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United States v. Rodriguez

United States Court of Appeals, Fifth Circuit

June 28, 2018

LUIS FELIPE RODRIGUEZ, also known as Vaquero, Defendant-Appellant

          Appeal from the United States District Court for the Western District of Texas

          Before HIGGINBOTHAM and HIGGINSON, Circuit Judges. [*]


         Luis Felipe Rodriguez was convicted by a jury for, among other things, conspiracy to possess with intent to distribute cocaine. Due to Rodriguez's prior convictions, the Government sought and the district court imposed a life sentence. Finding no reversible error, we affirm.


         From January 2011 to December 2012, Defendant Luis Felipe Rodriguez, also known as Vaquero, engaged in drug trafficking as well as money laundering and bulk cash smuggling activities. Specifically, Rodriguez worked with Drug Trafficking Organizations out of Piedras Negras, Coahuila, Mexico to supply and transport marijuana, cocaine, and methamphetamine to multiple cities in Texas. To do so, Rodriguez hired couriers to coordinate the transportation of drugs, which were typically wrapped in black tape and hidden in compartments of vehicles to avoid detection at border checkpoints.[1]In total, Rodriguez transported over 25 kilograms of cocaine, over 45 kilograms of marijuana, and 366 grams of methamphetamine, and laundered approximately $1, 168, 300 in drug proceeds to Mexico.

         In February 2014, the Government charged Rodriguez in an Initial Indictment with a single count of conspiracy to possess with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, ("Count One"). On April 10, 2014, the Government filed a Notice of Enhanced Penalty pursuant to 21 U.S.C. § 851, notifying Rodriguez of the Government's intention to enhance his sentence to mandatory life imprisonment based on two prior drug convictions. Six days later, the Government filed a Superseding Indictment, charging Rodriguez with the same Count One and adding two charges of conspiracy to smuggle bulk cash and conspiracy to launder money.[2] On May 8, 2014, Rodriguez objected to the Government's Notice of Enhanced Penalty.

         On February 17, 2015, the court granted Rodriguez's attorney's oral motion to withdraw, and appointed new counsel. The Government then filed a Second Superseding Indictment on March 4, 2015, adding a charge of conspiracy to possess with intent to distribute methamphetamine.[3] Rodriguez pleaded not guilty to the Second Superseding Indictment, and a jury convicted him on Count One, conspiracy to smuggle bulk cash, and conspiracy to launder money. The jury acquitted Rodriguez of the methamphetamine charge.

         The Presentence Report ("PSR") set Rodriguez's offense level at 40 and his criminal history category at VI based on two prior drug trafficking offenses. The district court, overruling Rodriguez's objections, sentenced him to life in prison for Count One, 60 months for conspiracy to smuggle bulk cash, and 240 months for conspiracy to launder money, to run concurrently. Rodriguez appeals his mandatory life sentence, arguing that the Government should have refiled a new § 851 information on the Second Superseding Indictment and that the district court erred by treating Rodriguez's prior drug convictions as separate convictions for purposes of applying the sentencing enhancement pursuant to 21 U.S.C. § 841(b)(1)(A).[4]


         A defendant's sentence may not be enhanced based on a prior conviction unless the Government complies with the requirements of 21 U.S.C. § 851, which states:

No person who stands convicted of an offense under this part 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 (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.[5]

         We review the Government's compliance with Section 851 de novo.[6]

         This case presents the following question: whether the Government must refile a Section 851(a) information after filing a Second Superseding Indictment. We have not addressed that question explicitly, but we have alluded to its answer in Blevins.[7] In that case, we ruled that the Government must refile a Section 851(a) information when an indictment is dismissed but specified that our ruling did not "reject the caselaw from other circuits . . . which allow[] one Section 851(a) notice to suffice for successive trials on the same indictment after a mistrial or a reversal on appeal, or for a trial on a superseding indictment."[8] Now that the issue is presented head on, we join other circuits to conclude that one Section 851(a) information suffices for a trial on a superseding indictment.[9]

         Rodriguez acknowledges that other circuits agree that the Government need not refile a Section 851(a) information following a superseding indictment; however, he claims that his case differs because he obtained a new attorney after the Government filed its Section 851(a) information but before the Government filed its Second Superseding Indictment.[10] Though this argument is not without merit, we conclude that a change in counsel, without more, does not render the Government's Section 851(a) information ineffective for a trial on a superseding indictment.

         Rodriguez relies on Williams and Cooper to support his argument. In Williams, the defendants proceeded through three trials: the first ended in reversal due to an evidentiary issue; the second concluded as a result of juror misconduct; and the third trial led to a jury finding both defendants guilty.[11]When the Government sought an enhancement based on one defendant's prior conviction, the district court denied the request because the Government had not refiled a Section 851(a) information prior to the third trial-the trial for which the defendant was being sentenced.[12]

         The Eleventh Circuit reversed, holding that "once the information was filed, it was not necessary that it be refiled for each consecutive trial in the same court."[13] In so holding, the court reviewed the two purposes of Section 851: "The first is to allow the defendant to contest the accuracy of the information;" and "[t]he second is to allow the defendant to have ample time to determine whether to enter a plea or go to trial and plan his trial strategy with full knowledge of the consequences of a potential guilty verdict."[14] The Eleventh Circuit found those purposes to be met, observing that "[t]he same attorney represented [the defendant] at all three trials, knew that the information had been filed, knew about the prior conviction, which was admitted, and had addressed that prior conviction at the sentencing in the first trial."[15]

         The Seventh Circuit relied on similar reasoning in Cooper when the defendant argued that "the superseding indictment, intervening indictment, and trial required the Government to file a second information before he could be subjected to a second enhanced sentence."[16] Rejecting that argument, the court, among other things, applied the purposes of Section 851(a), finding that the defendant had an opportunity to contest the accuracy of the prior conviction when the Government filed the first information and that the defendant was aware that he could receive an enhanced sentence if found guilty.[17] To support the latter finding, the Seventh Circuit, citing Williams, reasoned that the defendant "was represented by the same attorney at the first and second sentencing."[18]

         To be sure, these cases support a finding of adequate notice when a defendant is represented by the same attorney throughout the proceedings. But that is all. Williams and Cooper do not stand for the proposition that a change in counsel renders a Section 851(a) information ineffective. The heart of Rodriguez's claim is that he lacked notice of the enhanced penalty. We find no support for that claim when we juxtapose the record with the two purposes of Section 851.

         As mentioned, the first purpose of Section 851 is "to allow the defendant to contest the accuracy of the information."[19] The first purpose is met here. To begin, Rodriguez's first counsel filed an Objection to the Government's Notice of Enhanced Penalty on May 8, 2014, arguing that Rodriguez's prior convictions "should not be used as a basis to enhance [Rodriguez's] punishment to a mandatory life sentence." Rodriguez's Objection specified that "the convictions occurred on the same date and presumably at the same time;" that "the court ordered the sentences to run concurrently;" and that "the two prior convictions that form the basis [of the] ...

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