United States v. Higgins, No. 11-2905 (8th Cir. 2013)
Annotate this CaseDefendant was found guilty of conspiring to distribute crack cocaine and distributing crack cocaine. The district court found that defendant's conspiracy conviction qualified for an enhanced sentence under 21 U.S.C. 841(a)(1) and (b)(1)(A) because of two prior felony drug offenses and that defendant was a career offender under U.S.S.G. 4B1.1 because of two prior controlled substance convictions. The court held that the evidence was sufficient to convict defendant of count one and five of the indictment; the error in the section 851 notice did not deprive him of notice about which conviction the government intended to use, the enhancement of his sentence for which they were asking, or any opportunity to dispute the conviction; if defendant's 2001 delivery offense did not receive a criminal history point, it could not be considered a prior felony conviction for sentencing purposes and therefore, the court applied the rule of lenity and vacated defendant's sentence of 360 months' imprisonment under count five; and the fact that defendant's indictment listed pre-Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372, quantities did not affect the fairness or integrity of the judicial proceedings where it was established at trial that the conspiracy involved amounts of cocaine base far in excess of the current requirements. Accordingly, the court affirmed in part, vacated in part, and remanded for resentencing in regards to count five.
Court Description: Criminal case - Criminal law and sentencing. Evidence was sufficient to support defendant's conviction for conspiracy to distribute cocaine and distribution of the drug; description of prior offense in defendant's Section 851 notice was a clerical mistake and did not deprive him of notice and the opportunity to dispute the conviction; because of grouping, defendant's 2001 delivery offense did not receive a criminal history point and the district court erred in considering it a prior felony conviction for career offender sentencing purposes; as a result, defendant's sentence on count five is vacated and the case is remanded for resentencing proceedings on that count; even if it was error for defendant's indictment to list the pre-Fair Sentencing Act quantities required under 21 U.S.C. Sec. 841(b)(1)(A)(iii), defendant has not show how the error affected the fairness and integrity of the proceedings and the court found, in any event, that the conspiracy involved the 280 or more grams of the drug now required under the Act.
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