Filed: Sep. 08, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5218 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. PAUL BERNARD COLEMAN, Defendant - Appellant. No. 10-5313 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. PAUL BERNARD COLEMAN, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:09-cr-00207-JRS-1) Submitted: August 26, 2011 Decided: September 8, 2011 Befor
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5218 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. PAUL BERNARD COLEMAN, Defendant - Appellant. No. 10-5313 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. PAUL BERNARD COLEMAN, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:09-cr-00207-JRS-1) Submitted: August 26, 2011 Decided: September 8, 2011 Before..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5218
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PAUL BERNARD COLEMAN,
Defendant - Appellant.
No. 10-5313
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PAUL BERNARD COLEMAN,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:09-cr-00207-JRS-1)
Submitted: August 26, 2011 Decided: September 8, 2011
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Craig W. Sampson, Sr., BARNES & DIEHL, PC, Chesterfield,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, N. George Metcalf, Richard D. Cooke, Assistant United
States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A federal jury convicted Paul Bernard Coleman of two
counts of possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a) (2006). The district court
sentenced Coleman to the statutory mandatory minimum term of
life imprisonment and he now appeals. Finding no error, we
affirm.
Coleman first argues that the Government’s 21 U.S.C.
§ 851 (2006) information, notifying Coleman of its intent to
seek enhanced penalties under 21 U.S.C.A. § 841(b) (West 2006 &
Supp. 2011), was defective because it cited an incorrect
statutory subsection and, therefore, he was not subject to the
statutory mandatory minimum term of life imprisonment. Because
Coleman failed to raise this argument in the district court, we
review this issue for plain error. See United States v. Olano,
507 U.S. 725, 731-32 (1993). To establish plain error, Coleman
must demonstrate that there was error, that was plain, and that
affected his substantial rights.
Id. Moreover, even if Coleman
demonstrates plain error occurred, we will not exercise
discretion to correct the error “unless the error seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.”
Id. (internal quotation marks and
citation omitted).
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Here, the Government’s § 851 notice correctly listed
Coleman’s prior convictions and included copies of the judgments
in those convictions, but erroneously cited 21 U.S.C.
§ 841(b)(1)(B), rather than § 841(b)(1)(A), to which Coleman was
properly subject. We have held, however, that “[t]he purpose of
§ 851 is to allow the defendant an opportunity to contest the
validity of the prior convictions used to enhance his sentence,”
and “‘[i]f the defendant reading the information in context,
will have no trouble understanding which prior conviction the
prosecutor means to identify, the information then has stat[ed]
. . . the previous convictions, and the statutory purpose of
providing defendant notice has been satisfied.’” United
States v. Houser, 147 F. App’x 357, 359 (4th Cir. 2005)
(unpublished)(quoting United States v. Severino, 316 F.3d 939,
943-44 (9th Cir. 2003)); see also United States v. Gregg,
2011
WL 2420267 (4th Cir. June 17, 2011) (unpublished) (“[T]he
statutory purpose of an information filed under § 851 is to
enable a defendant to identify, and to have the ability to
challenge, the government’s intended use of any prior conviction
to support a sentencing enhancement.”) (citing United States v.
Steen,
55 F.3d 1022, 1027 (5th Cir. 1995)). As the § 851 notice
filed in this case properly identified Coleman’s prior
convictions and Coleman does not argue that he could not
identify those convictions or that those convictions are
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invalid, the information complied with the statutory purposes
and was sufficient to increase the statutory penalties
applicable to Coleman. Therefore, the court did not plainly err
in sentencing Coleman to the statutory mandatory minimum term of
life imprisonment.
Coleman next argues that the Government committed
misconduct when the prosecutor commented during closing
arguments on Coleman’s refusal to consent to a search of his
vehicle and his refusal to speak with arresting officers.
Again, as Coleman failed to raise this argument in this district
court, we review this issue for plain error. See Olano, 507
U.S. at 731-32. To succeed on a claim of prosecutorial
misconduct, a defendant must show that the prosecutor’s remarks
were improper and that they “prejudicially affected his
substantial rights so as to deprive him of a fair trial.”
United States v. Scheetz,
293 F.3d 175, 185 (4th Cir. 2002).
“In reviewing a claim of prosecutorial misconduct, we
review the claim to determine whether the conduct so infected
the trial with unfairness as to make the resulting conviction a
denial of due process.” Id. (internal quotation marks and
citation omitted). In making this determination, we consider
(1) the degree to which the prosecutor’s remarks had a
tendency to mislead the jury and to prejudice the
defendant; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
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the defendant; (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters; (5) whether the
prosecutor’s remarks were invited by improper conduct
of defense counsel; and (6) whether curative
instructions were given to the jury.
Id. at 186 (citation omitted). We have thoroughly reviewed the
record and conclude that the Government’s remarks during closing
arguments did not amount to plain error.
Finally, Coleman argues that the statutory mandatory
minimum penalties in § 841(b) violate the Equal Protection and
Due Process Clauses. However, we have repeatedly rejected this
argument in prior cases. See, e.g., United States v. Perkins,
108 F.3d 512, 518-19 (4th Cir. 1997) (finding 100:1 ratio of
crack cocaine punishments to crack punishments does not violate
equal protection); United States v. Burgos,
94 F.3d 849, 876-77
(4th Cir. 1996) (same); United States v. Fisher,
58 F.3d 96,
99-100 (4th Cir. 1995) (same). As one panel may not overrule
another panel, see United States v. Simms,
441 F.3d 313, 318
(4th Cir. 2006), Coleman’s argument must fail.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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