PER CURIAM:
Samuel Thamar James appeals his conviction and 262-month sentence for possession with intent to distribute less than five grams of cocaine, in violation of 21 U.S.C. § 841(b)(1)(C). James argues on appeal that the district court's instruction on reasonable doubt misled the jury and lowered the government's burden of proof by including a subjective standard of proof. Next, James argues that the district court did not comply with the 21 U.S.C. § 851(b) requirements in sentencing him because the court failed to conduct the required colloquy regarding his prior convictions. James also argues that the district court violated the Sixth Amendment by enhancing his sentence based on prior convictions not proven to a jury beyond a reasonable doubt. Finally, James argues that the written judgment contains a clerical error, listing the incorrect statute of conviction.
In March 2009, Samuel Thamar James was indicted on one count of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). On July 17, 2009, the government filed an information and notice of prior convictions, pursuant to § 21 U.S.C. 851(a), alleging that James had two prior convictions, one for delivery and possession of cocaine and the other for possession of cocaine with intent to distribute. James did not contest either of the convictions alleged in the government's information. A jury found James guilty of the lesser-included offense of possession with the intent to distribute less than five grams of cocaine base.
The facts presented at trial were that on February 9, 2009, while in the process of attempting to stop a car that had an illegal window tint, an officer of the Tampa Police Department observed a black man with medium-length dreadlocks, wearing a black shirt, lean out the driver's side door and drop a plastic bag containing a white substance in a driveway. After the car came to a permanent stop, the officer identified James as both the driver of the vehicle and the person who dropped the plastic bag, based on his black shirt and dreadlocks. Testing revealed that the plastic bag contained 5.8 grams of cocaine base.
Before trial, Defendant and the government submitted proposed jury instructions to the district court. The government's instructions included a definition of reasonable doubt identical to this Circuit's Pattern Jury Instructions.
After the court instructed the jury, the court called counsel to sidebar and asked, "Did I give an instruction that I said I would omit or otherwise err in the instructions?" James's counsel replied, "No, Your Honor." James's counsel later relied upon the phrase "proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs," in closing argument.
During deliberations, the jury sent back a note with the question, "If we have, believe [sic], there is a possible doubt, should we return a verdict of guilty?," and the court responded with a supplemental instruction, reiterating its original reasonable doubt instruction.
The jury found James guilty of possession with intent to distribute less than five grams of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(C). The written judgment, filed in the case erroneously, indicated that James was convicted of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B)(iii).
At the sentencing hearing, the judge asked whether James had any objections to the Presentence Investigation Report ("PSI"), and his counsel responded that James did not stipulate to the facts presented as to the instant case but that they had no objections in any other respects to the PSI. The judge then asked Mr. James, "Do you understand that it's these drug trafficking offenses that are hurting you here today, not the one you got convicted for, and the two—the trial in my court and then the two other convictions you have for selling?," and Mr. James responded, "Yes."
"We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party." United States v. Hansen, 262 F.3d 1217, 1248 (11th Cir.2001) (per curiam) (internal quotations omitted). However, where the defendant has failed to object to the instruction in the district court, we will review for plain error only. Id. at 1248. Furthermore, "[u]nder the invited error doctrine, we will generally not review an error induced or invited by a party through the submission of an incorrect jury instruction to the judge which passed on to the jury." Id. We review the response of the district court to questions from the jury for an abuse of discretion. United States v. Phaknikone, 605 F.3d 1099, 1107 (11th Cir.2010).
