Under 21 U.S.C. § 841(b)(1)(A), certain drug offenders face a mandatory sentence of life imprisonment if they have two prior drug felony convictions.  As befits such a draconian statute, special procedural protections have been adopted to ensure that the mandatory minimum does not take defendants by suprise at sentencing.  Thus, 21 U.S.C. § 851(a)(1) requires that “before trial . . . the United States attorney [must] . . . serve[] a copy of [an] information on the [defendant] . . . stating in writing the previous convictions to be relied upon.”  But the statute does not specify under what circumstances, if any, a failure to comply with the rule precludes imposition of the mandatory minimum.

By the statute’s literal terms, there can be no doubt that the prosecutor in United States v. Williams (No. 09-1924) failed to comply.  In the § 851 notice he served on Williams, the prosecutor identified only one prior conviction (not the requisite two) and then merely stated, “Further information concerning the defendant’s criminal history can be obtained from the United States Probation Office and specifically the Pretrial Services Report in this matter . . . .”  The Pretrial Services Report, which listed a second drug conviction, was not actually served on the defendant until after trial.  Indeed, it appears that the prosecutor himself had not even received and read the Report before his attempt to incorporate it by reference into the § 851 notice.  This was very sloppy work, and the Seventh Circuit righly chastised both the individual prosecutor and his office (the Northern District of Indiana), which lacked any protocol on how to make § 851 notices.  But sloppiness, even inexcusable sloppiness, is not the same thing as reversible error, and the court (per Judge Posner) affirmed Williams’ life sentence. 

If Congress makes an obvious error in drafting a statute, can a court correct that error by effectively adding something to the statute that is not there?  Such was the interesting jurisprudential question the Seventh Circuit confronted last January in United States v. Head, 552 F.3d 640 (2009).  Because of a mix-up with statutory cross-references, the statute that lists permissible conditions of supervised release in the federal system does not include assignment to a halfway house.  However, the first seven circuits to consider the question held that sentencing judges could indeed order placement in a halfway house, reasoning that a literal interpretation of the statute would produce an absurdity.  In Head, the Seventh Circuit bucked the trend and rejected the government’s absurdity argument.  (My post on Head is here.)  Although Congress corrected its drafting error with a 2008 amendment, Head held that the amendment could not be applied retroactively, meaning that assignment to a halfway house seemed to be off the table as a sentencing option for a large group of defendants still moving through the court system in this region.

But now the court has significantly limited the significance of Head in United States v. Anderson (No. 09-1958).