NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 15

- 1206

_____________ UNITED STATES OF AMERICA

v. ANTHONY LONDON,

Appellant

______________ APPEAL FROM THE UNIT ED STATES DISTRICT C OURT FOR THE WESTERN DISTRICT OF PENNSYLV ANIA

( No. 2

- 09

- cr - 00105

- 016 ) District Judge: Hon orable David S. Cercone

_____________ Submitted Under Third Circuit L

. A

. R

. 34.1(a)

March 21, 2016

______________ Before: GREENAWAY, JR., VANASKIE, and SHWARTZ , Circuit Judges

.

(Opinion Filed: August 31, 2018 )

______________ OPINION *

______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

GREENAWAY, JR., Circuit Judge

. After Appellant Anthony London was convic ted o f a federal drug conspiracy charge, the District Court sentence d him to twenty years in prison because his prior California felony conviction qualified him for a mandatory sentence enhancement under 21 U.S.C. § 841(b)(1)(A) . Now on appeal, London challeng es the imposition of the sentence enhancement on two independent grounds. First, he argues that the Government impermissibly sought the enhancement to coerce him into pleading guilty

. Second, he contends that the enhancement is no longer applicable becau se his prior California felony was recently reclassified as a misdemeanor

. We find neither of these arguments meritorious and will therefore affirm. I. BACKGROUND In March 2012, London was charged with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Normally, conviction for such an offense would carry a mandatory minimum of ten years in prison. See 21 U.S.C. § 841(b)(1)(A) ; id. § 846

. But after London pled not guilty, the Government filed an Information pursuant to 21 U.S.C. § 851 (a) , alleging that he was instead subject to a ma ndatory minimum of twenty years due to his 1981 California felony conviction for possession of cocaine for sale, in vio lation of Section 11377 of the California Health and Safety Code. See 21 U.S.C. § 841(b)(1)(A).3

A jury ultimately convicted London of the federal conspiracy charge in January
2014. Prior to sentencing, London moved to strike the Information, alleging t hat the Government had committed prosecutorial misconduct b y filing the Information with the intent to impermissibly coerce him into pleading guilty. The D istrict Court denied London’s motion and sentenced him to the enhanced mandatory minimum of twenty years in prison, followed by ten years of supervised release. London then filed an appeal , reasserting the same argum ent from his motion to strike. Meanwhile, i n November 2014 , California voters enacted Proposition 47

— The
S afe Neighborhoods and Sch ools Act

— which, among other things, allows individuals previously convicted of offenses under Section 11377 to petition for their felony convictions to be reclassified as misdemeanors. See Cal. Penal Code § 1170.18(a)

. London fil ed such a petition, and following the docketing of his appeal, the petition was granted , and his conviction was reclassified

. We subsequently permitted London and the
Government to submit supplemental briefing addressing whether the reclassification of
Lo ndon’s conviction as a misdemean or impacts the validity of the sentence enhancement. 1

1 After the parties submitted their supplemental briefs, we decided to “hold the case C.A.V. pending the decision of the California Supr e me Court in People v. DeHoyos , S228230, or any other case that addressed the question of retroactivity of Proposition 47.” With t he California Supreme Court having now decided DeHoyos , see 412 P.3d 368 (2018), the matter is ripe for our disposition.4 II. DISCUSSION 2 Although we ordinarily remand cases when new facts arise , s ee , e.g. , Madison Cty. v. Oneida Indian Nation , 562 U.S. 42, 43 (2011) (per curiam) (remanding for consideration of the impact of a “new factual development”), the reclassification of London’s prior offense raises a purely legal question involving statutory interpretation , over whi ch we exercise plenary review, United States v. Williams , 675 F.3d 275, 277 (3d Cir. 2012 )

. T he issue has been fully briefed, and “the re is no controversy concerning the facts applicable

. ” Myers v. Am. Dental Ass’n , 6 95 F.2d 716, 730 (3d Cir. 1982). Thus, “no purpose would be served by” remanding , and we think it appropriate to consider the question now , even though it was not, and could not, have been reached by the District Court in the first instance. Id. First, howe ver, we address London’s original argument raised in the District
Court

— that the filin g of the Information constituted prosecutorial misconduct because it was intended to coerce him into pleading guilty . Because we find that initial argument unpersuasive, we then proceed to decide London’s reclassification argument , which we conclude lacks merit as well. We will therefore affirm

.

