getting-out-from-under-an-851-enhancement-through-cooperation.

As a general rule, the decision of whether to file a Section 851 information is in the hands of federal prosecutors. Unless otherwise mandated by the court or law, the sentencing enhancement sought through a Section 851 filing usually remains in place through sentencing unless it is withdrawn or otherwise defeated. This means that, once you are faced with the prospect of enhanced sentencing, cooperation is often a method for removing an 851 enhancement before you go to sentence. That said, while cooperation can potentially remove a Section 851 enhancement, it does not guarantee that the government will withdraw its filing or that it will afford you sentencing relief.

If you are contemplating cooperation in order to avoid the consequences of a Section 851 enhancement, you will need to speak with a defense lawyer. Cooperation should only be sought if it is in your best interest to do so; you will need to understand what is required to gain the government’s trust, how to demonstrate your eligibility for substantial assistance relief, and what is required to effectively secure the government’s commitment to withdraw its Section 851 filing. With this in mind, once you determine that cooperation is in your best interest and that you are prepared to cooperate fully, the next step in your defense will be to seek substantial-assistance relief.

If you are facing a federal criminal investigation, it is imperative that you seek the advice of an experienced federal criminal defense lawyer as soon as possible. At Spodek Law Group, our attorneys can help. We will review your case to determine whether you are eligible for substantial assistance relief, and if so, we will work with federal prosecutors on your behalf to help seek the sentencing relief you deserve. If you are being investigated for a federal drug offense, contact us today to schedule a free and confidential consultation with an experienced federal defense lawyer.

Which Prior Conviction Can Support the Enhancement the Government Filed?

For enhancements filed under Section 851 after 2018, the underlying prior conviction must meet the definition of a “serious drug felony.” Under 21 U.S.C. § 802(57), as incorporated into the enhanced-penalty provisions of 21 U.S.C. §§ 841(b) and 960(b), a “serious drug felony” is an offense described in 18 U.S.C. § 924(e)(2) for which the offender served more than 12 months of imprisonment and was released within 15 years of the commencement of the instant offense:

• The statutory maximum sentence must be at least 10 years of imprisonment.
• The offense must have involved a controlled substance that is subject to prosecution on the date the government filed its Section 851 information.
• The defendant must have served more than 12 months of imprisonment for the prior conviction.
• The defendant’s release from any term of imprisonment must have been within 15 years of the commencement of the instant offense. Section 802(57)’s definition of a serious drug felony applies to offenses covered by Section 401 of the First Step Act, including offenses committed before December 21, 2018 if a sentence had not been imposed by that date. The First Step Act changed the prior-conviction standard for Section 851 enhancements from a “felony drug offense” to a “serious drug felony.” For offenses covered by Section 401 of the First Step Act, the prior conviction must satisfy the definition of a serious drug felony. Prior convictions under the law of a state may count as qualifying prior convictions as well. As long as the conduct involved is equivalent to that of a federal controlled-substance offense, even if the conviction took place in state court, the prior conviction can be a “serious drug felony” that makes you eligible for the Section 851 sentencing enhancement.

How Does a Defendant Challenge a Prior Conviction at a Section 851 Hearing?

To seek a punishment higher than the current offense’s sentencing range based on a defendant’s prior convictions, federal prosecutors are generally required to file a Section 851 information. This is a formal statement, and it must be filed by the federal prosecutor before the trial or the defendant’s entry of a guilty plea. If the prosecutor fails to file this information by the appropriate time, then the prior convictions cannot be used to increase the applicable statutory punishment.

Prior to the hearing, defendants can choose to deny any allegations made concerning their prior drug offenses. If a defendant denies the allegations, the burden of proof then shifts to the government. In this scenario, the government must prove the allegations in the Section 851 information beyond a reasonable doubt.

As provided under Section 851, the court is required to advise the defendant about the option to contest any alleged prior drug convictions. If a defendant chooses to challenge the allegations at the Section 851 hearing, the government must once again overcome its burden of proof in order to pursue the sentence enhancements.

