Federal laws prohibit the manufacture, importation, possession, use, and distribution of controlled substances. See the United States Controlled Substance Act (21 U.S.C. § 801, et. seq.: https://www.law.cornell.edu/uscode/text/21/801)
These laws are codified in the United States Code (https://uscode.house.gov).
See also: https://www.dea.gov/drug-information/csa
The penalties for drug possession or distribution are harsher in federal court than in state court.
See Federal Drug Penalties (https://www.iwu.edu/counseling/Federal_Drug_Laws.htm).
See also United States Sentencing Commission Guidelines Manual: https://www.ussc.gov/guidelines.
21 U.S.C. section 841(b)(1) (https://uscode.house.gov/view.xhtml?req=(title:21%20section:841%20edition:prelim) dictates the presumptive prison sentences to be imposed on an individual convicted of drug trafficking offenses, including possession with intent to distribute.
Types of Federal Drug Charges
There are four types of drug crimes under 21 U.S.C. § 841 and 21 U.S.C. § 952 (Importation of Controlled Substances: https://www.law.cornell.edu/uscode/text/21/952). They include:
- Possession of a Controlled Substance with Intent to Distribute (21 U.S.C. § 841(a)(1)) ⏤ Occurs when an individual is caught with a controlled substance and the prosecutor can prove that the individual intended to sell the drug;
- Manufacturing a Controlled Substance (21 U.S. Code § 959: https://www.law.cornell.edu/uscode/text/21/959) ⏤ Occurs when an individual is caught manufacturing a controlled substance;
- Trafficking a Controlled Substance (21 U.S.C. § 841(a)(1)) ⏤ Occurs when an individual is caught selling or transporting a controlled substance; and
- Conspiracy to Commit any of the Above Drug Crimes (21 U.S.C. § 846: https://www.law.cornell.edu/uscode/text/21/846) ⏤ Occurs when two or more individuals agree to commit one of the above drug crimes.
Base Offense Levels Applied to Federal Drug Charges
The Federal Sentencing Guidelines (https://www.law.cornell.edu/wex/federal_sentencing_guidelines) are a collection of recommendations for U.S. District Court (federal) judges (https://www.uscourts.gov/judges-judgeships/about-federal-judges) to consider when sentencing a defendant.
The guideline levels in the sentencing tables are categorized by severity, with Level 1 being the least serious and Level 43 being the most severe. See: https://www.ussc.gov/sites/default/files/pdf/about/overview/Overview_Federal_Sentencing_Guidelines.pdf.
The base offense level is the starting point for assigning a sentence. The judge then decides whether to adjust the sentence up or down based on the specific facts of the case.
The base offense level for drug trafficking offenses is set according to the type of drug and the quantity of the drug involved, as follows:
- Marijuana ⏤ Based on the quantity of the drug (see https://www.dea.gov/sites/default/files/2020-06/Marijuana-Cannabis-2020_0.pdf
- Cocaine ⏤ Based on the quantity of the drug but is always at least a Level 6 offense;
- Crack cocaine ⏤ Based on the quantity of the drug, is always at least a Level 6 offense;
- Methamphetamine ⏤ Based on the quantity of the drug but is always at least a Level 12 offense;
- Ecstasy ⏤ Based on the quantity of the drug but is always at least a Level 12 offense;
- Heroin ⏤ Based on the quantity of the drug but is always at least a Level 18 offense.
The sentence range for the base offense level is also determined by the offender's criminal history category, as follows:
- Criminal History Category I ⏤ Up to 6 months in prison;
- Criminal History Category II ⏤ Up to 21 months in prison;
- Criminal History Category III ⏤ Up to 37 months in prison.
Federal Drug Offenses and Aggravating Factors
The judge may increase the sentence if there are certain aggravating factors, such as the presence of a weapon, whether the offense involved violence, or whether the offense involved the distribution of drugs to a minor.
See, e.g.: https://bjs.ojp.gov/content/pub/pdf/dofp12.pdf (U.S. Department of Justice: “Drug Offenders in Federal Prison”)
The judge may decrease the sentence if there are certain mitigating factors, such as the offender's lack of criminal history, the offender's cooperation with authorities, or the offender's mental illness.
See, e.g.: https://www.justia.com/criminal/aggravating-mitigating-factors/ (“Aggravating and Mitigating Factors in Criminal Sentencing”).
