Federal Drug Possession
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Drug possession charges are often called “possession of a controlled substance” in the federal system.
Being indicted on federal drug possession charges can be scary, especially if you don't know the full extent of what you are accused of. This post details the most relevant information about this charge, including what it means to be charged; the elements of the crime and what the prosecution must prove for you to be found guilty; and your possible defenses to fight against these charges.
This guide aims to provide you with a better understanding of this criminal charge and helps answer basic questions you may have about being indicted on federal drug possession charges.
Federal Possession of a Controlled Substance
Federal drug possession charges start with a grand jury finding that there is enough evidence to formally accuse you of possessing illegal drugs, in violation of federal law. This typically occurs after an investigation by a federal law enforcement agency, such as the DEA or FBI.
Being charged with this crime means that an individual is facing criminal charges for allegedly possessing (meaning actually having or holding) illegal drugs such as marijuana, cocaine, heroin, or methamphetamine. This type of charge is brought by the U.S. government, as opposed to a state government.
The specific penalties for drug possession vary depending on the type and amount of drug involved, as well as the individual's prior criminal record. However, it is generally punishable by imprisonment and fines, and if the quantity is large enough, it can be classified as drug trafficking, or drug possession with the intent to distribute, or even drug conspiracy, which canresult in more severe penalties.
What You Need to Know About Federal Drug Possession Charges
One thing that often is a mystery about federal drug possession charges is why the defendant is facing federal charges instead of state charges. Cases that are charged in the federal system have longer sentences than those charged at the state level, so this decision has real consequences. And it can feel unfair and arbitrary to defendants. Here are a few reasons why your case might have been elevated to the federal level:
In situations of drug possession, the term "federal jurisdiction" refers to the right of federal law enforcement organizations, such the DEA, FBI, and US Attorney’s Office, to investigate and prosecute certain drug offenses. Cases that are elevated to the federal level often entail interstate travel, take place on federal property, or involve large quantities.
Some examples of drug offenses that fall under federal jurisdiction include:
Possession or distribution of illegal drugs on federal property, such as a national park or military base.
Possession or distribution of illegal drugs that were brought into the country from another country, or were transported across state lines.
Possession or distribution of illegal drugs in connection with other federal crimes, such as money laundering or firearms offenses.
Possession or distribution of large quantities of illegal drugs, as it could be considered a drug conspiracy.
Often, federal jurisdiction can be established when there is cooperation between state and federal authorities, where the state authorities will conduct an investigation and refer the case to the federal authorities if the case meets the federal criteria.
State and federal laws regarding drug offenses can often overlap, and an individual can be charged with both state and federal drug offenses for the same conduct.
In short, almost any drug possession charge has the possibility of being elevated to a federal indictment. However, it will most likely occur if you were allegedly found with large quantities, or are tied to a wider criminal enterprise.
Elements of Federal Drug Possession
The elements of a federal drug possession charge consist of facts that the prosecution must prove in order to secure a guilty conviction at trial. The specific elements can vary, but generally speaking, the prosecution must prove the following:
Possession: The prosecution must prove that the defendant knowingly and intentionally possessed the illegal drug.
Knowledge: The prosecution must prove that the defendant knew that the substance they possessed was illegal.
Illegal substance: The prosecution must prove that the substance possessed by the defendant is indeed a controlled substance under the federal law.
Jurisdiction: The prosecution must prove that the possession occurred within federal jurisdiction, such as on federal property, crossing state lines, or in connection with other federal crimes.
It's worth noting that, in order to prove possession, the prosecution may rely on direct evidence (e.g., drugs found on the defendant's person) or circumstantial evidence (e.g., drugs found in close proximity to the defendant, or the defendant's statements or behavior indicating knowledge and possession of the drugs).
It's also important to note that a drug possession charge can be elevated to drug possession with the intent to distribute if the drug weight is high enough, or a drug conspiracy charge if the prosecution can prove that the possession was part of a larger drug distribution operation.
Sentencing
The Safety Valve
There is also a provision in the federal sentencing guidelines called §3553 or the “Safety Valve.”
With the use of this clause, some offenders who satisfy certain requirements can get sentences that are less severe than the minimum ones required by law.
For non-violent, first-time drug offenders who fulfill the following five requirements, the safety valve provision is applicable:
The defendant is a first-time offender.
The offense was committed without violence or a weapon.
The defendant did not act as a leader, manager, or supervisor over others who were selling drugs.
All information and proof that the defendant possesses related to the offense must have been truthfully shared with the government by the defendant.
The defendant must have supported the government's inquiry into or prosecution of their co-defendants.
