F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      January 3, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                            __________________________                  Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

 v.                                                     No. 05-5141
                                                        (N.D. Okla.)
 A N A I C ASTR O-PO RTILLO ,                   (D.Ct. No. 04 CR-146-01-HE)

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before BR ISC OE and B AL DOCK , Circuit Judges, and BROR BY, Senior Circuit
Judge.




      Appellant Anai Castro-Portillo appeals his conviction and sentence for

possession with intent to distribute m arijuana. M r. Castro-Portillo appeals his

conviction on grounds the district court erred in denying his motion to suppress

evidence obtained during his detention in conjunction with a search of his house,

in violation of his Fourth Amendment rights. He appeals his sentence on grounds

the 21 U.S.C. § 851 information filed by the government provided inadequate



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
notice of an enhancement. W e exercise jurisdiction pursuant to 28 U.S.C. § 1291

and affirm M r. Castro-Portillo’s conviction and sentence.



                                I. Factual Background

      From June to August of 2004, agents with the Bureau of Alcohol, Tobacco

and Firearms (ATF) conducted cocaine and other drug purchases from M r. Castro-

Portillo’s brother, Cesar Portillo. After first witnessing Cesar Portillo sell drugs,

agents followed him to a house in Tulsa, Oklahoma. Items obtained from the

trash at that house caused officers to believe cocaine was being re-packaged

inside the house for distribution. W hile at least one of the utilities associated

with the house was in the name of a Neptali Portillo-Guererra, items obtained

from the trash included a satellite television bill and W estern Union receipt in the

name of Cesar Portillo.



      During two subsequent drug purchases, surveillance agents observed Cesar

Portillo leave the same house, drive to an apartment in Tulsa, and then drive to

the location of the drug sales. Based in part on these circumstances, an ATF

agent executed a twenty-three-page affidavit in support of a search warrant for

both the apartment and house, stating he believed probable cause existed to search

both locations for illegal drugs, guns, money, and other evidence related to drug

trafficking. The affidavit did not mention M r. Castro-Portillo, other than the fact

                                          -2-
he was a passenger with Cesar Portillo when he was stopped for not wearing a

seat belt, and agents otherwise possessed no information linking M r. Castro-

Portillo with the house to be searched, other than the fact they knew he left the

house with Cesar Portillo before that traffic stop occurred. Based on the

information contained in the affidavit, a magistrate issued a search warrant for

both the apartment and the house.



      On August 20, 2004, as police were preparing to execute the search warrant

on the house, A TF A gent M atthew Abowd was conducting surveillance. At

approximately 10:30 a.m., he saw M r. Castro-Portillo exit the house, water some

plants, and reenter the house. An hour later, at 11:30 a.m., Tulsa Police Corporal

Tom M ilburn relieved Agent Abowd so he and others could put on raid gear in

order to execute the search warrant. Just before execution of the search warrant,

at 11:40 a.m., Corporal M ilburn saw a Hispanic man and woman get into a car

parked in the driveway and begin to drive away; he immediately radioed Officer

Kirk M ontgomery, a police officer who was parked nearby to assist in the search;

explained a car had just left the targeted home; and directed him to stop the car.



      Officer M ontgomery immediately stopped the vehicle driven by M r. Castro-

Portillo after it traveled two blocks from the house. W hen he asked M r. Castro-

Portillo for his driver’s license and insurance, M r. Castro-Portillo did not appear

                                          -3-
to understand English and no documents w ere forthcoming. Because the vehicle

left the targeted house, Officer M ontgomery believed the vehicle carried the

target of the search warrant. In addition, because M r. Castro-Portillo had exited

the house subject to a search warrant for contraband and weapons, and he was

acting “extremely nervous” and “fidgety,” O fficer M ontgomery believed M r.

Castro-Portillo may have had guns or drugs in the car. For safety reasons, Officer

M ontgomery ordered M r. Castro-Portillo to exit the vehicle, handcuffed him, and

did a quick check of his waistband for weapons before calling a Spanish-speaking

police officer. Corporal Ricardo Aguilar arrived in ten minutes and questioned

M r. Castro-Portillo in Spanish as to his name and driver’s license. Approximately

five minutes after Corporal Aguilar’s arrival, M r. Castro-Portillo and his wife

were taken back to the house, where authorities were concluding the search.

