USA v. Olivares et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
LUIS OLIVARES,
Defendant.
CR. 10-50118-01-JLV
ORDER
INTRODUCTION
On November 4, 2014, prior to the start of defendant Luis Olivares’ jury
trial, the government filed an information pursuant to 21 U.S.C. § 851 identifying
two prior felony drug convictions of Mr. Olivares:
1) controlled substance conspiracy, judgment entered in District
Court, Adams County, Colorado on or about December 3, 2003
(Case No. 2003CR002076); and
2) possession of more than one gram of a Schedule II controlled
substance, 	amended 	judgment 	entered 	in 	District 	Court,
Arapahoe County, Colorado on or about April 19, 2006 (Case No.
D0032004CR003021).
(Docket 1058).
Section 841(b)(1)(A) of Title 21 of the United States Code provides “[i]f any
person commits a violation of this subparagraph . . . after two or more prior
convictions for a felony drug offense have become final, such person shall be
sentenced to a mandatory term of life imprisonment without release and fined in
accordance with the preceding sentence.” 	21 U.S.C. § 841(b)(1)(A).
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Mr. Olivares’ jury trial began on December 1, 2014. 	(Clerk’s Minutes).
Mr. Olivares was found guilty of conspiracy to distribute a controlled substance
(count 1) in violation 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A); possession
with intent to distribute a controlled substance (count 5) in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A); and distribution of a controlled substance (count
6) 1 in violation 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).2 	(Docket 1118). 	If the
sentencing enhancements are applied, Mr. Olivares’ conviction on counts 1 and
5 call for a sentence of mandatory life in custody.3
On March 5, 2015, Mr. Olivares filed objections to the government’s § 851
information. 	(Docket 1132). 	On May 15, 2015, the government filed a
1The court notes that count 6 in the verdict form (Docket 1118) represents
count 9 in the superseding indictment. 	(Docket 22). 	Although count 6 charged
Mr. Olivares’ with violating 21 U.S.C. § 841(b)(1)(A) (Docket 22 at pp. 5-6), the
jury determined Mr. Olivares was only responsible for distributing 50 grams or
more but less than 500 grams of a mixture or substance containing a detectable
amount of methamphetamine, its salts, isomers or salts of its isomers in
violation of § 841(b)(1)(B). 	See Docket 1118 at p. 2.
2The jury also convicted Mr. Olivares of possessing a firearm in
furtherance of a drug trafficking crime (count 2) in violation of 18 U.S.C.
§ 924(c)(1)(A), felon in possession of a firearm (count 3) in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), and fugitive in possession of a firearm (count 4) in
violation of 18 U.S.C. §§ 922(g)(2) and 924(a)(2).
3Mr. Olivares’ conviction on count 6 also carries a sentencing
enhancement of a mandatory ten years in custody if he is found to have
committed a prior felony drug offense and the conviction has become final. 	See
21 U.S.C. § 841(b)(1)(B). 	The court’s sentencing enhancement analysis,
whether it is mandatory life in custody following Mr. Olivares’ convictions under
§ 841(b)(1)(A) (counts 1 and 5) or a mandatory ten years in prison following his
conviction under § 841(b)(1)(B) (count 6), is the same. 	Because counts 1 and 5
carry a sentence of mandatory life in custody, the court’s analysis is limited to
them.
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response to Mr. Olivares’ objections. 	(Docket 1156). 	On May 22, 2015, Mr.
Olivares filed a brief in reply to the government’s response to his objections to the
application of a sentencing enhancement under §§ 841(b)(1)(A) and 851.
(Docket 1160). 	Also on May 22, 2015, Mr. Olivares filed a pro se brief in reply to
the government’s response to Mr. Olivares’ objections to the application of a
sentencing enhancement under §§ 841(b)(1)(A) and 851. 	(Docket 1159). 	On
May 27, 2015, prior to Mr. Olivares’ sentencing, the court held a hearing to
establish the validity of Mr. Olivares’ two prior felony drug convictions.
