01-3715, 01-3716, 01-3717, 01-3718, 01-4007, 01-4008, 01-4021 & 01-4095 U.S. v. Ceballos, et al.

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“Section 851(a) requires the government to serve its information before trial. Federal Rule of Criminal Procedure 49(b) governs the service of papers in criminal cases and states that ‘[s]ervice upon the attorney or upon a party shall be made in the manner provided in civil actions.’ The relevant civil rule, Federal Rule of Civil Procedure 5(b), provides that ‘[s]ervice . . . is made by . . . [m]ailing a copy to the last known address of the person served’ and that ‘[s]ervice by mail is complete on mailing.’ In United States v. Novaton, 271 F.3d 968, 1015 (11th Cir. 2001), the government filed a § 851(a) information the day before trial commenced and mailed a copy of it to the defendant’s counsel that same day. The court noted that Federal Rule of Criminal Procedure 49(e) and Federal Rule of Civil Procedure 5(b) applied and accordingly held that because the government mailed the information the day before trial, the ‘service of the government’s § 851 notice in this case was completed the day before trial began, in conformance with the procedural requirements of 21 U.S.C. § 851(a)(1).’ Id. at 1016. Likewise in our case, the government’s § 851(a) information was served two days before trial when the government mailed it to defense counsel, and thus the government satisfied the requirements of § 851(a). See id.; see also United States v. White, 980 F.2d 836, 840 n.8 (2d Cir. 1992) (holding that service of § 851 information is complete upon mailing). Moreover, the government advised Deneise’s counsel before trial that it would seek an enhanced sentence due to Deneise’s prior convictions if she rejected its plea offer. Further, the government identified the specific convictions upon which it would rely for the enhancement at that same time. After Deneise rejected the plea three days before trial, the government filed its § 851(a) information and mailed a copy to defense counsel. In addition, during a pretrial conference two days before trial, the government told defense counsel that it had filed the information the preceding day and had mailed a copy to him. In her appellate brief, Deneise conceded that her attorney communicated this information to her before trial. Thus, Deneise had actual knowledge of the enhancement before trial, which supports our conclusion that the district court properly enhanced Deneise’s sentence.

“We have never ruled on the precise issue at hand – whether the government must prove that the defendant intended to use the minor to shield himself from prosecution in order to invoke § 3B1.4. However, several decisions are instructive. For example, in United States v. Smith, 223 F.3d 554, 566 (7th Cir. 2000), we addressed 21 U.S.C. § 861(a)(1), which makes it unlawful to use a person under the age of eighteen to violate any provision of the Controlled Substance Act. We held that § 861(a)(1) does not require the government to establish that the defendant knew the minor’s age to support a conviction. See id. In reaching this decision, we recognized that requiring the government to prove the defendant’s knowledge of the minor’s age would undermine the legislative purpose behind the statute. See id. In addition, in United States v. Ramsey, 237 F.3d 853, 859-60 (7th Cir. 2001), we addressed whether the fact that the minor had a substantial role in the offense precluded the application of § 3B1.4. We held that it did not, noting that ‘[t]o shield defendants from application of this provision simply because the minor that they solicited is given a substantial role in the commission of the offense would be a blow to the purpose of the provision: to discourage defendants from involving minors in the commission of crimes.’ Id. at 860. Based on the plain language and purpose of § 3B1.4, our prior interpretation of the federal statute addressing the use of minors by drug traffickers, and the Ninth and Eleventh Circuits’ interpretation of § 3B1.4, we hold that the government is not required to prove that the defendants intended to use the minor to shield themselves from prosecution in order for § 3B1.4 to apply. Accordingly, the district court erred in not enhancing Ceballos’s and Martinez- Guzman’s sentences.”

Affirmed in part, Vacated in part, and Remanded.

Appeals from the United States District Court for the Southern District of Indiana, Young, J., Kanne, J.