Authorities recovered approximately three pounds of marijuana, drug notations,

scales, and a sealing machine.



      Authorities then took M r. Castro-Portillo to the Tulsa police station, where

ATF A gent John Rodriguez interviewed him in Spanish. Agent Rodriguez

advised M r. Castro-Portillo of his M iranda rights, which M r. Castro-Portillo

waived before giving his statement. In his statement, M r. Castro-Portillo

admitted: 1) he unlawfully entered the country from M exico; 2) he and his wife

resided at the house where the search warrant was executed; 3) he sold cocaine,

                                         -4-
heroin, methamphetamine, and marijuana out of the searched apartment; 4) four

kilos of cocaine were stashed near the apartment kitchen sink and dishwasher, and

he kept prepackaged amounts of cocaine, heroin, and methamphetamine in a

cabinet over the stove; 5) he kept three pounds of marijuana in the garage at his

residence; and 6) Cesar Portillo is his younger brother, whom he hired to assist in

the sale of contraband because he was better able to understand and speak

English.



                             II. Procedural Background

      A four-count indictment issued, including Count 1 for possession with

intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(ii)(II); Count 2 for possession with intent to distribute

fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B)(viii); Count 3 for possession with intent to distribute heroin, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and Count 4 for possession with

intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D).

Generally, § 841(a)(1) makes it unlawful to possess with intent to distribute a

controlled substance, 1 while § 841(b) and its various subsections list the penalties




      1
         Specifically, § 841(a)(1) states, in part, it is “unlawful for any person
know ingly or intentionally ... to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a controlled substance ....”

                                          -5-
statutorily proscribed for each type of drug, depending on the amount possessed. 2



      Thereafter, M r. Castro-Portillo filed a motion to suppress the evidence

obtained, based in part on his contention his Fourth Amendment rights were

violated because authorities improperly detained him. The district court held a

suppression hearing, during which the officers and agents involved with M r.

Castro-Portillo’s detention and the search of his home testified. Based on this

evidence, the district court denied M r. Castro-Portillo’s motion to suppress the

contested evidence, concluding in part that the police had reasonable suspicion to

stop and detain M r. Castro-Portillo as he left the home just before they executed

the search warrant and that the detention or seizure, which lasted a total of

approximately thirty minutes from his stop to arrest, did not warrant suppression

of the evidence.



      On the first day of trial, the government filed an information to enhance

M r. Castro-Portillo’s sentence, as allowed under 21 U.S.C. § 851(a)(1), for a 1989

Texas cocaine conviction, which it contended applied to M r. Castro-Portillo’s



      2
         For example, § 841(b)(1)(B)(ii)(II) proscribes the penalties for the
unlawful act of possession with intent to distribute 500 grams or more of cocaine;
§ 841(b)(1)(B)(viii) for possession of five grams or more of methamphetamine;
§ 841(b)(1)(C) for possession of a schedule I or II controlled substance (i.e.,
heroin), see U.S.S.G. § 2D1.1 (Drug Quantity and Drug Equivalency Tables); and
§ 841(b)(1)(D) for possession of less than fifty kilograms of marijuana.

                                         -6-
violations of 21 U.S.C. § 841(a)(1) (unlaw ful act of possession with intent to

distribute a controlled substance); and two parts of subsection (b), including

§ 841(b)(1)(B)(ii)(II) (Count 1 punishment subsection for cocaine), and

§ 841(b)(1)(B)(viii) (Count 2 punishment subsection for methamphetamine). The

information did not include any reference to either the heroin or marijuana counts

or their correlating § 841(b) subsections. Later, at the conference to discuss jury

instructions, the government stated the enhancement would only apply to Counts

1 (cocaine) and 2 (methamphetamine), and not Counts 3 (heroin) and 4

(marijuana).



      Thereafter, a jury acquitted M r. Castro-Portillo of Counts 1, 2, and 3, but

found him guilty of Count 4 for possession with intent to distribute marijuana.

Following the trial, the government moved to amend the information, stating, in

part, it committed a clerical error by not including reference to 21 U.S.C.

