In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 23-1863
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                 v.

THOMAS J. WILKINSON, IV,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
                    Central District of Illinois.
         No. 21-CR-30021-001 — Colleen R. Lawless, Judge.
                     ____________________

     ARGUED DECEMBER 12, 2023 — DECIDED JUNE 2, 2025
                ____________________

   Before SCUDDER, ST. EVE, and PRYOR, Circuit Judges.
    PRYOR, Circuit Judge. Congress gave federal prosecutors
the ability to seek enhanced sentences based on a defendant’s
prior convictions. This grant, however, came with conditions.
Before a trial or before a defendant enters a guilty plea, pros-
ecutors must state which previous convictions they seek to
rely on for any sought enhancements.
2                                                   No. 23-1863

    The procedures set out in 

(a)(1) were not
followed in Thomas Wilkinson’s case. The government gave
Wilkinson notice of a prior conviction in a § 851 notice. But
after Wilkinson pleaded guilty, the government realized that
this conviction could not enhance his sentence. So, it asked the
district court to enhance Wilkinson’s sentence based on a dif-
ferent prior conviction—one not mentioned in the § 851 notice.
The court did so, subjecting Wilkinson to a higher statutory
minimum prison term. Because this decision was a harmful
error, we vacate and remand for resentencing.
                      I. BACKGROUND
    A federal grand jury charged Wilkinson with violating
drug and firearm laws. In particular, the indictment included
three counts: possession with intent to distribute metham-
phetamine, 

(a)(1) and 841(b)(1)(A); possession
of a firearm in furtherance of a drug trafficking crime, 

(c)(1)(A)(i); and possession of a firearm by a con-
victed felon, 

 § 922(g)(1). Wilkinson initially pleaded not
guilty.
    Most significant to this appeal is the language within the
special findings section of the indictment. It stated that two of
Wilkinson’s prior state drug convictions were “relevant to de-
termining [his] sentence.” The first was a conviction for drug
trafficking, and the second was a conviction for attempting to
manufacture drugs, both in violation of Missouri law.
    A defendant who, like Wilkinson, is convicted of traffick-
ing at least fifty grams of methamphetamine typically faces a
minimum of ten years in prison. 

(b)(1)(A). That
number increases to fifteen if the defendant has been con-
victed of a “serious drug felony.” 

 And it increases even
No. 23-1863                                                 3

further, to twenty-five years, if the defendant has been con-
victed of two or more serious drug felonies. 

 But these en-
hancements may only be sought if the government provides
notice of the prior convictions pursuant to procedures set
forth in 

.
   After negotiating with Wilkinson’s counsel, the
government agreed to seek an enhanced mandatory
minimum using just one of Wilkinson’s prior state-law
predicates listed in the indictment. In keeping with that
agreement, the government filed an information, pursuant to

, seeking to enhance Wilkinson’s sentence
based on his prior drug-trafficking conviction alone.
    The next day, the court conducted a change of plea hear-
ing. During the proceeding, the government confirmed that it
was relying on Wilkinson’s drug-trafficking conviction out-
lined in the § 851 notice to argue for an enhancement of his
sentence. Specifically, the Assistant United States Attorney
explained:
      As it relates to count one, I do want to note that
      originally, the government had filed with the in-
      dictment notice of two prior convictions. As a
      result of discussions and negotiations with [de-
      fense counsel] on behalf of the defendant, the
      government filed yesterday an information al-
      leging only one prior conviction as part of this
      plea.
Later in the hearing, when asked about the factual basis for
the plea, the prosecutor expanded on her earlier explanation
regarding the § 851 notice stating:
4                                                   No. 23-1863

       The defendant has been previously convicted of
       multiple offenses, which are felony offenses, in
       the State of Missouri, including the offense of
       trafficking in drugs, … which forms the basis of
       the prior conviction which enhances count one.
Then when asked about any advisements that the court
should give Wilkinson before he pleads guilty, the prosecutor
reiterated that although the indictment listed two § 851 con-
victions, it was only relying on the one conviction listed in the
§ 851 notice for the sentencing enhancement. Wilkinson
pleaded guilty to all three counts in the indictment.
    Before sentencing, the parties realized that Wilkinson’s
prior drug-trafficking conviction cited in the § 851 notice
could not enhance his minimum sentence to fifteen years. Re-
call that the enhanced minimum applies only when a defend-
ant has committed a “serious drug felony.” 

(b)(1)(A). And to be a “serious drug felony,” a state law
must criminalize possession “with intent to manufacture or
distribute.” 