For the reasons set forth below and as iterated by the court at Mr. Olivares’
§ 851 hearing, the court finds, pursuant to §§ 841(b)(1)(A) and 851, Mr. Olivares
is subject to a sentence of mandatory life in custody on counts 1 and 5.
1. 	Adequacy of the Government’s § 851 Information
“To obtain a sentencing enhancement based on a defendant’s earlier
conviction, the Government must comply with the notice requirements of
21 U.S.C. § 851(a).” 	United States v. Curiale, 390 F.3d 1075, 1076 (8th Cir.
2004) (citing United States v. Stallings, 301 F.3d 919, 920 (8th Cir. 2002)).
Section 851 of Title 21 of the United States Code provides:
No person who stands convicted of an offense under this part shall
be sentenced to increased punishment by reason of one or more
prior convictions, unless before trial, or before entry of a plea of
guilty, the United States attorney files an information with the court
(and serves a copy of such information on the person or counsel for
the person) stating in writing the previous convictions to be relied
upon.
21 U.S.C. § 851.
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“The purpose of notice under § 851 is to comply with the requirements of
due process.” 	United States v. Roundtree, 534 F.3d 876, 881 (8th Cir. 2008)
(citing Curiale, 390 F.3d at 1076). 	“The information must give the defendant
reasonable notice of the Government’s intent to rely on a particular conviction
and a meaningful opportunity to be heard.” 	Curiale, 390 F.3d at 1076-77
(citing Perez v. United States, 249 F.3d 1261, 1266 (11th Cir. 2001); United
States v. King, 127 F.3d 483, 489 (6th Cir. 1997)). 	“To satisfy the procedural
and notice requirements of the § 851(a) information, the government must file its
information before jury selection begins, thus allowing the defendant ample time
[. . .] to go to trial, and to plan his trial strategy with full knowledge of the
consequences of a potential guilty verdict.” 	United States v. Stallings, 301 F.3d
919, 920-21 (8th Cir. 2002) (internal quotation marks and citations omitted)
(alterations in original) (In Stallings, the United States Court of Appeals for the
Eighth Circuit held that filing a § 851 information four days prior to trial satisfied
the “notice” threshold.).
“Notice is sufficient if a defendant receives ‘notice of the prior conviction,
the effect it would have on the maximum sentence, and an opportunity to dispute
the conviction.’ ” 	Roundtree, 534 F.3d at 881 (quoting United States v. Timley,
443 F.3d 615, 626 (8th Cir. 2006)). 	When interpreting § 851, courts should be
“careful not to elevate form over substance.” 	Curiale, 390 F.3d at 1077
(citations and internal quotation marks omitted). 	“An information complies
with the requirements of § 851(a) even if it contains an error in its contents as
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long as the information serves to convey the Government’s intent to seek an
enhancement based on a particular earlier conviction.” Curiale, 390 F.3d at
1076-77 (citing Perez, 249 F.3d at 1265). 	“[U]nder the plain language of
§ 851(a), clerical mistakes in the information may be corrected by amendment
before sentencing. 	The statute does not define the term ‘clerical error,’ but the
Third Circuit has held an information’s listing of an earlier crime as involuntary
rather than voluntary manslaughter is a clerical mistake capable of correction
under § 851(a)(1).” 	Id. at 1077 (citing Weaver, 267 F.3d at 248.
The government’s § 851 information was timely filed. 	The government
filed its § 851 information on November 4, 2014, well before the start of Mr.
Olivares’ trial on December 1, 2014. 	The government’s § 851 information was
sufficient to put Mr. Olivares on notice of the potential effect his prior convictions
would have on the maximum punishment he would face if convicted on the
current charges.4 	The sufficiency of the government’s notice also is exemplified
by Mr. Olivares filing objections challenging the government’s information.5
(Dockets 1132 & 1160).
4 The court’s recognition of a final conviction date for Mr. Olivares’ Adams
County, Colorado, conviction which was later than the date provided by the
government on the § 851 information, see infra Part 2.b., does not alter the fact
that Mr. Olivares was put on notice that his prior convictions would be used for
sentencing enhancement purposes.
5The government’s § 851 information was appropriate in Mr. Olivares’
case as he was “afforded prosecution by indictment for the offense for which such
increased punishment may be imposed.” 	21 U.S.C. § 851(a)(2).