§ 841(b)(1)(D), the penalty subsection for marijuana, in the information. In turn,

M r. Castro-Portillo objected to the motion to amend, arguing the district court

lacked jurisdiction to grant the motion because the government filed the

amendment after the trial and had represented the enhancement did not apply to

the marijuana count. In the subsequent presentence report, the probation officer

did not apply an enhancement for the prior Texas conviction. In response to the

government’s objection regarding omission of the enhancement, the probation

                                         -7-
officer suggested a legal question existed for the district court’s resolution on

whether the original information sufficiently met the statutory notice required

under 21 U.S.C. § 851 and, if not, whether omission of § 841(b)(1)(D) constituted

a clerical error allowing correction prior to the sentencing hearing.



      At the sentencing hearing, M r. Castro-Portillo again opposed the

enhancement but admitted he had a prior Texas cocaine conviction. In granting

the government’s motion to amend, the district court held the original information

met the requirements of 21 U.S.C. § 851 because it gave notice of the

government’s intent to rely on the prior conviction for enhancement purposes and

afforded M r. Castro-Portillo an opportunity to object if he disputed the existence

of the prior conviction. The district court further determined that by listing some

of the subsections of § 841(b) the government simply gave surplus information,

and M r. Castro-Portillo was not prejudiced, because he received notice of the

enhancement, regardless of whether an error occurred in not designating the

marijuana count. After considering certain criteria, including the United States

Sentencing Guidelines and M r. Castro-Portillo’s criminal history; applying certain

enhancements, including the contested enhancement for the prior Texas

conviction; and concluding M r. Castro-Portillo should not be punished for going

to trial under the circumstances presented, the district court sentenced M r. Castro-

Portillo to eighty-four months imprisonment.

                                          -8-
                                  III. Discussion

                    A. Fourth Amendment Stop and Detention

      On appeal, M r. Castro-Portillo does not contest the validity of the search

warrant, but contends the district court erred in denying his motion to suppress,

given his “Fourth Amendment rights were violated by his detention pending

execution of a search warrant at his residence.” Apt. Br. at 1. Our standard of

review on a motion to suppress is set forth in United States v. Higgins, which

instructs:

      On review of a denial of a motion to suppress evidence, we consider
      the totality of the circumstances and view the evidence in a light
      most favorable to the government. W e accept the district court’s
      factual findings unless those findings are clearly erroneous. The
      credibility of witnesses, the weight to be given evidence, and the
      reasonable inferences drawn from the evidence fall within the
      province of the district court. Keeping in mind that the burden is on
      the defendant to prove that the challenged search was illegal under
      the Fourth A mendment, the ultimate determination of reasonableness
      under the Fourth Amendment is a question of law reviewable de
      novo.

, 1269-70 (10th Cir. 2002) (quotation marks and citation omitted).

Unquestionably, probable cause is necessary for issuance of a search warrant, and

“[a] valid probable cause determination requires only a substantial basis to find

that evidence of a crime was probably present in the place to be searched.”

United States v. M athis, 

, 1203-05 (10th Cir. 2004).



      Once a search warrant issues based on probable cause, we have looked to

                                         -9-
M ichigan v. Summers, 

(1981), in determining whether seizure of an

occupant of the targeted building is valid. This court has relied on Summers for

the proposition that where a valid search warrant issues “some seizures can be

reasonable under the Fourth Amendment without probable cause where the

seizure is inherently less intrusive than an arrest, is justified by substantial law

enforcement interests, and the police have [a] reasonable articulable suspicion of

criminal activity.” United States v. Ritchie, 

, 1481 (10th Cir. 1994)

(relying on 

).



      In Summers, police stopped and detained the defendant as he descended the

front steps of a house subject to execution of a search warrant. 

. In applying the three-prong proposition announced in its decision, the

Supreme Court first determined M r. Summers’s detention constituted a seizure

but it did not violate the Fourth A mendment because the detention was less

intrusive than allowed by the search warrant itself or an arrest. 

The Court next outlined the law enforcement interests justifying such seizures,

which include prevention of flight, minimization of the risk of harm to authorities

executing the search warrant, and the orderly completion of such a search. 

Finally, the Court discussed seizures in the context of when police have

a reasonable articulable suspicion of criminal activity. 

