Sentencing; Enhanced 10-year statutory minimum based on a previous “serious drug felony”; 21 USC § 841(b)(1); The procedures for imposing the enhancement; § 851; Whether those procedures violate the Constitution; Whether any constitutional violation in not submitting the requirements for the enhancement to the jury was harmless error; Prosecutorial discretion regarding the enhancement; “Vindictive prosecution”; Whether defendant’s previous conviction was “final” before he committed the crimes in this case; United States v Miller

The court affirmed the imposition of the enhanced 10-year statutory minimum under § 841(b)(1) based on defendant-Loines’s previous serious drug felony, holding that any error in not sending that issue to the jury was harmless. It also rejected his prosecutorial vindictiveness claim and found that his prior conviction had become “final” when he committed the offenses here. Finally, it also upheld his career-offender enhancement. Just before a change-of-plea hearing, Loines was formally notified under § 851 that the government would seek the enhanced 10-year statutory minimum under § 841(b)(1) based on his previous serious drug felony. He still pled guilty to several drug charges in this case. Before sentencing, he objected to various proposed enhancements. As to the one under § 841(b)(1), he argued “that the § 851 procedures for imposing the enhancement violated the Constitution because they required a judge, not a jury, to identify critical facts necessary for the enhancement. He also claimed that the enhancement should not apply because his prior offense had yet to reach finality when he committed his current crimes.” The district court conducted an evidentiary hearing, overruled his objections, and applied the enhancement. It also rejected his challenge to the career-offender enhancement and sentenced him to 160 months. On appeal, the court concluded that it did not have to “decide whether the Fifth and Sixth Amendments require a jury to find” the facts for the § 841(b)(1) enhancement because even “if a constitutional violation occurred, it would have been harmless.” While he claimed that a jury had “to resolve two factual questions for a conviction to qualify as a ‘serious drug felony’ . . . he never contested the answers to these questions.” The circumstances left the court with no doubt that the outcome here would have remained the same. Next, his challenges to the government’s decision to seek the enhancement could not rebut the court’s “presumption that it properly exercised its prosecutor’s discretion.” The facts here did not “trigger a presumption of vindictiveness” where he did not meet either of the requirements to do so. The court also found no merit to his claim that his prior conviction had not become “final” when the current crimes occurred, noting that its “precedent ties finality to the time to appeal, not the completion of sanctions” and his argument on this issue rested “on a legal mistake.”