days (intermittent weekends). The Supplemental PSI, however, indicates that Velasco was arrested for the sale of "one-half ounce of cocaine and forty-six grams of cocaine to an undercover agent. . . ." (Supp. PSI at 3). Had he gone to trial, he would have done so at the risk of receiving a much stiffer sentence.
Finally, Velasco has made no showing that he attempted to appeal or collaterally attack his conviction prior to the instant proceeding. Though hardly dispositive, other courts have cited defendants' failure to challenge prior convictions as probative evidence of their validity. See, e.g., United States v. Wicks, 995 F.2d 964, 979 (10th Cir. 1993). If Velasco's former counsel were as ineffective as he now claims, one would have expected Velasco to have either appealed his conviction or at least sought collateral relief at a later date. In any event, Velasco has failed to meet his burden of proof. His constitutional challenge to his 1979 New York state court conviction is denied.
II. Government's Alleged Failure to Serve Defendant with Required Information
Velasco also claims that even if his prior New York state conviction is not found unconstitutional, this court lacks jurisdiction to impose an enhanced sentence because the government failed to serve him or his attorney with a copy of the required information listing the prior convictions upon which the government intended to rely. Under 21 U.S.C. § 851(a)(i)(1) a defendant's sentence cannot be increased by application of the mandatory minimum sentencing provisions: "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." As the court explained in United States v. Belanger, 970 F.2d 416, 418 (7th Cir. 1992), "strict compliance with the mandatory language of the procedural requirements of § 851 is required, especially with respect to the timing of the government's filing with the court and serving on the defendant a notice signifying its intent to rely on a prior drug conviction." While conceding that the government timely filed its § 851(a) information with the court before trial, Velasco asserts that neither he nor his attorney received a copy of the information, nor was otherwise notified of the government's intention to seek an enhanced sentence. (Objections at 4 n.2). Failure to provide this notice, Velasco properly contends, "deprives the district court of jurisdiction to impose an enhanced sentence." Belanger, 970 F.2d at 418. See also United States v. Olson, 716 F.2d 850, 853 (11th Cir. 1983) ("unless and until prosecutorial discretion is invoked and the government files and serves an information as required by Sec. 851, the district court has no power to act with respect to an enhanced sentence".)
In response, the government explains that despite considerable efforts to locate the case file, it has been unable to find the records it requires to definitively show that defendant's attorney received notice of the government's information. The government, nevertheless, has sought to establish its compliance with the notice requirement of § 851(a)(1), through circumstantial evidence.
As part of this effort, the government called former Assistant United States Attorney Daniel Murray, the prosecuting attorney in this case, to testify at a hearing held before this court on December 16, 1993. At the hearing, Murray testified that it was his standard practice to provide defense counsel with notice of all documents he filed with the court. He also testified that he almost certainly would have discussed the issue of enhancement with Velasco's attorney as part of the plea agreement negotiations that took place in this case. He further testified, however, that he had no independent recollection of whether he in fact did provide Velasco or his attorney with notice of the enhancement information. He was only able to testify as to his standard practice and custom.
Testimony about practice and custom is simply not enough. As noted above, because of the important due process interests at stake, courts have long required strict compliance with the filing and notice requirements of § 851(a)(1). Even allowing that proof of service can be established through circumstantial evidence, the evidence offered here falls far short of the mark. The government's reliance on United States v. Cevallos, 538 F.2d 1122 (5th Cir. 1976), only underscores the inadequacy of its proof. In Cevallos, the court held that the government had satisfied the notice requirement of § 851(a)(1) despite the absence of a certificate of service of the information in the record, where both defendant and his attorney indicated at the plea hearing that they were aware of the government information. Id., at 1125-26, n.5. Obviously, no such showing of actual knowledge by either Velasco or his attorney has been made here.
The government argues alternatively that in light of Section 851(e)'s bar on Velasco's challenge of his New York conviction, the government's failure to file the notice requirement is inconsequential. (Gov. Supp. Brief at 2). The government seeks support for this proposition in cases such as United States v. Flores, 5 F.3d 1070, 1082 (7th Cir. 1993) and United States v. Fragoso, 978 F.2d 896, 902 (5th Cir. 1992), where courts have held that trial judges need not comply with the presentencing rituals of § 851(b)
in cases where the defendant is precluded from attacking the enhancing conviction under 851(e). See also United States v. Weaver, 905 F.2d 1466, 1482 (11th Cir. 1990). According to the government, its failure to follow the notice requirement of § 851(a) could not have prejudiced the defendant because he would not have been in a position to challenge the use of the New York conviction.
The court disagrees. Unlike § 851(b) which is directed primarily at ensuring the validity of defendants' prior convictions, the filing and notice requirements of § 851(a) serve the additional function of allowing the defendant to "plan his trial strategy with full knowledge of the consequences of a potential guilty verdict." United States v. Johnson, 944 F.2d 396, 407 (8th Cir. 1991). Indeed, this is precisely why the timing of the government's filing of its information (and service on defendant) under § 851(a) is so important - it provides the defendant with the information he needs to determine whether he should enter a plea or go to trial. Thus, the court rejects the government's claim that Velasco was not prejudiced by the government's apparent failure to provide him with notice of its intention to seek enhancement of his sentence.
Additionally, unlike the presentencing colloquy required in § 851(b), the requirement of pretrial filing and service by the government under § 851(a) is jurisdictional - "no person who stands convicted of an offense under this part shall be sentenced to increased punishment unless . . . ." 21 U.S.C. § 851 (a). As the court explained in Olson, 716 F.2d at 853, absent governmental compliance with § 851(a), the district court "can no more enhance [a defendant's] sentence than it could impose imprisonment under a statute that only prescribes a fine." Thus, the court holds that the mere fact that defendant is barred from challenging his sentence under § 851(e) does not relieve the government from its duty to provide him with notice of its intended enhancement as required under § 851(a). In light of the government's apparent failure to comply with § 851(a), Velasco's sentence cannot be enhanced.
III. United States Sentencing Guidelines § 4A1.1(b)
Finally, Velasco takes issue with the Probation Office's assignment of two criminal history points for his 1979 New York state conviction pursuant to USSG § 4A1.1(b). This section of the Guidelines directs the court to "add 2 points for each prior sentence of imprisonment of at least sixty days . . . ." Noting that Velasco was sentenced to 60 days imprisonment for his New York state conviction, the Probation Office assigned Velasco two criminal history points for this offense. (Supplemental PSI at 3). Velasco asserts that the Probation Office is mistaken, and that he was actually sentenced to only 14 days. In support of his claim, Velasco has submitted a certified transcript of record, indicating that he was sentenced to "60 days (intermittent weekends) as a condition of five (5) years probation". (Objections, Exh. C. at 1). While one could certainly interpret this language to mean that he was sentenced to 60 days to be served over 30 weekends, Velasco argues that he was actually sentenced to 7 weekends over 60 days. Since Velasco served 7 weekends over 60 days, the court concludes that his interpretation of this language is the correct one, and therefore deducts one point from his criminal history score.
For the foregoing reasons, Velasco's objections to the Supplemental PSI are granted in part and denied in part. Defendant's adjusted offense level is 24. His criminal history category is II. Thus under the United States Sentencing Guidelines, defendant's sentencing range is 57 to 71 months.
Ann Claire Williams, Judge
United States District Court
Dated: FEB 28 1994