Maybe We Don’t Need to Worry. . . . Well, if They Do What Their Bosses Say.

September 8, 2015
By Hanging Out with Carl Gunn


  • Remember the new DOJ policy adopted in August 2013 that 21 U.S.C. § 851 enhancements should be sought only if “the defendant is involved in conduct that makes the case appropriate for severe sanctions.”
  • A second memorandum, issued a year later, makes clear that this policy applies regardless of whether the defendant pleads guilty or goes to trial, so the new policy isn’t intended for use to leverage guilty pleas.
  • Keep this in mind and point to the later memo if a prosecutor seems to be using the enhancement for plea bargaining leverage and/or files it only when your client declines to plead guilty.



Back at the beginning of 2014, I put up a couple of posts on a new policy established by then Attorney General Holder requiring prosecutors to exercise discretion in the use of prior drug convictions to enhance sentences under 21 U.S.C. § 851.  (See “Is There Some Real Change Going to Happen Out There?” and “The Holder Memo:  Is It a Double-Edged Sword?” in the January 2014 and February 2014 links at the right.)  The policy, reflected in an August 12, 2013 DOJ memorandum, directed prosecutors to file 21 U.S.C. § 851 informations for prior convictions only if “the defendant is involved in conduct that makes the case appropriate for severe sanctions.”  The factors the memo listed for consideration in making this determination were (a) whether the defendant was an organizer, leader, manager or supervisor; (b) whether the defendant was involved in the use or threat of violence; (c) the “nature” of the defendant’s criminal history, “including any prior history of violent conduct or recent prior convictions for serious offenses”; (d) whether the defendant has significant ties to a large-scale drug trafficking organization, gang, or cartel; (e) whether filing the enhancement information “would create a gross sentencing disparity” with equally or more culpable codefendants; and (f) “[o]ther case-specific aggravating or mitigating factors.”  The actual memo is linked again here.

In the second of the posts about this memo, I worried that it left unclear whether the decision not to charge an 851 enhancement could or should be used in plea negotiations, as a quid pro quo for the defendant’s agreement to enter a guilty plea.  I wondered if this new discretion not to charge 851 enhancements would have the downside of creating additional pressure on defendants to plead guilty, even when they had a viable defense.

Not to suggest the Attorney General was reading my mind, but a second memorandum, linked here, got issued about a year after the first.  (Sorry for my delay in posting about it.)  It expressly addressed the use of 851 enhancements as leverage in plea bargaining, by stating they are not to be used in that way.  The second memo states:

[The prior] memorandum provides that prosecutors should decline to seek an enhancement pursuant to 21 U.S.C. § 851 unless the “defendant is involved in conduct that makes the case appropriate for severe sanctions,” and sets forth factors that prosecutors should consider in making that determination.  Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy.  Prosecutors are encouraged to make the § 851 determination at the time the case is charged, or as soon as possible thereafter.  An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty.  This is consistent with long-standing Department policy that “[c]harges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant’s conduct.”  “Department Policy on Charging and Sentencing,” May 19, 2010.

The memo does then add the caveat that “certain circumstances – such as new information about the defendant, a reassessment of the strength of the government’s case, or recognition of cooperation – may make it appropriate to forego or dismiss a previously filed § 851 information in connection with a guilty plea.”  But it then immediately reiterates: “A practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea, however, is inappropriate and inconsistent with the spirit of the policy.”

There still remains the question of whether prosecutors in the trenches are following this clarifying directive and whether they’re using the caveat as just a more subtle way of putting pressure on defendants in plea negotiations.  But at least you can point to this written policy if you have a feeling that’s happening.