United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, Chief District Judge.
On November 4, 2014, prior to the start of defendant Luis Olivares' jury trial, the government filed an information pursuant to 21 U.S.C. § 851 identifying two prior felony drug convictions of Mr. Olivares:
1) controlled substance conspiracy, judgment entered in District Court, Adams County, Colorado on or about December 3, 2003 (Case No. 2003CR002076); and
2) possession of more than one gram of a Schedule II controlled substance, amended judgment entered in District Court, Arapahoe County, Colorado on or about April 19, 2006 (Case No. D0032004CR003021).
Section 841(b)(1)(A) of Title 21 of the United States Code provides "[i]f any person commits a violation of this subparagraph... after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence." 21 U.S.C. § 841(b)(1)(A).
Mr. Olivares' jury trial began on December 1, 2014. (Clerk's Minutes). Mr. Olivares was found guilty of conspiracy to distribute a controlled substance (count 1) in violation 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A); possession with intent to distribute a controlled substance (count 5) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); and distribution of a controlled substance (count 6) in violation 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). (Docket 1118). If the sentencing enhancements are applied, Mr. Olivares' conviction on counts 1 and 5 call for a sentence of mandatory life in custody.
On March 5, 2015, Mr. Olivares filed objections to the government's § 851 information. (Docket 1132). On May 15, 2015, the government filed a response to Mr. Olivares' objections. (Docket 1156). On May 22, 2015, Mr. Olivares filed a brief in reply to the government's response to his objections to the application of a sentencing enhancement under §§ 841(b)(1)(A) and 851. (Docket 1160). Also on May 22, 2015, Mr. Olivares filed a pro se brief in reply to the government's response to Mr. Olivares' objections to the application of a sentencing enhancement under §§ 841(b)(1)(A) and 851. (Docket 1159). On May 27, 2015, prior to Mr. Olivares' sentencing, the court held a hearing to establish the validity of Mr. Olivares' two prior felony drug convictions.
For the reasons set forth below and as iterated by the court at Mr. Olivares' § 851 hearing, the court finds, pursuant to §§ 841(b)(1)(A) and 851, Mr. Olivares is subject to a sentence of mandatory life in custody on counts 1 and 5.
1. Adequacy of the Government's § 851 Information
"To obtain a sentencing enhancement based on a defendant's earlier conviction, the Government must comply with the notice requirements of 21 U.S.C. § 851(a)." United States v. Curiale, 390 F.3d 1075, 1076 (8th Cir. 2004) (citing United States v. Stallings, 301 F.3d 919, 920 (8th Cir. 2002)). Section 851 of Title 21 of the United States Code provides:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
21 U.S.C. § 851.
"The purpose of notice under § 851 is to comply with the requirements of due process." United States v. Roundtree, 534 F.3d 876, 881 (8th Cir. 2008) (citing Curiale, 390 F.3d at 1076). "The information must give the defendant reasonable notice of the Government's intent to rely on a particular conviction and a meaningful opportunity to be heard." Curiale, 390 F.3d at 1076-77 (citing Perez v. United States, 249 F.3d 1261, 1266 (11th Cir. 2001); United States v. King, 127 F.3d 483, 489 (6th Cir. 1997)). "To satisfy the procedural and notice requirements of the § 851(a) information, the government must file its information before jury selection begins, thus allowing the defendant ample time [...] to go to trial, and to plan his trial strategy with full knowledge of the consequences of a potential guilty verdict." United States v. Stallings, 301 F.3d 919, 920-21 (8th Cir. 2002) (internal quotation marks and citations omitted) (alterations in original) (In Stallings, the United States Court of Appeals for the Eighth Circuit held that filing a § 851 information four days prior to trial satisfied the "notice" threshold.).
"Notice is sufficient if a defendant receives notice of the prior conviction, the effect it would have on the maximum sentence, and an opportunity to dispute the conviction.'" Roundtree, 534 F.3d at 881 (quoting United States v. Timley, 443 F.3d 615, 626 (8th Cir. 2006)). When interpreting § 851, courts should be "careful not to elevate form over substance." Curiale, 390 F.3d at 1077 (citations and internal quotation marks omitted). "An information complies with the requirements of § 851(a) even if it contains an error in its contents as long as the information serves to convey the Government's intent to seek an enhancement based on a particular earlier conviction." Curiale, 390 F.3d at 1076-77 (citing Perez, 249 F.3d at 1265). "[U]nder the plain language of § 851(a), clerical mistakes in the information may be corrected by amendment before sentencing. The statute does not define the term clerical error, ' ...