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United States of America v. Alfredo Gonzalez
Case Number: 18-1597
Judge: Bruce M. Selya
Court: United States Court of Appeals
For the First Circuit
On appeal from The UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Plaintiff's Attorney: Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney, and Kasey A. Weiland,
Assistant United States Attorney
Boston, MA - Criminal defense lawyer represented defendant charged with drug-trafficking.
We start by rehearsing the travel of the case. On
October 5, 2016, a federal grand jury sitting in the District of
New Hampshire indicted the appellant, along with fifteen codefendants, on a charge of conspiracy to distribute and to possess
with intent to distribute controlled substances. See 21 U.S.C.
§§ 841(a), 846. Pertinently, the indictment alleged that the
appellant's conduct as a member of the conspiracy "involved one
kilogram or more of a mixture or substance containing a detectable
amount of heroin" in violation of 21 U.S.C. § 841(b)(1)(A)(i).
The appellant entered a "not guilty" plea to the indictment.
While the case was awaiting trial, the government filed
an Information pursuant to 21 U.S.C. § 851(a) (the Information).
Through the Information, the government placed on record the
appellant's 1997 New Hampshire state conviction for possession of
a narcotic drug with intent to sell. See N.H. Rev. Stat. Ann.
§ 318-B:2(I) (1990). It is undisputed that the appellant received
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a prison sentence of three-and-one-half to seven years in the state
case. The government asserted that the state conviction and
sentence rendered the appellant subject to a mandatory minimum
recidivist sentence of twenty years if found guilty of the federal
drug-conspiracy charge. See 21 U.S.C. § 841(b)(1)(A) (2012).
A jury trial ensued in the district court, and the
appellant was convicted of the conspiracy charge on November 9,
2017. The jury found specially that the weight of heroin involved
in the conspiracy and attributable to the appellant was one
kilogram or more. Within a matter of days, though, the district
court notified the parties of a nascent issue involving the
residency of Juror No. 127. Insofar as they are pertinent here,
we sketch the facts summarized in the court's memorandum:
Before jury empanelment began, the parties received
a packet of information from the district court
clerk's office regarding the jury venire. This
packet included a jury selection list, compiled by
the clerk's office, which recounted each juror's
self-reported permanent address (city and state).
It also included supplemental questionnaires filled
out by the prospective jurors.
The jury selection list noted, next to the name of
Juror No. 127, "Derry NH." In contrast, his
supplemental questionnaire indicated that he had
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been working in Massachusetts and had been a
Massachusetts resident for the last fifteen months.
Prior to the voir dire, Juror No. 127 spoke with
two district court staff members about how to
describe his residency. Court staff instructed the
juror to address this matter with the judge (which
he apparently failed to do).
From aught that appears from the record, neither the
parties nor the judge were aware of any problem with Juror No.
127's residency either before or during the trial. The problem
came to light only on the final day of the trial (after the jury
had returned its verdict and been discharged).1 When the
appellant's counsel reviewed the court's memorandum and belatedly
perused Juror No. 127's supplemental questionnaire, he concluded
that Juror No. 127 was, in fact, not a resident of New Hampshire
at the time of the trial. Rather, Juror No. 127 was a New Hampshire
1 The problem surfaced when Juror No. 127 went to the clerk's
office after the verdict had been returned and the jury had been
discharged. He explained that he had stayed with his sister (a
New Hampshire resident) during the trial; complained that his car
was towed from a "resident only" parking spot at his sister's
building; and inquired whether the court could resolve his towing
charges. In the course of this discussion, court staff realized
that Juror No. 127 had no current residence in New Hampshire and
alerted the judge. The chief deputy clerk prepared a memorandum
summarizing relevant facts, and the judge directed that the parties
be notified about the residency issue.
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native who had been residing for over a year in neighboring
Based on this anomaly, the appellant moved for a new
trial. See Fed. R. Crim. P. 33. The government opposed the
motion, and the district court conducted an evidentiary hearing.
The court reserved decision and thereafter, in a thoughtful
rescript, denied the appellant's motion. See United States v.
