Federal Drug Charges

If you or someone you love has been charged with a federal drug crime, three things usually matter most: the exact charge, the type and amount of the drug, and whether a mandatory minimum applies. A mandatory minimum is a sentence floor the judge usually cannot go below, and many federal drug charges carry one. Federal drug penalties are severe. In recent years the federal government has taken a strong public stand against making, selling, and having illegal drugs, and federal prosecutors are often eager to charge anyone they think is part of the drug trade.

Below are the main federal drug laws, how the penalties work, when a judge can go below the minimum, and what usually matters most in a defense. Because the stakes are high, it helps to work closely with a lawyer, like Brandon Sample of Criminal Center, whether you are planning a defense or an appeal of a federal drug sentence.

Can you face federal drug charges if your state allows the drug?

Drug crimes are covered by both state and federal law. Each state has its own drug laws, and they can differ from federal law. Some states, for example, allow marijuana. But federal law still applies everywhere. Marijuana is still a controlled substance under federal law, so you can be charged federally even if your state allows it.

In general, federal drug sentences tend to be harsher than state sentences, even for people with no prior record. And a federal case does not mean the state will leave you alone. The state can also charge you for the same conduct. The Supreme Court has held that a state and the federal government are separate “sovereigns,” so both can prosecute you for the same acts (Gamble v. United States, 587 U.S. 678 (2019)). That is one more reason to get a lawyer as early in the case as you can.

What are the penalties for a federal drug crime?

Federal drug penalties range widely. The sentence can depend on:

• Your role in making, selling, or having the drugs
• The type and amount of drugs involved
• How much money you made
• Your prior record, especially prior drug crimes
• Whether you used violence or threats
• Whether anyone was hurt or killed

For distribution, manufacturing, and conspiracy, the penalty depends mostly on the type of drug and how much of it is involved. The law sets three main levels (21 U.S.C. § 841(b)(1)).

10 years to life

This level applies to large amounts. Examples: 1 kilogram or more of heroin, 5 kilograms or more of cocaine, 280 grams or more of crack (cocaine base), 400 grams or more of a fentanyl mixture, 500 grams or more of a methamphetamine mixture, or 1,000 kilograms or more of marijuana.

5 to 40 years

This level applies to one-tenth of those amounts. Examples: 100 grams of heroin, 500 grams of cocaine, 28 grams of crack, 40 grams of a fentanyl mixture, 50 grams of a methamphetamine mixture, or 100 kilograms of marijuana.

Up to 20 years

Smaller amounts of most hard drugs carry up to 20 years, with no mandatory minimum. For less than 50 kilograms of marijuana, the maximum is generally 5 years.

What makes the sentence go up?

• If someone dies or is seriously hurt from using the drugs, the minimum at the top two levels becomes 20 years.
• A prior “serious drug felony” or “serious violent felony” raises the 10-year minimum to 15 years, and two or more such priors raise it to 25 years. At the middle level, one prior raises the 5-year minimum to 10 years.
• Selling within 1,000 feet of a school, college, playground, or public housing doubles the maximum and adds at least one year (21 U.S.C. § 860).

These prior-conviction increases only apply if the prosecutor files a formal notice listing the prior convictions before trial or a guilty plea (21 U.S.C. § 851). The 15- and 25-year numbers come from the First Step Act of 2018. Before that law, they were 20 years and life.

How large can the fines be?

Fines for federal drug crimes can be huge. At the top level, the fine for a person can reach $10 million (21 U.S.C. § 841(b)(1)(A)). Trafficking crimes tend to carry the highest fines, because people who sell drugs stand to make more money than someone who has drugs only for personal use. Simple possession is usually the lowest-level drug crime.

What if you are sentenced in both state and federal court?

If you are prosecuted by both the state and the federal government, each sentence is set under its own law. A state mandatory minimum does not change the federal sentence, and a federal sentence does not cancel a state one. The federal judge can decide whether the federal sentence will run at the same time as a state sentence or after it, even if the state sentence has not been given yet (Setser v. United States, 566 U.S. 231 (2012)). This matters a lot for how long you actually serve.

Can a judge go below the mandatory minimum?

