NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0303n.06

                                           No. 17-3468

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                 Jun 15, 2018
 UNITED STATES OF AMERICA,                               )                   DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )
                                                                ON APPEAL FROM THE
 v.                                                      )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT FOR THE
 MARK ANTHONY BROWN,                                     )
                                                                SOUTHERN DISTRICT OF
                                                         )
                                                                OHIO
        Defendant-Appellant.                             )
                                                         )
                                                         )



       Before: SILER and LARSEN, Circuit Judges; BLACK, District Judge.*

       LARSEN, Circuit Judge. A jury found Mark Brown guilty of possessing cocaine base, in

violation of 21 U.S.C. § 844(a). He appeals his conviction, contending that the trial court allowed

an impermissible amendment to the indictment, that the jury lacked sufficient evidence to convict,

and that the trial court erroneously permitted expert testimony from a lay witness. Brown also

appeals his eighteen-month sentence, arguing that he should not have received an enhancement for

a prior drug offense because the government failed to comply with the procedural requirements of

21 U.S.C. § 851(a). We AFFIRM Brown’s conviction and his sentence.




* The Honorable Timothy S. Black, United States District Judge for the Southern District of Ohio,
sitting by designation.
No. 17-3468
United States v. Brown

                                                  I.

       In 2015, Columbus police arrested Brown in his home after receiving a phone call about

an altercation there. While sweeping the house for other occupants, officers noticed several items

in plain view atop a coffee table, some ten feet from the front door: a digital scale, an open box of

plastic sandwich bags, and approximately one gram of crack cocaine in a plastic sandwich bag.

After obtaining a warrant to search the home for evidence of drug trafficking, police recovered

opened mail addressed to Brown, also located on the living room coffee table, as well as weapons,

ammunition, and drug paraphernalia found throughout the house.

       Brown was charged with possessing cocaine base with intent to distribute, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(C), and being a felon in possession of a firearm and ammunition,

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).        The indictment identified a prior Ohio

conviction for drug trafficking as the predicate offense for the latter charges.

       On the first day of trial, the court granted the government’s request to correct the offense

date in the indictment, which mistakenly identified the day of Brown’s arrest as “on or about May

16, 2015,” rather than June 19, 2015. Brown argued that the correction would prejudice his

constitutional rights, but the court disagreed, observing that the offense date proved by the

evidence need be only “reasonably near” the date given in the indictment, as “on or about”

preceded the date presented to the grand jury. The court accordingly instructed the jury that the

government was obliged to prove that Brown committed the alleged crimes “on or about June 19,”

and explained that “on or about” means “reasonably close to.”

       Just before closing arguments, defense counsel asked the court to allow the jury to consider

the lesser included offense of simple drug possession, 21 U.S.C. § 844(a), as an alternative to




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No. 17-3468
United States v. Brown

possession with intent to distribute. The judge agreed, and the jury found Brown guilty of simple

possession alone.

       A conviction for simple possession carries a maximum sentence of one year’s

imprisonment, but a prior drug conviction can boost that to two years if the government seeks a

recidivism enhancement. 21 U.S.C. § 844(a). In its post-trial sentencing memorandum, the

government expressed its intent to pursue the enhancement, with Brown’s prior state drug

conviction serving as the predicate offense. In his response memorandum, and again at the

subsequent sentencing hearing, Brown argued that the government’s failure to file a pretrial

information announcing its plans to seek the enhancement, as 21 U.S.C. § 851(a) requires,

foreclosed the increased penalty. The district court rejected this argument, concluding that Brown

had been given reasonable notice of the possible enhancement, as well as an opportunity to be

heard on the subject. It sentenced him to eighteen months’ imprisonment.

                                                 II.

       Brown first claims that the district court allowed an impermissible amendment to the

indictment. We review that claim de novo. United States v. Manning, 

, 339 (6th Cir.