Gonzalez, No. 16-cr-162-12-PB, 2018 WL 1936473 (D.N.H. Apr. 24,
In due course, the district court received the
presentence investigation report (the PSI Report). When
chronicling the appellant's criminal record and calculating his
criminal history score, the PSI Report included the appellant's
1997 New Hampshire conviction for possession of a narcotic drug
with intent to sell. The appellant did not object to the inclusion
of the 1997 New Hampshire drug conviction in his criminal history,
and, predicated on that conviction and the Information previously
filed by the government, the PSI Report concluded that the
appellant was subject to a twenty-year mandatory minimum
recidivist term of immurement. At the disposition hearing, the
district court accepted this conclusion and imposed a twenty-year
sentence. This timely appeal followed.
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The centerpiece of the appellant's asseverational array
is his claim that his conviction and sentence must be vacated
because the jury that convicted him included a nonresident. The
appellant's remaining claims of error are focused on his sentence.
We first address his "nonresident juror" claim and then confront
his various sentence-related challenges.
A. The Nonresident Juror Claim.
The appellant asserts that he is entitled to a new trial
because one of the seated jurors was not a New Hampshire resident.
This assertion rests on both the Jury Selection and Service Act
(JSSA), see 28 U.S.C. § 1865(b)(1), and the Sixth Amendment. The
district court denied the appellant's motion for a new trial,
rejecting both his statutory and constitutional arguments. In the
court's view, the appellant advanced his claim too late and, in
all events, could not show any prejudice flowing from the
nonresident juror's participation in the trial.
Federal Rule of Criminal Procedure 33 permits a district
court to "vacate any judgment and grant a new trial if the interest
of justice so requires." We review a denial of a motion for a new
trial for abuse of discretion. See United States v. Connolly, 504
F.3d 206, 211 (1st Cir. 2007). Where, as here, the judge who hears
the motion for a new trial is the same judge who presided over the
trial, substantial deference is due to the judge's perceptions.
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See id.; United States v. Natanel, 938 F.2d 302, 313 (1st Cir.
1991). Of course, a material error of law is always an abuse of
discretion. See Connolly, 504 F.3d at 211.
The JSSA premises eligibility for jury service on, among
other things, residency for at least one year in the judicial
district in which the trial is to be held. See 28 U.S.C.
§ 1865(b)(1). In this case, though, it is undisputed that Juror
No. 127 was not a New Hampshire resident at the time of the trial
and, therefore, was not then eligible for jury service in the
District of New Hampshire. Even so, the JSSA requires a defendant
to raise any residency issue "before the voir dire examination
begins, or within seven days after the defendant discovered or
could have discovered" such issue, "by the exercise of diligence
. . . whichever is earlier." Id. § 1867(a); see United States v.
Uribe, 890 F.2d 554, 561 (1st Cir. 1989). This timing requirement
serves an eminently practical purpose: when an objection to a
juror's lack of the required residency is made on a timely basis,
the court can rectify the situation by the simple expedient of
replacing the ineligible juror with an eligible juror. See United
States v. Novod, 923 F.2d 970, 978 (2d Cir.), aff'd in part, rev'd
in part on reh'g on other grounds, 927 F.2d 726 (2d Cir. 1991);
cf. United States v. Gale, 109 U.S. 65, 69-70 (explaining that
when objection regarding juror ineligibility is made timely, "the
irregularity might be corrected by reforming the panel").
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In this instance, the appellant had available to him —
before voir dire — Juror No. 127's supplemental questionnaire.
This document clearly indicated that Juror No. 127 was not a New
Hampshire resident. But the appellant's counsel neglected to
review this form, relying instead on a summary jury selection list
that set forth "City & State" for each prospective juror
(information extracted from the prospective jurors' self-reported
permanent addresses on other forms). Juror No. 127 had reported
that his permanent address was in Derry, New Hampshire, so that
city and state appeared opposite his name on the jury selection
list. And even though the supplemental questionnaire made it plain
that Juror No. 127 had been a resident of Massachusetts for at
least fifteen months prior to jury empanelment, the appellant's
counsel did not object when Juror No. 127 was seated on the jury.
It was not until after the verdict was returned that the appellant
mounted a residency-based challenge. That was too late, see 28
U.S.C. § 1867(a), and the district court determined that the
appellant's challenge was unavailing.
