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Types of Federal Drug Offenses
Federal prosecutors normally charge individuals with being part of a drug conspiracy in addition to substantive drug offenses. The different types of substantive drug offenses are found in 21 U.S.C. § 841.
- Simple possession. The act of possessing or exercising some degree of control over a controlled substance can lead to a simple possession charge.
- Possession with the intent to distribute. While possession is generally the least severe offense, possession with the intent to distribute is treated just as severely as if the person actually distributed the drugs in question. Federal prosecutors will try to prove that it was the defendant’s intent to distribute a controlled substance by arguing that the quantity involved was more than a personal use amount, that other items seized by law enforcement were indicative of drug dealing (e.g., firearms, scales, baggies, drug ledgers, large sums of cash), and that the person’s criminal history suggests that he’s a drug dealer.
- Distribution of drugs. The distribution of drugs usually entails transporting drugs or giving the drugs to another individual.
- Manufacturing. Manufacturing drugs usually involves growing a plant containing a controlled substance (e.g., a marijuana plant) or otherwise creating the drug (e.g., methamphetamine).
What is a Federal Drug Conspiracy?
A federal drug conspiracy is simply an agreement between two or more people to violate a federal drug law. Federal prosecutors commonly use 21 U.S.C. § 846 to charge individuals with conspiring to violate America’s drug laws. For example, if two people agreed to grow and sell marijuana, they could be charged with conspiring to manufacture marijuana. A conspiracy charge is different from a substantive charge which usually focuses on a single bad act (e.g., selling a certain quantity of marijuana on a specific date and to a specific person).
Federal prosecutors like to charge individuals with conspiracy for a couple of reasons. First, it allows prosecutors to cast a very wide net and charge people who were only minimally involved in a drug case. This means that individuals who are wholly innocent or only had very limited knowledge of the drug operation could face federal drug conspiracy charges.
Second, federal prosecutors file conspiracy charges as a way to increase the quantity of drugs attributed to an individual. In a federal drug case, the length of an individual’s sentence is often tied to the quantity of drugs involved. By filing conspiracy charges against an individual, a federal prosecutor can often increase the amount of drugs assigned to an individual by holding the individual responsible for drugs attributed to other people in the conspiracy.
What are the Penalties in Federal Drug Cases?
Federal drug cases often carry severe mandatory minimum sentences, and in most cases, the severity of the sentence is directly tied to the type and quantity of the drug. Below are the mandatory minimum sentences for first time offenders as it relates to marijuana, methamphetamine, and cocaine.
- Marijuana. 100 kilograms triggers a 5 year mandatory minimum. This increases when the quantity hits 1,000 kilograms.
- Methamphetamine. Only 5 grams of pure methamphetamine (50 grams mix), triggers a 5 years mandatory minimum, and this increases to 10 years if the amount is 50 grams (pure) or 500 grams (mix).
- Cocaine. 500+ grams of cocaine or 28+ grams of crack cocaine will trigger a 5 year mandatory minimum. This increases to 10 years if the amount if 5+ kilograms of cocaine or 280+ kilograms of crack cocaine.
Defending Federal Drug Charges
Defending against federal drug charges involves attacking the Government’s case in two different ways. The first is to challenge the legality of the evidence by filing motions to suppress the evidence. If successful, a motion to suppress can cause the Government to dismiss its entire case.
The second way to defend against federal drug charges is to attack the strength of the Government’s case at trial. The Government will often use cooperating witnesses who will testify against others in hopes of obtaining a lenient sentence. A good criminal defense lawyer will attack the credibility of these cooperating witnesses, exposing their checkered pasts as well as the benefits they hope to gain from testifying.
Motions to Suppress in Federal Drug Cases
In federal drug cases, the Government’s evidence often consists of the seized drugs, items that suggest drug activity (scales, ledgers, guns, etc), communications (phone calls, text messages, and emails), and statements made by the person being prosecuted. A good criminal defense lawyer will examine how the Government obtained these pieces of evidence and determine whether the Government violated any laws in doing so. If your lawyer determines that your rights were violated, he can file a motion to suppress the illegally obtained evidence. Below are the most common types of motions to suppress in federal drug cases.
- Motion to Suppress Evidence. This type of motion focuses on violations of your Fourth Amendment right to be free from unreasonable searches and seizures. If the Government searched your home with an invalid search warrant or your vehicle without adequate cause, your lawyer can ask the Court to exclude any evidence that was obtained.
- Motion to Suppress Statements. This type of motion seeks to suppress any statements that you may have made to law enforcement. Statements must be voluntary, and in many cases, law enforcement must also inform you of your Miranda rights. If the statements were unlawfully obtained, your lawyer can ask the court to exclude your statements from trial.
- Motion to Suppress Wiretaps. In large federal drug conspiracy cases, the Government often employs wiretaps to record co-conspirators talking on the phone. Federal wiretap laws require law enforcement to follow a series of steps in order for the wiretaps to be lawful. If law enforcement failed to follow these steps, your lawyer can file a motion to exclude these recordings from trial.
Defenses at Trial in Federal Drug Cases
Federal prosecutors love to charge as many people as possible by charging one large drug conspiracy. The problem with this approach is that the evidence against many of the accused may be weak, and by the time of trial, the evidence may not be nearly as strong as the Government anticipated. Witnesses may disappear or their memories may fade. And evidence that the Government was relying on may be thrown out or excluded.
In most large drug conspiracy trials, your criminal defense lawyer will focus on a number of strategies which are designed to call into question whether the Government can prove its case.
