The mandatory penalties can double in prison time if a defendant has a previous drug conviction. The statute 21 U.S.C. 851, dictates the procedure whereby the government establishes that a defendant has a prior conviction, hence triggering an enhanced statutory sentence under the drug laws.

For example, first and second offense of cocaine trafficking of a mixture 5 kgs or more vary by:

First Offense Cocaine Trafficking - Not less than 10 yrs, and not more than life. If death or serious injury, not less than 20 or more than life. Fine of not more than $4 million if an individual, $10 million if not an individual.

Second Offense Cocaine Trafficking - Not less than 20 yrs, and not more than life. If death or serious injury, life imprisonment. Fine of not more than $8 million if an individual, $20 million if not an individual.

The discretion whether or not to file the enhancement is entirely up to the prosecution. However, the court can only increase the statutory sentencing range of a drug crime based upon a prior conviction if the government files such notice of the prior conviction pursuant to this statute. 21 U.S.C. 851 provides that the enhanced penalties set forth in 841(b) are triggered only if the government files, before trial or the entry of a guilty plea, an information "stating in writing the previous convictions to be relied upon."

This language is mandatory and if the government fails to file an information before trial, or entry of a plea of guilt, then the court lacks jurisdiction to enhance a defendant's sentence.

Once the Government proves the defendant has a prior conviction, the defendant then has the burden of showing that the convictions are invalid. This may be prove to be somewhat of a heavy burden since certain time requirements would apply that allow a defendant to dispute the previous conviction. 21 U.S.C. 851(e) prohibits the challenge of a prior conviction which is more than 5 years old. Furthermore, although the United States Sentencing Guidelines exclude certain prior convictions after a certain period of time, under 21 U.S.C. 841(b), it makes no difference how old the priors are.

In short, although the attempt to overcome the use of a prior conviction in a drug offense is a high hurdle to overcome, it is not necessarily an impossible one. Court records will reveal if that prior that the government may want to rely on to enhance the sentence was constitutionally obtained.