We discern no abuse of discretion. Before voir dire
commenced, the appellant's counsel easily could have discovered,
through the exercise of due diligence, that Juror No. 127 was not
a New Hampshire resident.2 All that he had to do was review the
2 Here, as in other contexts, the sins of the lawyer are
visited upon the client. See Taylor v. Illinois, 484 U.S. 400,
- 9 -
completed questionnaire that had been given to him. A party who
chooses not to read a document in his possession scarcely can be
heard to complain that he was unaware of the contents of the
document. See id. (charging defendant with notice of defect when
he "could have discovered" it "by the exercise of diligence");
Uribe, 890 F.2d at 561 (finding waiver when basis for objection
could have been gleaned from jury questionnaires available to
counsel on motion).
The appellant attempts to sidestep the effects of his
waiver. He suggests that his failure to raise a timely challenge
to Juror No. 127's eligibility should be excused because the
district court provided inconsistent information about the juror's
place of residence; court staff had more information about the
juror's residence than did the appellant; and court staff shirked
their responsibility of getting to the bottom of the residency
issue after Juror No. 127 made an initial inquiry.
The plain language of the statute, though, precludes the
appellant from relying on these excuses to overcome his waiver.
The JSSA provides that following the statutory procedure
(including the timing requirement) constitutes "the exclusive
means" for a defendant to raise a challenge to jury composition
based on noncompliance with the JSSA. 28 U.S.C. § 1867(e). In
416-18 (1988); Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 762
n.12 (1st Cir. 1994).
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comparable contexts, courts consistently have found waiver when
defendants failed to comply strictly with JSSA requirements. See,
e.g., United States v. Foxworth, 599 F.2d 1, 3 (1st Cir. 1979)
(concluding that appellant's "failure to comply with the express
statutory requirement . . . precludes his statutory challenge to
the jury selection process"); United States v. Marrapese, 610
F. Supp. 991, 997 (D.R.I. 1985) (Selya, J.) ("Under the statutory
scheme, § 1867 ministers to the vigilant — not to those who sleep
upon their perceptible rights."). This principle holds sway even
when — as in this case — the objecting party proffers an excuse
based on some idiosyncratic circumstance. See United States v.
Hawkins, 566 F.2d 1006, 1013-14, 1013 n.13 (5th Cir. 1978)
(explaining why the JSSA should not be interpreted as "impliedly
excusing compliance with the timeliness requirement" even when
"potential irregularity in the jury selection process" is known to
court and government but not to defendant).
We add, moreover, that the appellant's claim under the
JSSA is doubly barred: even if the residency glitch had been
entirely unknowable prior to verdict, the appellant would still
have to carry the burden of establishing prejudice. See Uribe,
890 F.2d at 562. The district court found no prejudice, and its
assessment is entitled to substantial deference. See id. The
appellant has pointed to nothing that calls the district court's
assessment into legitimate question.
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The parties agree that, in this case, the existence of
prejudice depends on whether there is any good reason to believe
that Juror No. 127 may have been biased. Struggling to make such
a showing, the appellant argues that Juror No. 127 was less than
candid about his residency and, thus, should be deemed biased.
But in order to obtain a new trial based on a juror's lack of
forthrightness regarding a statutory qualification during voir
dire, a party ordinarily must demonstrate harm. See id. In most
instances — and this case is no exception — a claim based on a
statutorily ineligible juror's lack of candor "reduces to one based
on actual or likely bias." Id.
In Sampson v. United States, 724 F.3d 150 (1st Cir.
2013), we addressed the issue of bias when examining a claim that
a new trial was required because a seated juror had been dishonest
during voir dire. See id. at 163-66. There, we made pellucid
that an "inquiry into potential bias . . . . depends on whether a
reasonable judge, armed with the information that the . . . juror
failed to disclose . . . would conclude under the totality of the
circumstances that the juror lacked the capacity and the will to
decide the case based on the evidence." Id. at 165-66. Although
the Sampson court was dealing with a dishonest juror, see id. at
162-63, the same inquiry applies where a juror is confused or
mistaken rather than dishonest, see McDonough Power Equip., Inc.
v. Greenwood, 464 U.S. 548, 555-56 (1984) (establishing
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impartiality test when juror gave "mistaken, though honest,
response" to voir dire question).