It held a

search warrant for contraband founded on probable cause gives “the police officer

                                          -10-
an easily identifiable and certain basis for determining that suspicion of criminal

activity justifies a detention of that occupant.” 

In so holding, it

concluded, “a warrant to search for contraband founded on probable cause

implicitly carries with it the limited authority to detain the occupants of the

premises while a proper search is conducted.” 

(emphasis added).



      Since Summers, the Supreme Court, in M uehler v. M ena, 

(2005), has extended this holding. This court has relied on M uehler in stating

“[p]olice officers have a ‘categorical’ authority to detain persons found on

premises subject to a lawful search warrant for ‘contraband’ materials incidental

to the officers’ execution of the warrant.” Denver Justice & Peace Comm. v. City

of Golden, 

, 929 (10th Cir. 2005) (relying on M 

), cert. dismissed, 

(2006). As the M uehler Court stated,

“Summers makes clear that when a neutral magistrate has determined police have

probable cause to believe contraband exists, the connection of an occupant to a

home alone justifies a detention of that 

n.2 (quotation

marks and citation omitted and emphasis added).



      Applying Summers and M uehler to the case at hand, it is plain the search

warrant in this case carried with it the limited authority to detain M r. Castro-

Portillo as an occupant during the search of the house. This alone was sufficient

                                          -11-
to detain him during the entirety of the search. The fact he was not observed

committing a crime at the time of the stop, drove away from the house moments

before the execution of the search warrant, and did not know about the search

warrant did not prevent authorities from having the requisite suspicion to stop

him, as further demonstrated by our decision in Ritchie. In that case, the

defendant was stopped in his driveway and then detained in his yard ten minutes

before execution of a search warrant on his residence. 

, 1483.

Applying Summers, we held the search warrant gave police reasonable suspicion

to detain the defendant, regardless of the fact an agent was minutes away en route

with the warrant. 

In addition, we determined the fact he was leaving

the scene and did not have knowledge of the search warrant did not mean he did

not pose a threat to officers executing the warrant, as he may have returned home

unexpectedly while the search was ongoing and, once there, “[tried] to forcibly

thwart execution of the warrant.” 

For the same reasons, in this case,

the search warrant alone provided reasonable suspicion to stop M r. Castro-

Portillo, and the fact he did not know about the search warrant does not diminish

the risk he may have posed.



      M r. Castro-Portillo attempts to factually distinguish his case from Summers

and Ritchie by pointing out he had driven away from the house before the search

began. However, like the Sixth Circuit, we do not find this distinction

                                        -12-
significant, as “Summers does not impose upon police a duty based on geographic

proximity (i.e., defendant must be detained while still on his premises) ....”

United States v. Cochran, 

, 339 (6th Cir. 1991). Like that circuit, w e

believe the focus should be on whether police detained the defendant as soon as

practicable after departing the premises, which “will normally, but not

necessarily, result in detention of an individual in close proximity to his

residence.” 

circuit has said, “[t]he proximity between an occupant

of a residence and the residence itself may be relevant in deciding whether to

apply Summers, but it is by no means controlling.” United States v. Cavazos, 

, 712 (5th Cir. 2002). In this case, it appears Officer M ontgomery

stopped M r. Castro-Portillo as soon as reasonably practicable as he drove away

from the house, and M r. Castro-Portillo admits he “was detained just minutes

before the search began ... at 11:40 a.m.” Apt. Br. at 15.



      In continuing his Fourth Amendment argument, M r. Castro-Portillo relies

on our decision in United States v. Edwards, 

(10th Cir. 1996), which

he contends is factually similar to the circumstances in his case and supports

suppression of the evidence obtained from the search. However, we find Edwards

distinguishable and note it preceded the Supreme Court’s decision in M uehler. In

Edwards, officers stopped the defendant after he had driven three blocks away

from a house subject to a search 

, 94. It is important to

                                         -13-
note the stop was based on a suspicion his vehicle contained drugs and he might

be armed and dangerous. 

The district court concluded that at the

time of the street-side stop the police had “reasonable suspicion” to detain him,

and neither party appealed that conclusion. 

However, following the

stop, police detained M r. Edwards for forty-five minutes, during which time he

and his vehicle were searched, he was handcuffed, guns were drawn on him, and

no M iranda warning was given. 