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2. 	Section 851 Hearing
a. 	General Section 851 Law and Structure of the Hearing
Section 851(b) “requires the court, prior to imposing a sentence, to inquire
of the defendant whether he or she contests the validity of any of the prior
enhancing convictions in the information.” 	United States v. Dickerson, 514
F.3d 60, 64 (1st Cir. 2008) (citing 21 U.S.C. § 851(b)). 	“The court must inform
the defendant that any challenge to a prior conviction which is not made before a
sentence is imposed may not be raised thereafter to attack the sentence.” 	Id.
[T]he 	court 	shall 	after 	conviction 	but 	before 	pronouncement 	of
sentence inquire of the person with respect to whom the information
was filed whether he affirms or denies that he has been previously
convicted as alleged in the information, and shall inform him that
any 	challenge 	to 	a 	prior 	conviction 	which 	is 	not 	made 	before
sentence is imposed may not thereafter be raised to attack the
sentence.
If 	the 	person 	denies 	any 	allegation 	of 	the 	information 	of 	prior
conviction, or claims that any conviction alleged is invalid, he shall
file a written response to the information. 	A copy of the response
shall be served upon the United States attorney. 	The court shall
hold a hearing to determine any issues raised by the response which
would except the person from increased punishment. 	The failure of
the 	United 	States 	attorney 	to 	include 	in 	the 	information 	the
complete criminal record of the person or any facts in addition to the
convictions 	to 	be 	relied 	upon 	shall 	not 	constitute 	grounds 	for
invalidating 	the 	notice 	given 	in 	the 	information 	required 	by
subsection (a)(1) of this section. The hearing shall be before the
court without a jury and either party may introduce evidence.
Except as otherwise provided in paragraph (2) of this subsection, the
United States attorney shall have the burden of proof beyond a
reasonable doubt on any issue of fact. At the request of either party,
the court shall enter findings of fact and conclusions of law.
A person claiming that a conviction alleged in the information was
obtained in violation of the Constitution of the United States shall
set forth his claim, and the factual basis therefor, with particularity
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in his response to the information. 	The person shall have the
burden of proof by a preponderance of the evidence on any issue of
fact raised by the response. 	Any challenge to a prior conviction, not
raised by response to the information before an increased sentence
is imposed in reliance thereon, shall be waived unless good cause be
shown for failure to make a timely challenge.
21 U.S.C. § 851.
Because Mr. Olivares timely filed objections to the government’s § 851
information (Dockets 1132 & 1160),6 the court allowed the government to first
present evidence of Mr. Olivares’ prior felony drug convictions.
b. 	Government’s Burden of Proof: The Existence of Prior, Final
Felony Drug Convictions
“[T]he United States attorney shall have the burden of proof beyond a
reasonable doubt on any issue of fact.” 	21 U.S.C. § 851. 	The Eighth Circuit
affirmed a district court’s review of certified records of a defendant’s prior
convictions when determining whether the prior offenses qualified as prior
“felony drug offense[s].” 	United States v. Ramon-Rodriguez, 492 F.3d 930, 940
6Because Mr. Olivares was represented by counsel, the court does not
consider his pro se response (Docket 1159) to the government’s § 851
information. 	See United States v. White, No. 14-3137, 2015 WL 2343047, at *5
n.2 (8th Cir. 2015) (unpublished) (“[The defendant] also filed a pro se motion to
supplement the brief filed by counsel. 	Consistent with our normal practice, we
deny her motion.”) (citations omitted); United States v. McIntosh, 492 F.3d 956,
961 n.2 (8th Cir. 2007) (“We generally do not accept pro se motions or briefs
when an appellant is represented by counsel . . . .”) (citing United States v.
Payton, 918 F.2d 54, 56 n.2 (8th Cir. 1990); Abdullah v. United States, 240 F.3d
683, 686 (8th Cir. 2001) (“A district court has no obligation to entertain pro se
motions filed by a represented party.”) (citations omitted); United States v.