Federal Mandatory Minimum Sentencing for Drug Offenses
The United States has a system of mandatory minimum sentencing laws for certain drug offenses. These laws require a minimum prison sentence for these particular crimes, regardless of the circumstances of the offense or the offender's criminal history. The federal mandatory minimum sentencing laws for drug offenses are outlined in the Controlled Substances Act (CSA) (21 U.S.C. § 801, et. seq.).
The CSA classifies drugs into five "schedules," based on the drug's potential for abuse and medical usefulness.
See: federal drug schedules: https://www.dea.gov/drug-information/drug-scheduling
Schedule I drugs, such as heroin, are considered to have a high potential for abuse and no accepted medical use.
Schedule II drugs, such as cocaine, have a high potential for abuse but also have some accepted medical uses; and so on.
The CSA sets different mandatory minimum sentences for different schedules of drugs. For example, the mandatory minimum sentence for possession of Schedule I or II drugs is five years, while the mandatory minimum sentence for possession of Schedule III drugs is three years.
The CSA also sets different mandatory minimum sentences for different drug offenses. The mandatory minimum sentence for Simple Possession (21 U.S.C. § 844: https://www.law.cornell.edu/uscode/text/21/844) of a controlled substance is one year.
The mandatory minimum sentence for manufacturing or distributing a controlled substance is five years.
The mandatory minimum sentence for manufacturing or distributing a controlled substance near a school is ten years. 21 U.S. Code § 860: https://www.law.cornell.edu/uscode/text/21/860
The mandatory minimum sentence for manufacturing or distributing a controlled substance near a playground is twenty years. (Same.)
The CSA outlines different mandatory minimum sentences for different quantities of drugs. For example, the mandatory minimum sentence for manufacturing or distributing 100 grams or more of heroin is ten years. The mandatory minimum sentence for manufacturing or distributing 5 kilograms or more of cocaine is ten years.
See: https://www.justice.gov/usao-nh/frequently-used-federal-drug-statutes (“Frequently Used Federal Drug Statutes”).
The CSA also sets different mandatory minimum sentences for drug offenses committed by people with prior drug convictions. For example, the mandatory minimum sentence for manufacturing or distributing a controlled substance is ten years if the offender has one prior drug conviction, and twenty years if the offender has two or more prior drug convictions.
See: https://crsreports.congress.gov/product/pdf/R/R45074 (Congressional Research Service: “Mandatory Minimum Sentencing of Federal Drug Offenses”).
The recommended sentence is often less than the mandatory minimum sentence, but the judge has the discretion to sentence the offender to the mandatory minimum term.
Not surprisingly, the federal mandatory minimum sentencing laws for drug offenses are far too harsh and inflexible.
See, e.g.: https://www.brennancenter.org/our-work/analysis-opinion/end-mandatory-minimums (Brennan Center for Justice: “End Mandatory Minimums”).
More specifically, the mandatory minimum sentences are too long and do not fairly consider the circumstances of the offense or the offender's criminal history.
Deviation from Federal Drug Cases Mandatory Minimum Sentencing Guidelines
The prosecution may plea bargain with defendants in federal court and recommend a sentence below the statutory minimum sentence.
See, e.g.: U.S. Attorney's Office -- Central District of California (https://www.justice.gov/usao-cdca/contact)
The court may accept the prosecutor's recommendation and sentence the defendant accordingly. However, the court is not required to do so, and may instead sentence the defendant to the statutory minimum sentence or higher.
There are several reasons why a prosecutor might recommend a sentence below the mandatory minimum sentence for a federal drug offense. One reason is that the prosecutor may believe that the defendant does not deserve the mandatory minimum sentence because the defendant's role in the offense was minimal. Another reason is that the Assistant U.S. Attorney may believe that the defendant will be more likely to cooperate with the government if he or she is “offered” a shorter prison term (meaning that in consideration for cooperation, the prosecutor will recommend a lenient prison term).
See: https://www.ojp.gov/ncjrs/virtual-library/abstracts/drug-informants-motives-methods-and-management (U.S. D.O.J. – “Drug Informants: Motives, Methods, and Management”).
The prosecutor may also believe that a shorter sentence may be more effective in deterring the defendant from committing future crimes. If the offender is a first-time, non-violent offender with no criminal history, the judge may use a "safety valve" provision to avoid imposing the mandatory minimum sentence.
See: https://sgp.fas.org/crs/misc/R41326.pdf (C.R.S. – “Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions”).
