United States v. Harris

          REPORT AND RECOMMENDATION (DOCS. 106, 108)

          John M. Conroy, United States Magistrate Judge.

         Defendant Kevin Harris, proceeding pro se, moves under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Doc. 106.) On April 12, 2013, a federal jury found Harris guilty on five of the seven counts in the Superseding Indictment: Count One, conspiring to distribute heroin and over 28 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846; Counts Three through Five, knowingly and intentionally distributing either heroin or cocaine base on August 9, September 20, and September 22, 2011, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 18 U.S.C. § 2; and Count Six, knowingly and intentionally possessing heroin and cocaine base with the intent to distribute those substances in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 18 U.S.C. § 2. (Docs. 20, 63.) On January 30, 2014, Harris was sentenced to 151 months on the five counts, with each sentence to run concurrently. (Docs. 88, 90.) Following a retroactive amendment to the Sentencing Guidelines, on August 18, 2015, this Court resentenced Harris to 135 months on the five counts. (Doc. 103.)

         Harris now contends that his sentence should be vacated based on two grounds: (1) his defense counsel, Attorney Thomas Sherrer, provided ineffective assistance of counsel by failing to seek dismissal of the Superseding Indictment for violations of the Speedy Trial Act (STA), 18 U.S.C. §§ 3161-3174, and for failing to adequately challenge other facets of the prosecution, as well as evidence admitted at trial and at sentencing; and (2), the Court erred when it imposed Harris's original sentence and when it resentenced Harris. (Doc. 106.) The government opposes Harris's Motion, arguing that his claims are barred both by the one-year statute of limitations set forth in 28 U.S.C. § 2255 and by other procedural requirements. (Docs. 108, 116.) The government further contends that, even if Harris's claims are not procedurally barred, they lack merit. (Id.)

         Concluding that his claims are procedurally barred and that they are otherwise meritless, I recommend that Harris's § 2255 Motion be DENIED.

         Factual and Procedural Background

         I. Charge and Arraignment

         On April 19, 2012, the federal grand jury returned an Indictment charging Harris, also known as “Black, ” with six counts relating to a conspiracy to distribute cocaine base and heroin. (Doc. 1.) Count One of the Indictment charged Harris with conspiring to distribute heroin and over 28 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. (Doc. 1 at 1.) Counts Two through Five charged Harris with knowingly and intentionally distributing either heroin or cocaine base on August 9, September 20 (two counts), and September 22, 2011, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. (Doc. 1 at 2-5.) Finally, Count Six charged Harris with knowingly and intentionally possessing heroin and cocaine base with the intent to distribute those substances in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. (Doc. 1 at 6.)

         Attorney Sherrer was appointed to represent Harris pursuant to the Criminal Justice Act. (Doc. 6; Doc. 6-3.) Harris was arraigned on July 24, 2012, in the District Court of Vermont. He pleaded not guilty to all of the charges set forth in the Indictment. (Doc. 8.) By request of Attorney Sherrer, the Court ordered that pretrial motions were to be filed by September 24, 2012.^[1] (Doc. 8.)

         II. Pretrial Proceedings

         A. Initial Scheduling Orders and Motions Deadlines

         After Harris's arraignment, the Court issued a Criminal Pretrial Scheduling Order reiterating that pretrial motions were to be filed by September 24, 2012, based on Attorney Sherrer's request. (Doc. 9 at 3.) The Court found that this delay was justified by the complexities of the case and the ends of justice. (Id. at 4.) The Court further ordered that this period of delay would “be excludable in computing the time in which the trial . . . must commence pursuant to the Speedy Trial Act.” (Id.)

         Subsequently, on September 24, 2012, Attorney Sherrer filed a motion for extension of time to file pretrial motions. (Doc. 11.) The Court found that the ends of justice were served by granting this motion and set the new pretrial motions deadline for October 24, 2012. (Doc. 12 at 1.) The Court further noted that this additional period would be excluded from computing time under the STA exclusion found at 18 U.S.C. § 3161(h)(7). (Id.)