1998). An amendment manifests “when the charging terms of the indictment are altered, either

literally or in effect, by prosecutor or court after the grand jury has last passed upon them.” United

States v. Ford, 

, 1235 (6th Cir. 1989) (citation omitted). If “the charging terms of

an indictment are effectively altered, the accused is held answerable for a charge not levied through

the protective device of a grand jury.” 

the Fifth Amendment’s guarantee of a

grand jury’s indictment, as well as the two additional constitutional rights that this guarantee

safeguards: fair notice of criminal charges, and security from double jeopardy. United States v.

Combs, 

, 935 (6th Cir. 2004).


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No. 17-3468
United States v. Brown

       But not every change to an indictment implicates the Fifth Amendment. An alteration that

“is merely a matter of form” and does not affect the document’s charging terms, does not violate

the Constitution. Russell v. United States, 

, 770 (1962) (noting that this is “the settled

rule in the federal courts”). An adjustment to the indictment’s offense date is “merely a matter of

form,” 

offense date is not “an important element of the charged offense,” the

“evidence shows that the offense was the one charged,” and the evidence demonstrates that the

defendant committed the charged offense “on a date before the indictment and within the statute

of limitations,” United States v. Barnett, 89 F. App’x 906, 907 n.1 (6th Cir. 2003) (per curiam)

(quoting United States v. Leichtnam, 

, 376 (7th Cir. 1991)); see United States v.

Rosenbaum, 628 F. App’x 923, 929 (6th Cir. 2015) (upholding the correction of an indictment’s

offense date from April 2008 to August 2007 because the wrong date was “a clerical error” and

the defendant had notice of the correct date).

       Here, the district court adjusted the indictment’s offense date by thirty-five days, from “on

or about May 16, 2015,” to “on or about June 19, 2015.” This is a mere change of form not

affecting the indictment’s charging terms. The precise date on which the police arrested Brown

and found the cocaine is not “an important element of the charged offense.” Barnett, 89 F. App’x

at 907 n.1. The correct offense date preceded the indictment, and no statute-of-limitations issue is

in play. See 

evidence presented at trial concerned the right date, June 19, including the

testimony of each witness who described the events of that day. See 

ample notice of the correct date through the testimony presented at a

pretrial evidentiary hearing, as well as what his counsel described as “a significant amount of

discovery identifying the June date.” Thus, the alteration of the offense date neither affected the




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No. 17-3468
United States v. Brown

indictment’s charging terms nor implicated Brown’s right to fair notice of the charges against him.

See 

.

                                                III.

       At the close of the government’s proof, and again at the end of the trial, Brown moved for

acquittal, arguing that the government had not established actual or constructive possession of the

cocaine found in his house. On appeal, Brown persists that the jury had insufficient evidence to

find him guilty of simple drug possession—a claim we review de novo. United States v. Tocco,

, 424 (6th Cir. 2000).

       When determining whether the government met its burden of proof, we view the evidence

“in the light most favorable to the prosecution.” 

v. Virginia, 

,

319 (1979)). We recall that the jury “may draw any reasonable inferences from direct, as well as

circumstantial, proof.” 

evidence alone” can provide a sufficient

buttress for a conviction. United States v. Spearman, 

, 746 (6th Cir. 1999) (quoting

United States v. Vannerson, 

, 225 (6th Cir. 1986)). We will uphold the jury’s verdict

if we conclude that “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” 

(quoting 

).

       To establish simple possession under 21 U.S.C. § 844, the government was obliged to

prove beyond a reasonable doubt that Brown “(1) knowingly or intentionally, (2) possess[ed],

(3) a controlled substance.” United States v. Colon, 

, 375 (6th Cir. 2001). Possession

“need not be exclusive” and may be constructive, meaning that the defendant “knowingly ha[d]

the power and the intention at a given time to exercise dominion and control over” the controlled

substance. United States v. Jenkins, 

, 484 (6th Cir. 2010) (quoting United States v.

Hadley, 

, 507 (6th Cir. 2005)).


                                                -5-
No. 17-3468
United States v. Brown

       Here, the evidence established that, while Brown was not the leaseholder of the house in

which the police found the cocaine, he paid the rent and lived there full time. Three other people

also lived there and had access to the common areas. When police entered the house, Brown was

the only person home, other than his then-girlfriend, who was upstairs and appeared “kind of

passed out,” unable to stand or “really talk.” Police noticed the cocaine atop a coffee table in the

living room, about ten feet from the front door where they met Brown. On the table alongside the

drugs were several letters, opened and addressed to Brown.