(58) (incorporating the definition
of “serious drug offense” in 

(e)(2)). The Mis-
souri drug-trafficking statute under which Wilkinson was
convicted criminalizes the possession of drugs but not the in-
tent to distribute them. MO. REV. STAT. § 579.068. So, the prior
conviction relied on by the government in its § 851 notice was
not a serious drug felony capable of enhancing Wilkinson’s
federal sentence.
   Undeterred, the government still sought to hold Wil-
kinson to a fifteen-year minimum. In its sentencing memoran-
dum, the government asked the district judge to swap out the
invalid predicate (i.e., the drug trafficking conviction) for a
valid one (i.e., the attempt to manufacture drugs conviction).
No. 23-1863                                                    5

In the government’s view, this other conviction could en-
hance Wilkinson’s sentence even though it was mentioned
only in the indictment and not in the § 851 notice.
    Over Wilkinson’s objection, the district court agreed with
the government. Though the court recognized the govern-
ment had not strictly complied with the requirements of 

, it concluded that the government had done
enough to substantially comply with the purposes of the stat-
ute. The court highlighted that Wilkinson’s attempt to manu-
facture predicate was included in the indictment. The court
also noted that Wilkinson had been given “an opportunity to
contest the use of his prior conviction” in deciding whether to
plead guilty or to go to trial. In making this determination, the
district court relied on the Eighth Circuit’s decision in United
States v. Johnson, which explains that an indictment can satisfy
the notice requirement of § 851. 

 (8th Cir. 2006).
Accordingly, the court concluded that Wilkinson’s possession
of methamphetamine count carried a fifteen-year mandatory
minimum prison term.
    The district court sentenced Wilkinson to a twenty-year
term of imprisonment followed by ten years of supervised re-
lease. On the first count, the court imposed what it believed
to be the minimum prison term of fifteen years based on the
substituted prior conviction which enhanced this minimum.
The prison sentence for the third count was ten years which
ran concurrently to the first count. The sentence for the second
count was five years which ran consecutively to each of the
other counts.
   Wilkinson now appeals.
6                                                     No. 23-1863

                       II. DISCUSSION
    Before us, Wilkinson argues that he should not have
faced a minimum of fifteen years in prison for possessing
methamphetamine because the government did not comply
with the notice requirements of 

(a)(1). The
government responds that it effectively complied with the
statute by satisfying § 851’s purposes and that, regardless,
any error would be harmless.
    A. The Statutory Framework of 

(a)(1)
    Under 

(b), Congress has outlined the
penalties associated with federal drug crimes which include,
and as relevant here, a defendant’s prior drug convictions
which can enhance their sentence. Thus, because of the effect
of prior convictions on a defendant’s sentence under 

(b)(1)(A), Congress enacted special protections before a
court could impose certain enhanced minimum sentences on
the defendant convicted of a drug-related offense. United
States v. Arreola-Castillo, 

 (7th Cir. 2008)
(Arreola-Castillo I).
    These protections are embodied in 

 and
were enacted to satisfy “the due process requirements of
reasonable notice and opportunity to be heard with regard to
the prior conviction.” 

 (quoting United States v. Gonzalez-
Lerma, 

 (10th Cir. 1994)). To that end, the
government may seek the § 841(b) enhanced penalties for
drug-related offenses only if it complies with the
requirements set out in § 851. Arreola-Castillo v. United States,

 (7th Cir. 2018) (Arreola-Castillo II) (explaining
the procedures the government must follow to impose a
recidivism penalty under § 841).
No. 23-1863                                                      7

    The “Notice of Enhancement” statute, Title 

(a)(1) provides, in relevant part, that a district court may
not enhance a sentence unless certain conditions are met:
       No person … shall be sentenced to increased
       punishment by reason of one or more prior con-
       victions, unless before trial, or before entry of a
       plea of guilty, the United States attorney files an
       information with the court … stating in writing
       the previous convictions to be relied upon.
    We have interpreted this section to require the United
States Attorney, before the guilty plea, to file a document with
the sentencing court that indicates the government’s intent to
rely on a prior conviction to enhance a defendant’s sentence.
Arreola-Castillo I, 

 (citing 

(1)(a));
United States v. Williams, 

 (7th Cir. 2009). We
have found sufficient notice under § 851 when the defendant
has been given reasonable notice of the prior conviction the
government intends to rely on and the opportunity to be
heard regarding the possibility of the enhanced sentence.
Arreola-Castillo I, 

. The sentencing court may
enhance the sentence of a defendant convicted of a drug
offense under 

