Federal Defense Lawyer – Defending 851 Enhancements on Controlled Substance Offenses
Federal Criminal Defense Attorneys who are dedicated to the passionate, zealous and fearless representation of clients charged in the United States District Court
In a memorandum written by former Attorney General Eric Holder in September of 2014, commonly referred to as the “Holder Memo”, Assistant U.S. Attorneys were instructed not to leverage 21 U.S.C. § 851 enhancements to induce defendants to plead guilty. An 851 Enhancement can increase the mandatory minimum sentence of a defendant charged with a controlled substance offense if he or she has a prior conviction. Research being conducted by students at Yale Law School recently, suggests that at least some federal prosecutors are not consistently complying with this policy.
Section 851 enhancements dramatically increase mandatory minimum sentences for drug offenses. For example, a defendant on a delivery of a controlled substance case who is subject to an enhancement faces a mandatory minimum that doubles from 10 to 20 years. If there are two prior felony drug convictions, the statutory range increases to mandatory life in prison without the possibility of parole.
What is a “prior felony drug offense”? The crimes that can fall within this classification may even include crimes that are classified as misdemeanors under state law and convictions that do not result in jail time. Unfortunately, prior offenses that are so old that they are not even calculated as part of the defendant’s criminal history under the Sentencing Guidelines may be counted as long as the offense potentially carried a sentence of more than one year in prison.
The Sentencing Judge Has No Discretion
Once a § 851 enhancement is filed, the sentencing judge loses all discretion to impose a sentence below the enhanced mandatory minimum.
Misuse of the § 851 Enhancement by the United States Attorney’s Office
According to the “Holder Memo”, Assistant United States Attorneys were urged to decline to file an information pursuant to § 851 “unless the defendant is involved in conduct that makes the case appropriate for severe sanctions.” Whether a defendant was entering a plea or going to trial is not supposed to be considered by the Assistant United States Attorney and the enhancement is not supposed to be used as a bargaining chip to induce a defendant to enter a plea.
Unfortunately, some Assistant United States have disregarded the “Holder Memo” and are making inappropriate use of the threat of an enhancement to manipulate defendants into waiving their constitutional right to a trial.
The Best Defense to a Federal Prosecution is a Strong Offense
Many federal criminal defense lawyers are intimidated by the United States Attorney’s office and several federal judges. The lawyers with Michigan’s premier federal defense law firm, LEWIS & DICKSTEIN, P.L.L.C., have no fear when it comes to protecting their clients from over-zealous federal prosecutors or from federal judges who are seeking to impose unduly harsh prison sentences. When you or a loved one is facing a federal prosecution based upon a complaint or indictment, you need LEWIS & DICKSTEIN, P.L.L.C. Call us for a free consultation at (248) 263-6800 or complete a Request for Assistance Form and an experienced federal defense lawyer in Michigan will promptly contact you.