851 Enhancement

851 Enhancement: The Prosecutorial Leverage Weapon That Doubles Your Mandatory Minimum

Your lawyer just told you the government is filing an 851 enhancement. Your mandatory minimum is about to double. If you were facing 10 years, now you’re facing 20. And you’re wondering how a drug conviction from years ago can suddenly turn a serious federal case into a catastrophic one.

Here’s what most lawyers won’t tell you: the 851 enhancement isn’t automatic. The prosecutor CHOSE to file it. They could have chosen not to. And that choice—that filing decision—is often the most important moment in a federal drug case. Because the threat of an 851 enhancement is a weapon, and understanding how that weapon works is essential to fighting your case.

This article explains what 21 USC 851 actually does, how prosecutors use it as leverage, and what you can do to fight back.

What the 851 Enhancement Actually Does

OK so heres the basics. Under 21 USC 851, if you have a prior “serious drug felony” and the goverment files a special notice before trial or guilty plea, your mandatory minimum sentences can be dramaticaly increased:

With One Prior Serious Drug Felony:

• 5-year minimum becomes 10 years
• 10-year minimum becomes 15 years (under First Step Act) or 20 years (pre-First Step)

With Two or More Prior Serious Drug Felonies:

• 10-year minimum becomes 25 years (under First Step Act)
• Life imprisonment becomes possible in some cases

Thats the law. But heres the thing nobody explains: the goverment dosnt HAVE to file an 851 enhancement just because you have qualifying priors. Its completly discretionary. The prosecutor makes a choice, and that choice changes everthing.

The 851 Filing Decision: Prosecutorial Leverage Explained

Heres what the data actualy shows. According to US Sentencing Commission research, 851 informations are filed in only a small fraction of eligable cases. In the cases were they ARE filed, there withdrawn most of the time before sentencing.

Think about what that means. Prosecutors have a weapon that can double or triple your mandatory minimum. They file it in some cases but not others. They threaten to file it, then withdraw it as part of plea negotiations. The 851 enhancement isnt about punishing prior convictions—its about leveraging those convictions to get defendants to plead guilty.

Ive seen this play out countless times. The prosecutor files an 851 notice. Now the defendant is facing 20 years instead of 10. Suddenly that plea offer for 8 years looks pretty good, dosnt it? And when the defendant takes the plea, the goverment withdraws the 851. Everyone wins except the defendant who just got pressured into a guilty plea by the threat of doubled time.

This is the 851 leverage game. And if your not playing it, your losing.

What Qualifies as a “Serious Drug Felony” After the First Step Act

The First Step Act of 2018 changed the rules for 851 enhancements. Before the Act, any “felony drug offense” could trigger the enhancement. Now its has to be a “serious drug felony”—and that term has a specific definition.

To qualify as a serious drug felony, a prior conviction must meet ALL of these requirements:

1. The offense must be punishable by 10+ years. This is about what the offense COULD have gotten you, not what you actualy received. If the statute authorized 10 years or more, this element is met.

2. You must have actualy served 12+ months imprisonment. This is huge. If you got probation, or served less then a year, the prior dosnt qualify. Time served in jail awaiting trial counts if its part of your sentence.

3. Your release must have been within 15 years of the current offense. This is the recency requirement. If you were released from prison more then 15 years before you comitted your current offense, the prior dosnt count.

These requirements are cumulative. Miss any one of them and the 851 enhancement cant apply to that particular prior conviction.

The 15-Year Recency Requirement: Your Possible Escape

Lets talk about that 15-year rule because its trips up alot of prosecutors. The clock starts when your RELEASED from imprisonment—not when you were convicted, not when you finished probation, but when you physicaly walked out of prison.

So if you were convicted in 2005, served 3 years, and were released in 2008, that prior stops counting for 851 purposes in 2023. If your current offense occured in 2024, the 851 enhancement cant use that prior.

But heres were it gets complicated. What if you violated supervised release and went back to prison? Does that reset the clock? Courts have gone diffrent ways on this. Some say the clock starts from the last release, others say it starts from the initial drug offense release. This is a legitimate issue to litigate.

And what counts as “commencement” of the current offense? For ongoing conspiracies, this could be when you first joined or when you last participated. The goverment will argue for the interpretation that makes the 15-year window work. Your lawyer should argue for the interpretation that dosnt.

How 851 Is Used in Plea Negotiations

Heres the reality of how federal drug cases actualy work. The goverment indicts you. They know you have prior convictions that could trigger 851. They file the 851 notice immediatly—or they threaten to file it.

Now the negotiation begins. The prosecutor says: “You can plead guilty to this charge, we’ll recommend a sentence within the guidelines, and we’ll withdraw the 851. Or you can go to trial, and if you lose, the 851 stays and you get the enhanced minimum.”

Guess what happens most of the time? The defendant pleads guilty. The 851 gets withdrawn. And the goverment gets another conviction without the risk and expense of trial.