(a), only if the government
complies with the requirements of 

(a).
   B. Application of 

    We review the sufficiency of a § 851 notice de novo. United
States v. Lawuary, 

 (7th Cir. 2000), overruled on
8                                                            No. 23-1863

other grounds, United States v. Ceballos, 

 (7th
Cir. 2002). 1
    Here, the government filed an information the day before
Wilkinson’s change of plea hearing. The § 851 notice identi-
fied Wilkinson’s prior drug-trafficking conviction as the en-
hancement predicate. This provided Wilkinson with notice
and gave him an opportunity to challenge the use of this con-
viction to enhance his sentence. The government, however,
did not rely on this conviction at sentencing. Instead, the gov-
ernment relied on Wilkinson’s prior conviction for attempting
to manufacture methamphetamine to argue for the
§ 841(b)(1)(A) sentencing enhancement.
    The text of 

(a)(1) requires the government
to file an information that identifies the particular conviction
on which it intends to rely on for an enhancement. Because
the government did not provide written notice of its intent to
incorporate Wilkinson’s attempt to manufacture conviction to
seek the sentencing enhancement, before or at his plea hear-
ing, the district court erred in finding the government pro-
vided adequate notice as required under § 851. Williams, 584
F.3d at 717–18.



1 The government, for its part, disagrees with the appropriate standard of

review. It argues that we should review Wilkinson’s appeal for plain error.
To reach this result, the government frames Wilkinson’s appellate argu-
ment as one about due process and points out that he never raised a con-
stitutional argument below. We disagree with this characterization. Wil-
kinson’s argument is statutory in nature: he challenges the district court’s
conclusion that the government complied with § 851. Because he made
this argument below, our review is de novo. United States v. Cooper, 

 (7th Cir. 2006).
No. 23-1863                                                    9

   C. The Government’s Counterarguments
    The government resists this conclusion in two ways, but
neither is persuasive. Its first argument centers around the
flexibility of § 851 and its second argument focuses on the
purposes of the statute.
       1. Flexibility of 

   The government first argues that we should grant it lee-
way because we have not interpreted the statute strictly in the
past. This argument rests on a misunderstanding of our case
law.
   True, our precedent has been flexible with how the gov-
ernment provides notice under § 851. United States v. Tringali,

 (7th Cir. 1995). Because § 851 “does not
specify the form the filing must take,” we have “been flexible
with regard to what the government must do in order to com-
ply” with it. Lawuary, 

. In other words, there is
no magic document template that the government must use.
Williams, 584 F.3d at 716–17.
    Such flexibility, though, applies to a particular situation:
when the government includes the relevant information
across multiple written documents. Separating the notice into
multiple documents, we have held, can be permissible. E.g.,
Williams, 584 F.3d at 715–18 (approving the government’s
§ 851 notice which incorporated by reference “all other con-
victions applicable” in the presentence investigation report)
(alteration omitted); Tringali, 

 (concluding that
the combination of an § 851 notice and a Rule 404(b) motion,
which identified the particular prior convictions, was suffi-
cient). The Eighth Circuit case that the district court invoked,
United States v. Johnson, concerned a similar situation. 

                                                   No. 23-1863

at 823–24 (explaining that both the indictment and the gov-
ernment’s trial memorandum noted that the defendant’s
prior felonies subject him to enhanced penalties).
    What happened in Wilkinson’s case is different. In the
above cases, the defendant knew, in some capacity, what par-
ticular conviction the government sought to use to enhance
his sentence before trial or before entering their plea of guilty.
In Wilkinson’s case, there was no indication in the written
§ 851 notice that the government would seek to rely on Wil-
kinson’s attempt to manufacture conviction to enhance his
sentence. Nor were there any supplemental filings before Wil-
kinson pleaded guilty to suggest that the government would
be incorporating the prior convictions listed in the indictment
to support its argument. In fact, at the plea hearing, the gov-
ernment was consistent that it was seeking an enhancement
based on the § 851 information which identified only Wil-
kinson’s drug trafficking conviction.
    While our precedent allows the government to provide
§ 851 notice in a variety of methods, the point remains that the
government must provide sufficient written notice of the prior
conviction on which it relies to seek an enhanced penalty be-
fore the defendant pleads guilty. To conclude otherwise
would ignore § 851’s express requirements.
   In sum, our case law has granted the government consid-
erable flexibility with respect to how it supplies notice be-
cause the statute is silent on those procedures. This flexibility,
however, is not a license to ignore the few procedures that
Congress has expressly outlined.
No. 23-1863                                                     11

       2. Purposes of 

    The government next contends that it need not have
strictly complied with the text of § 851 as long as the purposes
of the statute were met. Those purposes are (1) to give the de-
fendant an opportunity to contest the use of his prior convic-
tion, and (2) to allow him to intelligently decide whether to
plead guilty. Williams, 

