10-1148 U.S. v. Webster

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Criminal Procedure
Invalid information; plain error

Where the only effect of a defendant’s raising the invalidity of the information would be to lower the mandatory minimum term of supervised release, the sentence is not plain error.
“We do not have a decision on point, but that would not keep us from concluding that any attempt by Webster to skirt the effect of § 851(c)(2) would be frivolous. See United States v. Lopez-Flores, 275 F.3d 661, 662-63 (7th Cir. 2001) (‘[A] ground of appeal can be frivolous even if there is no case on point-may be frivolous because, for example, of the clarity of statutory language, or even as a matter of common sense.’). Yet we need not go so far in this case because, even if the potential issue is not waived entirely by application of § 851(c)(2), the question is nevertheless frivolous when scrutinized under the plain-error standard. See Lewis, 597 F.3d at 1347. Under that standard Webster would have to prove that the district court committed an obvious error that affected substantial rights and undermined the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732-34, 736 (1993). The error here is clear and affected Webster’s substantial rights since it led the district court to conclude that the minimum term of supervised release was six years, not three. See United States v. Graham, 317 F.3d 262, 265, 273- 75 (D.C. Cir. 2003) (substantial rights affected where district court sentenced defendant under wrong subsection of § 841, leading to higher minimum term of supervised release). But Webster would be unable to persuade us that the court’s error in calculating the minimum term of supervised release seriously affected the fairness, integrity, or public reputation of the proceedings and must be corrected. See United States v. Mouling, 557 F.3d 658, 667 (D.C. Cir. 2009). The district court’s error here was inadvertent. As counsel notes, the district court followed the procedural requirements of § 851 and gave Webster notice of the proposed enhancement and an opportunity to challenge the use of the state distribution offense for enhancement. See United States v. Lane, 591 F.3d 921, 927 (7th Cir. 2010). And since all violations of § 841(a)(1) carry the potential for a life term of supervised release, see United States v. Pollard, 249 F.3d 738, 739 (8th Cir. 2001); United States v. Eng, 14 F.3d 165, 166, 168, 171-73 (2d Cir. 1994), the government’s use of Webster’s state conviction for enhancement raised only the statutory minimum term. With or without the Information filed by the government, the district court could have imposed a term of six years or longer. Thus, we agree with appellate counsel that it would be frivolous to argue that the sentencing court committed plain error.”
Dismissed.

10-1148 U.S. v. Webster

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Per Curiam.

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