UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4365

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 versus

MARK ANTHONY LINCOLN, a/k/a Johnson Harper,

a/k/a Kirk Johnson, a/k/a Ben Lewis, a/k/a

Kirk Lincoln, a/k/a Quinton Harper, a/k/a

Christopher Jacob, a/k/a Kirk Williams, a/k/a

Christopher Jenkins,

 Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Florence. Terry L. Wooten, District Judge.

(CR-03-751)

Submitted: January 6, 2006 Decided: February 6, 2006

Before LUTTIG, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew M. Robinson, Cincinnati, Ohio, for Appellant. Jonathan S.

Gasser, United States Attorney, Rose Mary Parham, Assistant United

States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Mark Anthony Lincoln appeals from his 330-month sentence

entered pursuant to his guilty plea to conspiracy to distribute and

to possess with intent to distribute cocaine base, cocaine powder,

and marijuana. On appeal, Lincoln asserts that the district

court’s statements that the Sentencing Guidelines were advisory

were “lip service” only and that the court essentially treated the

guidelines as mandatory. He also asserts that, because the

Government failed to file another 21 U.S.C. § 851 (2000)

information, after obtaining a second superseding indictment, the

minimum and maximum sentences described in the presentence report

(“PSR”) were incorrect. We affirm.

A sentencing court is not bound by the range prescribed

by the Sentencing Guidelines. United States v. Hughes, 401 F.3d

540, 546 (4th Cir. 2005). In determining a sentence, the

sentencing court must calculate and consider the guideline range,

as well as the factors set forth in 18 U.S.C. § 3553(a) (2000).

Hughes, 401 F.3d at 546. We will affirm a sentence if it is

reasonable and within the statutorily prescribed range. Id. at

546-47. Further, we have stated that “while we believe that the

appropriate circumstances for imposing a sentence outside the

guideline range will depend on the facts of individual cases, we

have no reason to doubt that most sentences will continue to fall
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within the applicable guideline range.” United States v. White,

405 F.3d 208, 219 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).

This is not a case where the district court misunderstood

its discretion to sentence Lincoln outside of the guideline range.

The court stated explicitly that the guidelines were advisory and

that the sentence was imposed in accordance with § 3553 and Hughes.

The court adopted the PSR, without objection from either party, and

the PSR contained a properly calculated guideline range. In

addition, the court noted Lincoln’s extensive criminal background,

his personal circumstances, and the fact that Congress and the

Sentencing Commission have adopted tough punishments for drug

crimes. The court granted a downward departure and sentenced

Lincoln at the lower end of his guideline range. Under these

circumstances, we find that the sentence was reasonable.

See United States v. Shannon, 414 F.3d 921, 924 (8th Cir. 2005)

(stating that a “sentence imposed . . . consistent with the

now-advisory guidelines . . . is generally indicative of

reasonableness”).

To seek enhanced penalties under 21 U.S.C.A.

§ 841(b)(1)(A) (West Supp. 2005), the Government must file an

information giving its notice to seek such penalties prior to trial

or the entry of a plea. See 21 U.S.C. § 851. The purpose of the

§ 851 provisions is to provide notice to a defendant prior to trial

that he faces an increased punishment if convicted of a qualifying
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offense, such that the defendant has the opportunity to contest the

accuracy of the information and to allow the defense sufficient

time to understand the full consequences of a guilty plea or

verdict. United States v. Williams, 59 F.3d 1180, 1185 (11th Cir.

1995).

Lincoln does not argue that the Government’s original

filing was insufficient, nor does he allege that the Government

withdrew its notice to seek enhanced penalties. Other circuits

have found that it is not necessary to refile a § 851 information

after a superseding indictment or before a subsequent trial if

there was a mistrial or reversal. See id. at 1185; United

States v. Wright, 932 F.2d 868, 882 (10th Cir. 1991). Further,

because the enhanced penalties were outlined at Lincoln’s Fed. R.

Crim. P. 11 hearing, he was able to make an informed decision as

mandated by § 851. Accordingly, we hold that the Government was

not required to refile its § 851 enhancement after it filed the

second superseding indictment. 

Thus, we affirm Lincoln’s sentence. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED