21 U.S.C. § 851

Proceedings to establish prior convictions

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(a) Information filed by United States Attorney(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.(2) An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.(b) Affirmation or denial of previous conviction

If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

(c) Denial; written response; hearing(1) If the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the United States attorney. The court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment. The failure of the United States attorney to include in the information the complete criminal record of the person or any facts in addition to the convictions to be relied upon shall not constitute grounds for invalidating the notice given in the information required by subsection (a)(1). The hearing shall be before the court without a jury and either party may introduce evidence. Except as otherwise provided in paragraph (2) of this subsection, the United States attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. At the request of either party, the court shall enter findings of fact and conclusions of law.(2) A person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response. Any challenge to a prior conviction, not raised by response to the information before an increased sentence is imposed in reliance thereon, shall be waived unless good cause be shown for failure to make a timely challenge.(d) Imposition of sentence(1) If the person files no response to the information, or if the court determines, after hearing, that the person is subject to increased punishment by reason of prior convictions, the court shall proceed to impose sentence upon him as provided by this part.(2) If the court determines that the person has not been convicted as alleged in the information, that a conviction alleged in the information is invalid, or that the person is otherwise not subject to an increased sentence as a matter of law, the court shall, at the request of the United States attorney, postpone sentence to allow an appeal from that determination. If no such request is made, the court shall impose sentence as provided by this part. The person may appeal from an order postponing sentence as if sentence had been pronounced and a final judgment of conviction entered.(e) Statute of limitations

No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction.

(Pub. L. 91–513, title II, § 411, Oct. 27, 1970, 84 Stat. 1269.)Statutory Notes and Related SubsidiariesEffective Date

Section effective on first day of seventh calendar month that begins after Oct. 26, 1970, see section 704 of Pub. L. 91–513, set out as a note under section 801 of this title.

Notes of Decisions

Cited in 3,080 cases (394 in the last 5 years), 1972–2026 · leading case: Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010).

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Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). · cites it 12× “See 21 U. S. C. §851 (a)(1).5 Notice, plus an opportunity to chal lenge the validity of the prior conviction used to enhance the current conviction, §§851(b)–(c), are mandatory pre requisites to obtaining a punishment based on the fact of a prior conviction.”

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). · cites it 8× “The Government subsequently filed a Bill of Information, pursuant to 21 U.S.C. § 851 , alleging that Simmons's 1996 North Carolina conviction for possession with intent to distribute marijuana constituted a predicate "felony drug" conviction triggering the ten-year statutory…”

Jesus Arreola-Castillo v. United States, 889 F.3d 378 (7th Cir. 2018). · cites it 11× “It relied on 21 U.S.C. § 851 (e), which prohibits an individual from challenging the validity of a prior conviction that is more than five years old at the time the government seeks the recidivism enhancement.”

United States of Am., Plaintiff-Appellee/cross-Appellant v. Rene Gonzalez-Lerma, Defendant-Appellant/cross-Appellee, 14 F.3d 1479 (10th Cir. 1994). · cites it 15× “On the morning of the trial, October 5, 1992, before trial commenced, the government served the same information 2 on defense counsel.”

United States v. Michael Francis DiFalco, 837 F.3d 1207 (11th Cir. 2016). · cites it 9× “On June 17, 2018, the Assistant United States Attorney responsible for prosecuting DiFalco informed the district court that he had received approval from his supervisor to enter into a plea agreement whereby the government would file only one 21 U.S.C. § 851 enhancement against…”

Custis v. United States, 511 U.S. 485 (1994). · cites it 8× “For example, 21 U. S. C. § 851 (c), which Congress enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, sets forth specific procedures allowing a defendant to challenge the validity of a prior conviction used to enhance the sentence for a federal…”

United States v. Robert Rodriguez, 851 F.3d 931 (9th Cir. 2017). · cites it 10× “Rodriguez also argues that the district court erred when it (1) enhanced Rodriguez’s sentence under 21 U.S.C. § 851 after finding three prior convictions, (2) applied an organizer/leader upward adjustment under United States Sentencing Guidelines (U.”

Fernandez v. Mukasey, 544 F.3d 862 (7th Cir. 2008). · cites it 22× “However, for the government to obtain a felony conviction under § 844(a), it has to, pursuant to 21 U.S.C. § 851 , file notice of the prior conviction and, if challenged, prove to the judge the existence of the prior conviction beyond a reasonable doubt.”

United States v. Douglas Jensen, 425 F.3d 698 (9th Cir. 2005). · cites it 9× “§ 841 (b)(1)(A) and 21 U.S.C. § 851 (a)(1). On appeal, Jensen contends that the district court erred in denying his motion under Fed.”

United States v. Baugham, 613 F.3d 291 (D.C. Cir. 2010). · cites it 20× “He argues the district court failed to observe the requirements of 21 U.S.C. § 851 (a) and (b) when it enhanced his sentence based on a prior drug conviction and that it levied a vindictive fine on him in violation of his constitutional due process rights.”

United States v. Nathaniel Ruth, 966 F.3d 642 (7th Cir. 2020). · cites it 4× “The government then filed an information pursuant to 21 U.S.C. § 851 notifying Ruth that it intended to rely on a prior convic- tion as a predicate felony drug offense to enhance his sen- tence.”

United States v. Pritchett, 496 F.3d 537 (6th Cir. 2007). · cites it 14× “§ 841 (b)(1)(B), 21 U.S.C. § 851 , and USSG § 5G1. 1(c)(2), however, the Court cannot sentence [Appellant] to less than 120 months in prison, followed by at least 8 years of supervised release.”

Show all 3,080 citing cases →

— 21 U.S.C. § 851(a) — 1 case

United States v. Sills, 692 F. Supp. 2d 792 (E.D. Mich. 2010).

— 21 U.S.C. § 851(a)(1) — 3 cases

United States v. Vaughn, 370 F.3d 1049 (10th Cir. 2004).

United States v. Angel Velazquez (8th Cir. 2005).

— 21 U.S.C. § 851(b) — 4 cases

United States v. Jesse Angel Cevallos, 538 F.2d 1122 (5th Cir. 1976).

Dewar v. United States (S.D.N.Y. 2020).

United States v. Baptiste, 11 F. App'x 172 (4th Cir. 2001).

United States v. Abdullah (4th Cir. 1997).

— 21 U.S.C. § 851(c)(1) — 1 case

United States v. Alexis Hernandez, 906 F.3d 1367 (11th Cir. 2018).

— 21 U.S.C. § 851(d)(2) — 1 case

United States v. Michael Ingram (8th Cir. 2010).

— 21 U.S.C. § 851(e) — 2 cases

Irrizari v. United States, 153 F. Supp. 2d 722 (E.D. Pa. 2001).

Toney v. United States (N.D. Ala. 2020).

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