Agofsky, 20 F.3d 866, 872 (8th Cir. 1994) (“There is no constitutional or
statutory right to simultaneously proceed pro se and with benefit of counsel.”)
(citations omitted).
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(8th Cir. 2007). 	“Under Shepard v. United States, 544 U.S. 13, 205 (2005), a
sentencing court is not constrained to look only at the statutory elements of the
offense, but may look to the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between the judge and defendant . . . or to
some comparable judicial record of this information.” 	Id. at 940 (internal
quotation marks and citations omitted).
The Eighth Circuit held a district court is entitled to rely on evidence
presented at trial suggesting the defendant and the person named in the prior
convictions is the same person. 	See United States v. Sanchez-Garcia, 461 F.3d
939, 948 (8th Cir. 2006) (quoting United States v. Bledsoe, 445 F.3d 1069, 1073
(8th Cir. 2006)) (“Having presided over the trial, the district court was entitled to
rely on this evidence at sentencing.”). 	It is also “well-established that the
sentencing court may, consistent with the Sixth Amendment, find both the fact
of a prior conviction, as well as facts ‘intimately related’ to that prior conviction.”
Id. at 947 (quoting United States v. Carrillo-Beltran, 424 F.3d 845, 847-48 (8th
Cir. 2005), cert. denied, 546 U.S. 1193 (2006)).
“The term ‘felony drug offense’ means an offense that is punishable by
imprisonment for more than one year under any law of the United States or of a
State or foreign country that prohibits or restricts conduct relating to narcotic
drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”
21 U.S.C. § 802(44); see also United States v. Young, 960 F. Supp. 2d 881, 894
(N.D. Iowa 2013).
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The determination of what constitutes a “final conviction” for purposes of
§ 841(b)(1)(A) is a question of federal law. 	See United States v. Slicer, 361 F.3d
1085, 1087 (8th Cir. 2004) (holding a state felony drug conviction in which the
defendant served supervised probation and received a suspended sentence
constituted a final conviction); United States v. Franklin, 250 F.3d 653, 665 (8th
Cir. 2001) (“[D]eferred adjudications or probated sentences constitute
convictions in the context of § 841.”) (internal quotation marks and citations
omitted); United States v. Ortega, 150 F.3d 937, 947-48 (8th Cir. 1998) (holding
a defendant’s prior felony conviction in which he received a suspended sentence
and supervised probation qualified as a final conviction under federal law for
purposes of § 841(b) despite the offense not being considered a final conviction
under Missouri state law); but see Stallings, 301 F.3d at 920-22 (The Eighth
Circuit looked to California state law and federal law in determining that a
sentencing enhancement based on a prior state felony drug offense was improper
because the defendant received a sentence of three years of probation, which was
not revoked, a suspended custody sentence, and no judgment had been entered
against the defendant.).
At Mr. Olivares’ trial, the court admitted certified copies of Mr. Olivares’
Colorado Department of Corrections records which included a photo of Mr.
Olivares and the offenses for which he was convicted in Colorado (Exhibit 1A); a
fingerprint card of Mr. Olivares associated with exhibit 1A (Exhibit 1AA); a
certified copy of Mr. Olivares’ Adams County, Colorado, felony drug conviction
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(Exhibit 1B); a certified copy of Mr. Olivares’ Arapahoe County, Colorado, felony
drug conviction (Exhibit 1C); a certified copy of Mr. Olivares’ Adams County,
Colorado, escape charge (Exhibit 1D); and a fingerprint card associated with Mr.
Olivares’ federal case (Exhibit 19).7
Mr. Olivares pled guilty to and was convicted of conspiracy to distribute
cocaine, a schedule II controlled substance (no drug quantity was indicated in
the judgment) in violation of C.R.S. § 18-18-405(1), (2)(a)(I), in Adams County,
Colorado. 	(Exhibit 1B at p. 4, 7). 	At the time of Mr. Olivares’ conviction, his
offense was classified as a “F3,” or a “class 3 felony.” 	Id.; see also Colo. Rev.
