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United States v. House

United States Court of Appeals, Eighth Circuit

May 7, 2019

United States of America Plaintiff - Appellee
v.
Brandon A. House Defendant-Appellant United States of America Plaintiff - Appellee
v.
Anthony J. Van Pelt Defendant-Appellant

          Submitted: November 15, 2018

          Appeals from United States District Court for the Western District of Missouri - Springfield

          Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

          KELLY, CIRCUIT JUDGE.

         Brandon A. House and Anthony J. Van Pelt were each indicted on numerous counts concerning their participation in a large-scale methamphetamine distribution scheme in Springfield and Kansas City, Missouri. House pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine and possession with intent to distribute methamphetamine. The district court[1] sentenced House to 240 months of imprisonment. Van Pelt pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine, distribution of 50 grams or more of methamphetamine, distribution of methamphetamine, and possession with intent to distribute 500 grams or more of methamphetamine. He was sentenced to 252 months of imprisonment and 10 years of supervised release. House and Van Pelt both appeal.

         I

         House and Van Pelt both challenge the 21 U.S.C. § 851 enhancement of their sentences. On August 6, 2015, the government filed an information in each of their cases under § 851, identifying prior convictions that would increase their mandatory minimum sentences. For the first time on appeal, they each argue that the district court committed plain error by failing to follow the procedures to establish prior convictions as required by 21 U.S.C. § 851.[2]

         Because neither House nor Van Pelt objected, we review for plain error, affirming their sentences unless they can show (1) an error; (2) that is plain; (3) that affects their substantial rights; and (4) that "seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Boman, 873 F.3d 1035, 1040 (8th Cir. 2017) (cleaned up). "To satisfy [the] third condition, the defendant ordinarily must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different." Rosales-Mireles v. United States, 138 S.Ct. 1897, 1904-05 (2018) (cleaned up).

         Section 21 U.S.C. § 851(b) provides:

If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence 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 in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

         The government concedes that the district court failed to conduct this inquiry before imposing House's sentence, but it argues that House cannot show that this error affects his substantial rights. We agree. House has not shown that there is a reasonable probability that his sentence would be different if the district court had engaged in the § 851(b) colloquy. He does not argue that his prior conviction was invalid, nor does he assert how his rights were otherwise affected. The district court did not commit plain error by failing inquire into House's prior conviction pursuant to 21 U.S.C. § 851(b). See United States v. Rounsavall, 115 F.3d 561, 566 (8th Cir. 1997) (failure to engage in 851(b) colloquy is subject to harmless error analysis).

         Van Pelt similarly cannot show that a failure to conduct the § 851 inquiry affected his substantial rights. We understand Van Pelt to argue that the conviction identified in the § 851 information - a 2004 Missouri conviction for Felony Possession of a Controlled Substance - does not qualify as a predicate "felony drug offense" under § 841(b)(1) because the conduct underlying his predicate conviction - possession of methamphetamine - "would only be a misdemeanor offense" if he had been charged in federal court. But a "felony drug offense" is "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State . . . that prohibits or restricts conduct relating to . . . depressant or stimulant substances." 21 U.S.C. § 802(44) (emphasis added). Van Pelt concedes that he was convicted of felony possession in Missouri and that he received a sentence of 42 months. Therefore, his prior conviction qualified as a felony drug offense, and we find no plain error.

         II

         House next argues that the district court failed to properly conduct the plea colloquy under Rule 11 of the Federal Rules of Criminal Procedure. At the plea hearing, the district court and the government discussed the statutory minimums and maximums that House would face by pleading guilty and explained the applicable Guidelines range. The district court gave House the opportunity to correct any inaccuracies in the government's recitation of facts, and House confirmed that there were none. Before asking House whether he wished to plead guilty, the district ...


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