W e determined that at the

conclusion of the approximately fifteen-minute search of the defendant’s car and

person, which produced no evidence of illegal activity or danger to police, the

police no longer possessed any “reasonable suspicion” warranting his continued

detention. 

In so holding, we found his prolonged detention during

the thirty minutes that followed, before the search warrant was executed and

drugs were found, went beyond a permissible detention, as it was not based on a

legitimate interest in preventing flight, preventing risk of harm to the officers, or

facilitating orderly completion of the search. 

Castro-Portillo relies on

Edwards to contend his own thirty-minute detention was not supported by any

governmental interests, as he was not fleeing, did not know about the search, and

was not asked to assist in the search on his return to the house.



      Unlike Edwards, M r. Castro-Portillo’s detention occurred during the search

of the house and his detention was not “unduly prolonged” prior to execution of

                                         -14-
the search warrant. 

. M oreover, M r. Castro-Portillo

does not contend, nor does the record indicate, that any officer held him at gun-

point during his detention. In addition, once stopped, it appears M r. Castro-

Portillo’s total thirty-minute street-side and house detainment was as short as the

situation and search warranted. 3



      To the extent M r. Castro-Portillo argues he should have been returned to

the house sooner, rather than detained street-side, we note the search warrant gave

police the requisite reasonable suspicion to detain M r. Castro-Portillo during the

entirety of the search, regardless of whether the detention was accomplished in or

outside of his home or both. See 

n.16 (explaining the

fact the defendant was detained outside w hen leaving his house w as no more



      3
          M r. Castro-Portillo also relies on an Eighth Circuit decision, United
States v. Sherrill, 

(8th Cir. 1994), to support his position his
detention constituted a violation of his Fourth Amendment rights. Admittedly,
the facts in that case are similar to his, given M r. Sherrill left his residence just
before police executed a search warrant and officers stopped him only one block
away from his home. 

The Sherrill court declined to apply Summers,
in part because the defendant had already exited the premises, and it concluded
the street detention greatly increased the intrusiveness of the stop and detention.

However, we note the Sherrill decision pre-dates the Supreme Court’s
decision in M uehler, which holds authorities have a categorical authority to detain
an occupant of a house subject to a law ful search warrant. M oreover, this court is
not bound by other circuit court precedent, and, instead, we are inclined to follow
our own precedent in Ritchie, which has a holding counter to Sherrill even though
it is based on similar facts. Finally, extenuating factors surrounding M r. Castro-
Portillo’s street-side detention sufficiently differ from those presented in Sherrill
so that it does not substantially aid in our determination of the issues presented.

                                         -15-
intrusive than the detention of those inside). W hile some inconvenience and

indignity may be associated with a short, street-side detainment, it is less so than

the circumstances surrounding an arrest, the thirty-minute gun-point pre-search

detainment in Edwards, or a compelled visit to the police station. See Sum 

; 

. M oreover, the facts of this case do not

suggest, as M r. Castro-Portillo implies, that authorities in any way attempted to

manipulate the circumstances in order to detain him street-side.



      M r. Castro-Portillo also argues police unnecessarily handcuffed him during

both his street-side and home detentions. However, where a search warrant

authorizes a search for weapons, an “inherently dangerous situation” arises which

extends the governmental interest “in not only detaining [the defendant], but

using handcuffs” during the detention. M 

. In this case,

the fact M r. Castro-Portillo left a house subject to a search warrant for contraband

and weapons, together with his nervous behavior, reasonably caused Officer

M ontgomery to believe M r. Castro-Portillo might have guns on his person or in

the car, leading him to handcuff M r. Castro-Portillo. Under the circumstances,

his handcuffed detention was justified by a substantial governmental interest in

minimizing the risk of harm to authorities who reasonably believed he might

possess a gun or otherwise might present some danger to the officers during the

course of the entire search, both while he was detained street-side and later when

                                         -16-
authorities returned him to the house.



