Federal Drug Charges Defense

Under § 841(a)(1), the government must prove that you knowingly or intentionally manufactured, distributed or dispensed a controlled substance, or possessed one with intent to do so. Intent to distribute is often argued from quantity, packaging, scales, cash or messages, rather than from a sale someone saw.

Section 846 says a person who attempts or conspires to commit one of these offenses "shall be subject to the same penalties as those prescribed for the offense." A conspiracy charge is built on an alleged agreement, so these cases often rely on phone records, messages and testimony from cooperating witnesses rather than drugs found on you.

For most drugs, the quantity is the weight of "a mixture or substance containing a detectable amount" of the drug, so cutting agents can count toward the total. Methamphetamine has two measures: the pure drug and the mixture.

• § 841(b)(1)(C): Up to 20 years. If death or serious bodily injury results from use of the substance, at least 20 years and up to life.
• § 841(b)(1)(B): At least 5 and up to 40 years. If death or serious bodily injury results, at least 20 years. After a prior conviction for a serious drug felony or serious violent felony has become final, at least 10 years and up to life.
• § 841(b)(1)(A): At least 10 years and up to life. If death or serious bodily injury results, at least 20 years. With one final prior serious drug felony or serious violent felony, at least 15 years; with two or more, at least 25 years.

The government cannot seek a higher sentence based on prior convictions unless, before trial or a guilty plea, it files an information with the court stating the prior convictions, under 21 U.S.C. § 851(a)(1). If a firearm is involved, a separate charge under 18 U.S.C. § 924(c) can add a consecutive term of at least 5 years. See federal gun charges.

The safety valve in 18 U.S.C. § 3553(f) directs the court to sentence "without regard to any statutory minimum sentence" in cases under 21 U.S.C. §§ 841, 844, 846, 960 and 963, and 46 U.S.C. § 70503 or § 70506, if the court finds that:

1. Your criminal history is within the limits the statute sets, measured under the Sentencing Guidelines.
2. You did not use violence or credible threats of violence, or possess a firearm or other dangerous weapon, in connection with the offense, or induce someone else to.
3. The offense did not result in death or serious bodily injury to anyone.
4. You were not an organizer, leader, manager or supervisor of others, and were not engaged in a continuing criminal enterprise.
5. By the time of sentencing, you truthfully gave the government all information and evidence you have about the offense and related conduct.

Information you provide under the safety valve may not be used to enhance your sentence unless it relates to a violent offense. Separately, § 3553(e) allows a sentence below a statutory minimum, on the government's motion, to reflect substantial assistance in investigating or prosecuting another person. Both paths involve serious choices to make with a lawyer.

Release is also at stake. If there is probable cause that you committed a Controlled Substances Act offense with a maximum of ten years or more, 18 U.S.C. § 3142(e)(3)(A) creates a presumption, which you can rebut, that no conditions will reasonably assure your appearance and community safety.

Federal drug cases are often built over months, with warrants, recordings and cooperating witnesses. We may focus on:

• Quantity and testing: Because the tier depends on weight, we look at how the drugs were weighed and tested, including purity for methamphetamine and whether packaging was excluded.
• Knowledge and possession: Drugs found in a car, a package or a shared home do not prove that you knew they were there.
• Searches and surveillance: Traffic stops, search warrants, phone searches and wiretaps must follow the law. Evidence gathered unlawfully may be suppressed.
• Conspiracy scope: The government must prove an agreement. What you agreed to, and what quantity can fairly be tied to you, are often contested.
• Witness credibility: Cooperating witnesses may hope for a lighter sentence, and their accounts deserve careful testing.
• Sentencing options: We look early at safety valve eligibility, the § 851 notice, and mitigation such as work history, family and treatment.