11th Circuit: Defendant May Be Sentenced Without Indictment

By Robyn Hagan Cain on January 10, 2013 | Last updated on March 21, 2019

James McIntosh was sentenced to 120 months, the mandatory minimum sentence for his convictions on a drug-trafficking charge and a weapons charge. Due to a technical error in the original indictment, and a more substantial mistake by the government in handling that error, no indictment was pending against McIntosh at the time of his sentencing.

So McIntosh appealed, questioning the district court's power to sentence him at all.

According to the Eleventh Circuit Court of Appeals, the district court retained the power to sentence McIntosh, and its exercise of that power did not violate any of his constitutional rights or run afoul of the Federal Rules of Criminal Procedure.

McIntosh was indicted in September 2007 on one count of possessing five grams or more of crack cocaine with the intent to distribute the drug, and one count of carrying a firearm during and in relation to a drug-trafficking offense. The charges arose from a November 2005 traffic stop during which an officer discovered cocaine and a firearm in McIntosh's vehicle.

But the indictment mistakenly alleged that McIntosh committed these offenses in February 2007.

The government discovered this mistake after McIntosh pleaded guilty to the charged offenses but before his sentencing. To correct the error, the government obtained a second indictment alleging the proper date of the offenses and then filed a motion to dismiss the original indictment without prejudice, which the district court granted.

The government could have filed a superseding indictment or let it go as a technical error. Instead, counsel explained that the steps were an "overreaction."

That overreaction, however, didn't ruin the feds' case.

In 2002, the Supreme Court held in U.S. v. Cotton that a defective indictment does not deprive a court of jurisdiction. (In Cotton, a drug-conspiracy case, the indictment was defective because it failed to allege the quantity of drugs required for the enhanced statutory penalties that the district court ultimately imposed.)

McIntosh countered that his situation was more similar to U.S. v. Meacham, a Fifth Circuit case in which the indictment never stated a federal offense. The Eleventh Circuit rejected his argument, finding that McIntosh, like the Cotton defendants, pleaded guilty to an indictment that alleged an established offense against the United States, thereby properly invoking the district court's jurisdiction. The Court also noted that the Fifth Amendment does not require that an indictment be in existence at the time of sentencing.

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