Stat. § 18-18-405(2)(a)(I)(A) (Colorado has repealed or amended portions of its
criminal anti-drug laws on multiple occasions since Mr. Olivares was convicted
and sentenced under C.R.S § 18-18-405(1), 2(a)(1). 	The most recent iteration of
the statute can be found at C.R.S. § 18-18-405.).
The “presumptive range[] of penalties that [were] authorized upon
conviction” of a class 3 felony were a minimum of four years imprisonment and a
maximum of twelve years imprisonment with a mandatory five-year period of
parole. 	Colo. Rev. Stat. § 18-1.3-401(1)(a)(V)(A). 	Mr. Olivares was originally
convicted on December 3, 2003, and was sentenced to three years of probation.
(Exhibit 1B at pp. 1, 7, 11). 	Mr. Olivares’ probation was subsequently revoked
and on January 17, 2006, he was convicted and resentenced to the custody of
the Colorado Department of Corrections for a three-year term of imprisonment.
7At the § 851 hearing, copies of trial exhibits: 1A, 1AA, 1B, 1C and 1D were
admitted and marked as Exhibit 150.
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Id. at p. 7. 	The court finds Mr. Olivares’ prior conviction in Adams County,
Colorado, qualifies as a prior felony drug conviction under § 841(b)(1)(A).
With regard to his Arapahoe County, Colorado, conviction, Mr. Olivares
pled guilty to and was convicted of possession of less than one gram
methamphetamine, a schedule II controlled substance (Mr. Olivares actually
possessed 3.090 grams of methamphetamine) in violation of C.R.S.
§ 18-18-405(1), (2.3)(a)(I). 	(Exhibit 1C at pp. 1, 3, 9). 	At the time of Mr.
Olivares’ conviction, his crime was classified as a “F6,” or a “class 6 felony.” 	Id.
at 1; see also Colo. Rev. Stat. § 18-18-405(2.3)(a)(I) (Colorado has repealed or
amended portions of its criminal anti-drug laws on multiple occasions since Mr.
Olivares was convicted and sentenced under C.R.S § 18-18-405(1), (2.3)(a)(1).
The most recent iteration of the statute can be found at C.R.S. § 18-18-405.).
The “presumptive range[] of penalties that [were] authorized upon
conviction” of a class 6 felony were a minimum of one year imprisonment and a
maximum of eighteen months imprisonment with a mandatory one-year period
of parole. 	Colo. Rev. Stat. § 18-1.3-401(1)(a)(V)(A). 	Mr. Olivares was originally
convicted on May 23, 2005, and was sentenced to an eighteen month term in
Colorado community corrections. 	(Exhibit 1C at pp. 1, 3). 	Mr. Olivares’
sentence was subsequently revoked and he was resentenced to the custody of
the Colorado Department of Corrections for a period of eighteen months to run
concurrent with his Adams County, Colorado, sentence. 	Id. at p. 1. 	A
judgment of conviction was entered on April 24, 2006, with a nunc pro tunc date
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of April 19, 2006. 	Id. 	The court finds Mr. Olivares’ prior conviction in
Arapahoe County, Colorado, qualifies as a prior felony drug conviction under
§ 841(b)(1)(A).
Based on its review of the exhibits admitted at trial and at the § 851
hearing and on the testimony presented at trial and at the § 851 hearing, the
court finds the government has proven beyond a reasonable doubt that Mr.
Olivares was previously convicted of two felony drug offenses.
For purposes of the statute of limitations imposed by § 851(e), see infra,
the court considers Mr. Olivares’ Adams County and Arapahoe County
convictions to have become final on January 17, 2006, and April 19, 2006,
respectively.
c. 	Mr. Olivares’ Challenges to his Prior Felony Drug Convictions
After the government produced evidence in support of the § 851
information, the court inquired whether Mr. Olivares affirmed or denied his prior
convictions. 	Mr. Olivares denied the prior convictions. 	In addition to his
written objections (Docket 1132 & 1160), Mr. Olivares raised several oral
challenges to his prior convictions.