       Brown contends that his mere residence in the house, and the cocaine’s location beside his

personal mail, is inadequate to support a possession conviction, but “[c]ircumstantial evidence

alone” can be enough for a rational jury to find the elements of a crime beyond a reasonable doubt.

. Here, a rational jury could draw the inference that Brown had “the

power and the intention at a given time to exercise dominion and control” over the cocaine.

(quoting 

). We have frequently upheld guilty

verdicts where, as here, no direct evidence tied the defendant to drugs, but the defendant lived in

or had unlimited access to the place in which police spotted drugs in plain sight. For example, we

have found sufficient evidence to uphold possession convictions where drugs were located in plain

view in the apartment the defendant “occupied and controlled,” United States v. Carter, 

, 1028 (6th Cir. 1973) (per curiam); where drugs were located in plain sight in an apartment

that the defendant had just exited, outside of which he sold drugs and to which he had unlimited

access, United States v. Gibbs, 

, 424–25 (6th Cir. 1999); and where drugs were

interspersed with the defendant’s personal papers in the house where he lived part time, 

.




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No. 17-3468
United States v. Brown

       Brown protests that other people had access to the house, so he was not the sole possible

owner of the cocaine. But it was not the prosecution’s burden to prove him so, as shared possession

is also culpable. See 

. Alternative culprits existed in Carter, Gibbs, and

Jenkins, too. Yet, in those cases, we held that a rational jury could reasonably infer constructive

possession from evidence that the defendant had “[u]nlimited access to a particular area” in which

the police found drugs “in plain sight.” 

–25 (citing United States v.

Kincaide, 

, 782 (6th Cir. 1998)). So too here.

                                                 IV.

       Brown next argues that Robert Vass, a Columbus police officer whom the government

called as a lay witness under Federal Rule of Evidence 701, improperly offered expert testimony.

We review the district court’s admission of Officer Vass’s testimony for plain error, as defense

counsel did not object at trial.1 United States v. Warman, 

, 345 (6th Cir. 2009). For

us to find plain error, Brown must show the occurrence of an obvious or clear error that affected

his substantial rights and the trial’s fairness, integrity, or public reputation. 

to show

that the error affected his substantial rights, Brown must show that the error was prejudicial,

“which means that there must be a reasonable probability that the error affected the outcome of




1
  Although Brown insists that defense counsel did object at trial, the record belies this assertion.
The government initially sought to introduce Officer Vass as an expert witness, to which defense
counsel successfully objected because the government had not complied with the disclosure
requirements of Federal Rule of Criminal Procedure 16. The parties then agreed at sidebar that
Officer Vass would testify as a lay witness. Defense counsel stated, “Then our only concern is
that [the government] would stay within the restrictions under 701 and not go beyond that and
cross into 702.” The court concluded the sidebar by advising defense counsel, “[I]f there is an
objection, . . . you will let me know, and we will discuss it at side-bar.” Officer Vass testified at
some length. At no point did defense counsel object that the nature of his testimony exceeded the
scope of a lay witness.
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No. 17-3468
United States v. Brown

the trial.” United States v. Marcus, 

, 262 (2010) (citing United States v. Dominguez

Benitez, 

, 83 (2004); United States v. Olano, 

, 734–35 (1993)).

       A non-expert witness’s opinion testimony “is limited to” those opinions that are

“(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other

specialized knowledge.” Fed. R. Evid. 701. When an officer gives “opinions that rely on the

agent’s specialized training as a law enforcement officer,” as opposed to “personal knowledge of

a particular investigation,” he gives expert testimony. United States v. Kilpatrick, 

,

384 (6th Cir. 2015). We have said that police testimony that draws on extensive training and

experience to describe the practices of drug traffickers and identify artifacts common to the drug

trade constitutes “specialized knowledge” exceeding the average juror’s experience. United States

v. Lopez-Medina, 

, 742–44 (6th Cir. 2006); see also United States v. White, 

, 403–04 (6th Cir. 2007) (holding that investigators gave expert testimony where they

explained exhibits of which the “average lay person would be incapable of making sense,” using

“specialized knowledge acquired over years of experience” to “clarify and link together [evidence]

on the basis of the ‘reasoning process’ employed daily in their highly specialized jobs” (citation

omitted)).

