851 Enhancement

Those charged with drug trafficking in federal court should be aware that the government has the statutory authority to attempt to enhance a drug crime sentence when one has a prior serious drug felony conviction on his or her record. 21 USC §851, also known as an 851 enhancement, allows such an attempt. This enhancement is a tool the government can use to increase a sentence, and how it is applied varies based on how many prior felony convictions you have on your criminal record. Unlike a career offender enhancement, this penalty increase is not automatic, though it can be just as harsh if not more so than career offender status. If you find yourself charged with a federal drug offense and have concerns that an 851 enhancement might be coming, it is vital to consult seasoned Tampa federal crime attorney Jason Mayberry.

Under 18 U.S. Code § 3559, crimes are classified according to their severity. For instance, a crime that isn’t specifically classified by a letter grade within the statute that defines it is classified as a Class A felony if the maximum imprisonment term is life imprisonment or the maximum penalty is death. Other classes of felonies have different sentences, lesser than the possible punishment for a Class A.

Under 21 U.S. Code § 851, you cannot be sentenced to an increased punishment due to one or more prior drug convictions unless a United States prosecutor files an information with the court giving notice of prior convictions. The information is a charging document that tells the court the number of prior felony drug crime convictions you have and asks it to impose a sentencing enhancement accordingly. Simple possession of drugs can constitute a felony drug crime.

If you have a prior felony conviction, the United States files an 851 information, and you are convicted of drug trafficking in federal court, the court must impose a longer mandatory minimum sentence. Under 21 U.S.C. § 802(44), felony drug crimes are those that are punishable by imprisonment for more than a year that forbid or restrict conduct related to marijuana, narcotics, anabolic steroids and depressants or stimulant substances.

It can be complicated to figure out on your own as a layperson how an 851 enhancement would apply in your case. The enhancement varies based on the number of your prior felony drug crime convictions. However, the consequences you face if the prosecutor proves you deserve the enhancement beyond a reasonable doubt are harsh by any standards. The following are the enhancement prospects based upon priors and what subsection of the drug statute you are charged under:

21 U.S.C. 841(b)(1)(A) with one prior qualifying conviction enhances your minimum mandatory prison sentence from ten years to fifteen years. Two qualifying prior convictions enhances the minimum mandatory prison sentence to twenty five years, and if there is one or more qualifying prior conviction and the current drug crime resulted in death or serious bodily injury, a life sentence is mandated. 21 U.S.C. 841(b)(1)(B) with one prior qualifying conviction enhances your minimum mandatory prison sentence from five years to ten years. Two qualifying prior convictions enhances the minimum mandatory prison sentence to ten years, and if there is one or more qualifying prior conviction and the current drug crime resulted in death or serious bodily injury, a life sentence is mandated.

21 U.S.C. 841(b)(1)(C) operates a little differently than the two prior subsections. Because a charge under this subsection does not carry a minimum mandatory prison term unless there is death or serious bodily injury, an 851 enhancement here would simply increase the maximum sentence faced. One or even two prior qualifying conviction enhances your maximum sentence potential to 30 years, up from 20. If there is one or more qualifying prior conviction and the current drug crime resulted in death or serious bodily injury, a life sentence is mandated.

It goes without saying that if the United States Attorney handling your case files an 851 enhancement, the change in minimum mandatory or maximum sentence potential could be life changing. Even if you are subject to an 851 enhancement all is not lost. It is frightening to be faced with this very real possibility because you are being charged a third time for a felony drug crime. However, you should not lose hope and you shouldn’t assume the prosecutor will secure the 851 enhancement it seeks. Rather, in most instances because the prosecutor must prove any fact that enhances a mandatory minimum or maximum sentence, you may still have a fighting chance against the enhancement.

Experienced Tampa federal drug crimes lawyer Jason Mayberry represents those accused of federal drug crime throughout the United State and locally in Hillsborough, Pinellas, Pasco, Manatee, Sarasota, Hernando or Polk Counties. He is admitted to practice before the federal Middle District of Florida, federal Southern District of Florida, in addition to being admitted in Florida and Tennessee. Call the Mayberry Law Firm at (813) 444-7435 or complete our online form.