United States Court of Appeals,

Eleventh Circuit.

No. 94-2288

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Rodney Cornelius BROWN, Defendant-Appellant.

March 16, 1995.

Appeal from the United States District Court for the Middle

District of Florida. (No. 92-221-Cr-T-24), Francis J. Boyle,

Visiting Judge.

Before EDMONDSON, COX and DUBINA, Circuit Judges.

PER CURIAM:

I.

A federal grand jury in the United States District Court for

the Middle District of Florida returned a two-count indictment

charging appellant Rodney C. Brown ("Brown") with one count of

possession of a firearm while being a convicted felon, in violation

of 18 U.S.C. §§ 922(g) and 924(e), and one count of possession of

crack cocaine with the intent to distribute, in violation of 21

U.S.C. § 841(a)(1).

Prior to trial, Brown filed a motion to suppress statements

and evidence that law enforcement officers had obtained from Brown

after they had conducted an investigatory stop of Brown's car. A

United States magistrate judge conducted a hearing on Brown's

motion and, following the hearing, the magistrate judge issued a

report and recommendation recommending that Brown's motion be

denied. The district court adopted the magistrate judge's report
and recommendation and denied the motion. Brown then filed a

motion for severance of charges under Rule 14, Fed.R.Crim.P.,

arguing that he was "substantially and specifically prejudiced by

the joinder of [the] offenses for trial." R1-28. The district

court also denied this motion.

After a trial by jury, Brown was found guilty of both of the

counts charged in the indictment. During his sentencing hearing

Brown argued that he should not be subject to the enhanced penalty

provisions of 21 U.S.C. § 851 because he had not been indicted for

or waived indictment for the prior state offenses that triggered

the application of those provisions. The district court rejected

that argument and sentenced Brown to mandatory concurrent terms of

life imprisonment. Brown then perfected this appeal.

II.

The issues Brown presents in this appeal are (1) whether the

district court erred in denying Brown's motion to suppress

evidence; (2) whether the district court erred in denying Brown's

motion to sever; and (3) whether 21 U.S.C. § 851(a)(2) requires

that a predicate offense underlying a sentence enhancement must be

the result of a prosecution by indictment.

Because we are persuaded by the record that there is no merit

to any of the arguments Brown makes in support of the first two

issues, we summarily affirm the district court's orders concerning

them. Because the third issue presents a question of first

impression in this circuit, it warrants discussion.

III.

Brown was sentenced under the mandatory statutory minimum set
forth in 21 U.S.C. § 841(b)(1)(A). The statute directs that a

defendant who has more than two prior convictions for a felony drug

offense and subsequently is convicted of possession with intent to

distribute more than five kilograms of cocaine is subject to life

imprisonment. See 21 U.S.C. § 841(b)(1)(A). In order to establish

the legitimacy of those prior convictions, 21 U.S.C. § 851 provides

that the government must file with the court an information stating

the previous convictions to be relied upon. In addition, the

statute states:

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)(2).

Brown contends in this appeal that because his prior state

convictions were based upon the filing of informations, rather than

the return of indictments or waiver of indictments, the sentence

enhancement provisions of 21 U.S.C. §§ 841 and 851 do not apply.

This argument is meritless.

 Pursuant to 21 U.S.C. § 841(b)(1)(A), a defendant who is

guilty of possessing with intent to distribute more than five

kilograms of cocaine is subject to a mandatory term of life

imprisonment if the offense was committed after two or more prior

convictions for felony drug offenses have become final. The term

"felony drug offense" includes "a felony under any law of a State

or a foreign country that prohibits or restricts conduct relating

to narcotic drugs, marijuana or depressant or stimulant

substances." 21 U.S.C. § 841(b)(1)(A).
 If the government intends to ask the sentencing court to

enhance a defendant's sentence pursuant to section 841(b)(1)(A)

based on the defendant's prior convictions, the government must

file an information setting forth the prior convictions on which

the government intends to rely. 21 U.S.C. § 851(a)(1). Brown's

argument that these prior convictions must have been brought by

indictment or pursuant to waiver of indictment is premised on 21

U.S.C. § 851(a)(2).

 Four circuit courts of appeals have addressed the argument

that Brown asserts in this case, and all four courts have agreed

that section 851(a)(2) permits the government to seek the enhanced

penalty so long as the current offense of conviction (rather than

the "triggering offenses") resulted from an indictment or the

waiver of an indictment.

In United States v. Espinosa, 827 F.2d 604 (9th Cir.1987),

cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988),

the Ninth Circuit held that the reference in section 851(a)(2) to

"prosecution by indictment" refers to the charge of conviction.

The court reached this conclusion for three reasons. First, "a

common-sense reading of the phrase "offense for which such

increased punishment may be imposed' is the current, or latest,

offense." Id. at 617. Second, the court recognized that, when

Congress used the term "offense" in section 851, it was referring

to the current offense. Whenever Congress referred to the "prior

conviction" or the so-called "triggering conviction," it used the

words "prior conviction" or "previous conviction." The court

reasoned, "Had Congress intended [the defendant's] interpretation,
it seems that the phrase simply would have read "prosecution by

indictment in the prior conviction.' " Id. Third, the court

recognized that it was Congress's intention in 1984 to broaden the

scope of enhancements in § 841(b) for prior convictions rather than

to limit the scope. Id. If the court had adopted Brown's

argument, the scope of the enhancement would have been severely

limited because many states do not charge by indictment but rather

use informations or complaints to charge felonies.

In United States v. Adams, 914 F.2d 1404 (10th Cir.), cert.

denied, 498 U.S. 1015, 111 S.Ct. 588, 112 L.Ed.2d 593 (1990), the

Tenth Circuit expressly adopted the reasoning employed by the Ninth

Circuit in Espinosa. The Adams court recognized that the words

"offense for which" in section 851 may be vague when read alone

but, in context, "the correct meaning is plainly discernible." Id.

at 1407. The court held that the triggering offense need not have

been charged by indictment or by information following a waiver of

indictment. Id.

In United States v. Burrell, 963 F.2d 976 (7th Cir.), cert.

denied, --- U.S. ----, 113 S.Ct. 357, 121 L.Ed.2d 270 (1992), the

Seventh Circuit also held that the prior convictions that trigger

the 21 U.S.C. § 851 enhancement need not have been brought by

indictment. Id. at 992. The court in Burrell followed the

analysis adopted by the Espinosa and Adams courts, characterizing

these decisions as "careful[ly] reason[ed]." Id. at 993.

Moreover, in United States v. Trevino-Rodriquez, 994 F.2d 533 (8th

Cir.1993), the Eighth Circuit adopted the same reasoning of the

other circuits stating, "We agree with our sister circuits and hold
that the language of 21 U.S.C. § 851(a)(2) refers to the

prosecution of the current offense." Id. at 536.

IV.

The reasoning adopted by each of our sister circuits in

holding that the language of 21 U.S.C. § 851(a)(2) refers to the

prosecution of the current offense is sound. Accordingly, we adopt

that same reasoning and reject Brown's claim that a defendant's

sentence may not be enhanced pursuant to section 851 unless the

"triggering offenses" were charged by indictment or by information

following waiver of indictment. Therefore, we affirm Brown's

convictions and sentences in all respects.

AFFIRMED.