      As an alternative argument, M r. Castro-Portillo suggests that because

Summers expressly refers to the “occupant” of the premises, an inference exists

that “residency” of the defendant is required. He then suggests police could not

stop or detain him as he exited the house because the search warrant did not

expressly implicate him, and they had no other indication M r. Castro-Portillo

resided at the house, had “any ties to the residence,” or was involved in the drug

operation. Apt. Br. at 13-14. In support, he relies on Ybarra v. Illinois, 

(1979), in which the Court determined authorities did not have an articulable

and individualized suspicion to search patrons at a tavern where a search warrant

was executed. 

      W e disagree with M r. Castro-Portillo’s assessment of these cases. In

Summers, the Court generally used the term “occupant” and did not limit the

principles of its decision only to known 

. Rather, it

explained that issuance of a search warrant is based on probable cause that

someone in the home is committing a crime, and “[t]he connection of an occupant

to that home gives the police officer an easily identifiable and certain basis for

determining that suspicion of criminal activity justifies a detention of that

occupant.” 

In M uehler, the Court applied the same principle in

                                         -17-
Summers to a woman found sleeping in a house, whom a SW AT team member

handcuffed and detained while executing a search 

. The

Supreme Court determined her “detention for the duration of the search was

reasonable under Summers because a warrant existed to search [the address] and

she was an occupant of that address at the time of the search.” 

      In this case, authorities admittedly did not know M r. Castro-Portillo w as a

resident of the house. However, they could reasonably conclude M r. Castro-

Portillo was at least an occupant of the house, given he was seen exiting the

premises at roughly the same time the search warrant was executed. M oreover,

the officer making the stop reasonably believed M r. Castro-Portillo was the

“target” of the search, and M r. Castro-Portillo’s failure to provide identification

showing otherwise contributed to that belief. The fact M r. Castro-Portillo was

spotted exiting and reentering the house in order to water plants on the premises

also contributed to the perception of his occupancy, although admittedly, the

officer instructed to make the stop may not have had that information.



      W ith respect to M r. Castro-Portillo’s reliance on Ybarra, the Summers

Court expressly warned that a “seizure” issue “should not be confused with the

‘search’ issued presented in Ybarra v. 

n.4. In other

words, while police officers have “categorical” authority to detain occupants

                                         -18-
subject to a lawful search warrant for contraband, they do not have the same

authority to search the persons they detain, as the police improperly did in

Ybarra. See also Denver 

(pointing out that while

Summers, M uehler, and Ritchie support categorical authority to detain, they do

not support a categorical authority to conduct a pat-down search, unless an

inherently dangerous situation arises where the search warrant covers items

related to w eapons, gang membership, violent crime, or contraband). 4



      Finally, M r. Castro-Portillo contends that because his detention was

improper, any inculpatory evidence obtained should be suppressed. Relying on

the three factors identified in Brown v. Illinois, 

(1975), to determine

if a confession is tainted by a prior illegal detention, he argues his illegal

detention led to a chain of events, including his confession, which ultimately tied

him to the inculpatory evidence found. However, because M r. Castro-Portillo

was not improperly detained, we must discredit this argument and need not apply

the factors outlined in Brown.




      4
          M r. Castro-Portillo does not appeal the police officer’s initial waistband
search. Therefore, we do not address this issue other than to point out that the
search of his person for weapons is distinguishable from the random search of
patrons in Ybarra. In this case, extenuating circumstances existed, including the
fact M r. Castro-Portillo left a residence suspected of housing a drug operation and
containing weapons in support of that operation.

                                          -19-
      Applying our standard of review to the district court’s denial of M r. Castro-

Portillo’s motion to suppress evidence, we conclude he has failed to meet his

burden of showing the challenged detention was illegal under the Fourth

Amendment. See 

. For these reasons, we hold the

district court did not err in denying M r. Castro-Portillo’s motion to suppress.



                             B. Notice of Enhancement

      In appealing his sentence, M r. Castro-Portillo claims the original

information filed by the government under 21 U.S.C. § 851, while timely, did not

provide him adequate notice of the enhancement for the purpose of applying it to

Count 4 for his marijuana possession. He bases his argument on the fact the

information did not reference his marijuana count or the corresponding subsection

§ 841(b)(1)(D) and, instead, referred only to the cocaine- and methamphetamine-

related subsections of § 841(b), which the government represented would be the

only counts to which the enhancement would apply. Because he was acquitted of

those counts, M r. Castro-Portillo contends the enhancement cannot apply, even

though he previously admitted he committed the prior Texas crime at issue.