.
    The fundamental flaw with this argument is that Wil-
kinson was never given the chance to make an informed de-
cision of whether to enter his plea or proceed to trial concern-
ing the particular conviction the government used to argue
for a longer sentence. The indictment listed two of Wil-
kinson’s prior convictions, but the government agreed to pur-
sue only the drug-trafficking conviction. Under these circum-
stances, Wilkinson could not have expected the government
to rely on the attempted-manufacture predicate to enhance
his sentence. The government functionally told him that it
would not rely on that conviction, so it was impossible for him
to take into account the risks and benefits of pleading guilty
or risking trial with that predicate looming.
    For a choice in this context to be informed, the defendant
must know which predicates might be used against him. In-
deed, a large part of what makes the choice “informed” is the
ability to calculate the odds of successfully challenging the
predicate. See Williams, 

 (concluding that the
defendant could have made an informed decision because he
knew a predicate was “applicable”). The government thus
strips a defendant of the chance to make an informed choice
when, as here, it relies on a different predicate after the defend-
ant pleads guilty.
12                                                    No. 23-1863

   For these reasons, we disagree with the government that
the purposes of 

 were satisfied in Wilkinson’s
case.
     D. Harmless Error
    Because the district court erred when it concluded that the
government properly abided by the requirements of
§ 851(a)(1), we must now ask whether that error was harm-
less.
    The government argues that nothing would have changed
in the district court had the § 851 notice been proper: Wil-
kinson did not base his choice to plead guilty on which pred-
icate the government selected, and he had a chance to contest
the attempted-manufacture predicate at sentencing. In sup-
port, the government relies on United States v. Lewis, 

 (7th Cir. 2010), a case in which we held that a defi-
cient § 851 notice did not create a plain error.
    Wilkinson responds that the government is looking at the
wrong error. Regardless of how we have analyzed the prob-
lem in the context of plain error, he contends, a harmless error
analysis evaluates whether the district court’s error was
harmful. In Wilkinson’s view, then, the relevant variable is
the district court’s error of concluding that the government
complied with § 851, not the government’s error of filing a
faulty notice in the first place. Understood this way, he con-
tinues, the error is harmful because it could have impacted his
sentence.
   Wilkinson is right. The harmless error doctrine evaluates
whether the district court’s error affected the defendant’s sub-
stantial rights. United States v. Clark, 

 (7th Cir.
2018); see also FED. R. CRIM. P. 52(a) (an error is harmless if it
No. 23-1863                                                    13

does not affect a defendant’s “substantial rights”). In the con-
text of sentencing errors, we must remand unless we are con-
vinced that the error did not affect the district court’s choice
of sentence. United States v. Wilcher, 

 (7th Cir.
2024); United States v. Alvarez-Carvajal, 

 (7th
Cir. 2021). The burden of proving that the sentence would re-
main the same falls on the government. 

    The government has not met its burden in this case. The
district court based Wilkinson’s sentence on the possession of
methamphetamine count on an incorrect assumption: the be-
lief that it had to send Wilkinson to prison for a mandatory
minimum of fifteen years. When a district court misunder-
stands the scope of its discretion, including by applying an
incorrect statutory minimum, we presume that the error is
harmful. See Coleman v. United States, 

 (7th Cir.
2023) (presuming prejudice in the context of an ineffective as-
sistance of counsel claim). This is because a statutory mini-
mum “often anchor[s] a court’s choice of a suitable sentence.”
See United States v. Shaw, 

 (7th Cir. 2020).
Without the anchor, then, the district court might have im-
posed a lower sentence. See Molina-Martinez v. United States,

 (2016) (concluding that a Sentencing Guide-
lines range will “in most cases … affect the sentence” because
the range “serve[s] as the starting point for the district court’s
decision and anchor[s] the court’s discretion”).
    Nothing in the record convinces us that the district court
would have imposed the same sentence if it were not for its
error in applying an enhanced statutory minimum. The dis-
trict court, for example, did not say that the statutory mini-
mum had no effect on its choice of sentence. United States v.
Caraway, 

 (7th Cir. 2023). Instead, it sentenced
14                                                No. 23-1863

Wilkinson to the least amount of prison time on count one
that it believed it could have.
    Because the district court might sentence Wilkinson to less
prison time on the first count were it not for the § 851 error,
we must remand for resentencing. Clark, 

. In
doing so, we make no comment on the appropriate amount of
time to impose. We leave that decision up to the sound dis-
cretion of the district court.
                    III. CONCLUSION
  For these reasons, we VACATE the district court’s judg-
ment and REMAND for resentencing.