Eleventh Circuit Clarifies No § 851(b) Colloquy Is Required When § 851(e)’s Five-Year Bar Forecloses Attacks on Prior Convictions

Eleventh Circuit Clarifies No § 851(b) Colloquy Is Required When § 851(e)’s Five-Year Bar Forecloses Attacks on Prior Convictions

Introduction

In United States v. Adal Antonio Navas Feliciano, the Eleventh Circuit—on the Non-Argument Calendar and in an unpublished per curiam decision—affirmed a 180-month sentence imposed after the government sought a recidivist enhancement under 21 U.S.C. § 841(b)(1)(A) based on a prior “serious drug felony.” The central appellate issue concerned the district court’s omission of the colloquy required by 21 U.S.C. § 851(b): specifically, the court did not ask the defendant to affirm or deny the prior convictions alleged in the government’s § 851 information and did not warn him that challenges to the prior must be raised before sentencing.

The panel held there was no error—let alone plain error—because 21 U.S.C. § 851(e) barred any challenge to the validity of the prior convictions, which occurred more than five years before the government filed the § 851 information. Relying on United States v. DiFalco, the court reiterated that a district court “is not required to adhere to the rituals of § 851(b)” when § 851(e) precludes an attack on the predicate conviction.

The case offers practical guidance on the interplay between § 851(b) and § 851(e), the scope of the district court’s duties in recidivist-enhancement proceedings, and preservation and review standards when objections are raised for the first time on appeal.

Summary of the Opinion

- Charge and plea: Navas Feliciano pleaded guilty to conspiring to distribute and possess with intent to distribute 400 grams or more of a mixture containing fentanyl, an offense carrying a base statutory range of 10 years to life under § 841(b)(1)(A)(vi).

- Recidivist enhancement: The government filed a § 851(a) information citing 2014 Florida convictions for trafficking and conspiracy to traffic 400 grams or more of cocaine. The plea agreement, the presentence report (PSR), and defense sentencing memorandum all acknowledged those convictions and the resulting 15-year mandatory minimum for a prior “serious drug felony.”

- Sentencing: The district court calculated a Guidelines range of 135–158 months (offense level 31, criminal history category III), but adjusted the effective range to the statutory minimum of 180 months and imposed 180 months. Before pronouncing sentence, the court did not conduct the § 851(b) colloquy.

- Issue on appeal: For the first time on appeal, the defendant argued that the district court erred by not (a) asking him to affirm or deny the prior convictions and (b) advising him that any challenge to those convictions had to be raised before sentence.

- Holding: Affirmed. Reviewing for plain error, the panel held there was no error because § 851(e) barred challenges to the validity of the 2014 convictions (more than five years old at the time of the 2022 information). Under Eleventh Circuit precedent (DiFalco), a court need not perform the § 851(b) “rituals” when § 851(e) forecloses an attack on the predicate convictions.

Background and Procedural Posture

- Indictment: The grand jury charged a drug conspiracy involving 400+ grams of a mixture containing fentanyl. The offense ordinarily triggers a 10-year mandatory minimum. See 21 U.S.C. § 841(b)(1)(A)(vi).

- § 851(a) information: Shortly after indictment, the government filed a § 851(a)(1) information listing two 2014 Florida convictions: trafficking 400+ grams of cocaine and conspiracy to traffic the same quantity.

- Plea: In a written plea agreement, the defendant admitted (i) his role in the 2022 conspiracy; (ii) the fact and nature of the 2014 convictions; (iii) that he served more than 12 months and was released within 15 years of the instant offense conduct; and (iv) that the enhancement raised his mandatory minimum to 15 years.

- PSR: The PSR repeated the prior convictions, custodial term (108 months), and release date (2021). It also noted the enhancement and stated that the PSR disclosure process provides an opportunity to affirm or deny convictions when filing objections. The defense did not object to the prior convictions or the 15-year minimum; indeed, the sentencing memorandum acknowledged both.

- Sentencing: The court set the effective range at 180 months due to the mandatory minimum and imposed 180 months. It did not ask the defendant to affirm or deny the priors or advise him of the timing requirement for challenges under § 851(b).

- Appeal: The defense, for the first time, asserted § 851(b) error and argued prejudice on the theory that, had the court conducted the colloquy, he would not have pleaded guilty or would have sought to withdraw the plea.

