21 USC 851 On Trial: What Must Go to a Jury...if anything?


The dreaded 851 Notice: it hangs above many defendants' heads like the Sword of Damocles -- waiting to fall. The First Step Act, however, softened its blow by reducing the length of the mandatory minimum sentences available under 21 U.S.C. § 841(a)(1) and by narrowing the types of offenses that might trigger such a notice. Litigation surrounding 21 U.S.C. § 851, however, continues, as shown in the Sixth Circuit's opinion in United States v. Fields.

In 2019, a federal grand jury indicted Defendant Timmy Fields of possessing 500 grams or more of methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The indictment also alleged Fields had two prior serious drug felony convictions under Kentucky law: (a) Trafficking in a  Controlled Substance in the First Degree in violation of KRS 218A.1412; and (b) Unlawful Possession of a Methamphetamine Precursor and Persistent Felony Offender in violation of KRS 218A.1437 and KRS 532.080. Before trial, the Government filed a § 851 notice that it would seek a sentence enhancement based on these two prior convictions. The Government also sought, without Fields's objection, a bifurcated trial where the jury would fist consider the substantive drug offense and then determine whether Fields had previously been convicted of two serious drug felonies.

The day before the trial, the District Court considered which, if any, post-conviction facts should go to the jury during the bifurcated trial. The Government argued the jury must consider two incarceration-related facts -- that Fields served a sentence of more than twelve months for the prior offenses and that he was released from his imprisonment on each offense within fifteen years of the date he committed his current offense. Fields, however, argued § 851 required the District Court to make those findings, and, since it was contrary to Allene and Apprendi, it could not impose an enhanced sentence. The District Court disagreed, conducted the bifurcated trial, and sentenced Fields to 300 months imprisonment -- the enhanced mandatory minimum sentence.

On appeal, Fields challenged the procedure the District Court used to impose his enhancement. He first argued § 851 violated the Fifth Amendment because it compelled defendants to testify regarding their previous convictions (by requiring them to affirm or deny them), and that it violated the Sixth Amendment because it required the District Court, and not a jury, to determine facts he claimed the Constitution reserved for juries. Finally, he argued the District Court violated § 851 by sending facts regarding the length and recency of his incarceration to a jury and that it violated the Sixth Amendment by not requiring the jury to determine the finality of his prior qualifying convictions.

The Sixth Circuit made short work of Fields's Fifth Amendment challenge. Noting the Fifth Amendment only prohibited compelling defendants to incriminate themselves, the Court noted Fields never asserted the privilege, and, in fact, stipulated that he had been convicted of the offenses prior to his sentencing.

Although it noted Fields's Sixth Amendment challenge presented a closer question, the Court found a way to avoid ruling on the issue. Noting that the jury, in fact, decided the referenced factual questions, the Court found that no constitutional violation occurred.

Turning to Fields's facial constitutional challenges, the Court held they failed as well because Fields could not demonstrate § 851 was unconstitutional as it applied to all convicted-related enhancements imposed on those convicted of an offenses pursuant to under 21 U.S.C. §§ 841-65. 

An interesting, and closer, question, the Court conceded, was whether the District Court complied with  § 851 by sending the incarceration related facts to the jury. While it agreed § 851 precluded the jury's involvement in the proceedings, it noted the statute did not say when it precluded the jury from making those determinations. Since the § 851 hearing could not have occurred until Fields filed his response to the notice, phase two of his trial could not have been his § 851(c)(1) hearing. Thus, the Court concluded, the District Court did not violate the statute.

The Court also disagreed with Field's Sixth Amendment challenge to the District Court's decision not to send the issue regarding the finality of his prior convictions to the jury. Noting Fields did not raise this issue before the District Court, it held that his claim failed to survive plain error review.

While the Court's discussion of the procedure utilized by the District Court to make its § 851 determination is interesting, its holding regarding Fields's predicate convictions may prove more useful to practitioners. While it rejected Fields's argument that his previous conviction for Trafficking in a Controlled Substance in the First Degree under Kentucky law was not a predicate offense, it held that his prior Kentucky conviction for Unlawful Possession of a Methamphetamine Precursor and Persistent Felony Offender was not a "serious drug felony" under the First Step Act.

The Court first addressed the conflict between its own decision in United States v. Eason, which held that a similar Tennessee statute barring possession of methamphetamine ingredients was a "serious drug felony" under the ACCA because it related to or connected with manufacturing methamphetamine, and the Supreme Court's subsequent decision in Shular v. United States, which, Fields claimed, required the District Court to find that the offense "necessarily entail[ed] the conduct described in § 924(e)(2)(A)(ii). Finding Shular "directly on point," the Court adopted the "necessarily entails" test pronounced in that decision.

Applying the Shular test, the Court held that Unlawful Possession of a Methamphetamine Precursor under Kentucky law was not a "serious drug felony." Finding that one could violate the meth-precursor statute without committing manufacturing conduct, the Court held Kentucky's meth-precursor offense does not "necessarily entail" manufacturing under § 924(e)(2)(A)(ii) and thus did not constitute a "serious drug felony."  

Judge Murphy filed a concurring opinion supporting the Court's decision to follow Shular. Judge Rodgers dissented in part, noting the Court should not have adopted the Shular test and that it should have affirmed the District Court's decision.

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