Mr. Olivares challenges the validity of both his Adams County and
Arapahoe County convictions on the basis that his right to a speedy trial was
violated, a busy court calendar caused him to make a plea agreement with the
government, he received ineffective assistance of counsel, he was not a United
States citizen and should have been advised and given an opportunity to contact
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the Consular General of Mexico, and he was unaware that his plea agreements
would later be used for sentencing enhancement purposes in federal court.
(Docket 1132). 	Mr. Olivares also asserts he was not competent at the time of
either conviction. 	Id. 	Specific to the Arapahoe County conviction, Mr. Olivares
asserts: he was wearing someone else’s pants when the methamphetamine was
found in the pockets; State witnesses admitted to falsifying evidence; and the
State never presented Mr. Olivares with exculpatory discovery evidence or
advised him of the status of other codefendants’ cases. 	Id.
At the § 851 hearing, Mr. Olivares attacked the validity of his prior
convictions on the basis he had previously undertaken efforts personally, and
with the help of an attorney, to challenge his prior convictions. 	Mr. Olivares
challenged the validity of his prior convictions on the basis that he was a foreign
national at the time of the prior convictions and he was not advised of his right to
contact the Consular General of Mexico. 	Mr. Olivares further asserted because
this court previously found him incompetent, he was also incompetent at the
time of his prior convictions.8 	Mr. Olivares asserts the government filed the
§ 851 information as a means of punishing him for exercising his right to proceed
to trial. 	Mr. Olivares presented no evidence in support of either his written or
oral assertions.
8On May 30, 2014, the court found Mr. Olivares competent to stand trial.
(Docket 1019).
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With regard to the five-year statute of limitations called for by § 851(e), Mr.
Olivares argued the government cannot wait to file a § 851 information until the
expiration of the five-year statute of limitations period, but rather should file the
information contemporaneously with the indictment. 	See 21 U.S.C. § 851(e).
Mr. Olivares argued the court’s initial determination that he was incompetent to
stand trial tolls the statute of limitations by which a defendant must challenge
the validity of a prior conviction under § 851.9
Mr. Olivares’ objections, both written and oral, to the government’s § 851
information must fail due to the running of the five-year statute of limitations
provided for by § 851(e), the application of United States v. Rounsavall, 115 F.3d
561 (8th Cir. 1997) and the lack of evidence Mr. Olivares provided in support of
his assertions. 	Section 851(e) provides:
No person who stands convicted of an offense under this part may
challenge the validity of any prior conviction alleged under this
section which occurred more than five years before the date of the
information alleging such prior conviction.
21 U.S.C. § 851(e).
“Although § 851 [(c)] allows a defendant to attack a prior conviction . . .
[§ 851(e)] precludes challenges to convictions which occurred more than five
years before the date of the information alleging such prior conviction.” 	United
States v. Henderson, 613 F.3d 1177, 1185 (8th Cir. 2010) (quoting Rounsavall,
9The court accepted as an offer of proof the representations of Mr. Olivares’
current attorney that Mr. Olivares previously contracted with an attorney from
Colorado to investigate the background of Mr. Olivares’ prior convictions for
purposes of challenging their validity under § 851.
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115 F.3d at 566, quoting 21 U.S.C. § 851(e)) (internal quotation marks omitted)
(citing United States v. Samuels, 543 F.3d 1013, 1020 (8th Cir. 2008) (further
citations omitted). 	The Eighth Circuit determined the “five-year limitation,
however, does not apply to claims that a defendant’s predicate conviction
occurred in violation of the defendant’s right to counsel.” 	Ramon-Rodriguez,
492 F.3d at 939 (citing Custis v. United States, 511 U.S. 485, 494-96 (1994)).
Mr. Olivares does not allege, nor could he, that he was not appointed
counsel at the time of his prior convictions. 	See Exhibit 1B at p. 7 (Mr. Olivares
was represented by Rachel Lanzen in his Adams County case.); Exhibit 1C at pp.
1 & 4 (Mr. Olivares was represented by Jackie Guesno and Gina Shimeall in his
Arapahoe County case.).
