Before trial, the government served defendant Ramon Morales with a prior felony information, see 21 U.S.C. § 851(a)(1), warning that Morales was subject to an enhancement of his sentence pursuant to 21 U.S.C. § 841(b)(1)(B) because he had a prior felony narcotics conviction. Before sentencing but after trial, the government filed an amended prior felony information referencing 21 U.S.C. § 841(b)(1)(A). While the mandatory minimum sentence under Section 841(b)(1)(B) is ten years' imprisonment, the mandatory minimum under Section 841(b)(1)(A) is twenty years' imprisonment. At sentencing, the government sought and the United States District Court for the Southern District of New York (Koeltl, J.) imposed an enhancement pursuant to 21 U.S.C. § 841(b)(1)(A).
The conviction is AFFIRMED in an accompanying summary order, but we REMAND for further proceedings concerning the impact on the sentence of the government's omission of Section 841(b)(1)(A) from the prior felony information.
Before: POOLER and SOTOMAYOR, Circuit Judges, and JONES*fn1, District Judge.
We review the determination of the United States District Court for the Southern District of New York (Koeltl, J.) that the government committed only a clerical error subject to correction at any time, see 21 U.S.C. §851(a)(1), when it cited only the lower of the two applicable prior-narcotics-felony enhancements in the prior felony information served on defendant Ramon Morales before trial. We hold that a remand is required in order that the District Court may determine whether Morales was prejudiced by the government's omission.
The federal narcotics laws require that the sentence for a defendant convicted of certain narcotics offenses be increased if the defendant has a prior felony narcotics conviction. In particular, 21 U.S.C. § 841(b)(1)(A) generally provides for a mandatory minimum sentence of ten years' imprisonment and a maximum sentence of life imprisonment for an offense involving one kilogram or more of heroin. However, if the defendant was previously convicted of "a felony drug offense," the mandatory minimum is twenty years' imprisonment. Likewise, under 21 U.S.C. § 841(b)(1)(B), a defendant convicted of a narcotics offense involving 100 grams or more of a substance containing heroin faces a mandatory minimum sentence of five years' imprisonment and a maximum sentence of forty years' imprisonment, but if he or she has a prior felony drug conviction, the minimum is ten years and the maximum, life. As a condition precedent to the court's imposition of an enhanced penalty under either of these subsections, the United States Attorney must - prior to trial or plea - file and serve on the defendant an information "stating in writing the previous convictions to be relied upon." 21 U.S.C. § 851(a)(1);*fn2 see Sapia v. United States, 433 F.3d 212, 217 (2d Cir. 2005). If the government fails to timely file an information identifying the previous conviction(s), only the lower penalty otherwise applicable may be imposed. United States v. LaBonte, 520 U.S. 751, 754 n.1 (1997). However, "[c]lerical mistakes" can be corrected at any time prior to the imposition of sentence.
The government timely filed and served on defendant Ramon Morales a prior felony information accurately describing the prior offense on which it wished to rely. Had the government gone no further, the District Court would have been required to impose at least a twenty-year sentence because (1) Section 851(a)(1) does not require that the government identify the statutory section authorizing an enhanced penalty; and (2) assuming the proper filing and service of an accurate prior felony information, the trial court must impose the mandatory minimum.
However, the government went beyond accurately describing the prior felony and added potentially misleading information. After describing the qualifying prior felony conviction, the information continued: "[a]ccordingly, . . . the defendant is subject to the enhanced penalties of Title 21, United States Code, Sections 841(a), 841(b)(1)(B), and 851." The indictment charging Morales contained two counts: a conspiracy count involving one kilogram or more of heroin and a substantive count involving 100 grams or more of heroin. The reference to Section 841(b)(1)(B) clearly informed Morales that the government would seek and the District Court would be required to impose a sentence of at least ten years on the substantive count. Morales contended at sentencing that he went to trial because he believed that the only mandatory minimum the government would seek was the ten years authorized by Section 841(b)(1)(B).*fn3
This argument has some force because lack of an affirmative obligation to convey information does not necessarily excuse the giving of potentially misleading incomplete information. Cf. United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002) (holding that although we had previously held that an attorney's failure to inform his or her client of the immigration consequences of a conviction was not ineffective assistance, actively misleading the client concerning these consequences was ineffective assistance).
Nevertheless, because Section 851 does not require that a prior felony information identify the statutory basis of a proposed enhancement or its length, the government urged at sentencing that its mistake in identifying the relevant statute was at worst a "clerical" error, which it corrected in an amended prior felony information filed and served after Morales's conviction but before his sentencing. The District Court agreed and sentenced Morales to twenty years' imprisonment.
Two Circuits have considered whether an omission that could lead the defendant to believe that the government is seeking a lower sentence than the one the government actually seeks requires a remedy at sentencing. The District Court's decision is consistent with the position of the Fourth Circuit. See United States v. Campbell, 980 F.2d 245 (4th Cir. 1992). In Campbell, the government filed and served a prior felony information citing only 21 U.S.C. § 841(b)(1)(C), which provides that "repeat drug offenders 'shall be sentenced to a term of imprisonment of not more than 30 years.'" Id. at 247 & n.2. After conviction but before sentencing, the government realized its mistake and sought to amend the information to refer to Section 841(b)(1)(B), which provides a mandatory minimum penalty of ten years' imprisonment for repeat offenders. Id. at 247. The District Court allowed the amendment, and Campbell appealed. Id. at 248. Finding that the purpose of Section 851 was to afford a defendant notice so that he or she can show that the enhancement does not apply, the Fourth Circuit held that the misstatement of the section imposing the enhanced penalty was a clerical one that could be corrected at any time before sentencing. Id. at 252 & n.11. The court also noted, however, that "[a]t oral argument, Campbell's attorney conceded that his trial strategy would have been no different had the government's pretrial information recited the correct sub-part." Id. at 252.
The Fifth Circuit considered a similar error in a prior felony information to be potentially much more serious. See United States v. Arnold, 467 F.3d 880 (5th Cir. 2006). In Arnold, as in this case, the government timely filed and served a prior felony information informing the defendant, Marcus Arnold, that he was subject to enhancement pursuant to 21 U.S.C. § 841(b)(1)(B), which would have subjected Arnold to a mandatory minimum sentence of ten years' imprisonment. Id. at 882. Prior to sentencing, but after trial, the government offered an amended information replacing Section 841(b)(1)(B) with Section 841(b)(1)(A). Id. Because Arnold had two prior felony convictions, he was subject to a mandatory minimum of life imprisonment under Section 841(b)(1)(A). The Fifth Circuit held that one of the purposes of Section 851's requirement was to allow a defendant "ample time to determine whether to enter a plea or go to trial and plan his trial strategy with full knowledge of the consequences of a potential guilty verdict." Id. at 887 (quoting United States v. Williams, 59 F.3d 1180, 1185 (11th Cir. 1995)). The Court, therefore, remanded in order to determine whether the defendant had been prejudiced by the citation of the wrong statute. Id. at 882, 888.* ...