       At trial, Officer Vass testified to his extensive experience investigating drug trafficking as

an officer with the Columbus Division of Police’s gang unit. He related that he has orchestrated

“[h]undreds” of controlled drug buys to gain intelligence on trafficking operations and is

accordingly familiar with cocaine’s appearance and packaging, as well as the weight and price of

one hit. Officer Vass also testified to traffickers’ frequent use of digital scales, such as the one

found beside the cocaine in Brown’s home, to measure out cocaine for sale. Officer Vass explained


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No. 17-3468
United States v. Brown

how to cook crack cocaine using baking soda, which officers also found in Brown’s house, as well

as how to smoke cocaine utilizing scouring pads and pen stems such as those police seized from

the home. And Officer Vass noted that traffickers often require their buyers to smoke the product

in the place of sale to avoid detection.

       Assuming that these statements plainly constituted expert testimony, Brown has not shown

that their admission affected his substantial rights. See 

. Officer Vass’s

testimony, from his extensive experience in narcotics investigations, as to how traffickers cook,

smoke, weigh, package, and price crack cocaine—as well as how drug traffickers commonly use

the equipment found in Brown’s residence to accomplish these ends—manifestly related to the

trafficking charge of which the jury acquitted Brown. The jury convicted Brown of simple

possession alone. And Officer Vass provided no evidence relevant to that charge. He did not

testify as to whether Brown had “[u]nlimited access” to the home, for example, or whether Brown

paid rent, or had to walk past the cocaine “in plain sight” to meet the arresting officers at the door.

–25 (citing 

). Officer Vass could not have so

testified because, unlike the government’s other police witnesses, he did not participate in the

search of the home, interview its occupants, or even enter until the officers had already removed

Brown. As Officer Vass’s testimony could have played no role in Brown’s simple possession

conviction, Brown cannot show that the testimony’s admission constituted plain error.

                                                  V.

       Finally, we review de novo Brown’s contention that he is entitled to resentencing because

the government failed to comply with the notice provisions of 21 U.S.C. § 851(a) before seeking

a sentence enhancement. United States v. Boudreau, 

, 436 (6th Cir. 2009). Brown’s

conviction for simple possession of cocaine base carries “a term of imprisonment of not more than


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No. 17-3468
United States v. Brown

1 year”; but where the defendant has a prior drug conviction, the statute imposes a mandatory

minimum of fifteen days and raises the maximum to two years. 21 U.S.C. § 844(a). The court

may not impose this increased sentence “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.” 

After a guilty verdict, the court must ask the defendant to affirm or deny

the prior conviction, and inform him that any challenge to that conviction’s validity must precede

imposition of sentence. 

       Here, it is undisputed that the government did not, prior to trial, file a § 851 information

announcing its intent to seek an enhancement and indicating the predicate conviction to support it.

The government contends that a recidivism enhancement would not have made sense for the charge

on which Brown went to trial: drug trafficking under 21 U.S.C. § 841(b)(1)(C). Unlike simple

possession under § 844, drug trafficking under § 841(b)(1)(C) does not impose a mandatory

minimum when the defendant has a prior drug conviction; the statute instead boosts the maximum

sentence from twenty to thirty years. The government explains that it did not file a pretrial

information because it did not plan to seek the maximum sentence, let alone a ten-year

enhancement—indeed, the government observes that Brown’s realistic Guidelines range on the

trafficking charge was merely twenty-seven to thirty-three months.

       The monkey wrench materialized immediately before closing arguments, when Brown

successfully requested that the court charge the jury to consider the lesser included offense of

§ 844 possession, the only charge on which Brown was convicted. In its subsequent sentencing

memorandum, filed with the court and served upon Brown, the government announced that it

would seek twenty-one months’ imprisonment, and indicated that Brown’s Ohio drug


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No. 17-3468
United States v. Brown

conviction—previously included in the indictment as the predicate felony for the weapons

charges—would serve as the predicate conviction for the enhanced penalty. Brown contends that

this was too little, too late for compliance with the mandatory notice requirements of § 851(a).