W hile he concedes the government is not required “to specify which counts of the

indictment notice relates to,” he contends that once the government does commit




                                         -20-
to a count, “it cannot subsequently pursue enhancement of unspecified counts.” 5

Apt. Br. at 20. In support of his argument, M r. Castro-Portillo relies on various

circuit decisions for the proposition that one of the purposes of § 851 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.” Apt. Br. at 20-21. See United States v. Williams, 

, 1181 (11th Cir. 1995); see also United States v. Hamilton, 

, 1168-69 (9th Cir. 2000); Kelly v. United States, 

, 1109 (7th

Cir. 1994); United States v. Johnson, 

, 407 (8th Cir. 1991). Based

on this proposition alone, M r. Castro-Portillo contends the information

undermined his assessment of “the consequences of a guilty plea or verdict” with

respect to his marijuana count. Apt. Br. at 21. However, he provides no other

specifics to support his contention nor otherw ise explains how he was prejudiced.



      W e begin with an examination of 21 U.S.C. § 851, which states, in part:

      (a) Information filed by United States Attorney



      5
        The government now concedes it was not a clerical error to omit Count 4
from the information, but suggests the original § 851 information nevertheless
provided M r. Castro-Portillo the requisite notice. Specifically, the government
contends reference in the original information to some § 841(b) subsections
without reference to the subsection pertaining to the marijuana count did not
prejudice M r. Castro-Portillo, given the notice requirements were met and he
knew the government intended to seek an enhanced sentence based on the Texas
conviction.

                                        -21-
      (1) N o 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. Upon a showing by the United States attorney that facts
      regarding prior convictions could not with due diligence be obtained
      prior to trial or before entry of a plea of guilty, the court may
      postpone the trial or the taking of the plea of guilty for a reasonable
      period for the purpose of obtaining such facts. Clerical mistakes in
      the information may be amended at any time prior to the
      pronouncement of sentence.

21 U.S.C. § 851 (emphasis added).



      W e have said § 851 was enacted to fulfill the due process requirement that

a defendant “receive reasonable notice and opportunity to be heard relative to the

recidivist charge even if due process does not require that notice be given prior to

trial on the substantive offense.” United States v. Gonzalez-Lerma, 

,

1485 (10th Cir. 1994) (quotation marks and citation omitted). See also United

States v. King, 

, 489 (6th Cir. 1997). Thus, our inquiry is whether

the information provided the defendant “reasonable notice of the government’s

intent to rely on a particular conviction and a meaningful opportunity to be

heard.” G onzalez-Lerm a at 1485 (quotation marks and citation omitted). See also

United States v. Curiale, 

, 1076 (8th Cir. 2004); Perez v. United

States, 

, 1266 (11th Cir. 2001); 

. Because

“[s]ection 851 does not specify the particular form which [a] notice of

                                         -22-
enhancement must take ...,” G 

, we must be careful

not to “elevate form over substance,” 6 

. See also

; United States v. Layne, 

, 576 (6th Cir.

1999); 

. However, when an error of a non-clerical nature is

made w hich might negatively implicate proper notice of an enhancement or a

meaningful opportunity to be heard, this and at least three other circuits consider

whether the defendant was prejudiced by the error. See U nited States v. Lopez-

Gutierrez, 

, 1246 (10th Cir. 1996); United States v. Severino, 

, 944 (9th Cir. 2003); United States v. Steen, 

, 1025-26 (5th

Cir. 1995); United States v. Campbell, 

, 248 (4th Cir. 1992).

B ecause the sufficiency of an information filed under § 851 is a question of law ,

we review the issue de novo. See 

; 

-

88; 

.



      W e begin by examining the various circuit court decisions on which M r.

