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In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
In this case, the Eleventh Circuit, adhering to its deci sion in Harris v. United States, 149 F.3d 1304 (1998), held that the government's failure to file a notice that complies fully with the procedural requirements of 21 U.S.C. 851(a) divested the district court of its "jurisdiction" to impose an enhanced, recidivism-based sentence on a convicted drug offender. The court of appeals therefore invalidated that sentence without applying plain-error review, even though respondent had not asserted the Section 851 error in the district court. As the government explained in its petition for a writ of certiorari, the court of appeals' decision is in correct: it relies on an expansive and outdated definition of the term "jurisdiction," which has been superseded by, and cannot be squared with, a string of this Court's more recent precedents, including United States v. Cotton, 535 U.S. 625 (2002). Those decisions establish that the term "jurisdiction" refers to "the courts' statutory or constitutional power to adjudicate the case," id. at 630 (citation omitted)-a pow er that is not addressed or limited by Section 851. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (citing Cot ton for the proposition that "jurisdiction" "involves a court's power to hear a case").
The decision below also perpetuates a conflict in the circuits on this issue. The eight other courts of appeals that have considered the issue have rejected the Eleventh Cir cuit's outlier position, holding that "[Section] 851 simply 'has nothing to do with [a court's] subject-matter jurisdic tion' over a criminal case or a court's general power to im pose a sentence," Sapia v. United States, 433 F.3d 212, 217 (2d Cir. 2005) (second brackets in original). Those courts therefore hold that the absence of a timely objection to a Section 851 error results in a forfeiture and requires plain- error review under Fed. R. Crim. P. 52(b) on appeal. See Sapia, 433 F.3d at 217. The question whether noncompli ance with Section 851(a) deprives a district court of its stat utory power to impose an enhanced sentence is important, and it is squarely presented in this case. This Court's inter vention-whether in the form of summary reversal or ple nary review-is warranted.
1. Respondent does not dispute that the Eleventh Cir cuit stands alone against the eight other courts of appeals that have considered the question presented. See Pet. 16- 18; United States v. Pritchett, 496 F.3d 537, 542, 546 (6th Cir. 2007) (noting that "[a]n almost-unanimous majority of circuits that have addressed the issue have held that the section 851(a) requirements are not jurisdictional"; "The only circuit holding that the section 851(a)(1) requirements are jurisdictional is the Eleventh."). Instead, respondent's lead contention is that this Court's intervention is unneces sary because the issue is not important. That contention lacks merit.
a. The question presented is important to the adminis tration of the criminal justice system. Section 851(a), which was enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, authorizes enhanced penalties for recidivist drug offenders. As the government explained in the petition, Pet. 19-22, the decision below frustrates the purpose of Section 851 because it permits a defendant to escape the congressionally authorized sen tence on the basis of unpreserved errors that caused him no prejudice. Respondent is incorrect that the question pre sented "almost never arises." Br. in Opp. 7-10. Courts reg ularly address unpreserved claims of Section 851 error, as illustrated by the cases that respondent himself discusses in his brief and includes in his appendix. See id. at 13-17; Br. in Opp. App. 11a, 26a. The Court's resolution of this case will determine whether such errors must be noticed on appeal or collateral review despite the defendant's failure to preserve them in the district court.
Respondent observes (Br. in Opp. 8-9) that unpreserved claims of Section 851 error do not often result in the invali dation of enhanced sentences. That is unsurprising, be cause the Eleventh Circuit is the only court of appeals to adhere to the "jurisdictional" characterization of Section 851. Other courts deny relief on such claims under the rig orous plain-error standard of review. See, e.g., United States v. Williams, 584 F.3d 714, 718-719 (7th Cir. 2009); United States v. Olano, 507 U.S. 725, 732 (1993) (power to correct forfeited errors on plain-error review is "circum scribed"). The decisions below and in Harris nevertheless demonstrate that the Eleventh Circuit does invoke its "ju risdictional" characterization to strike down sentences on the basis of errors that the defendant did not preserve and that did not result in prejudice. In these circumstances, the court of appeals has invalidated congressionally authorized sentences under a manifestly erroneous rule of law that conflicts with the view of eight other courts of appeals and with decisions of this Court. That result warrants this Court's review, particularly because, in invoking this rule, the Eleventh Circuit has relied on an outdated understand ing of the term "jurisdiction" that this Court has repeatedly sought to dispel. See Eberhart v. United States, 546 U.S. 12 (2005) (per curiam); Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (instructing that "[c]larity would be facilitated if courts and litigants used the label 'jurisdictional' not for claim-processing rules, but only for prescriptions delineat ing the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority"); Cotton, 535 U.S. at 630.