Pursuant to the invited-error doctrine, because James not only failed to object to the reasonable doubt instruction in the district court but also submitted the very instruction he now challenges, we need not review his argument on appeal. Id. Nonetheless, his argument is without merit because we have repeatedly approved of the definition of reasonable doubt provided in the Eleventh Circuit Pattern Jury Instructions. See, e.g., Hansen, 262 F.3d at 1249-50 (affirming jury instructions that defined proof beyond a reasonable doubt as "proof of such a convincing character that you would be willing to rely or act upon it without hesitation in a decision involving the most important of your affairs" and stated that "it is not necessary that a Defendant's guilt be proved beyond all possible doubt. It is only required that the Government's proof exclude any `reasonable doubt' concerning a Defendant's guilt"); United States v. Daniels, 986 F.2d 451, 457-58, opinion readopted on reh'g, 5 F.3d 495, 496 (11th Cir.1993) (per curiam) (rejecting a defendant's
Furthermore, James's challenge to the supplemental instructions provided in response to the jury's question about "possible doubt" is vague and wholly without merit. The district court's supplemental instructions were not an abuse of discretion.
James next argues that his sentence must be vacated because the district court failed to follow the proper procedure dictated by 21 U.S.C. § 851(b). Appellant argues that strict compliance with the mandatory language of § 851(a) and (b) is required by our circuit precedent. James acknowledges that this Court does not automatically reverse a district court for failure to conduct the § 851(b) colloquy, but argues that despite the holding of United States v. Weaver, 905 F.2d 1466 (11th Cir.1990), his sentence must be reversed because, unlike the defendant in Weaver, his convictions were less than five years old and thus were not barred from challenge under § 851(e).
"[F]or the court to exercise jurisdiction to impose an enhanced sentence based on prior convictions ... the government must comply with the procedural requirements of Title 21 U.S.C. § 851." United States v. Cespedes, 151 F.3d 1329, 1331 (11th Cir.1998). Under § 851, the government is required to file and serve an information, stating the prior convictions on which it seeks to rely to enhance the sentence. 21 U.S.C. § 851(a). Once the information is filed:
Id. § 851(b). If the defendant denies any allegation contained in the information or claims that any conviction alleged is invalid, he must file a written response to the information. Id. § 851(c)(1). The district court then must "hold a hearing to determine any issues raised by the response which would except the person from increased punishment." Id. If the defendant does not respond to the information, the court will proceed to sentencing. Id. § 851(d)(1). Finally, under § 851(e): "No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction."
In United States v. Weaver, 905 F.2d 1466, 1480 (11th Cir.1990), a consolidated case with two appellants, one of the two appellants, Sikes, appealed the enhancement of his sentence pursuant to 21 U.S.C. § 851, based on a prior drug conviction. Sikes contended that the government failed to give adequate and timely notice of its intent to rely on a prior conviction as required by § 851(a), and that the district court failed to comply with § 851(b) because it did not inform him that he was
The Weaver Court first stated that "[t]his circuit has insisted upon strict compliance with the mandatory language of the procedural requirements of section 851(a) and (b)." Id. at 1481 (emphasis added) (citing United States v. Noland, 495 F.2d 529, 533 (5th Cir.1974); United States v. Cevallos, 538 F.2d 1122, 1126-27 (5th Cir.1976)).
Within that same paragraph, Weaver stated that the doctrine of harmless error does not apply to failures to comply with the requirements of § 851. Id. ("Significantly, `[t]he doctrine of harmless error does not apply' with respect to failures to follow the statutory scheme of § 851." (quoting United States v. Olson, 716 F.2d 850, 852 (11th Cir.1983))). It is clear that this statement was referring to § 851(a), not § 851(b). For the reasons set forth below, we hold that this quotation from Weaver applies only to § 851(a), and not to § 851(b).