         On October 29, 2012, Attorney Sherrer filed another motion for extension of time, (Doc. 13); the Court granted this motion on October 31 for the same reasons as his prior requests. (Doc. 14.) The Court set the new deadline for November 13, 2012, and ordered that the delay would again be excludable in computing the time pursuant to § 3161(h)(7). (Id. at 1.) Attorney Sherrer did not file any pretrial motions by the November 13 deadline.

         On November 16, 2012, the Court set the jury draw for January 8, 2013. (Doc. 16.)

         B. Preliminary Plea Negotiations

         Relevant to the instant Motion, beginning sometime in September 2012, the government and Attorney Sherrer engaged in extensive plea negotiations, despite Harris maintaining that he was not interested in cooperating with the government. (Doc. 115 at 2, ¶ 13; id. at 8, ¶¶ 46, 47.) According to Attorney Sherrer, the government took a firm approach in these negotiations based on Harris's prior criminal record and the government's position that a death had resulted from heroin distributed by Harris. (Id. ¶ 47.)

         Specifically, the government was not willing to offer a plea agreement that exposed Harris to anything less than a 10-year mandatory minimum term of imprisonment. (Id. at 8-9, ¶ 48; Doc. 115-4.) To reach this minimum threshold, the government initially proposed that Harris plead guilty to two charges: Count One, which imposed a five-year mandatory minimum for conspiring to distribute cocaine base and heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, and an as-yet-unfiled count, possessing a gun in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), which, by statute, required the imposition of a consecutive five-year mandatory minimum term of imprisonment. (Doc. 115-4; Doc. 116-4.) Because a conviction under § 924(c) required imposition of a five-year consecutive mandatory minimum term, the mandatory minimum sentence under the government's first proposal was 10 years.

         If Harris refused the offer, the government indicated that it would file both a superseding indictment charging Harris with distributing controlled substances with death resulting and an information under 21 U.S.C. § 851 notifying Harris of the government's intent to seek a sentencing enhancement based on Harris's prior felony drug convictions. (Doc. 115-4.) According to Attorney Sherrer, a conviction for these offenses would have potentially exposed Harris to either a 15-year or 20-year mandatory minimum term of imprisonment. (Id.)

         Attorney Sherrer sought a revised plea offer in which the government would forego seeking a 10-year mandatory minimum. (Doc. 115 at 9, ¶ 51.) As part of his efforts, Attorney Sherrer met with both the Assistant United States Attorney prosecuting Harris and the United States Attorney on December 12, 2012. (Id. ¶ 52.) Attorney Sherrer subsequently gathered more information regarding Harris's personal background in order to offer this background as mitigating evidence. (Id.) Attorney Sherrer then wrote to the government attorneys, arguing that Harris's tragic personal history justified a five-year mandatory minimum term, not a 10-year term. (Doc. 115-5 at 2-4.)

         C. Section 851 Notice and Superseding Indictment

         Attorney Sherrer's efforts aimed at convincing the government to reduce its plea offer were unsuccessful. On December 14, 2012, the government filed an information pursuant to 21 U.S.C. § 851 notifying Harris of its intent to seek a sentencing enhancement based on Harris's two prior felony drug convictions in New York state court. (Doc. 17.)

         At a December 17, 2012 pretrial conference, the Court discussed this § 851 notice with Harris and Attorney Sherrer and informed Harris that, in the event of a conviction, the notice of prior conviction under § 851 exposed him to a possible 10-year mandatory minimum sentence and that the Court would have no discretion to sentence Harris below that minimum. (Doc. 104 at 3-4.) The Court also noted that the government had indicated that it was contemplating charging Harris with possessing a gun in furtherance of drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Id. at 4.) The Court explained to Harris that a conviction arising under 18 U.S.C. § 924(c)(1)(A)(i) would expose Harris to an additional five-year consecutive mandatory minimum term. (Id.) Thus, along with the 10-year mandatory minimum for the § 851 notice, Harris's exposure at trial would be at least a 15-year mandatory minimum sentence. (Id.) Finally, the Court noted that the government had indicated that it was also contemplating charging Harris with the death resulting from the distribution of controlled substances, which could further increase Harris's exposure to a greater mandatory minimum sentence. (Id. at 4-5.) Harris stated that he had no confusion about these potential sentences and, through Attorney Sherrer, agreed to keep the January 8, 2013 trial date in place. (Id.)