       This court’s jurisprudence has traditionally “emphasized ‘the importance of interpreting

§ 851’s notice requirements so as to avoid elevating form over substance.’” United States v. Layne,

, 576 (6th Cir. 1999) (quoting United States v. King, 

, 489 (6th Cir.

1997)). It is “well-settled precedent in this Circuit and its sister circuits that section 851 ‘was

designed to satisfy the requirements of due process and provide the defendant with reasonable

notice and an opportunity to be heard regarding the possibility of an enhanced sentence for

recidivism.’” United States v. Pritchett, 

, 548 (6th Cir. 2007) (quoting 

). We have held that the “proper inquiry” in evaluating the government’s compliance

with § 851 is whether the defendant had the benefit of this “substance.” 

–

89. So long as the defendant had reasonable notice of the government’s intent to rely on a

particular conviction to seek an enhancement, as well as the opportunity to contest the

enhancement, we have regularly affirmed enhanced sentences despite the government’s fumbling

of the § 851(a) requirements. See, e.g., United States v. Kelsor, 

, 699–700 (6th Cir.

2011) (holding that errors in the § 851 information did not deprive the defendant “of reasonable

notice or a meaningful opportunity to be heard,” and noting that the defendant did not contest the

validity of the predicate conviction itself); 

–38 (holding that the

government’s failure to docket a § 851 information did not demand resentencing where the

defendant received actual notice that he was subject to an enhanced penalty); 

(holding that the government’s failure to file a § 851 information before the guilty plea did

not require resentencing where the defendant did “not dispute that he had notice” of a possible


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No. 17-3468
United States v. Brown

enhancement or “that he had an opportunity to challenge the validity of his prior convictions”);

–76 (affirming the sentence despite errors in the § 851 information, because

the defendant did “not contend that it failed to provide him with adequate notice of prior

convictions” or show that it denied him a “reasonable opportunity to be heard”).

       United States v. Williams, 

, 1529 (6th Cir. 1990), one of the exceedingly rare

instances in which we have remanded for resentencing because of a § 851 problem, presents a

counterexample. There, until the imposition of sentence, the defendant “had absolutely no notice

of [the possibility of] an enhanced sentence” for a prior conviction—he did not even “know that

the government considered him a prior felony offender.” 

1529. To make matters

worse, the defendant argued that the predicate conviction for the enhancement did not constitute a

valid “conviction” under the relevant state’s law—but he did not receive an opportunity to contest

that conviction’s validity before it was too late. 

n.3.

       Unlike the successful claimant in Williams, Brown cannot argue that the government’s

failure to file a pretrial information deprived him of the “substance” § 851 requires. 

(quoting 

). He does not argue, for example, that he was surprised

that the government knew of his earlier drug conviction, and made outcome-altering decisions on

that basis. Brown could not so argue, of course, because his prior conviction was included in the

indictment as the predicate for the weapons charges on which he went to trial. Neither does Brown

argue that he lacked the opportunity to challenge the old conviction’s validity, or to otherwise

contest the enhancement. Nor could he. First, the presentence investigation report (PSIR) listed

Brown’s prior drug conviction as specified in the indictment, and indicated that Brown’s priors

rendered him eligible for an enhanced sentence under the terms of § 844.             Second, the

government’s sentencing memorandum informed Brown that the government was seeking an


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No. 17-3468
United States v. Brown

enhanced penalty, and reiterated the predicate conviction. Brown’s counsel objected to the PSIR’s

maximum-penalty calculation, filed a responsive sentencing memorandum arguing against the

government’s proposed enhancement, and continued vigorously contesting the matter at the

sentencing hearing. This is not a case in which the defendant lacked “reasonable notice and an

opportunity to be heard regarding the possibility of an enhanced sentence.” 

(quoting 

). Our cases are explicit that these are “all that due

process and Section 851(a) require.” 

is what Brown received, we affirm his

sentence.

