Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 277 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.David Paul MURPHY, Defendant-Appellant.

No. 90-10367.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM** 

David Paul Murphy appeals his sentence, imposed following a guilty plea, for conspiracy, possession with intent to distribute methamphetamine, unlawful possession of a firearm, use of a firearm during a drug trafficking crime, aiding and abetting, and interstate travel in aid of racketeering, in violation of 18 U.S.C. §§ 2, 922(g) (1), 924(c), and 1952, and 21 U.S.C. §§ 841(a) (1) and 846. Murphy contends that the district court erred by sentencing him as a career offender under the United States Sentencing Guidelines (Guidelines) because the government had agreed not to seek an enhanced statutory penalty for his prior drug trafficking crimes under 21 U.S.C. § 851. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

We review de novo the district court's application of the career offender provision of the Guidelines. United States v. Marco L., 868 F.2d 1121, 1123 (9th Cir.), cert. denied, 110 S. Ct. 369 (1989).

21 U.S.C. § 841(b) (1) (A) (viii) provides that a person convicted of drug trafficking offenses involving over one kilogram of methamphetamine shall be sentenced to a mandatory term of 10 years to life in prison, and that if the defendant has previously been convicted of two felony drug offenses, the mandatory term increases to life imprisonment. 21 U.S.C. § 851 provides in relevant part:

No person who stands convicted of a felony under [21 U.S.C. §§ 841-858] 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 ... stating in writing the previous convictions to be relied upon.

21 U.S.C. § 851(a) (1). This notice requirement applies only when the government seeks to increase the statutory penalties under 21 U.S.C. §§ 841-858 and has no application to calculation of a sentence under the Guidelines. United States v. McDougherty, 920 F.2d 569, 574 (9th Cir. 1990), cert. denied, 111 S. Ct. 1119 (1991). Under the Guidelines, an eligible defendant is deemed a career offender and receives an enhanced base offense level and criminal history category if he has "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. Sec. 4B1.1.

Here, Murphy was charged in five counts of a six-count indictment. Counts I and II charged violations of 21 U.S.C. § 841(a) involving more than one kilogram of methamphetamine. The government subsequently filed notice of intent to seek enhanced statutory penalties for Counts I and II pursuant to 21 U.S.C. § 851.1  Murphy entered into a plea agreement, pursuant to which he agreed to plead guilty to the five counts charged in the indictment and the government agreed to withdraw its notice of intent to seek enhanced mandatory sentences for Counts I and II.2  Prior to sentencing, Murphy objected to the presentence report's characterization of him as a career offender under the Guidelines. The district court overruled his objections and sentenced him to the lowest sentence within the applicable Guidelines range.

Murphy concedes the existence and validity of his three prior convictions. Nonetheless, he contends that 21 U.S.C. § 851 precludes use of the prior convictions to calculate his Guidelines range within the non-enhanced statutory range prescribed by section 841(b) (1) (A) (viii). We have rejected this argument. See McDougherty, 920 F.2d at 574.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The government also filed a notice of intent to seek an enhanced penalty for Count IV (being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (1)) based on the same predicate offenses whose use Murphy challenges in this appeal. This notice was never withdrawn and Murphy has conceded the existence of the predicate offenses and their validity for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e), which mandates a fifteen-year mandatory minimum sentence on Count IV

 2

As a consequence of this plea bargain, Murphy escaped exposure to mandatory life sentences on Counts I and II. See 21 U.S.C. § 841(b) (1) (A)