United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY MCDADE, UNITED STATES SENIOR DISTRICT JUDGE
matter is before the Court on Defendant's Objection to
the Government's Notice Establishing Prior Convictions
(Doc. 30). The Government responded (Doc. 31). The Court
became concerned about the propriety of ruling on the
objection at this point and directed the parties to submit
further briefing (Minute Entry on 12/4/2019) and the parties
complied (Docs. 35, 36). For the reasons stated herein,
Defendant's Objection (Doc. 30) is denied with leave to
reraise it at the appropriate time.
Adam Lee Ware was indicted on February 20, 2019. (Doc. 11).
The four-count indictment charges Defendant with two counts
of possession of a controlled substance with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(A), (B), (Counts 1 and 2), possession of a
firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c) (Count 3), and
possession of a firearm by a prohibited person in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. 11
at 1-3). The indictment further includes special findings
that Defendant has a 2005 Peoria County conviction for
manufacture/delivery of cocaine and a 2012 McLean County
conviction for manufacture/delivery of cocaine (Doc. 11 at
5); both convictions were for violations of 720 ILCS
570/41(a)(2)(A). The Government has since formalized its
intention to seek a sentence enhancement under 21 U.S.C.
§ 851 through an Information of Prior Conviction relying
on the same prior convictions. (Doc. 34).
first issue to address is whether the objection is premature.
Section 851(a) forbids enhanced sentences for violations of
§ 841 due to prior convictions, inter alia,
unless the Government files an information specifying the
requisite previous convictions before trial. Much of the
remainder of § 851 is important in its particulars. The
relevant portions are set forth below:
(b) 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)](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. . .
[(c)](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 . . . .
[(d)](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.
[(d)](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.
21 U.S.C. § 851 (subsection (e) omitted).
of the statutory text support a reading that whether prior
convictions may be used to enhance a sentence is a matter for
sentencing rather than pre-conviction. Subsection (b) is
clear the Court's inquiry about the affirmance or denial
of a prior conviction must occur “after conviction but
before pronouncement of sentence.” Subsection (d)(1)
states if the Court determines the enhancement is correctly
applied it “shall proceed to impose sentence” and
subsection (d)(2) provides in the alternative the Government
may request the Court “postpone sentence to allow an
appeal”; but if the Government does not do so the Court
“shall impose sentence.” In short, the statutory
text assumes any hearing and objection occur after
circuit courts, including the Seventh Circuit, have stated
§ 851 is designed to allow a defendant to consider the
consequences of a potential guilty plea. (Doc. 35 at 4). In
rejecting an argument that the Government had improperly
filed a § 851 information to punish a defendant for not
cooperating, the Seventh Circuit stated “Sections 841
and 851 . . . [are] designed to ensure that the defendant has
the opportunity to review the allegations and consider the
consequences of his decisions prior to trial . . . .”
United States v. Jackson, 189 F.3d 655, 662 (7th
Cir. 1999) (overruled on other grounds by United States
v. Ceballos, 302 F.3d 679, 690-92 (7th Cir. 2002)).
Other circuits have similarly recognized § 851's
purposes of providing an avenue for a defendant to attack a
notice of prior conviction and providing a defendant with
notice to make an informed ...