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Regulations
& Codified CSA > USC > Subchapter
I, Part D > Section 849
Section 849. Repealed. Pub.L. 98-473, Title II, Section 219(a), Oct.
12, 1984, 98 Stat. 2027
Section Applicable to Offenses Committed Prior to Nov. 1, 1987
This section as in effect prior to repeal by Pub.L. 98-473 read as follows:
Section 849. Dangerous special drug offender sentencing
Notice to court by United States attorney
(a) Whenever a United States attorney charged with the prosecution of a defendant in a court of
the United States for an alleged felonious violation of any provision of this subchapter or
subchapter II of this chapter committed when the defendant was over the age of twenty-one years
has reasons to believe that the defendant is a dangerous special drug offender such United States
attorney, a reasonable time before trial or acceptance by the court of a plea of guilty or nolo
contendere, may sign and file with the court, and may amend, a notice (1) specifying that the
defendant is a dangerous special drug offender who upon conviction for such felonious violation
is subject to the imposition of a sentence under subsection (b) of this section, and (2) setting out
with particularity the reasons why such attorney believes the defendant to be a dangerous special
drug offender. In no case shall the fact that the defendant is alleged to be a dangerous special
drug offender be an issue upon the trial of such felonious violation, be disclosed to the jury, or be
disclosed before any plea of guilty or nolo contendere or verdict or finding of guilty to the
presiding judge without the consent of the parties. If the court finds that the filing of the notice
as a public record may prejudice fair consideration of a pending criminal matter, it may order the
notice sealed and the notice shall not be subject to subpena or public inspection during the
pendency of such criminal matter, except on order of the court, but shall be subject to inspection
by the defendant alleged to be a dangerous special drug offender and his counsel.
Hearing; inspection of presentence report; counsel; process; examination of witnesses; penalty;
sentence
(b) Upon any plea of guilty or nolo contendere or verdict or finding of guilty of the defendant of
such felonious violation, a hearing shall be held, before sentence is imposed, by the court sitting
without a jury. The court shall fix a time for the hearing, and notice thereof shall be given to the
defendant and the United States at least ten days prior thereto. The court shall permit the United
States and counsel for the defendant, or the defendant if he is not represented by counsel, to
inspect the presentence report sufficiently prior to the hearing as to afford a reasonable
opportunity for verification. In extraordinary cases, the court may withhold material not relevant
to a proper sentence, diagnostic opinion which might seriously disrupt a program of
rehabilitation, any source of information obtained on a promise of confidentiality, and material
previously disclosed in open court. A court withholding all or part of a presentence report shall
inform the parties of its action and place in the record the reasons therefor. The court may
require parties inspecting all or part of a presentence report to give notice of any part thereof
intended to be controverted. In connection with the hearing, the defendant and the United States
shall be entitled to assistance of counsel, compulsory process, and cross- examination of such
witnesses as appear at the hearing. A duly authenticated copy of a former judgment or
commitment shall be prima facie evidence of such former judgment or commitment. If it appears
by a preponderance of the information, including information submitted during the trial of such
felonious violation and the sentencing hearing and so much of the presentence report as the court
relies upon, that the defendant is a dangerous special drug offender, the court shall sentence the
defendant to imprisonment for an appropriate term not to exceed twenty-five years and not
disproportionate in severity to the maximum term otherwise authorized by law for such felonious
violation. Otherwise it shall sentence the defendant in accordance with the law prescribing
penalties for such felonious violation. The court shall place in the record its findings, including
an identification of the information relied upon in making such findings, and its reasons for the
sentence imposed.
Sentences for life or for term exceeding twenty-five years
(c) This section shall not prevent the imposition and execution of a sentence of imprisonment for
life or for a term exceeding twenty-five years upon any person convicted of an offense so
punishable.
Mandatory minimum penalties
(d) Notwithstanding any other provision of this section, the court shall not sentence a dangerous
special drug offender to less than any mandatory minimum penalty prescribed by law for such
felonious violation. This section shall not be construed as creating any mandatory minimum
penalty.
Special drug offender defined
(e) A defendant is a special drug offender for purposes of this section if --
(1) the defendant has previously been convicted in courts of the United States or a
State or any political subdivision thereof for two or more offenses involving dealing
in controlled substances, committed on occasions different from one another and
different from such felonious violation, and punishable in such courts by death or
imprisonment in excess of one year, for one or more of such convictions the
defendant has been imprisoned prior to the commission of such felonious violation,
and less than five years have elapsed between the commission of such felonious
violation and either the defendant's release, or parole or otherwise, from
imprisonment for one such conviction or his commission of the last such previous
offense or another offense involving dealing in controlled substances and
punishable by death or imprisonment in excess of one year under applicable laws of
the United States or a State or any political subdivision thereof; or
(2) the defendant committed such felonious violation as part of a pattern of dealing
in controlled substances which was criminal under applicable laws of any
jurisdiction, which constituted a substantial source of his income, and in which he
manifested special skill or expertise; or
(3) such felonious violation was, or the defendant committed such felonious
violation in furtherance of, a conspiracy with three or more other persons to engage
in a pattern of dealing in controlled substances which was criminal under applicable
laws of any jurisdiction, and the defendant did, or agreed that he would, initiate,
organize, plan, finance, direct, manage, or supervise all or part of such conspiracy
or dealing, or give or receive a bribe or use force in connection with such dealing.
