Circuit split · criminal procedure

Whether the 'offense' referenced in 21 U.S.C. § 851(a)(2)'s indictment-or-waiver requirement is the current offense of conviction or the prior offense used to enhance the sentence

1 federal appellate case on this question, each acknowledging the disagreement in its own words.

United States v. Ortega150 F3D 937
Eighth Circuit Court of Appeals · August 4, 1998
“Ortega urges us to reconsider our holding in Trevino-Rodriguez in light of the circuit split on this issue created when the Second Circuit concluded that the language of section 851(a)(2) refers to the prior offense.” — Acknowledges a circuit split
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The provision at issue

21 U.S.C. § 851 — Proceedings to establish prior convictions

“(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 …”

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The other side of the split

Decisions the acknowledging court(s) named as the opposing or joined side, quoted in the acknowledging opinion's own words.

Joined by · 8th Cir.United States v. Trevino-Rodriguez994 F.2d 533
“Trevino-Rodriguez, 994 F.2d 533 , 536 (8th Cir.1993), where we held that section 851(a)(2) requires the current offense, not the prior offenses, to have been prosecuted by indictment or waiver of indictment in order for the government to use the prior felonies to enhance the current sentence.” — United States v. Ortega, acknowledging the split
Joined by · 11th Cir.United States v. Brown47 F.3d 1075
Joined by · 7th Cir.United States v. Burrell963 F.2d 976
Joined by · 10th Cir.United States v. Adams914 F.2d 1404
Joined by · 9th Cir.United States v. Espinosa827 F.2d 604
On the other side · 2d Cir.United States v. Collado106 F.3d 1097
“Because the Second Circuit recently overruled its decision in Collado, the circuit split identified by Ortega no longer exists.” — United States v. Ortega, acknowledging the split
Discussed · 2d Cir.United States v. Ortiz143 F.3d 728

What the split turns on

Statutes:: 21 U.S.C. § 851(a)(2) ·; 21 U.S.C. § 841(b)

Cases are grouped by the legal question they announce a split on, classified from the court's own acknowledgment sentence. Verified acknowledgments only. Counter-side decisions are extracted from the acknowledging opinions' own text and linked only when the citation resolves in this corpus. See all circuit splits.