         On January 3, 2013, the grand jury returned a Superseding Indictment charging Harris with the original six counts and an additional count. (Doc. 20.) The new count-Count Seven-charged Harris with violating 18 U.S.C. § 924(c)(1)(A), possessing a gun in furtherance of a drug trafficking crime.^[2] (Doc. 20 at 7.) The arraignment on the Superseding Indictment was set for January 8, 2013, immediately prior to the scheduled jury draw. (Doc. 21.)

         D. Final Plea Offers

         On January 4, 2013, the government extended to Harris two distinct final plea offers based on the § 851 notice and the new firearms charge alleged in Count Seven of the Superseding Indictment. (See Docs. 115-6, 115-7, 116-2.) Under the first offer, Harris would plead guilty to Count One, conspiring to distribute heroin and 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B). (Doc. 115-6 at 1, ¶ 1.) Harris would also be compelled to agree to the sentencing enhancement under 21 U.S.C. § 841(b)(1)(B) for offenders with a prior felony drug conviction, exposing Harris to a 10-year mandatory minimum. (Id. ¶ 2.) The second plea offer also exposed Harris to a 10-year mandatory minimum; the offer retained the conspiracy-to-distribute charge under Count One but replaced the § 841(b)(1)(B) sentencing enhancement for Harris's prior felony drug conviction with a plea of guilty to Count Seven, possessing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)(i). (Doc. 115-7 at 1, ¶ 1.) After discussing both offers with counsel, Harris rejected both plea offers. (Doc. 115 at 10, ¶ 54; Doc. 116-3.)

         E. Arraignment and Jury Draw Continuance

         Harris was arraigned on the Superseding Indictment on January 8, 2013. (Doc. 96.) Prior to the arraignment hearing, however, the U.S. Marshals brought Harris into the courtroom while shackled. (Doc. 96 at 2; Doc. 115 at 5, ¶ 34.) Several prospective jurors were waiting in the courtroom for the jury draw and witnessed Harris shackled. (Doc. 115 at 5, ¶ 34.) To avoid this potential prejudice to Harris, the Court granted Attorney Sherrer's motion to continue the jury draw. (Id. ¶ 35; Doc. 96 at 3.) The Court continued the jury draw for 30 days and tolled the speedy trial clock during these 30 days in the interests of justice, setting forth its factual finding on the record consistent with 18 U.S.C. § 3161(h)(7). (Doc. 96 at 20.)

         The transcript of the arraignment also reveals that, while Harris was present in court, the government carefully explained the two plea offers that had been extended to Harris, and Attorney Sherrer observed that the plea offers “ha[d] been given considerable thought and discussion.” (Doc. 96 at 5-6, 13.) The Court ascertained from Harris directly that the plea offers had been communicated to him by counsel. (Id. at 23.) Harris acknowledged this communication and stated that he had rejected the offers and wished to exercise his right to trial by jury. (Id.)

         Furthermore, at the arraignment, the presiding district judge discussed rescheduling the trial. (Id. at 3.) During this discussion, the Court paid careful attention to the requirements of the STA. (Id. at 3-4, 17-19.) Upon inquiry, the Court was informed that only 17 days remained on the 70-day speedy trial clock. (Id. at 17-19.) The Court proposed that, with an appropriate STA exclusion, it could extend to Harris a choice regarding the timing of his trial: either Harris could move forward with another district judge within the next 30 days or, if Harris wished to continue with the same presiding judge, he could wait until early March for his trial. (Id. at 18-19; Doc. 115 at 5-6, ¶ 36). Ultimately, Harris chose to remain with the same presiding judge and the jury draw was set for March 6, 2013, with the trial to commence on March 12. (Doc. 96 at 18-19; Doc. 115 at 5-6, ¶ 36; see also Doc. 27.)

