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United States v. Ware

United States District Court, C.D. Illinois, Peoria Division

January 14, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
ADAM LEE WARE, Defendant.

          ORDER & OPINION

          JOE BILLY MCDADE, UNITED STATES SENIOR DISTRICT JUDGE

         This matter is before the Court on Defendant's Objection to the Government's Notice Establishing Prior Convictions (Doc. 30). The Government responded (Doc. 31). The Court became concerned about the propriety of ruling on the objection at this point and directed the parties to submit further briefing (Minute Entry on 12/4/2019) and the parties complied (Docs. 35, 36). For the reasons stated herein, Defendant's Objection (Doc. 30) is denied with leave to reraise it at the appropriate time.

         Background

         Defendant Adam Lee Ware was indicted on February 20, 2019. (Doc. 11). The four-count indictment charges Defendant with two counts of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), (B), (Counts 1 and 2), possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 3), and possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. 11 at 1-3). The indictment further includes special findings that Defendant has a 2005 Peoria County conviction for manufacture/delivery of cocaine and a 2012 McLean County conviction for manufacture/delivery of cocaine (Doc. 11 at 5); both convictions were for violations of 720 ILCS 570/41(a)(2)(A). The Government has since formalized its intention to seek a sentence enhancement under 21 U.S.C. § 851 through an Information of Prior Conviction relying on the same prior convictions. (Doc. 34).

         Discussion

         The first issue to address is whether the objection is premature. Section 851(a) forbids enhanced sentences for violations of § 841 due to prior convictions, inter alia, unless the Government files an information specifying the requisite previous convictions before trial. Much of the remainder of § 851 is important in its particulars. The relevant portions are set forth below:

(b) If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall 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 . . . .
[(c)](1) If the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the United States attorney. The court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment. . . .
[(c)](2) A person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information . . . .
[(d)](1) If the person files no response to the information, or if the court determines, after hearing, that the person is subject to increased punishment by reason of prior convictions, the court shall proceed to impose sentence upon him as provided by this part.
[(d)](2) If the court determines that the person has not been convicted as alleged in the information, that a conviction alleged in the information is invalid, or that the person is otherwise not subject to an increased sentence as a matter of law, the court shall, at the request of the United States attorney, postpone sentence to allow an appeal from that determination. If no such request is made, the court shall impose sentence as provided by this part. The person may appeal from an order postponing sentence as if sentence had been pronounced and a final judgment of conviction entered.

21 U.S.C. § 851 (subsection (e) omitted).

         Portions of the statutory text support a reading that whether prior convictions may be used to enhance a sentence is a matter for sentencing rather than pre-conviction. Subsection (b) is clear the Court's inquiry about the affirmance or denial of a prior conviction must occur “after conviction but before pronouncement of sentence.” Subsection (d)(1) states if the Court determines the enhancement is correctly applied it “shall proceed to impose sentence” and subsection (d)(2) provides in the alternative the Government may request the Court “postpone sentence to allow an appeal”; but if the Government does not do so the Court “shall impose sentence.” In short, the statutory text assumes any hearing and objection occur after conviction.

         Several circuit courts, including the Seventh Circuit, have stated § 851 is designed to allow a defendant to consider the consequences of a potential guilty plea. (Doc. 35 at 4). In rejecting an argument that the Government had improperly filed a § 851 information to punish a defendant for not cooperating, the Seventh Circuit stated “Sections 841 and 851 . . . [are] designed to ensure that the defendant has the opportunity to review the allegations and consider the consequences of his decisions prior to trial . . . .” United States v. Jackson, 189 F.3d 655, 662 (7th Cir. 1999) (overruled on other grounds by United States v. Ceballos, 302 F.3d 679, 690-92 (7th Cir. 2002)). Other circuits have similarly recognized ยง 851's purposes of providing an avenue for a defendant to attack a notice of prior conviction and providing a defendant with notice to make an informed ...


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