CITE
21 USC Sec. 851 01/05/2009
EXPCITE
TITLE 21 - FOOD AND DRUGS
CHAPTER 13 - DRUG ABUSE PREVENTION AND CONTROL
SUBCHAPTER I - CONTROL AND ENFORCEMENT
Part D - Offenses and Penalties
HEAD
Sec. 851. Proceedings to establish prior convictions
STATUTE
(a) Information filed by United States Attorney
(1) No person who stands convicted of an offense under this part
shall be sentenced to increased punishment by reason of one or more
prior convictions, unless before trial, or before entry of a plea
of guilty, the United States attorney files an information with the
court (and serves a copy of such information on the person or
counsel for the person) stating in writing the previous convictions
to be relied upon. Upon a showing by the United States attorney
that facts regarding prior convictions could not with due diligence
be obtained prior to trial or before entry of a plea of guilty, the
court may postpone the trial or the taking of the plea of guilty
for a reasonable period for the purpose of obtaining such facts.
Clerical mistakes in the information may be amended at any time
prior to the pronouncement of sentence.
(2) An information may not be filed under this section if the
increased punishment which may be imposed is imprisonment for a
term in excess of three years unless the person either waived or
was afforded prosecution by indictment for the offense for which
such increased punishment may be imposed.
(b) Affirmation or denial of previous conviction
If the United States attorney files an information under this
section, the court shall after conviction but before pronouncement
of sentence inquire of the person with respect to whom the
information was filed whether he affirms or denies that he has been
previously convicted as alleged in the information, and shall
inform him that any challenge to a prior conviction which is not
made before sentence is imposed may not thereafter be raised to
attack the sentence.
(c) Denial; written response; hearing
(1) If the person denies any allegation of the information of
prior conviction, or claims that any conviction alleged is invalid,
he shall file a written response to the information. A copy of the
response shall be served upon the United States attorney. The court
shall hold a hearing to determine any issues raised by the response
which would except the person from increased punishment. The
failure of the United States attorney to include in the information
the complete criminal record of the person or any facts in addition
to the convictions to be relied upon shall not constitute grounds
for invalidating the notice given in the information required by
subsection (a)(1) of this section. The hearing shall be before the
court without a jury and either party may introduce evidence.
Except as otherwise provided in paragraph (2) of this subsection,
the United States attorney shall have the burden of proof beyond a
reasonable doubt on any issue of fact. At the request of either
party, the court shall enter findings of fact and conclusions of
law.
(2) A person claiming that a conviction alleged in the
information was obtained in violation of the Constitution of the
United States shall set forth his claim, and the factual basis
therefor, with particularity in his response to the information.
The person shall have the burden of proof by a preponderance of the
evidence on any issue of fact raised by the response. Any challenge
to a prior conviction, not raised by response to the information
before an increased sentence is imposed in reliance thereon, shall
be waived unless good cause be shown for failure to make a timely
challenge.
(d) Imposition of sentence
(1) If the person files no response to the information, or if the
court determines, after hearing, that the person is subject to
increased punishment by reason of prior convictions, the court
shall proceed to impose sentence upon him as provided by this part.
(2) If the court determines that the person has not been
convicted as alleged in the information, that a conviction alleged
in the information is invalid, or that the person is otherwise not
subject to an increased sentence as a matter of law, the court
shall, at the request of the United States attorney, postpone
sentence to allow an appeal from that determination. If no such
request is made, the court shall impose sentence as provided by
this part. The person may appeal from an order postponing sentence
as if sentence had been pronounced and a final judgment of
conviction entered.
(e) Statute of limitations
No person who stands convicted of an offense under this part may
challenge the validity of any prior conviction alleged under this
section which occurred more than five years before the date of the
information alleging such prior conviction.
SOURCE
(Pub. L. 91-513, title II, Sec. 411, Oct. 27, 1970, 84 Stat. 1269.)