Analysis

Precedents and Authorities Cited

  • 21 U.S.C. § 841(b)(1)(A)(vi): Establishes base penalties for offenses involving specified drug quantities; here, 400+ grams of a fentanyl mixture triggers a 10-year minimum.
  • 21 U.S.C. § 851: Governs procedural prerequisites to recidivist enhancements. Key subsections:
    • § 851(a)(1): Government must file an information, in writing, listing prior convictions to be relied upon.
    • § 851(b): After conviction but before sentencing, the court must ask the defendant to affirm or deny and must warn that challenges must be raised before sentencing.
    • § 851(c)(1): If the defendant denies or challenges, the court shall hold a hearing to resolve issues that would exempt the defendant from increased punishment.
    • § 851(e): Bars challenges to the validity of prior convictions occurring more than five years before the § 851 information.
  • 21 U.S.C. § 802(58) and 18 U.S.C. § 924(e)(2)(A): Define “serious drug felony,” requiring an offense involving manufacture/distribution (or intent to do so) with a maximum term of at least 10 years, and that the defendant served more than 12 months and was released within 15 years of the instant offense commencement.
  • United States v. Ladson, 643 F.3d 1335 (11th Cir. 2011): De novo review applies to claimed § 851 compliance errors properly preserved below. Cited for standard-of-review framework.
  • United States v. Anderson, 1 F.4th 1244, 1268–69 (11th Cir. 2021): Plain-error standard—error, that is plain, affecting substantial rights, and seriously affecting the fairness, integrity, or public reputation of judicial proceedings.
  • United States v. DiFalco, 837 F.3d 1207, 1224–25 (11th Cir. 2016): The cornerstone for the panel’s analysis—where § 851(e) precludes attacks on the validity of a predicate conviction (because it is more than five years old), the district court “is not required to adhere to the rituals of § 851(b).” In such circumstances, failure to conduct a § 851(b) colloquy is not error.

Legal Reasoning

1) Standard of review. Because the defendant raised the § 851(b) omission for the first time on appeal, the court applied plain-error review (Anderson), not de novo (Ladson). This placed the burden on the defendant to establish a clear, outcome-affecting error that seriously undermines the proceedings.

2) The § 851(e) time bar controlled. The prior Florida convictions occurred in 2014; the government filed the § 851 information in 2022. Under § 851(e), any “challenge to the validity of” prior convictions is barred if the convictions “occurred more than five years before the date of the information.” The panel emphasized that, when § 851(e) forecloses validity challenges, the district court is not required to conduct the § 851(b) colloquy (DiFalco).

3) No error, so no plain error. The panel’s key move was to hold that there was no error at all. Because § 851(e) barred any validity challenge, omitting the § 851(b) inquiry was not a deviation from a legal duty under controlling circuit precedent. That conclusion obviated the need to analyze whether the error was plain, affected substantial rights, or impacted the fairness or integrity of the proceedings.

4) Record admissions eliminated any factual dispute. Although not necessary to the holding, the record independently showed repeated, unambiguous admissions: the plea agreement acknowledged the Florida convictions, service of more than 12 months, and release within 15 years; the PSR recited the convictions and custodial term; and the defense sentencing memorandum accepted the 15-year minimum. These admissions effectively removed any question about the existence of the prior convictions or the applicability of the “serious drug felony” definition.

How the Precedents Shaped the Outcome

DiFalco directly controlled the outcome. There, the Eleventh Circuit held that when § 851(e) renders a validity challenge legally impossible due to the five-year time bar, the court need not perform the § 851(b) colloquy. The panel here simply applied that rule: because the 2014 convictions were more than five years old when the 2022 § 851 information was filed, any validity challenge was statutorily barred, and the district court had no obligation to engage in § 851(b)’s affirmation/denial and advisory sequence.

Ladson and Anderson provided the review framework but did not alter the substantive § 851 analysis. Ladson confirms that § 851 compliance questions are ordinarily reviewed de novo; Anderson supplies the plain-error test where a defendant fails to object below. The defendant’s failure to object in the district court made plain-error review appropriate, but because the panel found no error under DiFalco, the analysis stopped at the first prong.

Impact and Practical Implications

- Clarifies district court obligations under § 851: In the Eleventh Circuit, when the prior conviction alleged in a properly filed § 851 information predates the notice by more than five years, the district court has no duty to conduct the § 851(b) colloquy because § 851(e) renders validity challenges unavailable. This reinforces DiFalco’s pragmatic approach to § 851(b) as a conditional (not absolute) obligation tied to the availability of a challenge.

- Limits for defense challenges: Defendants cannot leverage the absence of a § 851(b) colloquy to obtain relief where § 851(e) forecloses validity attacks and the record confirms the existence of the prior. To preserve de novo review and keep all arguments available, any § 851 issues should be raised in the district court, particularly where the five-year bar does not apply.