It is manifest that a juror's ineligibility, premised on
lack of residency, does not, in itself, impair the impartial
performance of the juror's duties. See United States v. Haywood,
452 F.2d 1330, 1332 (D.C. Cir. 1971). The appellant has shown
nothing more: the record reflects genuine confusion, not outright
dishonesty, concerning Juror No. 127's residency. The
supplemental questionnaire, which was in the appellant's
possession before voir dire, makes it apparent that the juror
disclosed that he had been a Massachusetts resident for over a
year. What is more, Juror No. 127 spoke to a pair of court
employees about the complexities of determining his residency.
So, too, Juror No. 127's self-report of a permanent address in
Derry, New Hampshire, was not pulled out of thin air: he was a
New Hampshire native and had maintained his New Hampshire address
to register and insure his motor vehicle, retain his New Hampshire
driver's license, and register to vote in that state. He even had
instructed his employer to send the confirmations of the periodic
direct deposits of his wages to his New Hampshire address. We
hold, therefore, that the district court did not abuse its
discretion in finding that Juror No. 127 had not intentionally
furnished false information.
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If more were needed — and we doubt that it is — there is
nothing in the record that suggests any actual bias. The district
court impliedly found that, apart from his nonresidency, Juror No.
127 was fully qualified to serve. And it found no inkling of bias.
We agree that, in light of the totality of the circumstances,
neither Juror No. 127's Massachusetts residency nor his mistaken
claim of New Hampshire residency would lead a reasonable judge to
conclude that he would be unable or unwilling to weigh the evidence
even-handedly. Given the absence of anything fairly suggesting
bias on Juror No. 127's part, we affirm the district court's
determination that the appellant did not suffer any prejudice.
This leaves the appellant's constitutional claim. The
Sixth Amendment affords a criminal defendant the right to a fair
trial "by an impartial jury of the State and district" in which
the crime was committed. U.S. Const. amend. VI. Much like a
counterpart claim made under the JSSA, a Sixth Amendment challenge
to the impartiality of a jury ordinarily must be proffered in a
timely manner. See Novod, 923 F.2d at 978; see also Queen v.
Hepburn, 11 U.S. (7 Cranch) 290, 297 (1813) (noting requirement
that objection to juror qualification based on residence must be
made before juror is sworn).
When a party is aware — or ought to be — of a juror's
nonresidence before the trial begins, and does not object timely,
he waives his right to complain that seating the juror violates
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the Sixth Amendment. See Novod, 923 F.2d at 978; see also
Thornburg v. United States, 574 F.2d 33, 34-36 (1st Cir. 1978)
(reaching same result when alleged disqualification was lack of
English proficiency). As discussed above, the appellant's counsel
had the supplemental questionnaire indicating Juror No. 127's
Massachusetts residency before voir dire but did not interpose a
timely objection. Thus, cloaking the residency issue in the
raiment of the Sixth Amendment does not advance the appellant's
quest for a new trial.
B. Claims of Sentencing Error.
None of the appellant's four claims of sentencing error
were raised below. Consequently, our review is presumptively for
plain error. See Fed. R. Crim. P. 52(b); United States v. Duarte,
246 F.3d 56, 60 (1st Cir. 2001). "Review for plain error entails
four showings: (1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." Duarte, 246 F.3d
at 60. The appellant, as the proponent of plain error, bears the
burden of persuasion on each facet of this quadripartite test.
See United States v. Brown, 235 F.3d 2, 4 (1st Cir. 2000).
With this standard in place, we turn to the appellant's
claims of error. We discuss them one by one.
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1. The Vagueness Claim. The appellant asserts that he
should not have been subjected to a twenty-year mandatory minimum
recidivist sentence. Here, though, the appellant was convicted of
a felony: conspiracy to distribute and possess with intent to
distribute one kilogram or more of a controlled substance. And
the statute of conviction, as it read at the time, specifically
provided that "[i]f any person commits such a violation after a
prior conviction for a felony drug offense has become final, such
person shall be sentenced to a term of imprisonment which may not
be less than 20 years." 21 U.S.C. § 841(b)(1)(A) (2012). Given
the appellant's 1997 New Hampshire conviction for possession of a
narcotic drug with intent to sell, the mandatory twenty-year term
of immurement imposed by the district court appears, on its face,
to be appropriate.