Sometimes. The “safety valve” lets a judge ignore the minimum for some drug defendants (18 U.S.C. § 3553(f)). In general, you must have a limited criminal record, no gun or violence in the offense, no death or serious injury, no leadership role, and you must truthfully tell the government what you know about the offense.

A judge can also go below the minimum if the government files a motion saying you gave substantial help in another case (18 U.S.C. § 3553(e)).

Federal sentencing explained at sentencing.net

What counts as a controlled substance, and what are the main drug charges?

The main federal drug law is the Controlled Substances Act. It lists drugs that the federal government regulates, sorted into “schedules.” The list includes street drugs like heroin, cocaine, marijuana, and methamphetamine. It also includes many prescription pills, like oxycodone.

Federal drug law is complex, but most charges fall into four main types:

• Manufacturing — making or growing drugs (21 U.S.C. § 841)
• Possession — having drugs for your own use (21 U.S.C. § 844)
• Trafficking — distribution or possession with intent to distribute, meaning selling or planning to sell drugs (21 U.S.C. § 841)
• Conspiracy or attempt — agreeing with someone else to commit a drug crime, or trying to (21 U.S.C. § 846)

What is a manufacturing charge?

The government can charge you with making illegal drugs if you played a part in producing them, or in trying to. Federal drug laws are broad. If you took part in any stage of making drugs, you could be charged with manufacturing, which is a serious crime with harsh federal sentencing rules. If you have been charged with, or are under investigation for, making drugs, talk with a lawyer as soon as you can. Getting a lawyer early gives you more time to look at your options.

What is a simple possession charge?

Simple possession is one of the more common federal drug charges. The government must show that you knowingly or intentionally had a controlled substance, and that you did not get it from a valid prescription or as the law otherwise allows (21 U.S.C. § 844(a)). Even if your state does not treat a drug as illegal, you can still be charged under federal law for having a federally controlled substance without a prescription.

Simple possession is usually a misdemeanor in federal court. A first offense carries up to one year and at least a $1,000 fine. Prior drug convictions raise the penalty (21 U.S.C. § 844). If the amount or other evidence suggests you meant to sell, the charge may instead be possession with intent to distribute, which carries the much higher penalties above. Even a possession charge deserves a lawyer's attention right away.

What is a drug trafficking charge?

Selling or distributing illegal drugs falls in this group. Many people think drugs must cross state lines for the case to be federal. That is not true. The amount of drugs is one of the main things the government looks at when deciding whether to bring federal charges. Trafficking penalties are severe, and in the most serious cases you could face up to life in federal prison. Talk with a lawyer as soon as possible so every possible defense can be raised on time. Waiting too long can mean losing a defense.

More on federal drug trafficking penalties

What other consequences come with a federal drug conviction?

• Forfeiture: the government can take money and property that came from the drug crime or was used to commit it (21 U.S.C. § 853).
• Supervised release: years of supervision after prison. The top level requires at least 5 years.
• Immigration: a drug conviction can lead to deportation for someone who is not a U.S. citizen.
• State charges: the state can also charge you for the same conduct.

What are common defenses to federal drug charges?

A key question in many drug cases is whether police violated your Fourth Amendment rights when they searched you and took evidence. The Fourth Amendment protects you from unreasonable searches and seizures, and police must follow the proper rules when they search. If police searched a car, home, or phone without a valid warrant or a legal reason, the evidence may be thrown out. That is why many people facing drug charges challenge how the search was done. Criminal Center handles Fourth Amendment search and seizure challenges in drug cases, including possession cases.

Every case is different, and there may be other defenses too. Issues that often come up include:

• Drug weight and type: the amount decides the mandatory minimum, so the lab results and how the weight was counted matter.
• Knowledge: the government must prove you knew you had the drugs, or knew what you were doing.
• Your role: whether you were a leader, a middleman, or a small player changes the sentence.

A federal drug conviction can change the course of your life. Whether the charge is possession, manufacturing, or distribution, a lawyer can help you understand your options.

Related federal drug pages

• Federal drug conspiracy charges
• Federal drug trafficking penalties
• Federal gun charges, including guns in drug cases

What should you do next?

Book a consultation to talk it through with Brandon Sample.

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