Posted by [By V. Natasha Perdew Silas]
Is your client facing a 21 U.S.C. § 851 enhancement based on a conviction for a “serious drug felony”? If so, consider whether your client should contest the facts required to make the prior conviction a serious drug felony. If those facts are contested, the government may face a Catch-22 that defeats the enhancement.
In United States v. Nunley, No. 3:26-CR-23 (S.D. Iowa 2026), the government filed an § 851 enhancement based on a prior “serious drug felony.” To qualify as a “serious drug felony,” the government must establish not only the qualifying prior conviction, but two additional facts: (1) that Nunley actually served more than 12 months in prison, and (2) that he was released from prison within 15 years of the start of the instant federal offense.
Nunley announced that he contested those incarceration-related facts. And that created the Catch-22 between the Constitution and the text of the statute. As the Supreme Court held in Erlinger v. United States, 602 U.S. 821, 834 (2024), the Fifth and Sixth Amendments demand that virtually “any fact” that increases the range of statutory penalties to which a defendant is exposed must be “resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).” On the other hand, the text of § 851(c)(1) requires disputed factual issues to be decided by the judge “without a jury.”
Nunley’s lawyers moved to strike the § 851 enhancement from the indictment. The court declined to strike it but held that the enhanced mandatory minimum could not be applied because doing so would violate either the Sixth Amendment or the express terms of § 851.
The government’s proposed solution: Have a jury find the additional facts, just as juries must now find ACCA “occasions different” facts under Erlinger. The Court rejected that solution because § 851 expressly requires the disputed facts to be determined by the court “without a jury.” The district court was bound by the Eighth Circuit’s recent decision in United States v. Evans, 175 F.4th 950 (8th Cir. 2026), which held that the incarceration-related facts required for a serious-drug-felony enhancement are subject to the Sixth Amendment and therefore cannot support an enhanced mandatory minimum based solely on judicial factfinding.
The result: Although the § 851 notice remained in place, the court held that, absent a change in the procedural posture, Nunley will be sentenced without application of the enhanced mandatory minimum.
The takeaway: This issue is not limited to serious drug felonies. It may also arise when the § 851 enhancement is based on a serious violent felony. Again, to prove a serious drug felony, the government must establish:
- that your client served over 12 months in prison; and
- that your client was released from imprisonment within 15 years of the commencement of the federal offense.
For a serious violent felony, on the other hand, the government must establish:
- that your client actually served more than 12 months in prison (note that unlike the serious drug felony provision, this definition does not have a recency limitation).
21 U.S.C. § 802(58), (59). These incarceration-related facts go beyond the mere existence of the prior conviction. So, consider whether your client should contest the applicable incarceration-related facts and put the government to its burden.
Nunley and Evans are not binding in the Eleventh Circuit. But the constitutional argument comes directly from Erlinger, and the statutory problem comes directly from the text of § 851. So, take the sting out of the government’s § 851 notice. 🐝 Read it. Identify the facts the government needs. Consider what should be contested. Preserve the issue. And litigate it.
BEE L-I-T-I-G-I-O-U-S.
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