United States of America v.  CURTIS A. BEASLEY, a/k/a Pooh

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4107 
CURTIS A. BEASLEY, a/k/a Pooh,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-02-1358)
Argued: March 16, 2007
Decided: July 25, 2007
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Michael and Judge Gregory joined.
COUNSEL
ARGUED: Fletcher N. Smith, Jr., Greenville, South Carolina, for
Appellant. Regan Alexandra Pendleton, Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville,
South Carolina, for Appellee. ON BRIEF: Reginald I. Lloyd, United
States Attorney, Columbia, South Carolina, for Appellee.

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OPINION
NIEMEYER, Circuit Judge:
A jury convicted Curtis Beasley of conspiracy to distribute at least
5 grams, but less than 50 grams, of crack cocaine, in violation of 21
U.S.C. §§ 846, 841(a)(1)(B), and possession of 5 grams or more of
crack cocaine with intent to distribute, in violation of 21 U.S.C.
§ 841(b)(1)(B). Based on the fact that Beasley had twice before been
convicted of felony drug offenses, the district court sentenced him to
408 months’ imprisonment on each count, to run concurrently. See 21
U.S.C. § 841(b)(1)(B); U.S.S.G. § 4B1.1.
On appeal, Beasley contends for the first time that the district court
was not authorized to rely on the enhanced penalties provided by
§ 841(b)(1)(B) for repeat drug offenders because the government did
not file an "information" "before trial," as required by 21 U.S.C.
§ 851(a), and therefore did not provide him with timely notice of its
intent to rely on his prior convictions to request increased punish-
ment. The government filed a § 851 information one week after the
jury had been selected but two weeks before the jury was sworn and
opening statements were made. Beasley contends that because "before
trial" requires the filing to be made before jury selection begins, the
government did not comply with the procedural requirements of
§ 851, and therefore his sentence could not be increased based on his
prior felony drug convictions. He argues that the § 851 process is not
only a condition precedent to an increased punishment but also juris-
dictional, entitling him to raise the issue for the first time on appeal.
We conclude that 21 U.S.C. § 851 is not jurisdictional and there-
fore is subject to the usual rules of procedural default. Because Beas-
ley failed to object to the § 851 information below, he forfeited his
claim, and we therefore conduct our review under the plain error stan-
dard of Federal Rules of Criminal Procedure 52(b). As Beasley failed
to satisfy the criteria for noticing plain error, we reject Beasley’s chal-
lenge based on an untimely filing of the § 851 information. We also
reject Beasley’s two challenges to the district court’s evidentiary rul-
ings. Accordingly, we affirm.
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I
Beasley’s convictions for violating § 841(b)(1)(B) subjected him to
an increased statutory penalty because he had a "prior conviction for
a felony drug offense." 21 U.S.C. § 841(b)(1)(B). Without a prior
conviction, Beasley faced a sentence of 5 to 40 years’ imprisonment;
with a prior conviction, however, he faced a sentence of 10 years’ to
life imprisonment, so long as the government elected to pursue the
increased punishment by filing a § 851 information.
On January 12, 2004, more than two weeks before the jury was
sworn and opening statements were made, the government filed and
served a § 851 information indicating that it intended to rely on Beas-
ley’s two prior felony drug convictions to seek an enhanced sentence
under § 841(b)(1)(B). By then, however, the jury had already been
selected. Under the practice that the district court employed, the jury
was selected on January 6, 2004, three weeks before swearing the jury
and beginning with opening statements.
After receiving the § 851 information, Beasley filed several pre-
trial motions, including a motion to dismiss, a motion to suppress, and
a motion in limine, but he did not file any paper contesting the sub-
stance contained in the § 851 information or the information’s timeli-
ness.
After conviction and during sentencing, the district court assumed
that the § 851 information had been timely filed, and, based on Beas-
ley’s prior felony drug convictions, enhanced Beasley’s sentence.
Thus, Beasley was subject to a maximum of life imprisonment under
§ 841(b)(1)(B), and his offense level, as determined by U.S.S.G.
§ 4B1.1, was 37, yielding a recommended sentencing range of 360
months’ to life imprisonment. The district court sentenced Beasley to
408 months’ imprisonment and, as mandated by § 841(b)(1)(B), to 8
years of supervised release. In the absence of an increased statutory
sentence, the Sentencing Guidelines would have recommended a sen-
tence in the range of 262 to 327 months’ imprisonment and 5 years’
supervised release.