b. Respondent asserts that the question presented is unimportant because "[c]ompliance with Section 851 lies completely within the control of the Government." Br. in Opp. 10. That argument is also incorrect. Despite the best efforts of prosecutors and judges, good-faith mistakes inevi tably arise in the course of filing Section 851(a) notices. Cf. United States v. Hasting, 461 U.S. 499, 508-509 (1983) (reit erating that "there can be no such thing as an error-free, perfect trial" because of "the reality of the human fallibility of the participants"). The type of error alleged in this case-listing the wrong date of conviction-is attributable in part to the large differences in the form and content of rap sheets generated by state and local jurisdictions across the country. Federal prosecutors can and do strive to mini mize the frequency with which such errors occur, but that does not diminish the significance of the Eleventh Circuit's position that, when such errors do arise, they must be no ticed regardless whether the defendant raised them in the district court.
c. This case squarely presents the conflict among the courts of appeals on the question presented. As the petition explained, both the analysis of this issue and the outcome of this case would have been different had the case arisen in one of the eight courts of appeals that do not treat the re quirements of Section 851(a) as "jurisdictional." Those courts would have applied plain-error review, requiring respondent to show, inter alia, that the alleged defects in the information "affec[ted his] substantial rights" by caus ing him prejudice and also "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 732 (citation omitted). Respondent could not satisfy either of those showings. As a result, in those eight courts, respondent would not have received a sen tence far less than that mandated by law because of a non-prejudicial error in the Section 851(a) notice that he never raised in the district court. Cotton, 535 U.S. at 634.1
2. Respondent nonetheless contends that this case is a poor vehicle in which to consider the question presented. That contention is based on his assertions that the law in the Eleventh Circuit is "unsettled," that the court of ap peals should be afforded an opportunity to reconsider its position, and that this Court would have no occasion to reach the question presented if it granted review. Br. in Opp. 12-20. Each of those assertions is incorrect.
a. The Eleventh Circuit has never wavered from its position, expressed in Harris, that a timely, accurate, and complete Section 851(a) notice is "jurisdictional" in nature. See, e.g., United States v. Jackson, 544 F.3d 1176, 1184-1185 (2008) ("We recognize that the [Section] 851 'no tice requirement is jurisdictional: unless the government strictly complies, the district court lacks jurisdiction to im pose the enhanced sentence.' United States v. Ramirez, 501 F.3d 1237, 1239 (11th Cir. 2007); see United States v. Thompson, 473 F.3d 1137, 1144 (11th Cir. 2006) * * *; Harris v. United States, 149 F.3d 1304, 1306 (11th Cir. 1998)."), cert. denied, 129 S. Ct. 1925 (2009). Indeed, the Eleventh Circuit reaffirmed that longstanding position in the two decisions, issued after the decision below, that re spondent cites (Br. in Opp. 15-17) and includes in the ap pendix to his brief. See United States v. Anthony, No. 08- 14370, 2009 WL 2883457, at *5 (Sept. 10, 2009) (unpub.); Br. in Opp. App. 12a (Section 851(a) "notice requirement is ju risdictional: unless the government strictly complies, the district court lacks jurisdiction to impose the enhanced sen tence.") (citing cases so holding); United States v. Brown, No. 08-15488, 2009 WL 3052212, at *5 (11th Cir. Sept. 25, 2009); Br. in Opp. App. 26a ("[A] district court lacks juris diction to enhance a sentence unless the government strict ly complies with the procedural requirements of § 851(a)," and "this jurisdictional defect is not waivable") (citing Har ris, 149 F.3d at 1306, 1309).
To the extent there is any lack of clarity in the Eleventh Circuit's law concerning Section 851(a), it concerns the en tirely separate question of what constitutes adequate com pliance. See Br. in Opp. 8-10 & n.2. But any inconsistency on that question cannot and does not detract from the clar ity of the Eleventh Circuit's position that, when compliance is inadequate, a district court is divested of its jurisdiction to impose an enhanced sentence. That latter conclusion is the focus of this petition, and its correctness is squarely presented by this case.
