Enhanced Sentencing

Any person charged in federal court could face an enhanced sentence if he/she has previously been found guilty of a felony drug offense. 21 U.S.C. 851, also referred to as Section 851, is a subsection of the Controlled Substances Act, which allows federal prosecutors to use a defendant’s prior felony drug conviction to subject the defendant to an increased sentence in a current case. Federal prosecutors can use a prior drug conviction to enhance sentences in current drug, firearm or immigration cases. The purpose of Section 851 is to provide a defendant notice that the government intends to increase the defendant’s sentence based on a past conviction. In order to ensure that a defendant’s due process rights are not violated, Section 851 not only requires federal prosecutors to provide notice to the defendant, but it also allows the defendant an opportunity to challenge the validity of the prior convictions. Prosecutors will bear the burden of proving, beyond a reasonable doubt, any disputed fact about a prior conviction that the government intends to rely on for a sentence enhancement.

Consequences of Prior Felony Drug Convictions Under Section 851

The use of a prior conviction in a defendant’s sentencing can have a serious impact on the sentence the court will impose. Often times, a court will choose to impose a sentence that is double what it would have been had the prior felony drug offense not been considered. In situations where federal sentencing guidelines already require a mandatory minimum sentence for an offense, a sentence enhancement for a prior drug conviction can be the difference between receiving a ten year sentence and receiving a twenty year sentence. In some cases, where a defendant has two prior felony drug convictions, the court may choose to impose a life sentence.

Hiring Experienced Counsel

An experienced federal defense attorney will not only look at the charges that are currently filed against the client, but also what charges could be filed against the client. Many times federal prosecutors will not initially charge Section 851 or other enhancements, which allows them more room to negotiate a plea agreement. A defense attorney’s failure to recognize the potential for such charges can lead the attorney to recommend that the client not take a certain plea offer. Once the plea agreement is rejected and the case is set for trial, federal prosecutors will often file a Superseding Indictment that adds other charges and enhancements, such as Section 851. This can result in accused spending many more years in prison than the initial plea offer, often double the amount of time the sentence could be if an experienced and knowledgeable federal defense attorney had negotiated the case. Typically, the mandatory minimum federal sentence results in a significantly longer sentence than if the mandatory minimum federal sentence did not apply. There are action and tactics that can eliminate the requirements of the federal mandatory minimums. For an explanation of how this can occur, please refer to my Avvo practice guide on “the safety valve.” If you or a member of your family is accused of a federal offense and have any prior felony drug convictions on your record, it is best to immediately seek the advice of an experienced and knowledgeable federal defense attorney.