Defendant's "Admission" Enough to Find that Drug Priors Were Felonies for Purposes of § 841 Mandatory Minimum

United States v. Jenkins, No. 05-51291 (5th Cir. May 17, 2007) (Jones, Benavides, Stewart)

Jenkins pled guilty to possession of 100+ kilos of marijuana with intent to distribute. The Government also sought to invoke a 10-year mandatory minimum by filing an enhancement information pursuant to 21 U.S.C. § 851, which alleged three prior felony drug convictions. Jenkins objected to the enhanced penalty at sentencing on the ground that "'[i]t was $10 worth of drugs on two occasions — two separate felonies, and those were the two that were used to enhance me, 10 to life.'" The district court overruled the objection, and sentenced him to 120 months. His guideline range would otherwise have been 92 to 115 months.

On appeal, Jenkins raised two arguments against the application of the mandatory minimum. First, he argued that the district court failed to follow the procedures prescribed by § 851(b). The court of appeals reviewed for plain error. It agreed that there was error, but that it didn't affect Jenkins' substantial rights because § 851 prohibits a defendant from challenging convictions that occurred more than five years before the enhancement was filed and two of Jenkins' three priors were more than five years old. The court also added that "Jenkins admitted at sentencing that his prior convictions were felonies and never revealed what challenges he was prepared to make to his prior convictions."

Jenkins' second argument was that the "the district court violated Shepard v. United States by relying on the PSR’s characterization of his prior offenses for enhancement purposes." The court of appeals held that regardless of the fact that "the record is silent regarding whether the court examined any supporting documents[,]" Jenkins' admission that the priors were felonies "was sufficient for the district court to conclude that Jenkins’s prior convictions were felonies without regard to the categorical approach for sentence enhancements." Additionally, Jenkins did not argue on appeal that the priors weren't felonies.

(That point about Jenkins' admissions sounds wrong. I don't think a defendant's statements about legal questions, such as whether a particular offense was a felony or not, constitute "admissions" for purposes of Shepard. Nevertheless, this holding is yet another reason for defendants to be extra careful about what they say. This isn't the first time that the Fifth Circuit has treated some statement in the record as an admission on a point that the statement doesn't appear to have been addressing in the first place. See, e.g., here and here. Plain error review doesn't help matters, either.)

Jenkins also challenged the district court's refusal to award him a minor role adjustment, arguing that he was just a courier. The court of appeals rejected this argument, as well, pointing to case law that says that couriers aren't necessarily minimal or minor participants. I don't know why the court addressed this issue, because his guideline range was already below the 10-year mandatory minimum even without the minor role adjustment.