There is no merit to respondent's related contention (Br. in Opp. 12-14) that the Eleventh Circuit should be af forded an opportunity to reconsider its decision in Harris. As respondent observes, the government opposed certiorari in three prior cases presenting this issue precisely to give the Eleventh Circuit this opportunity. See ibid. That is why, before seeking this Court's intervention, the govern ment petitioned for en banc review in this case, urging the full court of appeals to overturn Harris. That en banc re quest provided the Eleventh Circuit a clear chance to re visit its position, and by declining the government's re quest, the Eleventh Circuit indicated that it did not intend to do so. As noted, the Eleventh Circuit has confirmed that intent by reaffirming the Harris rule in cases issued after the decision below. The Eleventh Circuit's position is set tled and ripe for this Court's review.
b. Respondent asserts (Br. in Opp. 18-19) that this Court might not reach the question presented because it "would appropriately first consider" whether there was any error in the first instance-i.e., whether the notice was in fact compliant with Section 851(a)-and could rest a rever sal on that ground. That suggestion, of course, is inconsis tent with respondent's claim (id. at 27) that sustaining the "ambiguous" notice here would violate congressional intent to entrust the enhancement decision "to the prosecution and not the courts." But in any event, no principle of law or logic requires this Court to decide whether error occurred before resolving whether, if error occurred, it was plain. Indeed, the plain-error ground would be the narrower basis for decision. See, e.g., United States v. Villafuerte, 502 F.3d 204, 209 (2d Cir. 2007) ("[W]e need not decide whether the district court erred here because any possible error is not plain."); United States v. King, 559 F.3d 810, 814 (8th Cir.) (same), cert. denied, 130 S. Ct. 167 (2009); United States v. Salinas, 480 F.3d 750, 759 (5th Cir.) (same), cert. denied, 128 S. Ct. 487 (2007).
For that reason, respondent's reliance on United States v. Resendiz-Ponce, 549 U.S. 102 (2007), is misplaced. The question on which the Court granted certiorari in that case was whether the omission of an element from an indictment can constitute harmless error. The Court declined to reach that constitutional question because there was a narrower basis for its decision, and "'[i]t is not the habit of the Court to decide questions of a constitutional nature unless abso lutely necessary to a decision of the case." Id. at 104 (quot ing Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)). That avoidance canon is inapplicable in this case because the question presented is not constitu tional, and respondent cites no analogous rule of law that would require the Court to decide the statutory compliance issue before addressing the legal consequences of respon dent's failure to object.
3. Respondent fails in his attempt (Br. in Opp. 20-28) to defend the decision below on the merits. For the reasons explained in the petition, Section 851 has none of the attrib utes that this Court has identified as indicative of jurisdic tional status. The provision "does not speak in jurisdic tional terms or refer in any way to the jurisdiction of the district courts." Arbaugh v. Y&H Corp., 546 U.S. at 514- 515 (2006). Id. at 515 (quoting Zipes v. TWA, 455 U.S. 385, 394 (1982)). As every court of appeals other than the Elev enth Circuit to consider the issue has concluded, "[Section] 851 simply 'has nothing to do with [a court's] subject-matter jurisdiction' over a criminal case or a court's general power to impose a sentence." Sapia v. United States, 433 F.3d at 217 (quoting United States v. Ceballos, 302 F.3d 679, 692 (7th Cir. 2002), cert. denied, 537 U.S. 1136, 537 U.S. 1137, 538 U.S. 926, and 538 U.S. 939 (2003)); see Pet. 16-18.
Respondent's challenge to that conclusion relies primar ily on two recent decisions of this Court, John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750 (2008), and Bowles v. Russell, 551 U.S. 205 (2007). Respondent con tends that those decisions support a categorical distinction between statutory rules, which are jurisdictional, and court- promulgated rules, which are not. He argues that because Section 851 was imposed by Congress, it "necessarily falls on the statutory-and therefore jurisdictional-side of the ledger." Br. in Opp. 21. That contention is incorrect.
