Case: 13-15177    Date Filed: 08/24/2015   Page: 1 of 6


                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-15177
                            Non-Argument Calendar
                         _________________________

                  D.C. Docket No. 8:11-cr-00012-JDW-AEP-2

UNITED STATES OF AMERICA,

                                                    Plaintiff – Appellee,
versus

KENNETH LAMAR MADDEN,

                                                    Defendant-Appellant.

                         __________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        __________________________

                                (August 24, 2015)

Before TJOFLAT, WILSON, and COX, Circuit Judges.

PER CURIAM:

      Defendant Kenneth Lamar Madden (“Madden”) appeals the amended final

judgment of the district court (DE 192) entered after this court’s remand in United
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States v. Madden, 

(11th Cir. 2013) (“Madden I”). We affirm the

amended final judgment.

       No purpose is served by recounting all of the facts underlying Madden I or

the proceedings in the district court upon remand.                We presume the parties’

familiarity with those facts and proceedings. We recount only those facts and

proceedings needed for the reader to understand our decision on this appeal.

       The jury trial that culminated in Madden I resulted in Madden’s conviction

of all three counts in a superseding indictment. Madden I affirmed two of the three

convictions and sentences. Madden I affirmed the Count 1 conviction for cocaine

trafficking. Madden received a life sentence for that conviction, which included

prior-conviction enhancement imposed in accordance with 21 U.S.C. § 851.1

Madden I confirmed the Count 3 conviction for cocaine possession. Madden

received a ninety-day sentence for that conviction to run concurrently with the

Count 1 sentence.        Madden I reversed Madden’s conviction for possessing a

firearm in violation of 18 U.S.C. § 924(c) (Count 2) because the district court’s

charge to the jury constructively amended the superseding indictment. The case




       1
         The possession with intent to distribute violation comprising Count 1 of the superseding
indictment alleges a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii), and calls for penalty
enhancement if there have been prior felony drug convictions as determined by the Section 851
procedure. Madden had four prior felony drug convictions when he was sentenced on Count 1 to
life imprisonment, the statutory maximum.

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was remanded to the district court for proceedings consistent with the Madden I

.

      On remand, the Government moved to dismiss Count 2 (DE 191). The

district court granted the motion (DE 193). The district court entered an amended

judgment (DE 192) that omits any reference to the Count 2 conviction or sentence

and does not alter this court’s disposition of the convictions or sentences with

respect to Counts 1 and 3. This action by the district court complied with this

court’s mandate. Madden I “reversed Madden’s conviction on Count 2” and

“affirm[ed] Madden’s other 

. Madden I did not

vacate the sentences imposed for the Counts 1 and 3 convictions. The court’s

judgment, “issued as the mandate of [the] court,” reads, “it is hereby ordered,

adjudged, and decreed that the opinion issued . . . is entered as the judgment of this

Court.” (DE 97: Mandate in Case No. 11-14302 (Madden I)).

      On this appeal, Madden contends that the district court should have held a

resentencing hearing to determine whether the Supreme Court’s decision in

Alleyne v. United States, 570 U.S.___, 

(1998), impacted the 18

U.S.C. § 851 prior-conviction enhancement of his Count 1 sentence. Because

Madden I already had affirmed the Count 1 conviction and had not vacated the

corresponding life sentence, which the mandate reflects, any action by the district

court inconsistent with the mandate would have had to have satisfied one of the

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three exceptions to the mandate rule. See United States v. Amedeo, 

,

830 (11th Cir. 2007) (explaining mandate rule and listing exceptions). Madden

contends that Alleyne qualifies under the second exception, which is “controlling

authority [that] has since made a contrary decision of law applicable the [subject]

issue.” 

      First, Alleyne was decided two months before this court issued its opinion in

Madden I and three months before issuance of the Madden I mandate. Alleyne is

not controlling authority handed down after the mandate and before the district

court’s compliance with the mandate by entering its amended final judgment.

Alleyne does not satisfy the criterion of the second exception to the mandate rule

because it was decided before the Madden I mandate issued. We reject this

contention as a basis for the relief Madden seeks.

      Second, even if this court assumes for the sake of argument that Alleyne

constitutes an exception to the mandate rule and the district court erred in not

considering Madden’s Alleyne-based challenge, we must ignore the error because it

did not affect Madden’s substantial rights. FED. R. CRIM. P. 52(a) (“Any error,

defect, irregularity, or variance that does not affect substantial rights must be

disregarded.”) Madden’s Alleyne-based argument is that his enhanced Count 1

sentence must be vacated because the fact that he had prior convictions was not

submitted to the jury and was not found beyond a reasonable doubt by a jury. At

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least, he argues, the district court should have considered the impact of Alleyne on

the Section 851 enhancement. This argument is foreclosed by the Court’s holding

in Almendarez-Torres v. United States, 

, 

(1998).2

According to the Almendarez-Torres Court, the mere fact of a prior conviction, for

which Section 851 imposes a sentence enhancement, is not an “element” of a crime

that must be found by a jury. The Alleyne Court did not overrule Almendarez-

Torres; it remains good law. See Alleyne, 570 U.S. ___, 133 S. Ct. at 2160, n.1.

Because the only enhancement to his Count 1 sentence that Madden challenges is

the Section 851 enhancement, and because Alleyne, the only authority upon which

his challenge is based, does not control, the district court’s affording Madden a

hearing on the issue was not required by the “controlling authority” exception to

the mandate rule. We reject this contention as a basis for the relief Madden seeks.

       Because Madden would not have been entitled to any relief related to his

Count 1 sentence even if the district court had considered his Alleyne argument in a

written response to the Government’s motion to dismiss submitted under the

applicable local rule, or at a hearing, we further conclude that the district court did

not abuse its discretion by not awaiting Madden’s response or by not affording him

a hearing. Madden has not demonstrated that he suffered any prejudice because he


       2
         Almendarez-Torres is not a prior drug conviction case, but this court has applied it to
Section 851 enhancements. See United States v. Shelton, 

, 1329 (11th Cir. 2005).

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was not allowed to file a written response the Government’s motion to dismiss.

Without deciding whether the district court should have awaited a response as

provided in its own local rule, we hold that any such error was harmless.

      The district court here correctly followed our mandate with the amended

final judgment and correctly rejected Madden’s argument that Alleyne necessitated

resentencing under Count 1.

      AFFIRMED.




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