2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the District Court’s determinations of fact for clear error and exercise plenary review over its application of leg al precepts. United States v . Esposito , 968 F.2d 300, 30 2

– 0 3 (3d Cir. 1992 ).5

A. London’s Motion to Strike London’s first argument is that the Information should have been struck because the Government impermissibly threate ned to file it for the purpose of coercing him into a guilty plea. According to London, when such effort to coerce failed, the Government carried out its threat to file as punishment for London’s exercise of his constituti onal right to a trial by jury. Acting with such in tent to punish, London contends, violates the Due Process Clause of the Fifth Amendment

. It is well

- established that “prosecutorial vindictiveness” may constitute a due process violation, because “for an agent of the State to pursue a course of action wh ose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’” Bordenkircher v. Hayes , 434 U.S. 357, 3 63 (1978) (quoting Chaffin v. Stynchcombe , 412 U.S. 17 , 32

– 33 n.20 (1973)). Normally, however, a criminal defenda nt must offer proof of “actual vindictiveness” in order to assert a due process
claim. See United States v. Esposito , 968 F.2d 300, 303 (3d Cir. 1992). Only i n the rare circumstances where “a reasonable likelihood of vindictiveness exists” do we recogniz e a “presumption of vindictiveness,” which allow s a defendant to bring a constitutional claim without offering any concrete proof of improper governmental motive. Id. No such presumption applies in the context of p lea bargaining. “[B]y tolerating and encouraging the negotiation of pleas,” our system “has necessarily accepted as
constitutional ly legitimate the simple reality that the prosecutor’s interest at the6

bargaining table is to persuade the defendant to forgo his right ” to proceed to a jury trial. Bordenkircher , 434 U.S. at 364. In other words, “in the ‘give

- and

- take’ of plea bargaining, there is no .

. . element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’ s offer. ” I d. at 363. Thus, a bsent proof of actual vindictiveness, no due process violation occurs when the prosecution does exactly what the Government supposedly attempted to do here: induce a guilty plea by threatening a
g reater penalty upon conviction after trial. Id. B ecause London has not offered any evidence of actual vindictivene ss, his due process claim fails, and t he District Court was correct to deny his motion to strike the Information. 3
B . The Reclassification of London’s California Conviction London next argues that we should remand for resentencing because he is no longer eligible for the sentence enhancement under 21 U.S.C. § 841(b)(1)(A) in light of the reclassification of his California conviction as a misdemeanor. Section 841(b)(1)(A) imp oses a mandatory sentence of no less than twenty years in prison if a defendant

3 In September 2014, a fter London had already filed his motion to strike , the Department of Justice (“DOJ”) issued a Memorandum providing that a “§ 851 enhancement should not b e used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty.” Memorandum from Attorney General Eric H. Holder, Jr. to Department of Justice Attorneys (September 24, 2014). But DOJ policies “do not themselves cr eate rights for criminal defendants.” United States v. Christie , 624 F.3d 558, 573 (3d Cir. 2010); see also United States v. Wilson , 4 13 F.3d 382, 389 (3d Cir. 2005). Accordingly , the September 2014 Memorandum provides London no basis for relief here.7

“commits [a violation of § 841] after a prior conviction for a felony drug offense has beco me final.” 4 The interpretation of this provision is a matter of federal law, rather than
state law. See United States v. Meraz , 998 F.2d 182, 183 (3d Cir. 1993) (addressing nearly identical language in § 841(b)(1)(B)). Thus, in determining whether the reclassification of London’s prior conviction impacts his eligibility for the § 841(b) (1)(A) enhancement, we begin the same way we begin all inquiries involving statutory interpret ation

— with the text of the statutory provision. Williams , 675 F.3d at 277

– 278

. On its face, the text of § 841(b)(1)(A) is “ backward

- looking.” United States v. Diaz , 838 F.3d 968, 973 (9th Cir. 2016) (quoting McNeill v. United States , 563 U.S. 816, 821 (2011)). It requires only that the defendant commit his federal offense after his prior conviction “has become final.” 21 U.S.C. § 841(b)(1)(A). The relevant inquiry, then,