A defendant is eligible for a sentence that is less than the statutory minimum if they satisfy all of these requirements. As a result, the defendant's punishment may be significantly reduced.
The safety valve clause was implemented to address the legitimate concerns that first-time, non-violent drug offenders received disproportionately severe mandatory minimum sentences. It is meant to give the courts a way to impose sentences that are more in line with the crime's seriousness and the offender's guilt, as opposed to being dictated by inflexible statutory minimums.
With the help of an experienced federal criminal defense attorney, you may be able to successfully apply the safety valve to your case. However, not just any attorney can convince the judge and prosecutor to apply the safety valve. We have successfully mitigated the consequences of hundreds of federal drug cases.
A mandatory minimum sentence is a legal requirement that a judge must impose a minimum prison term for a particular crime, regardless of the circumstances of the case or the offender's background. In the federal criminal justice system, mandatory minimum sentences are established by Congress through federal criminal statutes.
Mandatory minimum sentences do not apply to all federal crimes, and there are some statutory provisions which allow judges to depart from the mandatory minimum under certain circumstances, such as the offender's cooperation with the authorities or accepting responsibility for the crime. Also, some states have their own mandatory minimum laws and sentencing guidelines, which may be different than the federal laws.
“Man mins,” as they are colloquially called, were originally enacted as an attempt to create consistency across all federal courthouses, regardless of state.
For example, if a federal statute states that the mandatory minimum sentence for possession of a certain amount of a controlled substance is five years in prison, then a judge must sentence an individual convicted of possession of that amount to at least five years in prison, even if the judge believes that a shorter sentence would be more appropriate.
While mandatory minimum sentences ensure that certain types of crimes are punished impartially and severely, we at Ringstrom DeKrey are harsh critics of mandatory minimum sentences.
That’s because we’ve seen time and time again our clients subjected to unjust and excessively harsh sentences, particularly those who are low-level offenders, those with little criminal history, and those whose skin color isn’t white. This inherent unfairness is one of the main motivators for why we fight our federal drug cases so hard.
When it comes to the federal criminal justice system, sentencing is a complex and confusing topic for defendants. From mandatory minimum sentences to sentencing guidelines and statutory maximums, there are a variety of factors that go into determining the appropriate punishment for those convicted of a federal crime.
Understanding these different elements of federal sentencing is crucial for anyone who wants to have an informed opinion on their case and what is at stake for their future. Here’s a closer look at the various aspects of federal sentencing and how they work together to shape the outcome of criminal cases.
mandatory minimums
Sentencing Guidelines
The federal sentencing guidelines are a set of rules and principles that judges use to determine the appropriate sentence for a person convicted of a federal crime. The guidelines were established by the United States Sentencing Commission, an independent agency of the federal government, in an effort to promote consistency and fairness in sentencing across the federal court system.
The guidelines are based on a complex formula that takes into account various factors related to the crime and the offender, including the severity of the offense, the offender's criminal history, and any aggravating or mitigating circumstances. The formula produces a sentencing range, which is the range of sentences that a judge can impose, taking into account all the facts of the case.
The guidelines are divided into 43 levels, each corresponding to a different range of sentences. The higher the level, the longer the sentence. The judge must consider the guideline range and select a sentence within that range, unless there are circumstances justifying a different result.
The guidelines also take into account other factors such as the role of the offender in the crime, acceptance of responsibility, and the effect on the victim(s). The judge may also consider other factors such as the defendant's mental or physical condition and the defendant's military service.
It's important to note that the guidelines are advisory, which means that the judge has discretion to impose a sentence outside the guideline range, but the judge must state the reason for the departure or variance on the record. Also, the guidelines have been amended over the years, so the sentencing ranges for certain offenses may have changed over time.
Critics (our firm included) argue that the guidelines can lead to excessively harsh sentences, particularly for low-level offenders or those with little criminal history. Some also argue that the guidelines are too rigid, and that they do not take into account the unique circumstances of each defendant and case.
statutory maximum
A statutory maximum is the maximum number of years that a person can spend in prison for a particular crime, as determined by law. In the federal criminal justice system, statutory maximums are established by Congress through the federal criminal statutes as mandatory minimums.
For example, if a federal statute states that the statutory maximum sentence for possession of a certain amount of a controlled substance is 20 years in prison, then a judge cannot sentence an individual convicted of possession of that amount to more than 20 years in prison, regardless of the circumstances of the case or the offender's background.
It's important to note that statutory maximums do not apply to all federal crimes, and some crimes may have multiple statutory maximums depending on the circumstances of the crime, such as the use of a weapon or the presence of aggravating circumstances.
