Substantial compliance is required for a sentence enhancement under 21 U.S.C. section 851(b)

In U.S. v. James the defendant appealed his conviction and sentence of 262 months for possession with intent to distribute less than 5 grams of cocaine. James was convicted following a trial on the lesser charges that he distributed more than 5 grams. There were two issues raised in this appeal. In the first issue the defendant claimed the judge reasonable doubt instruction misled the jury and lowered the government’s burden of proof by including a subjective standard of proof. In the second issue the defendant challenged the failure to comply with 21 U.S.C. §851(b) by failing to conduct a colloquy regarding his prior conviction.

With regard to the reasonable doubt instruction, the court disposed of this issue invoking the invited-error doctrine. The defendant not only offered the instruction and failed to object. It turns out the defendant submitted to the Court a definition for reasonable doubt from the former version of the Eleventh Circuit Pattern jury instruction and it was given to the jury by the court with out any objection from defendant.

The more significant issue here involved whether 851(b) required strict compliance. In U.S. v. Weaver the Eleventh Circuit held that the requirement of 851(a) was strict compliance. A defendant convicted of a drug offense faces an enhanced minimum mandatory sentence, having a prior drug conviction, if the government complies with 851(a) by filing the information setting forth the conviction. Compliance with 851(b) requires that at sentencing the court must “inquire” of the defendant as to “whether he affirms or denies that he has been previously been convicted as alleged in the information, and shall inform him that any challenge that is not made before sentencing is imposed may not thereafter be raised to attack the sentence.” Once the government complied with 851(a), the issue in this case was whether 851(b) also required strict compliance.

When asked by the judge if he had any objection to the PSI containing the two prior dug convictions, the defendant James said he did not. The Judge then pointed out that it was the “two other convictions you have for selling” that were hurting him at sentencing. The defendant did not raise an objection to the prior conviction in his objections to the PSI.

The defendant argued that the court had to strictly comply with 851(b). The Court decided for the first time that substantial compliance with 851(b) is sufficient when the defendant is timely apprised of the prior convictions before sentencing. While the colloquy was not exactly correct, failure to strictly comply is subject to harmless error. The court found the procedure was substantially correct and the error if any was harmless.