The "statutory origin" of Section 851 does not support the Eleventh Circuit's characterization of its requirements as "jurisdictional." Br. in Opp. 22. In Arbaugh, this Court announced a general rule of construction that "when Con gress does not rank a statutory limitation * * * as juris dictional, courts should treat the restriction as nonjurisdic tional in character." 546 U.S. at 516. For the reasons the government has identified, there is no indication that Con gress ranked the notice provisions and procedurals rights in Section 851 as jurisdictional in nature, and courts there fore must treat them as nonjurisdictional. Neither John R. Sand nor Bowles required that all statutory rules be treat ed as "jurisdictional" or retreated from this Court's careful definition of that term in Cotton, Kontrick, and Eberhardt. Instead, both John R. Sand and Bowles relied on this Court's settled construction of a particular statute and ap plied stare decisis to hold that certain time limits are juris dictional even though not denominated as such. See John R. Sand, 128 S. Ct. at 753-754, 756-757 (relying on stare decisis to hold that the statute of limitations governing the Court of Federal Claims is jurisdictional); Bowles, 551 U.S. at 209-210 & n.2 (citing "a century's worth of precedent" supporting the conclusion that 28 U.S.C. 2107(a)'s time limit for filing a notice of appeal is jurisdictional). In addition, the statutory provision at issue in Bowles provides that, unless the notice of appeal in a federal civil case is filed in a timely fashion, "no appeal shall bring any judgment, or der or decree * * * before a court of appeals for review." 28 U.S.C. 2107(a). In contrast to Section 851, that provision speaks to adjudicatory power by stating that an untimely notice of appeal will not bring the case to the court. John R. Sand and Bowles therefore provide no support to the decision below.
Respondent argues (Br. in Opp. 25-27) that the Elev enth Circuit's position comports with Congress's intent because the purpose of Section 851 is to afford defendants notice about the possibility of an enhanced sentence. In respondent's view, that purpose is frustrated when the gov ernment does not comply with the specific procedures Con gress provided. But that argument does not explain why Section 851, unlike other provisions that govern the conduct of litigation, should be exempted from the general rule that they may be forfeited or waived if not timely asserted in the district court. For the reasons the government explained in the petition, there is no basis for such an exemption. Although Congress prescribed procedures in Section 851 for the imposition of an enhanced sentence, it did not intend to permit recidivist drug offenders to escape such sentences when, because of prosecutorial oversight, an information filed under Section 851 contains easily corrected errors that cause the defendant no prejudice and to which he did not object. See Pet. 22.
Finally, respondent asserts that Section 851 is analo gous to a charging decision and contends that "[a] court has no greater jurisdiction to enter an enhanced statutory sen tence based on a defective information from the prosecution than it would have to enter a judgment of conviction in the absence of a criminal charge." Br. in Opp. 28. That argu ment, however, is foreclosed by Cotton, which held that defects in the charging instrument do not deprive the dis trict court of jurisdiction to enter a conviction. See Cotton, 535 U.S. at 631. Cotton compels the conclusion that, con trary to respondent's assertion, a court also does not lose "jurisdiction" to impose an enhanced sentence as a result of defects in the notice of enhancement filed under Section 851.
4. The petition suggested that, because the Eleventh Circuit's position is not only wrong but also at odds with this Court's precedents and all other decisions of the courts of appeals, the Court may wish to consider summary rever sal. Respondent disagrees, contending that summary re versal should be reserved for situations in which "the law is settled and stable, the facts are not in dispute, and the deci sion below is clearly in error." Br. in Opp. 20 (quoting Schweiker v. Hansen, 450 U.S. 785, 791 (1981) (Marshall, J., dissenting)). Assuming that respondent's standard accu rately encapsulates the circumstances when summary re versal is warranted, those circumstances are present here. The law regarding the types of errors that are properly classified as "jurisdictional"-i.e., those that Congress has specifically denominated as limiting the court's adjudica tory power-is settled by this Court's recent decisions. The relevant facts of this case are not in dispute, and the deci sion below is incorrect because it rests on an outmoded and overly expansive definition of the term "jurisdiction." Sum mary reversal therefore is no less appropriate here than it was in Eberhart. See 546 U.S. at 13.
* * * * *
For the foregoing reasons and those stated in the peti tion for a writ of certiorari, the petition for a writ of certio rari should be granted. The Court may also wish to con sider summary reversal.
1 As further support for his contention that the question presented is not significant, respondent argues (Br. in Opp. 9-10) that the courts of appeals that have rejected the Eleventh Circuit's position may never theless grant a defendant relief from an enhanced sentence on the ground that the Section 851 error was plain or that counsel was ineffec tive in failing to assert it in the district court. This case illustrates why that contention is erroneous. Because respondent could not have estab lished that he was prejudiced by the flaws in the notice of enhancement, he could not satisfy the plain-error standard. See Pet. 23. And because the government would have amended the notice of enhancement in the district court if counsel had raised those flaws before sentencing, see 21 U.S.C. 851(a)(1) ("Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence"), respondent could not show ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984) (requiring a showing of both deficient performance and prejudice).