The appellant demurs. To begin, he challenges the
mandatory minimum recidivist sentence on the grounds that the term
"felony drug offense," as used in section 841, is void for
vagueness. In mounting this challenge, the appellant relies
heavily on the Supreme Court's decision in Johnson v. United
States, 135 S. Ct. 2551 (2015), which held that the residual clause
defining "violent felony" in the Armed Career Criminal Act offended
the Due Process Clause. See id. at 2563.
The residual clause defined "violent felony" as an
offense that "otherwise involves conduct that presents a serious
- 16 -
potential risk of physical injury to another." 18 U.S.C.
§ 924(e)(2)(B)(ii) (2012). The Court concluded that this
definition was void for vagueness because it required judges to
look beyond the elements of a crime and examine "a judicially
imagined 'ordinary case' of a crime" rather than "real-world facts
or statutory elements." Johnson, 135 S. Ct. at 2557. That
process, the Court stated, not only left "grave uncertainty about
how to estimate the risk posed by a crime" but also left
"uncertainty about how much risk it takes for a crime to qualify
as a violent felony." Id. at 2557-58. To shore up this argument,
the appellant cites to other Supreme Court cases that held residual
clauses defining the term "crime of violence" void for vagueness.
See United States v. Davis, 139 S. Ct. 2319, 2336 (2019); Sessions
v. Dimaya, 138 S. Ct. 1204, 1216 (2018).
Building on this foundation, the appellant strives to
persuade us that the term "felony drug offense" is void for
vagueness because, as he envisions it, judges must look beyond the
statutory elements of the charged crime in order to determine
whether a prior conviction qualifies as a predicate. We are not
convinced. As Congress has employed the term, a "felony drug
offense" is "an offense that is punishable by imprisonment for
more than one year . . . that prohibits or restricts conduct
relating to . . . drugs." 21 U.S.C. § 802(44). In attempting to
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draw a parallel to the Johnson line of cases, the appellant focuses
on Congress's use of the word "conduct." This focus is misplaced.
A federal law violates the Due Process Clause only if it
is "so vague that it fails to give ordinary people fair notice of
the conduct it punishes, or so standardless that it invites
arbitrary enforcement." Johnson, 135 S. Ct. at 2556. We think it
plain that "felony drug offense," as used in section 841, is
neither vague nor standardless. Its definition and application
require asking no more than three simple questions. See 21 U.S.C.
§§ 802(44), 841(b)(1)(A). Those questions are: (1) Was there a
prior conviction? (2) Was that conviction for a felony (that is,
for an offense punishable by a year or more in prison)? and (3) Was
that conviction for an offense that "prohibits or restricts conduct
relating to" drugs, id. § 802(44)? All three of these questions
have objectively ascertainable answers, and answering them
requires nothing more than examining the statute of conviction.
So long as these answers are all in the affirmative, the offense
qualifies as a "felony drug offense" for the purpose of triggering
the mandatory minimum. Seen in this light, the statute affords
fair notice of the conduct leading to the sentencing enhancement,
and the necessary analysis is not plagued by the need for judicial
imagination and hypothesis that concerned the Johnson Court.
The cases cited by the appellant do not deal either with
the statutory provision at issue here or with any analogous
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provision. See Davis, 139 S. Ct. at 2324; Dimaya, 138 S. Ct. at
1210-11; Johnson, 135 S. Ct. at 2555-56. Put bluntly, their
holdings are inapposite. In the absence of any on-point authority,
there is no principled way for us to say that the district court
committed a clear or obvious error in treating the statute as
constitutional and following its dictates to impose a mandatory
minimum recidivist sentence. See United States v. Morosco, 822
F.3d 1, 21 (1st Cir. 2016) (concluding that challenged ruling
"[wa]s not within a country mile of plain error" when no
controlling precedent existed); United States v. CaraballoRodriguez, 480 F.3d 62, 73 (1st Cir. 2007) ("[S]ince we have not
yet adopted the [statutory] construction [that the appellant]
urges, there is no plain error."). We conclude, therefore, that
the appellant's vagueness claim lacks force.