‘ “ is whether the defendant was previously convicted, not the particulars of how state law later might have ’ permitted relief from the defendant’s state conviction.” Diaz , 838 F.3d
at 97 3

– 7 4 (quoting United States v. Dyke , 718 F.3d 1282, 12 93 (10th Cir. 2013) )

. “In other words, a state making a change to a state conviction after it has become final ‘ does not alter the historical fact of the [prior state] conviction ’ becoming final

. ” Id. at 973

4 London was convicted of conspiracy to commit a violation of § 841 under 21 U.S.C. § 846, which provides that “[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subjected to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”8

(alteration in original) (quoting Dyke , 718 F. 3d at 1292). T hat historical fact is the sole focus of § 841(b)(1)(A)

. C onsequently , we have held that there is no impact on § 841 eligibility when the defendant’s prior state conviction is outright dismissed following probation , which is a more drastic change than reclassification. Meraz , 998 F.2d at 18 4; see also United States v. McGlory , 968 F.2d 309, 349

– 51 (3d Cir. 1992) ( treating defendant’s prior conviction as a felony for purposes of § 841 even though state later statutorily reduced underlying offense to a misdemeanor, without enacting any individualized reclassification process). Dismissal or expungement might be relevant for purposes of § 841 if the change alters the legality of the underlying prior conviction , like cases where the re was trial error or the defendant was actually innocent

. S ee United States v. Norbury , 492 F.3d 1012, 1015 (9th Cir. 2007)

. But ot her than those circumstances, the “ federal enhancement ‘does not depend upon the mechanics of state post

- conviction proced ures, but rather involves the [state] conviction’s underlying lawfulness.’” Diaz , 838 F.3d at 973 (alteration in original) (quoting Norbury , 492 F.3d at 1015)). Such a regime may at first glance seem harsh, but there is good reason behind it. “Ignoring later state actions for pu rposes of federal sentences .

. . aligns with the Supreme Court’s repeated admonishments that federal laws should be construed to achieve
natio nal uniformity.” Id. at 974 (citing D ickerson v. New Banner Inst. , Inc. , 460 U.S. 103, 112 (1983), superseded by statute, as recognized in Logan v. United States , 552 U.S.9

23, 27

– 28 (2007)). If state post

- conviction procedures always impacted eligibility under § 841, the federal sentence enhancements would apply in an unfair, “patchwork”

manner. 5 Id. (quoting United States v. Bergeman , 592 F.2d 533, 537 (9th Cir. 1979)); see also McGlory , 968 F.2d at 350 (noting “confusion .

. . likely to result if .

. . sentencing
court [s] had to analyze the status of every prior state conviction in terms of the status of state law ”). The sentence enhancements in § 841 are also meant to combat recidivism

. T hat purpose would not be served by affording a defendant relief from his federal sentence whenever a state provides him procedural relief related to a previous state conviction after he has already committ ed another federal drug offense. Diaz , 838 F.3d at 974 ; Dyke , 718 F.3d a t 1292

– 93

. Here, t he decision of California voters to enact Proposition 47 do es not change the fact that London committed his federal offense “after a prior conviction for a felony drug offense ha[d] become final.” 21 U .S.C. § 841(b)(1)(A). Because t h e subsequent reclassification of London’s California conviction had no bearing on th at conviction’s underlying lawful ness, he remains eligible for the sentence enhancement he received under § 841(b)(1)(A). See Diaz , 838 F.3d 975 (concluding that Proposition 47 “does not undermine a prior conviction’s felony

- status for purposes of § 841 ” ).

5 Congress could, of course, give retroactive effect to forms of relief under state law that are unrelated to trial error or actual innocence, and it has done so in other contexts. See, e.g. , Logan , 552 U.S. at 27

– 28 (discussing amendment to Firearms Owners’ Protection Act that excludes from qualifying predicate offense status state convictions that have been expunged )

.10 I I I . CONCLUSION For the foregoing reasons, we will affirm the judgment of conviction.