- Attack cooperating witnesses. It is not uncommon for the Government to rely primarily on the testimony from cooperating witnesses who have every reason to lie. From jail house snitches to central figures in a large drug conspiracy, the government’s cooperating witnesses may take the witness stand and point the finger at you. A cooperating witness will often mix lies or exaggerations with the truth in order to sound credible. It is the job of your criminal defense lawyer to undermine the cooperating witness’s credibility by pointing out his or her criminal history, examining the different versions of events the witness previously told the Government, and making sure the jury knows the benefit that the witness is hoping for by testifying. In many cases, a good criminal defense lawyer can cause the jury to completely discount these witnesses.
- Attack text messages and phone calls. The Government will often try to introduce phone calls or text messages between defendants as evidence of drug dealing. The Government may even have a federal agent testify that the communications are code for drug dealing activities. A good criminal defense lawyer can attack these assertions and show that such communications are not related to drugs at all or that communications are too ambiguous to draw any conclusions.
- Lack of an agreement. In a drug conspiracy trial, the Government must show that the defendant agreed to violate a drug law, and this agreement must typically be more than a seller agreeing to sell to a buyer. Agreements, however, are rarely explicit, and the Government can have a difficult time showing that defendant actually agreed to join some larger conspiracy.
- A different conspiracy. The Government is required to prove the conspiracy charged in the indictment. In many cases, the Government’s evidence ends up pointing to some other conspiracy that was never charged. A good defense lawyer will take advantage of this and argue that the Government has not proven the right conspiracy.
Plea Agreements in Federal Drug Cases
Not every federal drug case ends in a jury trial. In fact, the vast majority of federal drug cases end in the defense signing a plea agreement and entering a guilty plea. The language in these plea agreements is of the utmost importance. The language in a plea agreement can mean the difference between a stiff mandatory minimum sentence and a sentence of straight probation.
Sentences in federal court are determined by the statutory minimum and maximum sentences for an offense, the Federal Sentencing Guidelines (which provides a recommended sentence to the judge in each case), and the discretion of the judge. Any time the defense enters into a plea agreement, the defense should try to negotiate a number of factors which impact the mandatory minimum, the Federal Sentencing Guidelines, and the judge’s view of the case.
- Mandatory minimums and drug quantity. Negotiating a lesser offense can impact both the mandatory minimum sentence as well as the Federal Sentencing Guidelines calculation. For instance, if a defendant is originally charged with possessing 5 grams of pure methamphetamine but his lawyer negotiates the amount down to 4 grams, the defendant may be able to avoid a mandatory minimum sentence of 5 years in prison.
- Relevant conduct and drug quantity. Many defendants are surprised to learn that they can be held responsible for a greater quantity of drugs than what they entered a guilty plea to. Section 1B1.3 of the Federal Sentencing Guidelines allows a defendant to be held responsible for relevant conduct which includes all drug transactions which “were within the scope of, and in furtherance of, the jointly undertaken criminal activity and were reasonably foreseeable…” To limit a defendant’s exposure, a good criminal defense lawyer will try to get the Government to agree on the total amount of drugs that a defendant should be held responsible for.
- Acceptance of responsibility. One of the most basic ways to reduce a defendant’s sentence is to ensure that the Government has agreed to acceptance of responsibility. In most drug cases, this will cause the Federal Guidelines total offense level to be decreased by three-levels, which can have an enormous impact on sentencing. For instance, an offense level of 33 under the Guidelines carries a sentencing range of 135 to 168 months. With acceptance of responsibility, the level is reduced to 30 with a range of 97 to 121 months (which would potentially shave three years off the sentence).
- An agreement on enhancements. Aside from drug quantity, a good criminal defense lawyer will try to get an agreement on which enhancement apply. Enhancement in drug cases may include possession of a dangerous weapon, maintaining a premise for distributing drugs, an aggravating role, and obstruction. By getting an agreement from the Government about which enhancement apply, the defense can have a better idea about the length of the sentence and whether entering a guilty plea makes sense.
- Safety valve. One of the most important roles of a defense lawyer is to avoid a mandatory minimum sentence. Federal law allows a defense lawyer to accomplish this in a couple of ways, including the application of “safety valve.” Safety valve allows the Court to sentence the defendant to less than the mandatory minimum if the defendant meets certain eligibility requirements (the defendant has no criminal history, did not possess a firearm, was not a leader in the conspiracy, and told the Government everything he knows). In one case, for example, our client was facing 10 years in prison. We were able successfully convince the judge that she should receive safety valve, and as a result, she received a sentence of straight probation.
Cooperation and Substantial Assistance
Federal prosecutors tend to charge numerous people in a drug conspiracy case in the hope that some will cooperate and testify against others. A good criminal defense lawyer will explore this option with his client and weigh the pros and cons of cooperating. The primary reason for cooperating is to receive a lower sentence (or, in some cases, to have the charges against you dismissed outright). Similar to safety valve, if the Government agrees that you should be entitled to substantial assistance for cooperating, the Court can sentence you to below the mandatory minimum.
It is important to understand that substantial assistance can be awarded in two different ways. It can be awarded before the Court sentences you (which is often referred to as a 5K reduction) or it can be awarded after a defendant has been sentenced (which is referred to as a Rule 35 reduction).
We are ready and able to represent you, no matter how severe the drug charges are that you are facing. Contact us by phone at 703-684-8000 or by sending us an e-mail using our secure online form. From our office locations in Alexandria, Virginia and Atlanta, Georgia, we represent clients in federal court across the nation, and we represent clients in state courts in Virginia, Georgia, and Washington, D.C.