Discretionary Use of § 851 Enhancements

If a person accused of a drug offense in federal court has a prior felony drug conviction, the existence of this prior conviction or convictions can double the sentence (or more) for that offender.

For example, a defendant who pleads guilty to the offense of conspiracy to distribute, and possess with the intent to distribute five (5) grams or more of a mixture or substance containing a detectable amount of cocaine base (“crack”), a Scheduled II controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B), is facing a mandatory minimum of five years and a maximum of not more than 40 years. However, if this defendant has a prior conviction for “a felony drug offense,” than his or her mandatory minimum is 10 years, regardless of the drug amount. See 21 U.S.C. § 841(b)(1)(B).

However, in order for this enhanced mandatory minimum to take effect, the Government must file a Notice of Enhancement under 21 U.S.C. § 851(a)(1). That statute 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.”

It is crucial to note that the Government has the discretion not to file this enhancement. The United States Attorneys’ Manual (USAM 9-27.300(B)) indicates that § 851 notices should be filed, but not where: “(1) the failure to file or the dismissal of such pleadings would not affect the applicable guideline range from which the sentence may be imposed; or (2) in the context of a negotiated plea[.] . . . . The reasons for such an agreement must be set forth in writing. Such a reason might include, for example, that the United States Attorney's office is particularly overburdened, the case would be time-consuming to try, and proceeding to trial would significantly reduce the total number of cases disposed of by the office. The permissible agreements within this context include: (1) not filing an enhancement; (2) filing an enhancement which does not allege all relevant prior convictions, thereby only partially enhancing a defendant's potential sentence; and (3) dismissing a previously filed enhancement.” See http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/title9.htm

My experience in practicing in different federal districts is that the Government’s implementation of USAM 9-27.300(B) varies widely. I have had an AUSA in one jurisdiction offer to not file an enhancement if my client pled guilty, and had an AUSA in another jurisdiction file an enhancement even when my client pled guilty, cooperated and the Government later filed a 5k Motion for a downward departure!

It makes no sense to file § 851 Notices when a defendant is pleading guilty. Federal drug laws are very harsh, and a defendant‘s criminal history is already a factor in determining that defendant’s federal sentencing guideline range. It is my hope that the Department of Justice will revisit USAM 9-27.300(B) to reach a uniform, just result.