After concluding that the district court had complied with the strict compliance standard of § 851(a), the Weaver Court moved to the § 851(b) challenge, the most relevant part of Weaver for the instant case. Sikes argued that his sentence was improper because the district court failed to inquire whether he affirmed or denied the prior drug conviction alleged in the information filed by the government, as required by § 851(b). Id. at 1481-82. The sentencing transcript revealed that "the district court did not specifically ask Sikes whether he had been previously convicted," but that this omission was "understandable when considered in context." Id. at 1482. The Court outlined a series of instances in which Sikes and his counsel implicitly affirmed the prior conviction: Sikes' counsel admitted that Sikes had a prior drug conviction during opening statement; when the court reviewed the PSI during the sentencing proceeding, which discussed both the prior arrests and the prior convictions alleged in the government's information, Sikes' counsel stated that the "court should not take into consideration anything other than convictions"; during the sentencing proceeding, Sikes' counsel argued that the prior arrests should be stricken and that the PSI should state only "the number of convictions"; and the court discussed doubling Sikes' sentence as a result of a conviction that occurred while Sikes was out on bond and his counsel did not object. Id. The Weaver court ultimately concluded that "[n]ot only did Sikes fail to object to the prior convictions contained in the PSI, but, by implication, he agreed that the prior convictions stated in the PSI were correct. Thus, far from challenging the prior convictions, Sikes' counsel all but affirmed Sikes' previous drug convictions." Id.
Additionally, because Sikes' prior convictions were more than five years old, any challenge to their validity was barred by § 851(e). Id. The Court explained that "[a] trial court is not required `to adhere to
We believe that Weaver has two separate and independent holdings. Weaver first held that where § 851(a) is complied with and a defendant is properly apprised of the underlying convictions considered to enhance his sentence, substantial compliance with § 851(b) is sufficient. Second, Weaver held that where § 851(e) bars any challenge to the validity of a conviction, a trial court is not required to conduct the § 851(b) colloquy.
While it is true that this Circuit's precedent had indicated that substantial compliance with § 851(b) might be insufficient, that precedent did not preclude Weaver's holding that substantial compliance with § 851(b) is in fact sufficient, or that use of the harmless error standard in relation to such challenges is appropriate. The cases which indicated that substantial compliance with § 851(b) might not be sufficient—United States v. Garcia, 526 F.2d 958, 961 (5th Cir.1976), and United States v. Cevallos, 538 F.2d 1122, 1126-27 & n. 9 (5th Cir.1976)—both made these statements in dicta only. Garcia merely expressed doubt that substantial compliance would be sufficient, rather than issuing a holding about substantial compliance. See Garcia, 526 F.2d at 961 ("[I]t is doubtful that a substantial compliance [with § 851(b)] would suffice."). Moreover, the Court indicated that there had not even been substantial compliance with § 851(b) because Garcia never admitted to having been convicted of the offense identified in the § 851(a) notice. See id. at 961 ("If Garcia's admission of a narcotics conviction identified it as the offense set forth in the information it could be plausibly urged that there was a substantial compliance with the statute. But there was no identity of offenses."). Then, in Cevallos the district court failed to comply with § 851(b) completely. Cevallos, 538 F.2d at 1127. Cevallos also asserted that the conviction relied on to enhance his sentence was invalid. Id. at 1125. While the Court noted that Garcia had indicated that it was doubtful whether substantial compliance would suffice, Cevallos also issued no holding on the issue, instead holding that there had not been substantial compliance at all. Id. at 1126-27 ("In Garcia the non-compliance with § 851(b) was much less egregious than the complete failure to comply with § 851(b) in the case before us. On the doubtful possibility that substantial compliance with § 851(b) would suffice, there was no such compliance here. In sentencing petitioner the District Court completely failed to comply with § 851(b), which is a prerequisite to the imposition of an enhanced sentence.") (footnote omitted). Thus, both Garcia and Cevallos involve fact situations that the Court perceived as not rising to the level of substantial compliance. Accordingly, neither case precludes Weaver's alternative holding that substantial compliance with § 851(b) is sufficient where § 851(a) has been fully complied with.
In an opinion issued just two years after Weaver, the Fifth Circuit, which issued both the Garcia and Cevallos opinions, made clear that the statements regarding substantial compliance with § 851(b) in each of those two opinions were dicta. See United States v. Garcia, 954 F.2d 273, 277 (5th Cir.1992). In that case, the defendant appealed his enhanced sentence, arguing that the district court failed to strictly
Id. at 278.
