By: Brad Henry

If you have been charged with a drug offense under 21 U.S.C. 841 and have a prior drug offense you may face a doubled minimum mandatory.  All the governme120px-Pyschoactive_Drugs.jpgnt has to do is file an Information pursuant to 21 U.S.C. 851 alleging that you have a prior drug offense that carries a maximum penalty of over one year in jail.  Even if you did not serve a year in jail on the prior offense, the government can seek to double your minimum mandatory sentence.  Luckily, the government must follow strict procedure and prove certain elements of the prior offense beyond a reasonable doubt to the judge at sentencing.

The procedure for the government is simply to file an Information alleging the prior felony drug offense they are seeking to use for enhancement. Unfortunately, the definition for a prior felony drug offense is very broad and even includes simple possession offenses if you could have been sentenced to more than one year in prison. There is also no time limit for the prior offense. 

Once the prior offense is alleged in the Information, it must be served on the defendant before trial or his plea of guilty. If it is filed afterwards it is untimely and the court has no jurisdiction to enhance. 

The court then has to have a hearing asking the defendant whether he affirms or denies the prior conviction. This procedure has not been established in every district but has been followed in the districts that have addressed the 851 issue; which are very few. It is important to remember that a defendant has a right to plead the fifth at sentencing if his answer can increase the punishment and this has been treated as a denial by circuit courts. Obviously an affirmation waives the right to challenge the 851 Information and the sentence will be enhanced. However, a denial or an exercise of the defendant's right to remain silent will trigger the next step.

Once the defendant denies the prior offense he must file a written response challenging the prior offense. The defendant can allege the offense is invalid. Then the government must prove the offense beyond a reasonable doubt, and then the burden shifts to the defendant to show why it is invalid. A challenge for invalid conviction may only be made if it is less than five years old at the time the Information is filed. However, the five year statute of limitations does not apply if the defendant challenges the fact that the prior offense was not a conviction of him (ID) or that he was not represented by an attorney during the prior offense. The government must also prove these beyond a reasonable doubt, but the defendant has no burden in these cases. In ID cases the government usually proves identity through fingerprint exemplars.

It is important to speak to an attorney in your area about these issues. The cases in this area of law are sparse and the penalties for the prior felony drug convictions are huge. It is an excellent area to attack at sentencing because the burden on the government is so high.  If you are facing a sentencing enhancement under 21 U.S.C. 851 our federal criminal defense attorneys may be able to help.