UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

BROWN, EDDIE


99-3015a

D.C. Cir. 1999


*	*	*


PER CURIAM:


This appeal was considered on the record from the United  States
District Court for the District of Columbia and on the  briefs of the
parties. The court has determined that the 


issues presented occasion no need for oral argument. See  D.C. Cir.
Rule 34(j). It is


ORDERED AND ADJUDGED that the district court's  order denying Brown's
Motion to Vacate, Set Aside, or Cor- rect Sentence pursuant to 28
U.S.C. s 2255 be affirmed.


The district court granted a certificate of appealability  pursuant to
28 U.S.C. s 2253(c)(1) on a single issue: whether  Brown's trial
counsel rendered ineffective assistance at his  sentencing. On appeal,
Brown argues that his trial counsel  was ineffective in failing to
assert that Brown's sentence  could not be enhanced under 21 U.S.C. s
841 because of  ambiguity in the notice provision of 21 U.S.C. s 851.
In  order to seek an enhanced sentence under s 841, the United  States
Attorney is required to file an information under  s 851. Section
851(a)(2) provides, however, that "[a]n infor- mation may not be filed
under this section if the increased  punishment which may be imposed
is imprisonment for a  term in excess of three years unless the person
either waived  or was afforded prosecution by indictment for the
offense for  which such increased punishment may be imposed." Brown 
claims that the requirement of an indictment applies to the  predicate
convictions rather than to the present conviction;  alternatively, he
argues that the proper application of this  requirement is so
ambiguous that the rule of lenity would  have barred enhancement of
his sentence. Brown claims that  his counsel's failure to raise these
arguments during sentenc- ing fell below an objective standard of
reasonableness, and  that he was prejudiced because this court would
have re- versed the district court on the sentence enhancement either 
by adopting Brown's interpretation of the statute or by  applying the
rule of lenity. See Strickland v. Washington,  466 U.S. 668, 687
(1984) (holding that a claim of ineffective  assistance of counsel
requires both objective deficiency by  counsel and prejudice to the


We reject Brown's appeal because he has failed to demon- strate
prejudice. We join the nine other circuits that have  considered this
issue and hold that the requirement of an  indictment in 21 U.S.C. s
851(a)(2) applies to the present 


conviction. See United States v. Ortiz, 143 F.3d 728, 732 (2d  Cir.
1998), overruling United States v. Collado, 106 F.3d 1097  (2d Cir.
1997); United States v. Lynch, 158 F.3d 195, 199 (3d  Cir. 1998);
United States v. Lampton, 158 F.3d 251, 256 (5th  Cir. 1998); United
States v. Gaitan-Acevedo, 148 F.3d 577,  594 (6th Cir. 1998); United
States v. Burrell, 963 F.2d 976,  993 (7th Cir. 1992); United States
v. Trevino-Rodriguez, 994  F.2d 533, 536 (8th Cir. 1993); United
States v. Espinosa, 827  F.2d 604, 617 (9th Cir. 1987); United States
v. Adams, 914  F.2d 1404, 1407 (10th Cir. 1990); United States v.
Harden, 37  F.3d 595, 601 (11th Cir. 1994). Nor is this section
ambiguous  such that the rule of lenity would preclude the enhancement
 of Brown's sentence. See Ortiz, 143 F.3d at 731-32.


The clerk is directed to withhold issuance of the mandate  herein until
seven days after disposition of any timely petition  for rehearing.
See D.C. Cir. Rule 41.