Federal Drug Offenses and the Death Penalty
The death penalty is available for drug-related offenses in federal court but is rarely imposed. The death penalty has only been imposed three times for drug-related offenses since the federal death penalty was reinstated in 1988.
See: https://deathpenaltyinfo.org/stories/federal-laws-providing-death-penalty (Death Penalty Information Center – “Federal Laws Providing for the Death Penalty”).
Federal Drug Offenses and Three-Strikes Laws
There is no federal three-strikes law as in California, which provides for longer sentences for offenders with certain prior felony convictions.
See Strike Offense (California Penal Code section 667(a)&(b): https://codes.findlaw.com/ca/penal-code/pen-sect-667.html; California Penal Code section 667.5(c) (“Violent Felonies”): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=667.5.&lawCode=PEN; California Penal Code section 1192.7(c) (“Serious Felonies”): https://codes.findlaw.com/ca/penal-code/pen-sect-1192-7.html).
Strike Sentencing Enhancement (California Penal Code section 1170.12: https://codes.findlaw.com/ca/penal-code/pen-sect-1170-12.html)
Defenses to Federal Drug Trafficking Charges
There are numerous viable defenses to federal drug trafficking charges.
Some of these defenses may be specific to the type of drug involved, while others may be more general.
- Government Overreach ⏤ This is a defense that is often raised in drug conspiracy cases. Government overreach occurs when the government violates the Constitutional rights of the accused during the investigation or arrest process. See Fourth Amendment of the U.S. Constitution: https://constitution.congress.gov/constitution/amendment-4/
The government routinely violates the rights of individuals during drug conspiracy investigations. The most common violation of rights occurs when the government searches the home of an individual without a search warrant.
If the government searches the home of a suspect without a valid search warrant, the search can be ruled illegal, or the federal agents exceed the scope of the search warrant, then the evidence gathered as a result of the illegal search can be suppressed. A successful motion to suppress evidence can lead to the dismissal of charges and freedom for the accused.
See Federal Motion to Suppress: https://www.law.cornell.edu/wex/motion_to_suppress
- Insufficient Evidence ⏤ This is the most common defense raised in drug conspiracy cases. The government must prove the accused conspirator knew the conspiracy existed and that he or she knew the objective of the conspiracy. The government will often rely on the statements of informants or other co-conspirators to establish the required knowledge. If the government cannot establish that the accused knew the conspiracy existed and knew its objective, the charges can be dismissed.
Other defenses include:
The defendant did not know that the drug was illegal. This may be the case if the drug was recently classified by the federal government as being illegal, or if the defendant is from a country where the drug is legal.
The defendant did not know that the drug was in their possession. This could be the case if the drug was planted on the defendant without their knowledge.
The defendant was entrapped by law enforcement. This occurs when law enforcement officers induce a person to commit a crime that they would not have otherwise committed. To successfully use this defense, the defendant must show that they were not predisposed to commit the crime and that the law enforcement officers used improper methods to induce them to commit the crime.
Seizure and Forfeiture of Property in Federal Drug Cases
Under 21 U.S.C. § 853, the government can seize and forfeit any property that is connected to a felony violation of the Controlled Substances Act.
See Criminal Forfeitures (21 U.S. Code § 853: https://www.law.cornell.edu/uscode/text/21/853).
Below are examples of property that the government may forfeit or seize.
- Any property that is used to facilitate drug trafficking or that represents the proceeds of drug trafficking;
- Any property that is purchased with drug trafficking proceeds. For example, if a defendant purchases a boat with drug proceeds, the government may seize the boat as a substitute asset;
- Any property that is owned jointly by a defendant and his or her immediate family. For example, if a defendant owns a house jointly with his or her spouse, the government may seize the house following a successful investigation;
- Any property that is owned by a defendant’s spouse or child if the spouse or child knew that the property was purchased with drug proceeds. For example, if a defendant purchases a house with drug proceeds and his or her spouse knows about it, the government may seize the house; and
- Any property that is used to facilitate drug trafficking or any property that represents the proceeds of drug trafficking. For example, if a defendant uses his or her car to transport drugs, the government may seize the car.
See also: https://www.justice.gov/afms/types-federal-forfeiture (U.S. D.O.J. – “Types of Federal Forfeiture”).
Federal Drug Sentences (Mandatory Minimum Sentencing) FAQs
Below are various questions and answers to help you better understand federal drug charges.
