now on appeal that Lewis contests the government’s failure to comply with § 851 prior to trial. Section

851 requires the government to provide written notice

when it intends to seek an increased punishment

based on prior convictions. The government believes we

need not reach the substance of Lewis’s appeal, claiming

that he waived his argument by affirmatively acknowledging the applicability of the mandatory minimum

during his sentencing hearing. Waiver, of course, is the

intentional relinquishment of a known right, whereas

forfeiture is the failure to timely assert a right. United States

v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009). Waiver precludes review, but forfeiture allows review albeit only

for plain error. Id. The government has a strong argument that Lewis waived his objection when he agreed

that he faced the mandatory minimum sentence of

20 years. See United States v. Staples, 202 F.3d 992, 995 (7th

Cir. 2000) (defendant waived the right to object when he

knew he had a right to object to the calculation of his

criminal history, knew the contents of the PSR, and affirmatively decided not to object).
No. 08-3278 5

But having said that, it ultimately does not matter

whether we find waiver or forfeiture as Lewis’s argument fails under plain error review. To meet this

exacting standard, Lewis must show that the district court

made a clear error, affecting his substantial rights.

United States v. Lane, 591 F.3d 921, 926 (7th Cir. 2010).

Obviously § 851 was violated. The government did not

file an information. However, there is no prejudice

here. The two main purposes of the § 851 information

requirement are to give a defendant an opportunity to

contest the accuracy of his prior convictions and to

inform his decision on whether to plead guilty or proceed

to trial. Id. at 927. We can’t see how Lewis suffered

from the lack of a formal notice. He was well aware of

the prior conviction; it was the subject of the Rule 404(b)

pretrial debate. Our analysis might be different if

Lewis had pled guilty, expecting a lower sentence than

§ 841(b) would require. But he proceeded to trial. Plus,

plain error review has a judicial discretion component.

We only notice the error if it “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.” Id. at 926 (quoting United States v. Olano, 507

U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993)). The government’s failure to file a § 851 information was a slipup to

be sure, but it does not change the fact that Lewis had

full knowledge of his prior conviction and the penalty

he faced.

Accordingly, we AFFIRM the judgment of the district

court.

3-15-10