Opinion
20-4270
11-21-2022
United States of America, Appellee, v. Frank Carr, AKA FL, Defendant-Appellant.[*]
FOR DEFENDANT-APPELLANT: RANDALL DOUGLAS UNGER, LAW OFFICE OF RANDALL D. UNGER, KEW GARDENS, NY. FOR APPELLEE: CONOR M. REARDON (SANDRA S. GLOVER, ON THE BRIEF), ASSISTANT UNITED STATES ATTORNEYS, FOR LEONARD C. BOYLE, UNITED STATES ATTORNEY FOR THE DISTRICT OF CONNECTICUT, NEW HAVEN, CT.
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of November, two thousand twenty-two.
Appeal from a judgment of the United States District Court for the District of Connecticut (Robert N. Chatigny, Judge).
FOR DEFENDANT-APPELLANT: RANDALL DOUGLAS UNGER, LAW OFFICE OF RANDALL D. UNGER, KEW GARDENS, NY.
FOR APPELLEE: CONOR M. REARDON (SANDRA S. GLOVER, ON THE BRIEF), ASSISTANT UNITED STATES ATTORNEYS, FOR LEONARD C. BOYLE, UNITED STATES ATTORNEY FOR THE DISTRICT OF CONNECTICUT, NEW HAVEN, CT.
PRESENT: ROBERT D. SACK, RICHARD J. SULLIVAN, EUNICE C. LEE, CIRCUIT JUDGES.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Frank Carr appeals from the judgment of conviction entered by the district court following his guilty plea to possession with intent to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). In light of the government's filing of a prior felony information pursuant to 21 U.S.C. § 851, the district court sentenced Carr to a mandatory minimum term of ten years' imprisonment, to be followed by an eight-year term of supervised release. On appeal, Carr contends that his sentence should be vacated because (1) the district court failed to comply with the procedures required by section 851, (2) the district court's drug-quantity calculation was not supported by a preponderance of the evidence, and (3) the district court erred when it increased his offense level for obstruction of justice. We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.
Carr first argues that his sentence should be vacated because the district court failed to follow the procedures delineated in 21 U.S.C. § 851 when it imposed an enhanced sentence pursuant to the prior felony information filed by the government. Specifically, Carr contends that the district court did not give him an opportunity to "affirm[] or den[y] that he ha[d] been previously convicted as alleged in the information" and failed to "inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence." 21 U.S.C. § 851(b).
Here, there is no question that the district court failed to comply with the procedures set forth in section 851(b). But a district court's failure to comply with those procedures "does not automatically invalidate the resulting sentence." United States v. Espinal, 634 F.3d 655, 665 (2d Cir. 2011). We have recognized that "non-prejudicial errors in complying with the procedural requirements of [section] 851 should [not] require reversal." Id.
This Circuit has not yet addressed which standard of review governs unpreserved challenges to section 851 procedural deficiencies - the more demanding plain-error standard of Rule 52(b) or the more lenient harmless-error standard of Rule 52(a). We do not resolve the question here, however, as Carr's challenge fails even under the more lenient harmless-error standard.
Here, the record makes clear that the district court's failure to comply with the procedures set forth in section 851(b) - though regrettable given the plain language of the statute and our prior holding in Espinal - was harmless. First, Carr's plea agreement made express reference to his prior felony conviction, see App'x at 48 ("The defendant further acknowledges, and does not challenge, his prior . . . [conviction for] Possession with Intent to Distribute Heroin ...."), and Carr himself acknowledged his prior conviction during his plea allocution, see id. at 84 (confirming that his plea agreement included the prior conviction for "possession [with] intent to distribute heroin"). Moreover, the plain text of section 851(e) would have precluded Carr from challenging the validity of his prior conviction, which was entered on January 3, 2013 - more than five years before the date of the prior felony information filed in this case. See 21 U.S.C. § 851(e) ("No person who stands convicted of an offense . . . may challenge the validity of any prior conviction . . . which occurred more than five years before the date of the information alleging such prior conviction."); see also United States v. Jones, 571 Fed.Appx. 16, 19 (2d Cir. 2014) (finding the district court's failure to adhere to section 851's procedural requirements harmless where, as here, the prior conviction had occurred more than five years before the information was filed). Because Carr was aware of the sentencing enhancement described in the plea agreement and could not, in any event, have challenged the validity of the prior conviction that formed the basis for that enhancement, he was not prejudiced by the district court's failure to follow section 851(b)'s procedural requirements. We therefore decline to vacate the sentence imposed below.
Carr's two remaining challenges concern the district court's calculation of his Sentencing Guidelines range. Specifically, Carr argues that the district court's calculation of drug quantity - based on the Presentence Investigation Report's conclusion that Carr distributed approximately 111 grams of cocaine base and more than a kilogram of cocaine - was not supported by a preponderance of the evidence, and that the district court erred by applying an enhancement for obstruction of justice. But even if we were to assume that the district court erred with respect to these findings, Carr could not show that the purported errors "affected the outcome of the district court proceedings," United States v. Olano, 507 U.S. 725, 734 (1993), for the simple reason that Carr's ten-year sentence "represented the lowest term of incarceration permitted by law," such that any purported error in the district court's calculation of the Sentencing Guidelines range could have had no impact on the sentence it imposed, United States v. Parker, 577 F.3d 143, 147-48 (2d Cir. 2009).
We have considered Carr's remaining arguments and found them to be meritless. Accordingly, we AFFIRM the judgment of the district court.
[*] The Clerk of Court is respectfully directed to amend the caption as set forth above.