Difalco: 851 notice is not jurisdictional

In U.S. v. Difalco, No. 15-14763 (Sept. 20, 2016), the Court, reversing Circuit precedents, held that the failure of the government to file a notice of prior conviction, as required by 21 U.S.C. § 851, is not a jurisdictional defect. “Section 851 is essentially a claims-processing rule that has no impact on the district court’s subject-matter jurisdiction.” Therefore, the notice requirement of Section 851 is subject to waiver. Difalco’s plea agreement contained an appeal waiver. This waiver knowingly waived Difalco’s right to challenge a § 851 defect in his sentence. Moreover, even if the waiver was not knowing, there was no defect that gave rise to “plain error.” Though the government’s § 851 notice was “hardly a model to be emulated by prosecutors in future cases,” the “scrivener’s errors” it contained did not result in Difalco not being put on notice of the prior conviction upon which the government was relying. Nor did the district court’s statements at sentencing – at which it varied downward below the Guideline range – indicate that Difalco’s sentence was affected by any error. The Court also rejected the argument that the Magistrate Judge committed error during its Rule 11 colloquy, finding that Difalco was informed of the mandatory minimum punishment on account of his prior felony convictions.