On appeal, Beasley contends for the first time that the § 851 infor-
mation was filed untimely because it was not filed before the jury was
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selected. He also challenges two evidentiary rulings made by the dis-
trict court at trial.
II
Beasley’s challenge to the timeliness of the government’s § 851 fil-
ing is raised for the first time here on appeal, and therefore we would
ordinarily review the issue for plain error, unless § 851 were jurisdic-
tional. If the procedural requirements of § 851 were jurisdictional,
Beasley’s challenge could be raised for the first time on appeal
because any jurisdictional defect would "require correction regardless
of whether the error was raised in the district court." United States v.
Cotton, 535 U.S. 625, 630 (2002).
Beasley appears to be arguing that the requirements of § 851 were
indeed jurisdictional, relying on Harris v. United States, 149 F.3d
1304, 1307 (11th Cir. 1998). Accordingly, we address first the ques-
tion of whether § 851 requirements are jurisdictional.
Subject matter jurisdiction concerns a court’s very power to hear
a case, and because "a court’s power to hear a case can never be for-
feited or waived," the lack of subject matter jurisdiction can be raised
at any time. Cotton, 535 U.S. at 630. "Without jurisdiction the court
cannot proceed at all in any cause [except to] announc[e] the fact and
dismiss[ ] the cause." Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1869). If the requirements of § 851 were jurisdictional for purposes
of increasing punishment under 21 U.S.C. § 841(b)(1)(B), under
Beasley’s argument we could not review the merits of whether pun-
ishment may be enhanced but could only dismiss the increased sen-
tence.
Section 851(a) reads in pertinent part:
No person who stands convicted of an offense under this
part [21 U.S.C. § 841 et seq.] 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
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counsel for the person) stating in writing the previous con-
victions to be relied upon.
21 U.S.C. § 851(a)(1). On its face, this language does not confer juris-
diction or limit it, nor does it make the court’s jurisdiction condi-
tional. Rather, it imposes a condition on "increased punishment by
reason of one or more prior convictions." Id. (emphasis added).
Regardless of whether the condition is met, a district court derives its
jurisdiction to determine the issue of increased punishment from 18
U.S.C. § 3231, which provides that the federal district courts "have
original jurisdiction, exclusive of the courts of the States, of all
offenses against the laws of the United States." It follows that "this
jurisdiction necessarily includes the imposition of criminal penalties."
Prou v. United States, 199 F.3d 37, 45 (1st Cir. 1999).
Thus, when a district court imposes a sentence for a federal offense
outside of the statutory range or when it ignores statutory mandates
for sentencing, such as are contained in 18 U.S.C. § 3553(a), it is not
acting without power; it is exercising its power erroneously, which is
subject to correction on review by appellate courts. See Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 90 (1998) (differenti-
ating between a court’s power to hear a case — its subject matter
jurisdiction — and its power to issue a remedy). In Steel Co., the fed-
eral statute specified the limits of the district court’s powers to grant
relief, with Congress even using the word "jurisdiction" to describe
those limits. See Steel Co., 523 U.S. at 90. But the Supreme Court
held that such rules of law "specifying the remedial powers of the
court, viz., to enforce the violated requirement and to impose civil [or
criminal] penalties," do not affect the court’s jurisdiction. Id. (empha-
sis in original); cf. Jones v. United States, 527 U.S. 373, 386-88
(1999) (holding that the extra procedural safeguards found in the Fed-
eral Death Penalty Act for capital cases are subject to plain-error
review). Thus, once a court has subject matter jurisdiction over a case
it does not lose that jurisdiction by exceeding the court’s remedial
authority.
Section 851 simply specifies "remedial powers" of the court, regu-
lating the level of a sentence that may be imposed in a federal crimi-
nal case, over which the district court otherwise has subject matter
jurisdiction pursuant to 18 U.S.C. § 3231, and the district court is not
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stripped of jurisdiction when the government fails to comply with the
provision’s procedural requirements. Moreover, the requirements of
§ 851 can be waived by defendants, unlike genuine jurisdictional lim-
its. While § 851 uses mandatory language, so do numerous other stat-
utory and constitutional guarantees that are waivable. See United
States v. Mezzanatto, 513 U.S. 196, 201-03 (1995) (listing examples).
