The “non-delegation” doctrine, used by the Supreme Court of the United States in the 1930’s to void certain aspects of the New Deal, has been receiving renewed attention lately, especially in certain conservative circles. As discussed here, Justices Gorsuch and Kavanaugh each wrote favorably about the doctrine within the last year.In this decision by Judge Shwartz today, the Third Circuit faced the question whether “the statute that allows the Government to seek an enhanced sentence based on [a defendant’s] prior convictions, 21 U.S.C.§851, violates the non-delegation doctrine.” That argument had not been raised below, so the court reviewed it under “plain error” standards.

Strong was charged with conspiracy to possess with intent to distribute and to distribute cocaine base and heroin. The government filed a 21 U.S.C. § 851 prior felony information that doubled the applicable mandatory minimum from 60 months to 120 months. Strong did not object to the filing of the prior felony information.

Wynn cited the Supreme Court’s decision in Carachuri-Rosendo v. Holder arguing that the district court was prohibited from finding that the drug offenses that he committed during supervised release were punishable under an enhanced statutory penalty. Specifically, Wynn argued that the government was in violation of 21 U.S.C. § 851(a)(1) by not filing notice signifying the intent to rely on Wynn’s prior convictions at his revocation sentencing. Despite Wynn’s argument, the Fourth Circuit determined that nothing in the decision in Carachuri-Rosendo suggested that § 851 prevents a district court from considering a defendant’s prior convictions during a supervised release revocation hearing.

First, it held that it was not required to apply the categorical approach. It asserted that neither the Supreme Court nor the Second Circuit had definitively mandated that approach, and noted that, in its view, 21 U.S.C. §851(c) provides a fact-finding mechanism for courts to determine whether to enhance a sentence by reason of a prior conviction. Second, it concluded that, even if the categorical approach were required, Thompson’s argument would fail because the activity criminalized in the New York statute fell within the scope of the federal statute.

Facing a 21 U.S.C. § 851 enhancement, it was objectively reasonable strategy for defense counsel to forego a doubtful motion to suppress that would dredge up additional bad facts and make plea bargaining harder. Thomas v. United States, 2019 U.S. Dist. LEXIS 106816 (E.D. N.C. June 26, 2019):“Defense counsel also made a reasonable strategic decision not to file the motion to suppress.

U.S. v. Balderama-Iribe, --- F.3d ----, 2007 WL 1748507(10th Cir. June 19, 2007) Government filed proper 21 U.S.C. § 851(a)(1) notice and district court did not commit plain error in sentence Defendant to mandatory life in prison after jury convicted him of possessing with intent over 50 gr. of meth (he had two prior drug felony convictions). The prosecutor's single, brief misstatement that Defendant faced a 20-year minimum mandatory made during the pretrial hearing was not enough to undo the clear notice provided by the earlier § 851 information.

United States v. Counterman (March 10, 2021), No. 19-2975http://www2.ca3.uscourts.gov/opinarch/192975npa.pdfThe district court imposed an enhanced sentence, after Defendant pled guilty to possession with intent to distribute, based on Defendant’s prior convictions. But the plain text of 21 U.S.C. § 851, applicable to Defendant’s guilty plea, requires the Government to file an information with the court, stating the prior convictions that will be relied upon, prior to the entry of a plea of guilty. Because the Government failed to file such notice, the Court vacated Defendant’s sentence.

Depending on the statute of conviction and the specific allegations in the indictment, Davis demonstrates how sentencing courts may be able to take back some of the discretion that they had lost in connection with sentencing decisions for defendants previously sentenced to mandatory minimum sentences for violating 18 U.S.C. §841. As seen here, Davis ultimately served a prison term of about 10 years in connection with conduct that still currently carries a mandatory minimum sentence of 20 years imprisonment (in those cases in which the government elects to file a prior felony information under 21 U.S.C. §851, which the government is not required to do and only files in certain cases).While Congress and the Sentencing Commission have implemented several reforms in the past decade to reduce the lengthy prison sentences associated with drug crimes, we will have to wait and see whether additional reforms will be pursued and enacted in the coming years.

Four weeks before trial, the prosecutor emailed defense counsel and said that she thought Creighton had information that would be helpful to law enforcement. She included a proffer letter and added that she would be asking for “management” permission to file notice of a 21 U.S.C. § 851 enhancement. After getting permission, she emailed again asking for Creighton’s cooperation and/or guilty plea.

The district court did not err by imposing an obstruction of justice enhancement for a letter written to Cheek’s family member discussing the testimony against him. The district court’s failure to comply with 21 U.S.C. § 851(b) was harmless error and his sentence was not unreasonable.