21 U.S.C. § 851 — Proceedings to establish prior convictions

submitted 56 years ago by Pub. L. 91-513 to r/title-21-FOOD-AND-DRUGS · 757 words · no verdicts yet

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This section sets the procedure for using prior convictions to increase a sentence. It requires notice, gives the person a chance to deny or challenge the convictions, and sets proof, appeal, and time-limit rules.

(a) Information from the United States Attorney. (1) A person convicted under this part may not receive increased punishment because of prior convictions unless, before trial or before a guilty plea, the United States attorney files an information with the court and serves it on the person or counsel. The information must identify in writing the prior convictions to be used. If the United States attorney shows that the facts could not, with due diligence, be obtained earlier, the court may postpone trial or the guilty plea for a reasonable time to obtain them. Clerical errors may be corrected before sentence is announced. (2) An information may not be filed when the possible increased imprisonment exceeds 3 years unless the person waived or received indictment prosecution for the offense. (b) Affirmation or denial. After conviction and before sentence, the court must ask the person whether the alleged prior convictions are true and must warn that a challenge not made before sentencing may not later be used to attack the sentence. (c) Denial and hearing. (1) If the person denies an allegation or says a conviction is invalid, the person must file a written response and serve it on the United States attorney. The court must hold a jury-free hearing on issues that could prevent increased punishment. The information does not become invalid because it omits the person’s complete criminal record or additional facts. Either side may present evidence. Unless paragraph (2) applies, the United States attorney must prove factual issues beyond a reasonable doubt. On either side’s request, the court must enter factual findings and legal conclusions. (2) A person claiming a conviction violated the Constitution must state the claim and its factual basis specifically in the response. The person bears the burden of proving factual issues by a preponderance of the evidence. A challenge not raised before the increased sentence is imposed is waived unless there is good cause for the delay. (d) Sentence. (1) If there is no response, or the court finds after hearing that prior convictions require increased punishment, the court must impose sentence under this part. (2) If the court finds the alleged conviction did not occur, is invalid, or cannot legally support an increased sentence, the court must, if the United States attorney asks, postpone sentencing to allow an appeal. Without that request, the court must sentence under this part. The person may appeal the postponement order as if sentence and final judgment had already occurred. (e) Limitation. A person convicted under this part may not challenge the validity of a prior conviction alleged under this section if that conviction occurred more than 5 years before the information alleging it.

the actual law source: uscode.house.gov ↗public domain

(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.

(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.

Source credit: (Pub. L. 91–513, title II, § 411, Oct. 27, 1970, 84 Stat. 1269.)

history & why it existsrecord from the source credit

1970Enacted · Pub. L. 91-513 · 84 Stat. 1269

A history note hasn’t been published yet. The record shows enactment by Pub. L. 91-513 on 1970-10-27.

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