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Federal Criminal Cases: Prior Convictions Can Really Hurt

Kish Law LLC

We represent a lot of folks charged in federal criminal cases here in Atlanta, and other parts of Georgia and on occasion in Florida or Alabama. One thing we repeatedly see is when our clients have prior convictions that the prosecutor can use to greatly increase the potential sentence. Yesterday, the United States Court of Appeals for the Eleventh Circuit issued yet another opinion that allows prosecutors to use a defendant’s past against him.

Yesterday’s case is United States v. Jackson, and it concerns the practice of increasing the potential sentence for drug offenders who have prior convictions. When a person is facing prosecution for a federal drug offense, and has prior drug convictions, the prosecutor has a powerful tool that is set out at section 851 of Title 21 from the United States Code. This section allows the prosecutor to file a “notice” that can basically double any mandatory minimum sentence, and that can in some situations lead to a mandatory life sentence. From the defense perspective, the key is to try and poke holes in the “notice”, by arguing that it is somehow flawed. I am currently doing exactly that for a man I am representing here in Atlanta. If I am successful, we will reduce his 15 year sentence down to 5 years, which he has already served and will result in his immediate release from custody.

In yesterday’s case, the Court of Appeals ruled against the defendant. Mr. Jackson’s lawyer argued that the “notice” was not valid unless it was signed by the United States Attorney himself, instead of being signed and filed by the individual prosecutor handling the case. It was a clever argument by an attorney striving as hard as possible to avoid the harsh result that comes about when the mandatory penalty system in effect allows the prosecutor to name the sentence by filing the 851 “notice.” Although the argument was creative, the court likely reached the correct result.

In the case I am handling mentioned above, our argument is a bit more sophisticated. We contend that the although the “notice” was correctly signed and filed, it did not name the correct subsection of the drug laws, and therefore our client was only facing 5 years instead of 10. More on that later.

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