2. The Section 851(b) Claim. The appellant next argues
that we must vacate his sentence because the district court did
not comply with certain statutory prerequisites prior to imposing
the mandatory minimum recidivist term of immurement.
Specifically, he complains that the court did not engage in a
colloquy with him inquiring whether he affirmed the prior
conviction and advising him that any challenge to it must be raised
before sentencing. See 21 U.S.C. § 851(b).
21 U.S.C. § 851 delineates the procedures for seeking
and imposing an enhanced recidivist sentence. First, the
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government must "file an information with the court . . . stating
in writing the previous convictions to be relied upon."
Id. § 851(a)(1). The government did so here. Next, the court
must "inquire of the person with respect to whom the information
was filed whether he affirms or denies that he has been previously
convicted as alleged" and "inform him that any challenge to a prior
conviction which is not made before sentence is imposed may not
thereafter be raised." Id. § 851(b). It is undisputed that the
court below failed to engage in such a colloquy.
Section 851(c) prescribes the procedures by which a
defendant may seek to challenge a prior conviction — procedures
that the appellant did not follow. Another statutory provision
further limits a defendant's ability to challenge past
convictions. See id. § 851(e) (prohibiting "challenge[s] [to] the
validity of any prior conviction . . . which occurred more than
five years before the date of the information").
Before reaching the merits of the appellant's argument,
a threshold matter looms. Despite conceding that he did not object
to the absence of the required colloquy in the district court, the
appellant nonetheless protests the appropriateness of plain error
review. Remarking that section 851(b) places the onus on the
district court to inform a defendant of his right to affirm or
deny a prior conviction, the appellant asserts that it makes no
sense to require him to object contemporaneously to the court's
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failure to provide the required warning. He exhorts us instead to
review the absence of the required colloquy for harmless error,
not plain error. See United States v. Lopez, 907 F.3d 537, 547-
48 (7th Cir. 2018), cert. denied, 139 S. Ct. 1612 (2019); United
States v. Baugham, 613 F.3d 291, 295-96 (D.C. Cir. 2010) (per
The appellant's standard-of-review argument runs
headlong into the law of the circuit doctrine. As a general
matter, that doctrine commands our adherence to our own prior panel
decisions. See, e.g., United States v. Barbosa, 896 F.3d 60, 74
(1st Cir.), cert. denied, 139 S. Ct. 579 (2018); United States v.
Rodríguez, 527 F.3d 221, 224 (1st Cir. 2008); United States v.
Lewis, 517 F.3d 20, 23 (1st Cir. 2008). Unless a litigant can fit
his case into one of the narrow exceptions to this doctrine,3 prior
circuit precedent controls. See Barbosa, 896 F.3d at 74.
Here, none of the exceptions applies, and our prior
circuit precedent teaches that we must review previously unraised
claims regarding a district court's failure to conduct a section
851(b) colloquy for plain error. See United States v. Curet, 670
3 We have said that "the exceptions to the law of the circuit
doctrine are narrowly circumscribed and their incidence is 'hen'steeth-rare.'" Barbosa, 896 F.3d at 74 (quoting San Juan Cable LLC
v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010)). For instance,
an exception pertains "when the holding of a previous panel is
contradicted by subsequent controlling authority, such as a
decision by the Supreme Court, an en banc decision of the
originating court, or a statutory overruling." Id.
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F.3d 296, 300 (1st Cir. 2012) ("We review failure to conduct a
§ 851(b) colloquy for harmless error where there is an objection,
and for plain error in the absence of an objection."); United
States v. Dickerson, 514 F.3d 60, 64-65, 65 n.4 (1st Cir. 2008).
Accordingly, we are bound to review the appellant's section 851(b)
claim for plain error.
The appellant says that plain error occurred simply
because the district court failed to adhere to the procedure limned
in 21 U.S.C. § 851(b). The relevant facts are not in dispute:
the district court neither made the required inquiry nor informed
the appellant of the limited time available within which to
challenge the prior conviction. Even so, the appellant's argument
faces an insurmountable obstacle: his predicate conviction
occurred some twenty years before the date of the Information in
this case, and statutory law forecloses challenges to the validity
of convictions that are more than five years old. See 21 U.S.C.