A conviction shown on direct or collateral review or at the hearing to be invalid or for which the
defendant has been pardoned on the ground of innocence shall be disregarded for purposes of
paragraph (1) of this subsection. In support of findings under paragraph (2) of this subsection, it
may be shown that the defendant has had in his own name or under his control income or
property not explained as derived from a source other than such dealing. For purposes of
paragraph (2) of this subsection, a substantial source of income means a source of income which
for any period of one year or more exceeds the minimum wage, determined on the basis of a
forty-hour week and fifty-week year, without reference to exceptions, under section 206(a)(1) of
Title 29 for an employee engaged in commerce or in the production of goods for commerce, and
which for the same period exceeds fifty percent of the defendant's declared adjusted gross income
under section 62 of Title 26. For purposes of paragraph (2) of this subsection, special skill or
expertise in such dealing includes unusual knowledge, judgment or ability, including manual
dexterity, facilitating the initiation, organizing, planning, financing, direction, management,
supervision, execution or concealment of such dealing, the enlistment of accomplices in such
dealing, the escape from detection or apprehension for such dealing, or the disposition of the
fruits or proceeds of such dealing. For purposes of paragraphs (2) and (3) of this subsection,
such dealing forms a pattern if it embraces criminal acts that have the same or similar purposes,
results, participants, victims, or methods of commission, or otherwise are interrelated by
distinguishing characteristics and are not isolated events.
Dangerous defendants
(f) A defendant is dangerous for purposes of this section if a period of confinement longer than
that provided for such felonious violation is required for the protection of the public from further
criminal conduct by the defendant.
Appeal
(g) The time for taking an appeal from a conviction for which sentence is imposed after
proceedings under this section shall be measured from imposition of the original sentence.
Review of sentence
(h) With respect to the imposition, correction, or reduction of a sentence after proceedings under
this section, a review of the sentence on the record of the sentencing court may be taken by the
defendant or the United States to a court of appeals. Any review of the sentence taken by the
United States shall be taken at least five days before expiration of the time for taking a review of
the sentence or appeal of the conviction by the defendant and shall be diligently prosecuted. The
sentencing court may, with or without motion and notice, extend the time for taking a review of
the sentence for a period not to exceed thirty days from the expiration of the time otherwise
prescribed by law. The court shall not extend the time for taking a review of the sentence by the
United States after the time has expired. A court extending the time for taking a review of the
sentence by the United States shall extend the time for taking a review of the sentence or appeal
of the conviction by the defendant for the same period. The taking of a review of the sentence by
the United States shall be deemed the taking of a review of the sentence and an appeal of the
conviction by the defendant. Review of the sentence shall include review of whether the
procedure employed was lawful, the findings made were clearly erroneous, or the sentencing
court's discretion was abused. The court of appeals on review of the sentence may, after
considering the record, including the entire presentence report, information submitted during the
trial of such felonious violation and the sentencing hearing, and the findings and reasons of the
sentencing court, affirm the sentence, impose or direct the imposition of any sentence which the
sentencing court could originally have imposed, or remand for further sentencing proceedings
and imposition of sentence, except that a sentence may be made more severe only on review of
the sentence taken by the United States and after hearing. Failure of the United States to take a
review of the imposition of the sentence shall, upon review taken by the United States of the
correction or reduction of the sentence, foreclose imposition of a sentence more severe than that
previously imposed. Any withdrawal or dismissal of review of the sentence taken by the United
States shall foreclose imposition of the sentence more severe than that reviewed but shall not
otherwise foreclose the review of the sentence or the appeal of the conviction. The court of
appeals shall state in writing the reasons for its disposition of the review of the sentence. Any
review of the sentence taken by the United States may be dismissed on a showing of the abuse of
the right of the United States to take such review.
(Pub.L. 91-513, Title II, Section 409, Oct. 27, 1970, 84 Stat. 1266.)
For applicability of sentencing provisions to offenses, see Effective Date and Savings Provisions,
etc., note, section 235 of Pub.L. 98-473, as amended, set out under section 3551 of Title 18,
Crimes and Criminal Procedure.
EDITORIAL NOTES
Effective Date of Repeal; Savings Provisions. Repeal by Pub.L. 98- 473 effective on the first
day of first calendar month beginning thirty six months after Oct. 12, 1984, applicable only to
offenses committed after taking effect of sections 211 to 239 of Pub.L. 98-473, and except as
otherwise provided for therein, see section 235 of Pub.L. 98-473, as amended, set out as a note
under section 3551 of Title 18, Crimes and Criminal Procedure.
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unofficial version. An official version of this publication may be obtained
directly from the Government Printing Office (GPO).
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