In addition, statutory maximums do not take into account the offender's criminal history, or other factors that the judge may consider when determining the appropriate sentence. They are also different than mandatory minimum sentences, which are the minimum number of years that a person must spend in prison for a particular crime.
Statutory maximums were enacted as a way to supposedly serve as a limiting principle on the punishment that can be imposed by a judge. They were intended to ensure that the punishment fits the crime and does not exceed what is deemed necessary for the protection of society. The problem with this is the government has put the statutory maximum so high on almost all drug crimes it is laughable.
When that statutory maximum is life in prison for many, many of these federal drug crimes, can we really call it something that limits excessive sentencing at all? The answer is no, and so we work tirelessly for our clients to call out this intellectual dishonesty and hypocrisy.
Penalties
The federal sentencing guidelines usually don’t offer a straightforward answer to prison time in the same way state law does. An experienced federal criminal defense attorney will have to examine the charge, as well as aggravating factors and your criminal history, to estimate the penalty you could face.
Generally, the prison term for a simple drug possession conviction can range from 5-10 years, depending on the specific drug, the amount involved, and if you are a first-time offender or not.
Attorneys at Ringstrom DeKrey have dealt with hundreds of federal drug cases and have vast experience working to win cases, or when that’s not an option, to mitigate and decrease prison sentences.
Here are some examples of potential sentences for federal drug possession:
Schedule I Drugs
First offense, possession of less than 50 grams of heroin (schedule I): Not less than 5 years in prison, not more than 40 years.
Second offense, possession of less than 50 grams of heroin (schedule I): Not less than 10 years in prison, not more than life.
First offense, possession of less than 100 grams fentanyl analogue (schedule I): Not less than 5 years in prison, not more than 40 years.
Second offense, possession of more than 100 grams fentanyl analogue (schedule I): Not less than 20 years in prison, not more than life.
Schedule II Drugs
First offense, possession of less than 50 grams Methamphetamine (schedule II): Not less than 5 years in prison, not more than 40 years.
First offense, possession of less than 100 grams of pure PCP (schedule II): Not less than 5 years in prison, not more than 40 years.
First offense, possession of more than 5 kgs cocaine (schedule II): Not less than 10 years in prison, not more than life.
Second offense, possession of more than 5 kgs cocaine (schedule II): Not less than 20 years in prison, not more than life.
Schedule III Drugs
First offense, possession of any amount of a schedule III drug: Not more than 5 years in prison.
Second offense, possession of any amount of a schedule III drug: Not more than 10 years in prison.
Schedule IV Drugs
First offense, possession of more than 1g of Flunitrazepam, “Rohypnol” (schedule IV): Not more than 20 years in prison.
Second offense, possession of more than 1g of Flunitrazepam, “Rohypnol” (schedule IV): Not more than 30 years in prison.
First offense, possession of any amount of a schedule IV drug other than Flunitrazepam: Not more than 3 years in prison.
Second offense, possession of any amount of a schedule IV drug other than Flunitrazepam: Not more than 6 years in prison.
Schedule V Drugs
First offense, possession of any amount of a schedule V drug: Not more than 1 year in prison.
Second offense, possession of any amount of a schedule V drug: Not more than 2 years in prison.
Case Story: Winning a Federal Drug Case
Defense Strategies
Drug possession charges can have severe consequences, as we have outlined above. If you or a loved one has been charged with drug possession, it is important to understand the possible defenses that can be raised in order to fight the charges.
Below you will find some of the most common defenses we have used to fight our clients’ drug possession charges.
It is important to note that the defenses available will vary depending on the specific facts of the case. However, by understanding the options available, you will be better equipped to make informed decisions about your case and work with your criminal defense attorney to develop the best defense strategy for your situation.
Illegal search and seizure: If law enforcement officers conduct a search or seizure without a warrant or without probable cause, any evidence obtained as a result of that search or seizure may be considered inadmissible in court.
Lack of knowledge: If the defendant can prove that they did not know that the drugs were in their possession, they may be able to avoid conviction. For example, if drugs were planted on the defendant without their knowledge, or if the defendant was told the substance was something other than drugs and they reasonably believed them.
Entrapment: Entrapment occurs when law enforcement officers induce or encourage a person to commit a crime that they otherwise would not have committed. If the defense can prove that the defendant was entrapped, the charges against the defendant may be dismissed.
Duress or necessity: If the defendant can prove that they were under duress or that they had no other choice but to possess the drugs, they may be able to avoid conviction.
Medical necessity: If the defendant can prove that they possessed the drugs for medical reasons, they may be able to avoid conviction.
It is important to seek legal advice from an experienced criminal defense attorney to understand the best course of action for your defense.
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