         Subsequently, the government filed an unopposed motion to exclude the days from February 6, 2013, to the jury draw on March 6, 2013, from being counted under the STA. (Doc. 28.) The Court granted this motion, again concluding that the ends of justice outweighed the interests of the public and Harris in a speedy trial under 18 U.S.C. § 3161(h)(7). (Doc. 29.)

         Then, on February 15, Attorney Sherrer moved to continue the jury draw, (Doc. 30); the Court granted the motion and excluded the days from March 6 until the new jury draw date of April 2, 2013, from being counted in the speedy trial computations. (Doc. 31 at 1-2.) Ultimately, Harris's jury draw commenced on April 9, 2013, and his trial began on April 10, 2013. (Docs. 56, 59.)

         F. Pretrial Motions

         Throughout the proceedings, Attorney Sherrer filed a number of pretrial motions.^[3] As relevant to the instant § 2255 Motion, on February 22, 2013, Sherrer filed his first motion to suppress. (Doc. 32.) In the motion, along with challenging evidence derived in a search of a Barre, Vermont residence, Attorney Sherrer questioned the source of a photograph of Harris used in assembling a photographic array. (Doc. 32 at 15-16.) The photographic array had been presented to Anthony Miller, a coconspirator and trial witness, who identified Harris as “Black.” (Id. at 15.) Because the identity of “Black” had not been known to the government for a substantial period of time, Sherrer sought an order compelling the government to disclose the reason it had included Harris in the array shown to Miller. (Id. at 16.) Attorney Sherrer further stated that, once the source of the photograph was known, the constitutionality of Miller's identification might be challenged. (Id.)

         In a written opinion, the Court denied Sherrer's motion to compel disclosure of the source of the photograph. (Doc. 41 at 16-17.) The Court concluded that, “[a]ssuming that the defendant does not contest that the photograph used to identify him was in fact him, how the government obtained the photograph is irrelevant.” (Id. at 17.)

         G. Pretrial Motions Hearing

         During a motions hearing on April 8, 2013-two days before the trial-Attorney Sherrer disclosed two strategic disagreements that he was having with Harris. (Doc. 97 at 46-47.) Harris wanted Sherrer to file a motion to dismiss based on alleged violations of Harris's speedy trial rights and another motion to suppress certain out-of-court identifications made by a potential trial witnesses, Sarah Lucas. (Id.) Although Attorney Sherrer did not believe that either motion had merit, at Harris's behest, he raised the issues before the Court. (Id.)

         The Court asked Harris to put his concerns on the record. (Id. at 47.) Harris stated that he understood that “any time that was afforded to the government does not, like, go against my speedy trial time . . . and the time for me to have to go to trial . . . like[] motion practice or whatever.” (Id. at 48.) But Harris still contended that the speedy trial clock had expired. (Id. at 51-52.) In response, the Court generally explained tolling to Harris and concluded that there was no formal motion to dismiss for speedy trial violations. (Id. at 50-52.) Next, Harris asked about challenging an identification that occurred more than 20 months after the alleged drug sale. (Id. at 57.) The Court determined that any potential problem with the identification could be addressed with a vigorous cross-examination at trial. (Id. at 57-58.)

         III. Trial

         The trial began in the afternoon of April 10, 2013, after the Court addressed several additional outstanding motions. (Doc. 58; see generally Doc. 83.)

         During the three-day trial, the government presented tangible evidence and the testimony of law enforcement personnel and several coconspirators to establish that Harris, also known as “Black, ” was an armed and experienced drug trafficker who, along with the coconspirators, brought crack cocaine and heroin from New York City to Barre, Vermont, where “Black” sold the drugs, including on the occasions charged in the Superseding Indictment. (Doc. 83 at 49-50.)

         The testimony of Anthony Miller, one of the coconspirators, is pertinent to the present § 2255 Motion. Miller cooperated with the government pursuant to a plea agreement. (Doc. 85 at 29-35.) Prior to trial, Miller twice identified Harris from photographs. The first time, on March 27, 2012, Miller was shown a single photograph taken from a seized iPad and he was asked by law enforcement if he could identify the man in the photo. (Doc. 116-1 at 51-52.) He identified the man as “Black, ” an alias that Harris used. (Id.) The second identification occurred as part of a photo array presented to Miller on April 16, 2012; Miller again identified the photo of Harris as “Black” in the lineup. (Id. at 51 n.4; Doc. 32 at 15-16, Doc. 32-6.)