For anyone facing a federal drug charge, the steps required to mitigate potential sentencing enhancements can be complicated and are often counterintuitive. Because of this, if you are facing the prospect of a Section 851 sentencing enhancement, it is extremely important that you seek the assistance of a seasoned federal criminal defense attorney. At Spodek Law Group, our team of attorneys will get to work on your case right away. We will work with you to identify whether the government committed a procedural error, and if so, we will seek to have your Section 851 information dismissed in order to protect your rights as a defendant.

What Relief Can Cooperation Produce, and What Risks Remain?

When cooperating with the federal government, a defendant can potentially seek sentencing relief through two mechanisms: withdrawal of the Section 851 information or the government’s motion for substantial-assistance relief. While similar in nature, these mechanisms are legally distinct and serve different purposes.

What Is the Difference Between Section 851 Withdrawal and Substantial-Assistance Relief?

Section 851 withdrawal is only available if the government has filed a Section 851 information and the defendant is facing a sentencing enhancement. This is a pre-sentencing procedural issue. A government motion for substantial-assistance relief, on the other hand, can seek to mitigate the consequences of any federal criminal conviction. This means that even in cases where no Section 851 information was filed, a defendant can still seek the protections and advantages of cooperating with the federal government.

For example, a government motion for a Section 5K1.1 reduction allows the defendant to have a lower-than-standard sentence imposed even if they are guilty of multiple serious offenses. Similarly, under 18 U.S.C. § 3553(e), the government can seek sentencing below the minimum for the offense or for sentencing purposes. When these reductions are granted post-sentencing, they are known as a Rule 35(b) reduction.

What Are the Risks Associated with Cooperating with the Government?

While it has the potential to be beneficial for many defendants, cooperating with the federal government has its potential pitfalls as well. It is important to work closely with a defense attorney, who will be able to help you make an informed decision about cooperating. If you decide to cooperate, your defense attorney will be able to take all necessary measures to protect you and your interests to the best of their ability.

Ultimately, if you are going to cooperate with the federal government, it is up to you to make a decision based on the benefits and risks that your circumstances allow for. Your defense attorney will be able to provide you with helpful information about the potential outcomes. If you decide to cooperate, it will be crucial for your attorney to address the potential risks and maximize the potential benefits.

As explained below, a cooperation-based defense strategy can create issues for you with regard to:

• Credibility Problems.
• Your Right to a Fair Trial.
• The Right to the Right to Confront Your Accusers at Trial.
• Personal Safety.

How Often Does a Filed Section 851 Information Survive to Sentencing?

As you can see from the data, although prosecutors filed Section 851 informations against 757 eligible defendants in fiscal year 2016, only 243 of those eligible defendants remained subject to enhanced punishment at their final sentencing. This suggests that while prosecutors use the Section 851 enhancements in certain cases, they are relatively few.

However, for those defendants facing a Section 851 enhancement, the sentencing implications are substantial. As data from the U.S. Sentencing Commission shows, eligible defendants without Section 851 enhancements had an average prison sentence of 86 months. In contrast, the defendants whose Section 851 enhancements survived to final sentencing faced an average prison sentence of 225 months, or approximately 18 years, and nine months.

This explains why, when facing a federal drug investigation, any potential for a Section 851 enhancement needs to be taken seriously. For defendants facing the threat of extended prison time, the stakes are remarkably high.

For federal criminal defendants across the country, the potential for enhanced sentencing for a drug offense based on the defendant’s criminal history is a serious concern. If you or a loved one is facing a Section 851 sentencing enhancement, our attorneys can help. We we will be able to advise you about potential defenses to Section 851 enhancements based on the specific facts of your case.

At Spodek Law Group, we are committed to helping you protect your interests. We offer free and confidential consultations. If you’re interested in learning more, call or fill out our online contact form.

Speak With Counsel Before You Answer Anything

If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.