This is why understanding 851 is so critical. Its not just about wheather you have qualifying priors—its about how the threat of those priors gets used against you. A good lawyer dosnt just accept the 851 filing as inevitable. They fight to get it withdrawn, challenge wheather the priors actualy qualify, and use every tool available to reduce your exposure.

Geographic Disparities: Where You’re Charged Matters

One of the most disturbing things about 851 is how inconsistantly its applied across the country. Some federal districts file 851 enhancements routinely. Others almost never do. The Sentencing Commission found wild variations—defendants in some districts were multiple times more likely to face 851 enhancements then defendants with identical priors in other districts.

This means your sentence can depend more on geographic accident then on your actual conduct or criminal history. Two defendants with the same priors, charged with the same offense, can face completly diffrent sentencing exposure based purely on which US Attorneys office is prosecuting them.

Is this fair? Absolutly not. But its the system. And knowing about these disparities can inform strategy—including wheather to fight for a transfer of venue or challenge the 851 as applied.

The Timing Requirement: Why Filing Deadlines Matter

The 851 enhancement comes with strict procedural requirements. The prosecutor must file a written “information” identifying your prior convictions BEFORE trial or before you enter a guilty plea. If they miss this deadline, the enhancement is gone.

This actualy happens sometimes. Prosecutors get busy. Cases move fast. The 851 information gets forgotten or filed late. If that happens, you cannot receive the enhanced penalty—period.

Your lawyer should be scrutinizing the timing of every filing. Was the 851 information filed before your plea? Before trial commenced? Are there any procedural defects? These technical arguments matter because they can eliminate years from your sentence.

Fighting the 851: Challenging Your Prior Convictions

Even if an 851 enhancement is filed properly and timely, you have the right to challenge it. Specificaly, you can argue that your prior convictions dont actualy qualify.

Challenge #1: Conviction Dosnt Meet “Serious Drug Felony” Definition

Maybe the prior wasnt punishable by 10+ years. Maybe you didnt serve 12 months. Maybe the 15-year window has expired. Each element is contestable.

Challenge #2: Constitutional Defects in Prior Conviction

If you didnt have counsel in the prior case (and didnt waive counsel), the conviction might be unconsitutional and unusable for enhancement. If you werent properly advised of the consequenses of your plea, thats another avenue.

Challenge #3: Wrong Offense Identified

Sometimes prosecutors get the prior conviction wrong—different case number, different offense, wrong defendant (yes, this happens). Any error in the information is grounds to challenge.

Challenge #4: Post-Conviction Relief Pending

If your challenging the prior conviction through habeas corpus or other post-conviction relief, the 851 might be premature. This is a timing and litigation strategy issue.

Pre-First Step Act vs Post-First Step Act Cases

When you were sentenced matters for 851 purposes. The First Step Act only applies to sentences imposed after December 21, 2018. If you were sentenced before that date, the old, harsher rules apply.

Under the old rules, the 10-year minimum became 20 years with one prior and life with two priors. Under the First Step Act, its 15 years and 25 years respectivly. Thats a significant diffrence.

If your currently incarcerated under a pre-First Step 851 enhancement, you might have options. The First Step Act included provisions for sentence reduction motions in some cases. Compassionate release under 18 USC 3582(c) might also apply. These are complicated areas that require specific legal analysis.

The Cooperation Path: Trading Information for 851 Withdrawal

Look, this is the reality. One of the most common ways to get an 851 withdrawn is to cooperate with the goverment. Prosecutors want information. If you have information they want, the 851 becomes a bargaining chip.

“Cooperate with us, testify against your co-defendants, and we’ll withdraw the 851.” This offer gets made all the time. Whether to accept it is a deeply personal decision with serious consequenses either way.

But understand: the 851 withdrawal isnt charity. Its transactional. The goverment gets something (your testimony, your information), and you get something (reduced sentencing exposure). This is how the federal system actualy works.

What Happens at the 851 Hearing

If you challenge the 851 enhancement, your entitled to a hearing. At this hearing, the goverment must prove your prior convictions by a preponderance of the evidance. They’ll present certified copies of judgments, prison records showing time served, and evidence of the conviction itself.

You have the right to contest all of this. You can present evidence that you didnt serve 12 months, that the release was more then 15 years ago, or that the conviction has constitutional defects. The judge decides wheather the enhancement applies.

These hearings matter. Dont let your lawyer waive the hearing just because the priors “look valid.” Scrutinize everthing. Challenge everthing that can be challenged.

What You Should Do Right Now

If an 851 enhancement has been filed against you, this is the most important decision point in your case. The diffrence between fighting it effectively and accepting it passivly can be 10 years of your life. Or more.

You need a lawyer who understands 851 as what it is: a prosecutorial weapon that can be fought, negotiated, challenged, and sometimes defeated. Not someone who just accepts the enhancement as inevitable.

Get your prior conviction records NOW. Find out exactly what you were convicted of, how much time you served, and when you were released. This information is essential to determining wheather the 851 enhancement even applies to you.

The 851 enhancement dosnt have to destroy your case. But only if you fight it right.