Even when the court considers Mr. Olivares’ prior convictions to have
become final on the dates most favorable to Mr. Olivares, namely January 17,
2006, for the Adams County conviction and April 19, 2006, for the Arapahoe
County conviction, the convictions became final more than five years before
November 4, 2014, the date the government filed the § 851 information in this
case. 	Furthermore, the court notes that as of April 20, 2012, the date the court
initially found Mr. Olivares to be “mentally incompetent to the extent he [was]
unable to understand the nature and consequences of the proceedings against
him or to assist properly in his defense,” (Docket 704 at p. 2), the five-year period
in which Mr. Olivares could challenge the validity of his prior convictions under
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§ 851(e) already expired. 	Mr. Olivares’ objections to the government’s § 851
information are therefore time-barred by the five-year statute of limitations
imposed by § 851(e).
The Eighth Circuit’s decision in Rounsavall also bars Mr. Olivares’
objections to the government’s § 851 information. 	“Without statutory authority,
a defendant cannot collaterally attack prior convictions used to enhance his
sentence.” 	Rounsavall, 115 F.3d at 566 (citing Custis, 511 U.S. at 487 (The
Custis Court analyzed a defendant’s ability to collaterally attack the validity of a
prior state conviction used as part of a sentencing enhancement under the
Armed Career Criminal Act, 18 U.S.C. 924(e).). 	“The Supreme Court
distinguished ineffective assistance of counsel claims from denial of counsel
claims, and excluded only the latter from the general rule against collaterally
attacking prior convictions used to enhance a sentence.” 	Rounsavall, 115 F.3d
at 566 n.2; see also Custis, 511 U.S. at 496 (“[T]here has been a theme that
failure to appoint counsel for an indigent defendant was a unique constitutional
defect. 	Custis attacks his previous convictions claiming the denial of the
effective assistance of counsel, that his guilty plea was not knowing and
intelligent, and that he had not been adequately advised of his rights in opting for
a ‘stipulated facts’ trial. 	None of the constitutional violations alleged by Custis,
including the claimed denial of effective assistance of counsel, rises to the level of
a jurisdictional defect resulting from the failure to appoint counsel at all.”).
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The Eighth Circuit’s decision in Rounsavall operates to bar collateral
attacks on prior convictions used for sentencing enhancement purposes under
§§ 841(b)(1)(A) and 851. 	Mr. Olivares’ written and oral objections to the
government’s § 851 information amount to collateral attacks on the validity of his
prior Adams County and Arapahoe County convictions. 	Therefore, in addition
to Mr. Olivares’ objections being time-barred, they also are impermissible
collateral attacks on prior convictions under Rounsavall.
The court inquired of Mr. Olivares whether he had further objections or
challenges to the government’s § 851 information beyond those already raised
orally and in writing and provided Mr. Olivares with an opportunity to present
evidence in support of his assertions. 	Mr. Olivares indicated he had no further
objections with the exception of an offer of proof made by his attorney, see supra
footnote 9. 	He presented no evidence in support of his written and oral
challenges to the § 851 information. 	See 21 U.S.C. § 851(c)(2) (“The person shall
have the burden of proof by a preponderance of the evidence on any issue of fact
raised by the response.”).
The court specifically notes Mr. Olivares presented no evidence indicating
that because the court found him incompetent as of April 20, 2012, (Docket 704
at p. 2) he also was incompetent during his Adams County and Arapahoe County
proceedings which resulted in the final convictions of January 17, 2006, and
April 19, 2006, respectively. 	The court finds Mr. Olivares failed to demonstrate
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by a preponderance of the evidence the existence of the factual issues raised in
his written and oral objections to the government’s § 851 information.
The court finds Mr. Olivares’ objections are time-barred by the five-year
statute of limitations imposed by § 851(e), amount to an impermissible collateral
attack on the validity of Mr. Olivares’ prior felony drug convictions under
Rounsavall, and that Mr. Olivares failed to demonstrate by a preponderance of
the evidence the existence of the factual issues raised in his objections.
ORDER
For the reasons set forth above and as articulated by the court at Mr.
Olivares’ 21 U.S.C. § 851 hearing, the court finds Mr. Olivares is subject to a
sentence of mandatory life in custody on counts 1 and 5 by reason of his two
prior felony drug convictions.
Dated July 21, 2015.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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