Appeal from the United States District Court for the Northern District of Iowa.
The opinion of the court was delivered by: Bright, Circuit Judge.
Submitted: September 23, 2009
Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
This case comes before us for the second time. In the first case, an interlocutory appeal under 21 U.S.C § 851(d)(2), the government argued the single issue that the district court erred in not determining that Ingram had a prior penalty-enhancing felony drug conviction that would have required him to serve a mandatory-minimum 20-year sentence. We remanded on this sentencing issue for further consideration. See United States v. Ingram, 309 Fed. Appx. 66 (8th Cir. 2009). After hearing additional evidence from the government on remand, the district court*fn1 determined Ingram had a prior felony drug conviction and imposed the mandatory minimum sentence of 240 months (20 years). Ingram now appeals the judgment and sentencing order, arguing the district court erred in denying his motion to suppress evidence, in denying his motion for a new trial for error in jury instructions, and in sentencing him to a mandatory minimum of twenty years. We affirm the conviction and sentence.
On August 7, 2007, drug task force members conducted surveillance and prepared to execute a search warrant on an apartment in South Sioux City, Nebraska. Task Force Officer Terry Kenny witnessed Michael Ingram, another adult, and a child leave the apartment and drive away in a vehicle. Officer Kenny directed Nebraska State Trooper Dail Fellin, who was nearby in a marked law enforcement vehicle, to follow the vehicle. Trooper Fellin initiated a stop after observing that the vehicle's right taillight was not functioning. Trooper Fellin approached the driver's side and Officer Kenny approached the passenger's side. Both officers asked the occupants of the vehicle to get out of the car. Officer Kenny asked Ingram to move to the front of the vehicle, place his hands on the hood, and inquired if there was anything that could get Ingram in trouble. Ingram responded that he had marijuana in his pocket. Officer Kenny placed Ingram in handcuffs and patted him down. Officer Kenny found marijuana and crack cocaine on his person. The officers took Ingram into custody and obtained a search warrant for his apartment. Police found money, items for cooking cocaine, and large quantities of crack cocaine in his residence.
In October 2007, the government charged Ingram with conspiracy to distribute and possess with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of cocaine that contained a cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Before trial, Ingram moved to suppress the evidence seized during the traffic stop and subsequent search of his apartment and statements he made to law enforcement after his arrest. After an evidentiary hearing, the magistrate judge*fn2 issued a report and recommendation, recommending the district court suppress Ingram's pre-Miranda statements and deny Ingram's motion to suppress the evidence seized during the traffic stop.
Ingram objected to the magistrate's report and recommendation, arguing he was illegally searched. The district court reviewed the record de novo, overruled Ingram's objections, and accepted the magistrate's report and recommendation.
In February 2008, the government filed a notice that it would seek an enhanced sentence under 21 U.S.C. § 851 based on Ingram's prior felony drug conviction in Illinois. The notice identified Ingram's prior conviction as one for "[m]anufacture/delivery of controlled substance, in Circuit Court of Cook County, Illinois, on or about October 24, 2001, in case number 01CR2195101."
Before trial, the government moved for a preliminary determination regarding the admissibility of evidence of Ingram's prior conviction, and Ingram cross-moved to exclude evidence of his prior conviction. The court preliminarily determined the evidence was admissible and instructed the jury regarding its consideration of Ingram's prior drug offenses.
During the March 2008 trial, the government offered a certified statement of conviction from the State of Illinois to establish Ingram's prior conviction. Ingram objected to the admission of the exhibit, and the government withdrew its request to introduce evidence of Ingram's prior conviction. At the close of the case, upon Ingram's request, the court instructed the jury that it had withdrawn one of the preliminary jury instructions.
The jury found Ingram guilty of the charged offense. Ingram moved for a new trial, arguing he was prejudiced by the preliminary jury instruction that informed the jurors that they may hear evidence of a prior conviction for a drug-related offense. The court denied Ingram a new trial.
The district court scheduled Ingram's sentencing for June 16, 2008. Before sentencing, the probation officer provided the parties with a presentence investigation report (PSR). The PSR scored Ingram's sentence on the basis of a prior felony conviction, computed Ingram's guideline range to be 168 to 210 months (14 to 17.5 years), but noted Ingram's mandatory minimum sentence with the prior conviction enhancement was 240 months (20 years).
On June 13, 2008, Ingram filed a denial as to the allegations of the prior conviction. In response, the government filed a sentencing memorandum that (1) claimed that Ingram's filing was untimely under the local court's rules; and (2) requested, in the alternative, that the court grant a continuance to allow the government sufficient time to present evidence of Ingram's prior conviction.
At the sentencing hearing, the government again requested a continuance. The district court overruled the government's request for a continuance, concluding Ingram's § 851 objection was timely under the statute and the government should be prepared to prove the prior conviction at the time of sentencing. The government introduced several exhibits, which the district court subsequently admitted. The first exhibit, a "Certified Statement of Conviction" from the Clerk of the Circuit Court of Cook County, Illinois, stated that Ingram had been convicted of "OTHER AMT NARCOTIC," in violation of Ill. Stat. 720-570/401(D). The clerk had included an "F" notation on the same line as the statute of conviction. Several other exhibits, including an Illinois criminal complaint, information, order of sentence, and Drug Enforcement Administration rap sheet, indicated that Ingram had been convicted under 720-570/401(D) of the Illinois code as well.
The government provided the district court with a copy of Ill. Comp. Stat. 720-570/401(d). Section 401(d) makes it a felony to "manufacture or deliver," "or possess with intent to manufacture or deliver," certain Schedule I or II controlled substances, including crack cocaine.
The court denied the government's request for a sentencing enhancement, reasoning that the government's evidence inconsistently identified the purported statute of conviction because some of the documents offered by the government identified the offense as a violation of 720 Ill. Comp. Stat. 570/401(D), although the government asserted Ingram violated 720 Ill. Comp. Stat. 570/401(d) (emphasis added). The court postponed sentencing to allow a government appeal.
On appeal, the government argued the district court erred in determining it had not proven Ingram's prior penalty-enhancing felony drug conviction. This court remanded on the sentencing enhancement. Ingram, 309 Fed. Appx. at 68 n.1.
On remand, the district court held an evidentiary hearing. The court found the government had proven beyond a reasonable doubt that Ingram had previously been convicted of a felony drug offense and imposed a sentence of 240 months ...