- Not a license to skip § 851(b) in all cases: The § 851(b) colloquy still matters when:

  • The prior conviction is within five years of the § 851 information (validity challenges may be available);
  • There is a credible dispute about identity or the fact of conviction (denial is distinct from a “validity” attack and § 851(e) does not bar a simple denial); or
  • The dispute is legal—e.g., whether the prior offense qualifies as a “serious drug felony” under § 802(58)—which is not a “validity” challenge and thus not barred by § 851(e). In such cases, § 851(c) contemplates a hearing on issues that would “except the person from increased punishment.”
The better practice in close or contested cases remains to conduct the § 851(b) inquiry to ensure a clean record.

- First Step Act context: The “serious drug felony” definition reflects Congress’s recalibration of recidivist penalties. Although not determinative here, this decision operates within the modern scheme that narrows qualifying predicates and ties enhancements to more serious priors. The opinion demonstrates how courts verify qualification: maximum statutory penalty threshold, custodial time served, and proximity of release to the instant offense.

- Probation/PSR practices: The PSR’s note that defendants can “affirm or deny” prior convictions through written objections shows a practical mechanism to surface § 851 disputes early. But the statute assigns the colloquy to the court. This decision does not hold that PSR procedures substitute for the court’s duties; it simply finds no duty at all when § 851(e) makes a validity challenge unavailable.

- Sentencing floor controls over Guidelines: The case also illustrates the familiar rule that a statutory mandatory minimum supersedes a lower Guidelines range. Even though the calculated range here was 135–158 months, § 841(b)(1)(A)’s enhanced 15-year minimum set the operative floor at 180 months.

Complex Concepts Simplified

  • § 851 information: A formal notice the government must file listing prior convictions it will use to increase statutory penalties. Without it, the court cannot impose the enhanced penalty.
  • § 851(b) colloquy: Before sentencing, the judge must ask the defendant whether he admits or denies the prior and must warn that any challenge must be made before sentence is imposed. If the defendant denies or challenges, a hearing follows.
  • § 851(e) five-year bar: If the prior conviction is more than five years old by the time the § 851 information is filed, the defendant cannot challenge the prior’s validity (e.g., argue it was unconstitutional). This bar does not, strictly speaking, preclude a defendant from denying the fact of the conviction or disputing whether it legally qualifies as a predicate; it bars attacks on validity.
  • Serious drug felony: A prior drug offense with a maximum possible sentence of at least 10 years that involved distribution (or intent to distribute), where the defendant actually served more than 12 months and was released within 15 years of starting the federal offense.
  • Plain-error review: An appellate standard applied when the issue was not preserved below. The appellant must show an error that is clear, affects substantial rights (usually outcome-determinative), and seriously undermines the fairness or integrity of judicial proceedings.
  • Per curiam, non-argument calendar, not for publication: The panel decided the case on the briefs, issued a short unsigned opinion, and designated it nonprecedential. It is persuasive but not binding in future Eleventh Circuit cases.
  • PSR (Presentence Investigation Report): A report prepared by probation that details offense conduct, criminal history, and sentencing factors. Parties can object; unobjected facts are typically accepted by the court.
  • Guidelines vs. statutory minimum: The U.S. Sentencing Guidelines yield an advisory range. If a statute imposes a higher mandatory minimum, that minimum becomes the effective floor for sentencing.

Key Takeaways

  • In the Eleventh Circuit, a district court’s failure to conduct the § 851(b) colloquy is not error where § 851(e)’s five-year bar forecloses challenges to the validity of the predicate conviction.
  • Defense counsel must raise § 851 issues in the district court to preserve de novo review; otherwise, plain-error review applies, often proving fatal to unpreserved claims.
  • Even where § 851(e) applies, defendants may still deny the fact of the conviction or argue that the prior does not legally qualify as a “serious drug felony”—but such arguments must be raised in the district court and supported by the record.
  • Admissions in plea agreements, unobjected PSR facts, and defense memoranda acknowledging the enhancement will strongly reinforce the propriety of the enhancement on appeal.
  • The decision underscores the importance of timing: the age of the prior conviction relative to the filing of the § 851 information can eliminate entire categories of challenges.

Conclusion

United States v. Navas Feliciano reaffirms and applies the Eleventh Circuit’s rule that district courts need not perform the § 851(b) colloquy when § 851(e) renders validity challenges to prior convictions legally unavailable. The decision fits squarely within the circuit’s precedent and emphasizes practical realities: where the record reflects clear admissions and the statutory time bar forecloses validity attacks, omission of the § 851(b) inquiry is not error. Going forward, the case will guide district courts and practitioners in calibrating their § 851 practices to the availability of challenges under § 851(e) and will remind defense counsel to promptly raise any § 851 issues—particularly where the five-year bar does not apply—to ensure full adjudication of potential defenses to recidivist enhancements.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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