With a tip of the hat (that covers my bald head) to Doug Berman at SL&P, please see below Attorney General Holder’s memo on plea negotiations and 21 U.S. Code § 851 enhancements for prior convictions. Then take a look at 21 U.S.C. § 841(b) (“If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both. If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence.).
Every federal prosecutor and every federal criminal defense lawyer should be familiar with the memo. Prosecutors are explicitly told not to file a section 851 information simply because the defendant insists upon a trial. Nor should prosecutors dismiss a section 851 information merely because a defendant pleads guilty. I hope somebody within each United States Attorney’s office monitors and enforces this direction.