§ 851(e); see also Dickerson, 514 F.3d at 65. Thus, even though
the section 851(b) colloquy was omitted, the appellant cannot
demonstrate that its omission in any way affected his substantial
rights. See United States v. Romero-Carrion, 54 F.3d 15, 18 (1st
Cir. 1995). Plain error is plainly absent: the district court's
- 22 -
error was harmless, and a harmless error cannot be a plain one.4
See Dickerson, 514 F.3d at 65.
There is one loose end. The appellant suggests that
even though he could not challenge the validity of the 1997
conviction, he could still have challenged allegations in the
Information by following the procedure outlined in section 851(c).
See 21 U.S.C. § 851(c)(1). This is true as far as it goes — but
it does not take the appellant very far. Neither in any filing in
the district court nor in his appellate briefing did he raise any
viable challenge to any specific allegation in the Information.
The mere possibility that such a challenge might be open to him
does not, without more, support a finding of plain error.
At oral argument in this court, the appellant's
appellate counsel attempted to fill this void. She suggested that
the appellant may not have been the same "Alfredo Gonzalez" who
was convicted in the 1997 New Hampshire drug case. This belated
suggestion, presented without either an affidavit from the
appellant or any other shred of documentation, is too little and
too late. See id. § 851(c)(2); cf. United States v. SerranoMercado, 784 F.3d 838, 847 (1st Cir. 2015) (recognizing that
4 Given this conclusion, it is nose-on-the-face plain that
the standard of review makes no meaningful difference in this
instance. Because the section 851(b) error was patently harmless,
the appellant's claim of error would founder even under his
preferred standard of review.
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defendant in categorical case who does not tender Shepard documents
on appeal "could not meet the heightened prejudice showing plain
error review requires"). And this suggestion strikes a
particularly dissonant chord inasmuch as the appellant did not
object to the inclusion of this conviction in his criminal history
(as recounted in the PSI Report). And if, despite this seeming
admission, he actually wishes to make and pursue a "not me" claim,
he may do so by means of a petition for post-conviction relief,
accompanied by appropriate documentation, under 28 U.S.C. § 2255.
Battling on, the appellant's counsel suggests that
"[b]ased on the scant details in the information, it is unclear
even whether the prior conviction was a felony." This suggestion
elevates hope over reason. A "felony drug offense" is one that is
"punishable by imprisonment for more than one year under any law
. . . of a State . . . that prohibits or restricts conduct relating
to . . . drugs." 21 U.S.C. § 802(44). Here, the record makes
manifest that the prison sentence received by the appellant in the
New Hampshire drug case was for substantially more than one year.
To cinch the matter, the nature of the offense — possession of a
narcotic drug with intent to sell — indicates just as clearly that
the conviction was for an offense "that prohibits or restricts
conduct relating to narcotic drugs." Id.; see United States v.
Burghardt, 939 F.3d 397, 406-09 (1st Cir. 2019) (holding that
violation of N.H. Rev. Stat. Ann. § 318-B:2(I) is categorically a
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"serious drug offense" under 18 U.S.C. § 924(e)(2) — holding that
forecloses any argument that it is not a "felony drug offense"
under the more broadly worded 21 U.S.C. § 802(44)).
That ends this aspect of the matter. We conclude that
the district court's error in failing to conduct the required
section 851(b) colloquy was harmless and that, therefore, the
appellant's assignment of error fails.
3. The Apprendi Claim. As a further fallback, the
appellant submits that using his 1997 New Hampshire drug conviction
as the foundation for the twenty-year mandatory minimum recidivist
sentence transgressed his Fifth and Sixth Amendment rights. In
support, he points out that the federal indictment did not itself
allege the prior conviction, nor did the government prove the fact
of the conviction beyond a reasonable doubt. See Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000).
In Apprendi, the Supreme Court held that "any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt." Id. Apprendi, however, is not the Court's controlling
precedent on the question of when a prior conviction may be used
to enhance a defendant's sentence. "[T]he Supreme Court's decision
in Almendarez-Torres v. United States, 523 U.S. 224 (1998), fairly
construed, established that a sentencing enhancement may be
grounded on prior criminal convictions neither separately charged
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nor proven to a jury." United States v. Richards, 456 F.3d 260,
262 (1st Cir. 2006). Since Almendarez-Torres has neither been
overruled nor abrogated by the Supreme Court, we are bound by its
specific holding. See id.