In addition to the fact that the statements regarding substantial compliance were dicta, both Cevallos and the 1976 Garcia decision occurred prior to the enactment of the Sentencing Guidelines, and, thus, the defendants did not have PSIs specifically identifying their prior offenses. Now, following the enactment of the Sentencing Guidelines, a PSI is prepared for each defendant, which is reviewed both prior to and during the sentencing proceeding. Although we have not specifically stated that the advent of PSIs alone impacts what is required of a court under § 851(b), we have recognized the role of the PSI in making clear to a defendant what, if any, prior convictions have been attributed to him. See Weaver, 905 F.2d at 1482.
In the years since Weaver was published in 1990, we have published opinions following the second of the two separate and independent Weaver holdings mentioned above—i.e., that a trial court's failure to conduct the § 851(b) colloquy is not reversible where § 851(e) bars any challenge to the conviction. See, e.g., United States v. Williams, 438 F.3d 1272, 1274 (11th Cir.2006) ("Because this provision precluded Williams from challenging the prior convictions `as a matter of law,' the district court was `not required to adhere to the rituals of § 851(b).'" (quoting Weaver, 905 F.2d at 1482)); United States v. Cespedes, 151 F.3d 1329, 1334 n. 2 (11th Cir.1998) ("Although the district court failed to so inquire of the Defendant at the sentencing hearing, Cespedes made no claim regarding this omission on appeal, nor could he do so since his prior conviction occurred more than five years before the date of the information. `A trial court is not required to adhere to the rituals of § 851(b) where a defendant, as a matter of law, is precluded from attacking the conviction forming the basis of the enhancement information.'") (internal citation omitted) (quoting Weaver, 905 F.2d at 1482).
Although we have not published an opinion following the other Weaver holding—i.e., that substantial compliance with § 851(b) is sufficient where § 851(a) is fully complied with and a defendant is timely apprised of the underlying convictions to be considered to enhance his sentence—we do so today. This holding is not only sufficiently clear in Weaver itself, but a
James has never claimed that his prior convictions listed in the information and PSI are in any way invalid, nor has he ever disputed that the two convictions cited by the government are in fact his. James did not file a written response under § 851(c) contesting the United States' properly filed information.
Binding precedent forecloses James's argument that the district court erred by enhancing his statutory maximum based on prior convictions not proven to a jury beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 228-47, 118 S.Ct. 1219, 1223-33, 140 L.Ed.2d 350 (1998) (holding that prior convictions "relevant only to the sentencing of an offender found guilty of the charged crime" do not need to be charged in an indictment or proven to a jury beyond a reasonable doubt). James concedes this point but contends that Almendarez-Torres is wrongly decided. However, Almendarez-Torres remains binding precedent. See Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (holding that "other than the fact of a prior conviction" any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, and explicitly stating that the Court's holding did not affect the validity of Almendarez-Torres). We have stated that "we are bound by Almendarez-Torres until it is explicitly overruled by the Supreme Court." United States v. Dowd, 451 F.3d 1244, 1253 (11th Cir.2006).
The district court followed binding precedent and did not err in enhancing James's sentence based on his prior convictions.
We may remand with instructions to correct a clerical error in the judgment. United States v. Massey, 443 F.3d 814, 822 (11th Cir.2006). "Furthermore, it is fundamental error for a court to enter a judgment of conviction against a defendant who has not been charged, tried, or found guilty of the crime recited in the judgment." Id. (citation and quotations omitted).
Because the written judgment incorrectly states that James was convicted under § 841(b)(1)(B)(iii), rather than § 841(b)(1)(C), we remand for the limited purpose of correcting the clerical error.
Upon a thorough review of the entire record on appeal, and after consideration of the parties' briefs, we affirm in part and remand in part.
AFFIRMED IN PART, REMANDED