         During the trial, Miller testified that, when he got out of prison in July 2011, he returned to his home in the Bronx, where he met “Black.” (Doc. 85 at 35-36.) According to his testimony, he had known “Black” for a “[c]ouple of years.” (Id. at 35.) “Black” told Miller that he “had a spot out of town” in Barre, Vermont, where they could make money selling drugs. (Id. at 36.) Miller then explained that he and “Black” began traveling to Barre to sell heroin and crack cocaine. (Id. at 37-38.) They took multiple trips by bus for this purpose. (Id. at 39-41.) At other times, Miller took the bus with other conspirators and “Black.” (Id. at 42-45.) Once the drugs were transported to Barre, Miller and “Black” would chop and bag the heroin and crack cocaine to sell on the streets. (Id. at 41.) Finally, in the course of his testimony, Miller identified “Black's” voice on a recording, identified “Black” in video surveillance, and Miller identified “Black” as Harris in the courtroom. (Id. at 58, 67, 68.)

         Similarly, numerous other witnesses identified Harris as “Black” during the trial and offered additional testimony supporting the government's case: Rebecca O'Neill, who allowed Harris and Miller and another coconspirator stay at her Barre apartment while they were selling crack cocaine and heroin, (see Doc. 83 at 235-37; Doc. 84 at 30-31); John Wiley, who traveled with “Black” to New York City to acquire heroin, (id. at 83-94); and Lisa Barbour, who also transported crack cocaine and heroin with “Black.” (Id. at 145-57.)^[4] In addition, Detective Shawn Loan testified that the Vermont State Police accomplished a series of controlled purchases of drug evidence from “Black” and his coconspirators. (Doc. 83 at 119.) Specifically, a confidential informant, Sarah Lucas, purchased heroin and crack cocaine on August 9, September 20, and September 22, 2011. (Id. at 120-22; 148-156.) Finally, Detective Loan testified that Sarah Lucas had identified Harris as “Black” from a photographic lineup prior to trial. (Id. at 160-61.) Lucas herself described her purchases of drug evidence and authenticated recordings of the buys from “Black”. (Id. at 204-18.)

         On April 12, 2103, the jury found Harris guilty on five counts: Count One, conspiring to distribute over 28 grams of cocaine base and heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846; Counts Three through Five, knowingly and intentionally distributing either heroin or cocaine base on August 9, September 20, and September 22, 2011, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2; and Count Six, knowingly and intentionally possessing heroin and cocaine base with the intent to distribute those substances in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2. (Doc. 63.) The jury found Harris not guilty on Count Two and Count Seven. (Id.)

         IV. Sentencing

         A. Original Sentence

         A presentence report (PSR) was submitted to the Court in anticipation of sentencing. The PSR noted that, based on the 21 U.S.C. § 851 notice of prior conviction and the drug quantity allegation set forth in Count One, Harris's Count One conviction carried a 10-year mandatory minimum with a maximum of life under 21 U.S.C. § 841(b)(1)(B), and that Counts Three through Six, the maximum term of imprisonment was 30 years pursuant to 21 U.S.C. § 841(b)(1)(C). (PSR at 22, ¶ 83.)

         For the Sentencing Guideline calculation, the PSR began with a base offense level of 30. (Id. at 13-14, ¶ 39.) The PSR added two levels to this base offense level because Harris possessed a dangerous weapon and two additional levels because Harris made a credible threat to use violence. (Id. at 14, ¶ 40 (citing USSG § 2D1.1(b)(1), (2).) Finally, the PSR determined that Harris was a career offender under USSG § 4B1.1 and added three additional levels because Harris had at least two prior felony controlled-substance offenses. (Id. ¶ 45.) Thus, Harris's adjusted offense level was 37. (Id.) The PSR further concluded that Harris had a criminal history score of 11. (Id. at 18, ¶ 59.) This score included two points for a prior conviction for false personation in New York. (Id. at 16, ¶ 52.) Generally, 11 criminal history points would have placed Harris in a Criminal History Category (CHC) of V, but the PSR concluded that, because of Harris's status as a career offender, the CHC was VI. (Id. ¶ 59.) With a total offense level of 37 and a CHC of VI, Harris faced an advisory Sentencing Guideline imprisonment range of 360 months to life. (Id. at 22, ¶ 84.)

