Fernando Espinoza v. United State

Filing

CORRECTED OPINION FILED - THE COURT: DIANA E. MURPHY, KERMIT E. BYE and LAVENSKI R. SMITH Original Opinion filed on: 03/21/2014 Correction to opinion: The original opinion was corrected at page 2, footnote1, Correcting the originating court judges first name. [4136262] [13-1607]

United States Court of Appeals
For the Eighth Circuit
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No. 13-1607
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Fernando Espinoza
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Northern District of Iowa - Sioux City
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Submitted: December 19, 2013
Filed: March 21, 2014 (Corrected March 21, 2014)
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Before MURPHY, BYE, and SMITH, Circuit Judges.
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BYE, Circuit Judge.
A federal jury found Fernando Espinoza guilty of conspiracy to distribute 500
grams or more of methamphetamine. Espinoza filed a petition for relief from his
conviction and sentence under 28 U.S.C. § 2255 alleging a number of different
grounds for relief, including the claim that trial counsel was ineffective in failing to

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object to a sentencing enhancement under 21 U.S.C. § 851(a)(1). The district court1
found no grounds for relief. Espinoza appeals the district court's ruling. We affirm.
I
Espinoza was indicted for conspiracy to distribute 500 grams or more of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
Moreover, the indictment charged that Espinoza had previously been convicted of a
felony drug offense, thus doubling the mandatory minimum sentence under 21 U.S.C.
§ 851(a)(1).
At trial, Espinoza admitted to purchasing methamphetamine and the
government put on evidence showing Espinoza was part of a conspiracy to distribute
methamphetamine. Additionally, Espinoza stipulated to having a prior felony drug
conviction from 1992, which provided the basis for the § 851 enhancement.
Unnoticed by the attorneys or the court, the § 851 enhancement notice contained an
error incorrectly listing the District of South Dakota as the district of conviction
rather than the Northern District of Iowa where Espinoza's conviction actually
occurred. Espinoza's attorney did not object to the § 851 enhancement nor did the
government seek to amend the § 851 notice at any point.
The jury found Espinoza guilty on both subsections of the indictment. The
district court sentenced Espinoza to the mandatory minimum of 240 months of
imprisonment, based in part on a pre-sentence report (PSR), which correctly listed
Espinoza's prior felony drug conviction as being from the Northern District of Iowa.
Espinoza timely filed an appeal. This Court affirmed the conviction. United States
v. Espinoza, 282 F. App'x 504 (8th Cir. 2008).

1

The Honorable Donald E. O'Brien, United States District Judge for the
Northern District of Iowa.
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Espinoza filed a timely pro se motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255, alleging seventeen grounds for relief. The district
court appointed counsel, who submitted a supplement to the § 2255 petition adding
a claim that trial counsel was ineffective in failing to object to the allegedly improper
§ 851 enhancement.
After conducting evidentiary hearings, the district court entered an order
dismissing all of Espinoza's claims. The district court granted a certificate of
appealability on all claims.
II
Espinoza appeals the district court's denial of § 2255 relief. Espinoza argues
trial counsel was ineffective in failing to object to the § 851 enhancement, which
Espinoza argues was improper due to lack of proper notice.2
The Eighth Circuit reviews a district court's denial of a § 2255 petition de
novo. Ortiz v. United States, 664 F.3d 1151, 1164 (8th Cir. 2011).
Title 21 U.S.C. § 851(a) requires the government to provide notice of the
sentencing enhancement before trial, but also provides that "[c]lerical mistakes in the
information may be amended at any time prior to the pronouncement of sentence."
2

Espinoza, relying on United States v. Ramirez, 501 F.3d 1237, 1239 (11th Cir.
2007), also argues the allegedly inaccurate § 851 notice deprived the district court of
jurisdiction to impose an enhanced sentence. However, this court has specifically
held "the prosecution's noncompliance with § 851(a)(1) does not affect the court's
jurisdiction." United States v. Mooring, 287 F.3d 725, 727 (8th Cir. 2002). "'Thus,
the only question that legitimately arises from the prosecution's [failure to comply
with § 851(a)(1)] concerns the court's authority to impose an enhanced sentence. This
is simply not a question of subject-matter jurisdiction.'" Id. at 727-28 (quoting Prou
v. United States, 199 F.3d 37, 45 (1st Cir. 1999)).
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21 U.S.C. § 851(a)(1). Clerical mistakes are errors "where the government's initial
information still gave the defendant reasonable notice of the government's intent to
rely on a particular conviction." United States v. Higgins, 710 F.3d 839, 844 (8th
Cir.) cert. denied, 134 S. Ct. 343 (2013) (internal quotation marks omitted); see
also United States v. Sturdivant, 513 F.3d 795, 804 (8th Cir. 2008) ("Correcting the
state [of conviction] is a clerical error . . . ."). The § 851 notice requirement is meant
to provide a defendant with "notice of the prior conviction, the effect it would have
on the maximum sentence, and an opportunity to dispute the conviction." United
States v. Timley, 443 F.3d 615, 626 (8th Cir. 2006). Strict compliance with § 851 is
not required, rather the indictment must only provide "reasonable notice of the
Government's intent to rely on a particular conviction and a meaningful opportunity
to be heard." United States v. Curiale, 390 F.3d 1075, 1076 (8th Cir. 2004). "In
applying the statute's requirements, courts are careful not to elevate form over
substance." Id. at 1077.
Espinoza now argues counsel was ineffective in failing to object to the
deficient § 851 notice. It is undisputed Espinoza had only one prior drug felony and
the indictment listed correctly the crime, the date of conviction, and the sovereign of
conviction. The only error related to the federal district court in which Espinoza was
convicted. We find that, much like a mistake as to state of conviction, Sturdivant,
513 F.3d at 804, the mistake as to the district in which the conviction occurred is a
clerical error where the indictment "still gave the defendant reasonable notice of the
government's intent to rely on a particular conviction." Higgins, 710 F.3d at 844.
In fact, Espinoza stipulated to having a 1992 felony drug conviction, further showing
Espinoza was on notice of the government's intent to rely on his sole felony drug
conviction for purposes of the § 851 enhancement.
While the government failed to file the required superseding indictment to
correct the clerical error, the PSR, as adopted by the district court at sentencing,
correctly listed Espinoza's prior conviction, further putting Espinoza on notice. "The
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error in the § 851 notice did not deprive [Espinoza] of notice about which conviction
the government intended to use, the enhancement of his sentence for which they were
asking, or an opportunity to dispute the conviction." Higgins, 710 F.3d at 844.
Therefore, to find the § 851 notice was insufficient would be to improperly elevate
the form of § 851 over its substance. Curiale, 390 F.3d at 1077.
Because the § 851 notice was adequate, Espinoza has failed to show his trial
counsel was ineffective for failing to object to such notice. United States v. Kelly,
581 F.2d 152, 153 (8th Cir. 1978) ("Petitioner's remaining contention of ineffective
assistance of counsel must fail, since there is no merit to the allegations of error upon
which the contention is premised.").3
III
The judgment of the district court is affirmed.
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3

We have examined all other issues raised by Espinoza but find no other claims
merit discussion. Therefore, we affirm the district court on those issues without
comment. See 8th Cir. R. 47B.
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