"A defendant who may waive indictment, despite the fifth amend-
ment’s unqualified language," may also "waive the filing of an infor-
mation [under § 851] listing prior convictions." United States v.
Lawuary, 211 F.3d 372, 379 (7th Cir. 2000) (Easterbrook, J., concur-
ring).
We conclude that the government’s alleged failure to comply with
the procedural requirements of § 851(a) renders erroneous a court’s
reliance on § 841(b)(1)(B) to enhance a sentence for repeat drug
offenders, nothing more. See United States v. Labonte, 520 U.S. 751,
754 n.1 (1997). As such, a defendant’s failure to object at trial to the
untimeliness of the government’s § 851(a) information constitutes a
procedural default, permitting courts of appeal to review the issue
only for plain error. In so concluding, we join several other circuits.
See, e.g., United States v. Flowers, 441 F.3d 900, 903 (10th Cir.
2006); United States v. Ceballos, 302 F.3d 679, 690-92 (7th Cir.
2002); United States v. Mooring, 287 F.3d 725, 727 (8th Cir. 2002);
Prou, 199 F.3d at 43-46; United States v. Vanness, 85 F.3d 661, 663
n.2 (D.C. Cir. 1996). But see Harris v. United States, 149 F.3d 1304,
1306 (11th Cir. 1998); United States v. Hill, 142 F.3d 305, 312 (6th
Cir. 1998).
III
Plain error review of Beasley’s sentence is conducted pursuant to
Rule 52(b) of the Federal Rules of Criminal Procedure, which pro-
vides that "a plain error that affects substantial rights may be consid-
ered even though it was not brought to the court’s attention." Before
an appellate court can notice and correct an error not raised at trial,
the defendant must show that there is "(1) error, (2) that is plain, and
(3) that affects substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited
error, but only if (4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings." Johnson v. United
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States, 520 U.S. 461, 467 (1997) (citing United States v. Olano, 507
U.S. 725, 732 (1993)) (quotation marks and other citations omitted);
see also Cotton, 535 U.S. at 631-32.
In this case, Beasley contends that the district court erred in impos-
ing increased punishment based on an untimely filed § 851 informa-
tion. He argues that when § 851(a) provides that the information must
be filed "before trial," it requires that the information be filed before
jury selection begins, which occurred in this case on January 6, 2004.
The government argues that "before trial" means before the jury was
sworn, which was on January 28, 2004. In this case, because of the
practice followed by the district court, the jury was selected three
weeks before it was sworn, and the government filed the § 851 infor-
mation one week after jury selection and two weeks before the jury
was sworn. Applying the criteria of Rule 52(b), we address whether
the timing of the government’s filing was plain error.
The operative language of § 851(a) directs that no person "shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial . . . the United States attorney files an
information," identifying the convictions to be relied on. (Emphasis
added). The primary purpose of this provision is to give the defendant
notice of the government’s intention to seek an enhanced sentence
based on the defendant’s prior convictions, giving the defendant an
opportunity to challenge the use of the prior convictions and to pre-
vent sentencing errors. See United States v. Campbell, 980 F.2d 245,
252 (4th Cir. 1992) ("The purpose of the section 851 information is
to give the person convicted and about to be sentenced as a second
offender an opportunity to show that he is not the person previously
convicted") (citation and quotation marks omitted). Another purpose
is to provide the repeat drug offender with full knowledge before trial
of the consequences of a guilty verdict, thereby enabling him to make
informed decisions regarding the entry of a plea or the planning of
trial strategy.
In this case, the government filed the § 851 information two weeks
before the jury was sworn but after the jury had been selected. While
Beasley filed three pretrial motions during the two weeks following
his receipt of the § 851 information and before the jury was sworn,
he did not file a motion challenging the § 851 information. Of course,
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he need not have filed such a motion if he had concluded that the gov-
ernment’s § 851 information was filed "before trial."
The term "before trial" is surely ambiguous. We have observed that
the beginning of trial may be defined differently in different contexts:
As a general matter, it cannot be disputed that a "trial" is the
judicial proceeding during which the law and the facts are
examined to determine the issues between the parties.
Accordingly, the beginning of this proceeding must be the
first meaningful act in actually conducting the proceeding.