         On January 27 and January 30, 2014, Harris appeared for sentencing proceedings. (Docs. 86, 88, 94.) In response to the Court's inquiry, Harris acknowledged that he had reviewed the PSR (Doc. 94 at 4); and, although Harris stated that he found some factual mistakes, he admitted that he had discussed the errors with Attorney Sherrer. (Id. at 4-5.) The Court next considered a number of issues raised by Sherrer regarding the advisory Sentencing Guidelines. (Id. at 11.) In doing so, the Court heard witness testimony and reviewed several documents that had been admitted into evidence, including a New York certificate of disposition indicating that, as of February 6, 2013, Harris's 2008 convictions were recorded in the State of New York's court records. (Id. at 11, 137, see generally Id. 37-130; Doc. 82-1.)

         After hearing this testimony and reviewing the evidence, the Court made several adjustments to Harris's adjusted offense level. First, based on the parties' agreement, the Court concluded that Harris was not a career offender under the advisory Sentencing Guidelines. (Doc. 94 at 11.) Next, the Court set the base offense level at 30 based on the amount of drugs described in the testimony. (Id. at 181, 237.) To this base level, the Court added a two-level enhancement under USSG § 2D1.1(b)(1) because the testimony establish that Harris had been in possession of a firearm. (Id. at 182, 237.) But the Court found that the testimony did not credibly established that Harris had made a threat and, as a result, the Court did not add a two-level enhancement under § 2D1.1(b)(2). (Id. at 183-84, 237.) Thus, the Court determined that Harris's adjusted offense level was 32. (Id. at 237.)

         The Court also adjusted Harris's criminal history score, concluding that the testimony and evidence supported the assessment of only seven points. (Id. at 183-85, 237.) Of these seven points, two included Harris's prior conviction for false personation in New York. (Id. at 10, 158.) Attorney Sherrer agreed with the assessment of these two points at the sentencing hearing (id. at 157-58), but he stated for the record that Harris disputed the two points assessed based on the length of his imprisonment for the false personation conviction. (Id. at 157.) Ultimately, the Court noted that Harris “didn't raise an objection to the two points” (see Id. at 179), and applied the two points along with five other points, which totaled seven criminal history points and resulted in a CHC of IV. (Id. at 185, 237.)

         The Court then heard argument from defense counsel and the government regarding the statutory sentencing factors found at 18 U.S.C. § 3553(a). (Id. at 185-201, 216-26.) Attorney Sherrer advocated for the 10-year mandatory minimum sentence, pointing to Harris's troubled personal history and upbringing, as well as his youth. (Id. at 192-93, 201.) The government sought a 210-month term of imprisonment, or 17-and-a-half years, arguing that Harris was not motivated by addiction and that he directed the conspiracy solely to enrich himself by using Vermont addicts. (Id. at 216-17.) The Court reviewed the sentencing factors set forth in 18 U.S.C. § 3553(a) and determined that a “modest adjustment” was appropriate and the Court reduced Harris's offense level to 31. (Id. at 236-37.) With a CHC of IV, this offense level adjustment yielded a recommended sentencing range of 151-188 months. (Id. at 236.)

         Prior to imposing Harris's sentence, the Court confirmed Harris's admission to two prior felony-drug convictions consistent with 21 U.S.C. § 851. (Id. at 228-29.) Although Harris claimed that the felonies had been removed from his record, (id.), the Court noted on the record that Harris's affirmation was sufficient under 21 U.S.C. § 851(b) to establish the prior convictions and to impose the 10-year ...