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BETWEEN THE DEVIL AND THE DEEP BLUE SEA
Seafarers of centuries gone by sometimes found themselves in a precarious spot, dangled off the side of the ship down along the waterline to seal up the devil seam. They were between the ‘devil’ in front of them and the deep blue sea at their backs.
The 8th Circuit put prosecutors in a similar precarious position last week, holding that in the wake of Erlinger v United States, which held in essence that the 6th Amendment requires that the elements of enhanced statutory penalties had to be determined by juries beyond a reasonable doubt.
Antonio Evans was charged with a drug trafficking offense under 21 USC § 841(a). The U.S. Attorney filed an “851 notice,” specifying under 21 USC § 851 that Tony had three prior serious drug offenses, and thus must face a higher minimum sentence on his current crime.
Tony argued that Erlinger held that a jury, not the judge, had to find that he had the three requisite prior offenses. The problem is that 21 USC § 851 requires the judge, not a jury, to find the elements supporting an enhanced sentence. The district judge first decided to impanel a jury but scrapped that because the statute prohibited a jury. Instead, the trial court sentenced Tony without the enhanced sentence because the 6th Amendment required what the statute prohibited.
The government appealed. Last week, the 8th Circuit upheld Tony’s lighter sentence.
Section 851 is not facially unconstitutional, because there are circumstances where it could be lawfully applied, such as if the district court submitted, and the jury found, the incarceration-related facts during trial. If a defendant then lodged the same objection, the district court could have relied on the jury’s findings to resolve it without violating either the 6th Amendment or Section 851. Because it is not facially unconstitutional, the court may more easily find that it is unconstitutional as applied to Tony.
The government argued that the court must have “inherent power” to impanel a jury now, “so the government is not deprived… of its ability to prove the charged greater offense.” The Circuit said. “It is mistaken. The Constitution promises the government neither sentencing enhancements nor a forum to try them.”
“The Constitution does not void a statute if it may be applied in some situations without violating the Constitution,” the 8th held. “Section 851 is “facially constitutional, and it was not automatically displaced by the 6th Amendment, as the dissent suggests. Rather, it is only unconstitutional as applied to Evans. So the district court was right not to apply the enhancement.”
United States v. Evans, Case No. 25-1181, 2026 U.S.App. LEXIS 13572 (8th Cir. May 12, 2026)
~ Thomas L. Root