Castro-Portillo relies. W e do not differ with the propositions set forth in those

cases, but find his reliance on them somewhat misguided. Three of the cases

      6
         It is important not to elevate form over substance because a distinction
exists between the strict procedural requirements in § 851 regarding the “giving
of notice, such as service and filing, which are explicit in the statute, and the
precise information that must be included in an information, which the statute
does not specify.” United States v. Weaver, 

, 247 (3d Cir. 2001). A s
the Third Circuit further noted, “[c]ourts have often found that the statute permits
more flexibility with respect to the latter.” 

concern the timely filing of an information. In those cases, the court

determined filing the information before jury selection or before the first trial

gave the defendant time to determine whether to enter a plea or go to trial and to

plan his trial strategy with full knowledge of the consequences of a potential

guilty verdict. See William 

; 

;

. In other words, the defendant would know the

government planned on seeking an enhancement based on the prior conviction and

could timely determine whether to plead guilty in an attempt to avoid the

consequences of such an enhancement if convicted. The fourth case, United

States v. Hamilton, concerns an information filed before trial which identified the

prior conviction by the wrong 

. However, because the

information contained all other pertinent data about the prior conviction, the court

determined the defendant could not have been confused about the prior conviction

and, therefore, had sufficient notice for the purpose of advancing to trial or

pleading guilty. 

      The issues of timely filing of the information and proper identification of

the prior conviction have not been raised in this appeal. M oreover, none of the

cases cited by M r. Castro-Portillo indicate the information must identify the

specific penalty subsections of § 841(b) or that inclusion of some and not other

subsections of § 841(b) in the information is per se prejudicial. Instead, M r.

                                         -24-
Castro-Portillo concedes § 851 does not require the government to identify the

counts to which the notice relates. See 

(holding § 851

does not require the government to identify any subsections of § 841). 7 W e note

the statute itself, § 841(b), explains the statutory sentence for each count a

defendant faces and the increase to those sentences if a prior conviction

enhancement is applied. See generally 21 U.S.C. § 841(b). Thus, had the original

information not contained reference to any § 841(b) subsections but provided M r.

Castro-Portillo with notice an enhancement would be sought, he and his counsel

could have generally relied on § 841 to assess the penalties and enhanced

penalties outlined therein to determine the risks associated with advancing to trial

or pleading guilty on each count.



      However, in the actual situation presented, the original information is

problematic because it included reference to some and not other subsections of

§ 841(b), and the government verbally represented it would not apply the

enhancem ent to M r. Castro-Portillo’s heroin and m arijuana counts. Under these

circumstances, M r. Castro-Portillo reasonably contends he believed the



      7
          In Campbell, the information sought an enhancement in conjunction with
one subsection, § 841(b)(1)(C), but instead should have referenced another
subsection, § 

. The court made its determination no
prejudice occurred, in part on the fact that, unlike here, counsel “conceded that
his trial strategy would have been no different had the government’s pretrial
information recited the correct sub-part.” 

                                         -25-
enhancement would apply only to the cocaine and methamphetamine counts.

However, even if he believed the enhancement would not apply to the marijuana

count, it is unclear how he was prejudiced. Clearly, M r. Castro-Portillo knew the

enhancement would increase the statutory sentence for the cocaine and

methamphetamine counts from a minimum sentence of five years to ten years in

prison. See 21 U.S.C. § 841(b)(1)(B)(ii) and (viii). Nonetheless, M r. Castro-

Portillo proceeded to trial on those counts. Given his decision to proceed on

those counts, M r. Castro-Portillo has not explained why, if he had known of the

enhancement’s application to the marijuana count, he would have pled guilty

rather than proceed to trial, especially given the enhancement would have

similarly increased his maximum sentence from five to ten years. See 21 U.S.C.

§ 841(b)(1)(D). W ithout further explanation, M r. Castro-Portillo’s contention

seems based on hindsight rather than any trial or guilty plea strategy.



      The lack of any specific argument from M r. Castro-Portillo explaining why

he w ould have otherw ise pled guilty if he had known of the enhancement’s

application to the marijuana charge leads us to conclude he suffered no prejudice

from the information’s reference to some, but not other, penalty subsections of

§ 841(b). In other words, nothing about M r. Castro-Portillo's argument persuades

us he would have pled guilty or presented a different defense or trial strategy if

the original information had identified the additional subsection relating to the

                                         -26-
marijuana conviction. See 

; 

.



                                 IV. Conclusion

      For these reasons, w e A FFIRM M r. Castro-Portillo's conviction and

sentence.



                                     Entered by the C ourt:

                                     W ADE BRO RBY
                                     United States Circuit Judge




                                       -27-