And depending on the issue for determining what the first
meaningful act is, the beginning of trial may be when the
court calls the proceeding to order; or when the court calls
the proceeding to order and all of the actors are present in
the courtroom, including the jury venire; or when the pro-
cess for the selection of jury begins; or when the jury is
impaneled; or when the opening statements are made; or
when the first witness is called.
DeLoach v. Lorillard Tobacco Co., 391 F.3d 551, 563 (4th Cir. 2004).
Because there is no controlling precedent — either in the Supreme
Court or in our court — on the issue of when a trial begins for pur-
poses of defining "before trial" in § 851(a), we cannot say that it was
error for the district court to assume that a § 851 information filed
after the jury was selected but before it was sworn was timely filed.
See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.
2003) ("[W]here the explicit language of a statute or rule does not
specifically resolve an issue, there can be no plain error where there
is no precedent from the Supreme Court or this Court directly resolv-
ing it"). Furthermore, for an error to be "plain," the error must be
plain "under current law." Olano, 507 U.S. at 734. There was no con-
trolling "current law" in this circuit on the meaning of "before trial"
when Beasley was sentenced, nor is there any today. See Johnson,
520 U.S. at 468 (holding that "it is enough that an error be ‘plain’ at
the time of appellate consideration"). Accordingly, the district court’s
assumption that the government filed its § 851 information "before
trial" was not plain error, and therefore we will not take notice of it.
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IV
Somewhat distinct from his § 851 argument, Beasley also contends
that the district court violated his Sixth Amendment jury trial right
when the court found the fact of his previous felony drug convictions,
but this contention is directly foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 226 (1998). See United States v. Booker,
543 U.S. 220, 244 (2005); United States v. Cheek, 415 F.3d 349, 352-
53 (4th Cir. 2005).
Accordingly, we affirm Beasley’s sentence.
V
Beasley also challenges two of the district court’s evidentiary rul-
ings, and we reject both challenges.
He contends first that the district court abused its discretion in
allowing the government’s expert witness, Investigator Lyle Kirian of
the Greenville County, South Carolina Vice and Narcotics Agency, to
testify as an expert witness about the process of converting powder
cocaine into crack cocaine without first testing the reliability of his
testimony by conducting a hearing pursuant to Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Supreme Court
has stated that "the law grants a district court the same broad latitude
when it decides how to determine [the] reliability [of expert testi-
mony] as it enjoys in respect to its ultimate reliability determination."
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999) (emphasis
in original). Therefore the standard of review is for abuse of discre-
tion. See United States v. Grimmond, 137 F.3d 823, 831 (4th Cir.
1998) ("A district court’s evidentiary rulings are reviewed under the
narrow abuse of discretion standard"). Recognizing the broad latitude
given to trial courts, we conclude that the district court did not abuse
its discretion by not conducting a Daubert hearing in this case. Kiri-
an’s credentials, which were substantial, included: training in numer-
ous law enforcement courses on the identification of narcotics,
including identifying clandestine drug-making labs; participation as a
member of a local narcotics agency in the seizure of cocaine in its
various stages on its way to becoming crack cocaine; and witnessing
on video the full process of turning powder cocaine into crack
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cocaine. This training and experience amply qualified Kirian to give
testimony on the process of making crack cocaine from cocaine pow-
der. Accordingly, the district court did not abuse its discretion in
allowing him to testify as an expert, without conducting a Daubert
hearing.
Finally, Beasley contends that the district court abused its discre-
tion in denying his request for a contemporaneous limiting instruction
under Federal Rule of Evidence 105 to instruct the jury when evi-
dence was admissible against one party, but not another. Rule 105
provides that "the court, upon request, shall restrict the evidence to its
proper scope and instruct the jury accordingly," and we have held that
the timing of such an instruction is left to the discretion of the trial
court. See Klein v. Sears, Roebuck & Co., 773 F.2d 1421, 1426 (4th
Cir. 1985) ("The more modern approach is to defer to the trial court’s
discretion as to the timing of the limiting instruction even in criminal
trials"). In this case, the district court met its obligation under Rule
105 when it instructed the jury at the conclusion of the trial that it "is
your duty to give separate, personal consideration to the case of each
individual defendant. When you do so, you should analyze what the
evidence in the case shows with respect to that individual, leaving out
of consideration entirely any evidence admitted solely against some
other defendant or defendants."
* * *
For the reasons given, we affirm the judgment of the district court.
AFFIRMED
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