What is a mandatory minimum sentence?
A mandatory minimum sentence is a prison sentence that is required by law to be imposed on a person convicted of a certain crime. Mandatory minimum sentences are often set by statutes, which are laws enacted by Congress. Note that the mandatory minimum sentence is set by law and can rarely be disregarded by the judge.
See, e.g.: https://recovery.org/addiction/us-drug-laws/ (“Guide to U.S. Drug Laws”).
What is the legal definition of “Distribution of Drugs”?
Federal law refers to drug distribution as the sale, transportation, or distribution of a controlled substance. The term encompasses all aspects of the drug trade, from street dealers to international drug lords.
See Federal Drug Definitions (21 U.S. Code § 802: https://www.law.cornell.edu/uscode/text/21/802).
What types of crimes carry mandatory minimum sentences?
Federal mandatory minimum sentences typically apply to drug offenses, firearms offenses, and crimes involving violence. Some state law mandatory minimum sentences apply to drug offenses, DUI offenses, and sex offenses.
See: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Quick_Facts_Mand_Mins_FY16.pdf (“Quick Facts: Mandatory Minimum Penalties”).
How long are mandatory minimum sentences?
Federal mandatory minimum sentences can range from 5 years to life in prison, depending on the offense. State mandatory minimum sentences can range from 1 year to life in prison, also depending on the offense.
See: https://famm.org/our-work/sentencing-reform/sentencing-101/ (“Sentencing 101”).
Why are mandatory minimum sentences controversial?
Mandatory minimum sentences are controversial because they result in unjust and unfair punishments. For example, a person who is convicted of a drug offense may receive a mandatory minimum sentence of 5 years in prison, even if the person has no prior criminal history and the offense was not violent.
See: https://www.journals.uchicago.edu/doi/10.1086/690205 (“Mandatory Minimums and the Sentencing of Federal Drug Crimes”).
How do mandatory minimum sentences impact the criminal justice system?
Mandatory minimum sentences have numerous adverse effects on the U.S. criminal justice system. They increase the amount of time that people spend in prison, which can be costly for taxpayers. Additionally, mandatory minimum sentences tie the hands of judges, who may feel that a particular defendant does not deserve the mandatory minimum sentence.
See: https://www.sentencingproject.org/wp-content/uploads/2016/01/Judicature-Impact-of-Mandatory-Minimum-Penalties-in-Federal-Sentencing.pdf (“The impact of mandatory minimum penalties in federal sentencing”).
Are there any alternatives to mandatory minimum sentences?
There are several alternatives to mandatory minimum sentences. Some jurisdictions have implemented programs that allow certain non-violent offenders to avoid mandatory minimum sentences.
See: https://famm.org/wp-content/uploads/FS-Alternatives-in-a-Nutshell.pdf (“Alternatives to Incarceration in a Nutshell”).
What are the factors that dictate the sentencing of a federal drug charge?
Several factors are taken into consideration when determining the sentencing for a federal drug trafficking case. They include:
- The type and amount of drug involved;
- Your criminal history;
- Your primary role in the crime;
- The location of the offense;
- Your age;
- Your mental and physical health status; and
- Your ties to the community.
See: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/201510_fed-sentencing-basics.pdf (“Federal Sentencing: The Basics”).
Does a federal drug conviction have collateral consequences?
If you are convicted of a federal drug charge, you may face a lifetime ban from receiving government benefits such as food stamps or housing assistance. You also may be permanently ineligible for professional licenses and government jobs. If you are a non-citizen, a federal drug conviction often results in deportation, even if you have been a lawful permanent resident for many years.
See: https://www.gao.gov/assets/gao-17-691-highlights.pdf (“Nonviolent Drug Convictions”).
How long does a federal criminal case take?
Federal cases often take a longer time to resolve than state prosecutions. Most federal cases have two stages: the investigation and the prosecution. The investigation can take years, and it is common for a federal criminal case to take several years to resolve.
See: https://vae.fd.org/sites/vae.fd.org/files/FedCrimTimeline.pdf (“A Federal Criminal Case Timeline”).
The Los Angeles Defense Attorney Law Firm (LADALF)
Although LADALF’s Ninaz Saffari is based in Los Angeles, she defends clients against federal criminal cases, including drug trafficking, in federal jurisdictions around the country. For example, she recently successfully handled several major federal prosecutions in Las Vegas, Nevada and Boston, Massachusetts.