In an effort to blunt the force of this reasoning, the
appellant says that later Supreme Court decisions intimate that
the Justices may be prepared to disavow Almendarez-Torres. See,
e.g., United States v. Haymond, 139 S. Ct. 2369, 2376-79 (2019);
Alleyne v. United States, 570 U.S. 99, 103 (2013); see also
Apprendi, 530 U.S. at 520-21 (Thomas, J., concurring). But we are
not at liberty to browse through these tea leaves and vaticinate
what future holdings the Supreme Court may (or may not) make.
Where, as here, a Supreme Court decision applies directly to a
case before us yet arguably depends on a rationale called into
question by a later decision, we must still follow the decision
that directly applies. See Agostini v. Felton, 521 U.S. 203, 237
(1997); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 484 (1989). Consequently, we reject the appellant's
Apprendi challenge to his mandatory minimum recidivist sentence.
The district court hardly could have committed plain error by
adhering to binding Supreme Court precedent.
4. The First Step Act Claim. On December 21, 2018,
Congress enacted the First Step Act of 2018 (the Act), Pub. L. No.
115-391, 132 Stat. 5194 (to be codified in scattered sections of
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18, 21, and 34 U.S.C.). Section 401(a)(2)(A)(i) of the Act amended
the statute of conviction to reduce the mandatory minimum sentence
applicable for this crime from twenty years to fifteen years. See
§ 401, 132 Stat. at 5220 (to be codified at 21 U.S.C. § 841(b)(1)).
The appellant contends that this reduction of the mandatory minimum
sentence should be applied retroactively to his behoof. To
undergird this contention, he notes that the Act became law while
his appeal was pending.
We do not write on a pristine page. Section 401(c) of
the Act states precisely when and to what extent the Act's
provisions apply to pending cases. See id. at 5221. Pertinently,
"[t]his section, and the amendments made by this section, shall
apply to any offense that was committed before the date of
enactment of this Act, if a sentence for the offense has not been
imposed as of such date of enactment." Id. (emphasis supplied).
The appellant acknowledges that the district court
sentenced him prior to the December 21, 2018, effective date. He
nonetheless asserts that when "a defendant is appealing the
sentence, it cannot yet be considered final." And because the
sentence is not yet final, his thesis runs, it has not yet been
"imposed," and the Act's reduced mandatory minimum should apply to
The appellant's contention conflates finality with
imposition, and the Act's plain language defeats it. The word
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"imposed" is not specially defined in the Act, and we therefore
give that word its ordinary meaning. See United States v. Gordon,
875 F.3d 26, 33 (1st Cir. 2017); Stornawaye Fin. Corp. v. Hill (In
re Hill), 562 F.3d 29, 32 (1st Cir. 2009). A sentence is
customarily understood to be imposed either when it is pronounced
or entered in the trial court, regardless of subsequent appeals.
See United States v. Pierson, 925 F.3d 913, 927 (7th Cir. 2019)
("In common usage in federal sentencing law, a sentence is
'imposed' in the district court, regardless of later appeals."),
petition for cert. filed, — U.S.L.W. — (U.S. Oct. 28, 2019) (No.
19-566); United States v. Davis, 924 F.3d 899, 905 n.4 (6th Cir.
2019) (observing that sentence is imposed when it is orally
pronounced); see also United States v. Burgos-Andújar, 275 F.3d
23, 32 n.6 (1st Cir. 2001) (indicating that First Circuit "has not
decided" precisely "when a sentence is imposed" but noting that
choice is between oral pronouncement of sentence and trial court's
entry of judgment); Fed. R. Crim. P. 35 advisory committee's note
to 2004 amendment (advocating oral announcement as sentencing
date). We need not decide today whether a sentence is imposed on
the date of its pronouncement or on the date of entry of judgment;
either way, the sentence is imposed before an appeal from that
sentence can be taken.
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In the case at hand, the appellant's sentence was imposed
in June of 20185 — several months before the Act was passed — so
the appellant cannot reap the benefit of the Act's reduction of
the mandatory minimum. His claim of error is, therefore, hopeless.
Outcome: We need go no further. For the reasons elucidated above,
the judgment of the district court is Affirmed