       We note that there is another way to look at the matter, too, apart from this court’s

customary, purpose-based approach to the interpretation of § 851. It stems from the “well-

established principle” that, while a defendant is entitled to fairness, he is not entitled to

perfection—and will rarely experience it, as “error-free” proceedings are “not humanly possible.”

United States v. Segines, 

, 851 (6th Cir. 1994) (quoting United States v. Hasting, 

, 508 (1983)). Congress accordingly requires us to review most kinds of error for

harmlessness. 28 U.S.C. § 2111 mandates: “On the hearing of any appeal . . . in any case, the

court shall give judgment after an examination of the record without regard to errors or defects

which do not affect the substantial rights of the parties.” Federal Rule of Criminal Procedure 52(a)

similarly provides: “Any error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded.”

       Brown’s argument all along has been simply that the government is bound to follow the

letter of § 851, no matter what. It did not do that here; therefore, Brown demands relief. Our cases

interpreting § 851 have not taken this approach to the problem, looking instead to whether the

statute’s purpose has been satisfied. But even an approach more focused on the text would not


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No. 17-3468
United States v. Brown

give Brown the relief he seeks. For even if the government had failed to comply with § 851, the

harmless-error statute and the rules that bind this court would oblige us to “disregard[]” the error

unless Brown could demonstrate prejudice. 28 U.S.C. § 2111; Fed. R. Crim. P. 52(a). He could

not do so, for the same reasons we outlined above. Brown knew the government was aware of his

prior conviction. Once the government decided to seek an enhancement based on that conviction,

he received reasonable notice of that intention.2 Brown has not contended that the conviction was

an invalid basis for enhancement. He did not lack opportunity to make his case against an

enhanced sentence before the trial court. He certainly could not posit that, if only the government

had dotted its i’s and crossed its t’s, he would not have received an enhancement. There could be

no harm to Brown’s substantial rights on these facts. See United States v. Hill, 

, 313

(6th Cir. 1998) (holding that the district court’s failure to engage the defendant in a § 851(b)

colloquy was harmless error, because the defendant did not contest the validity of his prior

convictions, despite repeated opportunities to do so). Brown’s claim would accordingly fail under

harmless-error analysis just as it does under our cases interpreting the requirements of § 851.3


2
 Granted, Brown did not receive notice before trial—but how could he, seeing that the government
had no reason to seek the enhancement until after Brown himself moved for the jury to consider a
new charge? Brown suggests that, if the government wanted to ensure the possibility of a sentence
over twelve months, it should have filed a § 851 information before trial just in case Brown later
asked the court to charge the jury to consider the lesser included offense of simple possession.
Certainly, the government could have done so. It could even do so as a matter of course. But this
move would result in routine increased sentencing exposure for defendants—here, it would have
raised Brown’s maximum sentence on the trafficking charge by ten years—even in cases, like this
one, in which the government did not believe such exposure warranted.
3
  Brown argues that a failure to comply with § 851 would constitute structural error. But the
Supreme Court has recognized a small set of errors that fall into this category. They are
characterized either by the Court’s inability to gauge their effect on the outcome, or by the Court’s
certainty that such errors will almost always adversely affect the outcome, such that it is not
efficient to conduct the analysis. See Arizona v. Fulminante, 

, 307–10 (1991)
(explaining that errors whose effect may “be quantitatively assessed in the context of other
evidence” are subject to review for harmlessness, as opposed to “structural defects” whose
“evidentiary impact” “def[ies] analysis by ‘harmless-error’ standards”); see also Neder v. United
                                                -14-
No. 17-3468
United States v. Brown

                                                ***

       For the foregoing reasons, we AFFIRM Brown’s conviction and sentence.




States, 

, 7–8 (1999) (recognizing that harmless-error analysis does not apply to errors
“so intrinsically harmful as to require automatic reversal . . . without regard to their effect on the
outcome”). A failure to comply with the notice requirements of § 851 fits neither category: we
are able to determine whether a defendant was harmed by a failure to receive a § 851 notification
before trial, and the incidence of harm is not so overwhelmingly frequent that it is not worth
making the assessment.
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