I am wondering if the statute 851 notice of priors to be relied upon for enhancement applies only to title 21 offenses or does it also apply to a title 18 offense where they used a 924(e) enhancement. We were going to argue that since they did not provide notice of a prior conviction before the plea agreement, that they could not relyon it after the presentence report came back, but the more I have looked at it, it seems to apply to the Title 21 offenses (drug cases) and not Title 18 (gun case). Any help would be appreciated.
The notice of priors for enhancements does not apply, however, there is at least one case that has held that if the defendant was not advised that there was a 15 year minimum, rather than a 10-year maximum, on a title 18 gun charge, the defendant needs to be allowed the chance to withdraw their plea because they were not properly admonished as to the consequence of their plea.
851 is a funny and dangerous statute. Here is what it provides (in part):
(1) 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. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.
As you can see it applies to "prior convictions.' However, you then must look at external statutes to determine which ones provide enhancements for prior convictions. You need to look at statutes sucha as the Career Criminal Offender Act and others, as well as the Guidelines. Generally, the 851 enhancement can apply to "serious violent felonies" or "serious drug offenses" both of which have specified definitions in the statute.
I know this may not be much of an answer, but sometimes apparently "simple" questions require complex answers.
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He was advised that there was a 15 year minimum if he qualified for the enhancement based on his priors, but the priors they used in the indictment and plea agreement are not the ones they used to enhance his sentence. Only 2 of the ones they notified him of were actually offenses that would count. After the PSR they used a Carrying a concealed firearm charge. It is starting to look like they might get away with it.
Here is a good link to a "cheat sheet" produced by the federal public defender's office in Washington DC for use by defense attorneys. It says that the ACC enhancement is automatic and no notice is required beyond the PSR calculations.
Can this pertain to a prior state charge, if they are being convicted of a federal crime? For instance they are convicted of bank robbery then go to court and are convicted of 2nd degree murder. They will serve the federal charges first, when sentencing, does the judge take into account they have a violent conviction they will be serving time for, and therefore give them more time.
On the sentencing section, check out "108 Mitigating Factors by M. Levine".
Much of that work was developed by Carmen Hernandez and her job was to advise all fed defenders on complex sentencing issues. She recently went into private practice and is only taking federal cases. She is still practicing in DC.