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SMART AND EFFECTIVE DEFENSE IN FEDERAL DRUG CASES 

Facing federal drug charges anywhere in the country is a serious matter and can have a devastating effect. Convictions for a federal drug crime often carry harsh mandatory minimum sentences and long terms of imprisonment, especially if the person accused has prior convictions or was part of a conspiracy involving other people and larger quantities of drugs. With so much at stake, a federal drug case requires an experienced federal defense attorney. 

Before hiring an attorney in any federal case, read reviews online (like at www.avvo.com), ask people who know about the federal criminal justice system for recommendations or referrals, and interview the attorneys carefully. Ask potential defense attorneys about their level of familiarity and experience with federal drug laws, federal investigations, U.S. sentencing guidelines, and federal trials. Federal laws and sentencing procedures are significantly different than they are in state court. If you have any questions along the way, please do not hesitate to contact Springstead Bartish Borgula & Lynch for a free consultation over the phone: (888) 536-5900.

Schedule I and Schedule II Controlled Substances 

Federal drug crimes involve manufacturing, importing, exporting, distributing, possessing (with or without the intent to distribute), or using controlled substances. The most serious controlled substances under the Controlled Substances Act are listed under Schedule I and Schedule II, which include the following drugs, among others:

  • LSD
  • Heroin
  • Methamphetamine
  • Ecstasy
  • Marijuana
  • Methaqualone
  • Cocaine
  • GHB
  • Psilocybin mushrooms
  • Methylphenidate
  • PCP
  • Vicodin
  • Methadone
  • Oxycodone (OxyContin)
  • Fentanyl
  • Adderall
  • Ritalin
  • Demerol
  • Codeine
  • Morphine

What Makes It a Federal Case?

Drug cases can be prosecuted in either federal or state court. Cases that end up in federal court usually result in higher sentences because of the mandatory minimums imposed under federal drug trafficking laws and the impact of the U.S. sentencing guidelines. 

Any number of factors can determine if a case will be prosecuted in federal rather than state court, including if the case involves:

  • Illegal activity in more than one state or county
  • Importing/exporting drugs across U.S. borders
  • Federal property (like military bases, federal prisons, and national parks)
  • An investigation or arrest by a federal agency (including the Federal Bureau of Investigation (FBI); Drug Enforcement Agency (DEA); the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); Homeland Security Investigations (HSI), and U.S. Customs and Border Protection (CBP))
  • An investigation or arrest by a task force that involves multiple local, state, and/or federal agencies
  • An international investigation
  • Large quantities of drugs
  • Multiple people or organized crime 
  • A federal informant or cooperator 
  • Aggravating circumstances, like violence, or using or carrying a firearm during the offense
  • Using the mail or internet to facilitate drug crime 
  • Previous convictions for drug or violent crime offenses

Federal charges can be initiated in one of three ways: a grand jury “indictment,” an “information,” or a “criminal complaint.” In federal felony cases, the U.S. Constitution requires that the prosecutor present the case to a grand jury to decide whether charges should be issued. A grand jury is comprised of 16-23 members of the public who are called to serve on jury duty. Sometimes federal prosecutors use a criminal complaint or an information as a faster way to issue charges — particularly when a grand jury is not in session. 

All three methods require the same level of proof: probable cause that a crime has been committed. But the process is different. For “criminal complaints” and charges by “information,” a judge decides that there is probable cause to believe a crime has been committed, as opposed to a grand jury making that determination. In a felony, the government has a limited amount of time to bring the case before a grand jury, or the charges must be dismissed.  

Common Federal Drug Charges 

The most common federal drug charges include: 

  • Manufacturing, distributing, or dispensing a controlled substance (21 U.S.C. § 841)
  • Possession with intent to manufacture, distribute, or dispense a controlled substance (21 U.S.C. § 841)
  • Importing or exporting a controlled substance (21 U.S.C. § 960)
  • Maintaining a drug-involved premises (drug house) (21 U.S.C. § 856)
  • Distribution to persons under age 21 (21 U.S.C. § 859)
  • Acquiring or obtaining possession of a controlled substance by misrepresentation, fraud, or forgery (including prescription medication) (21 U.S.C. § 843) 
  • Improperly manufacturing, prescribing, or distributing controlled substances (21 U.S.C. § 843) 

Federal drug cases often include other types of charges as well, such as: 

  • Money laundering (18 U.S.C. § 1956)
  • Use of a communications device to facilitate a drug felony (including a cell phone) (21 U.S.C. § 843(b))
  • Interstate and foreign travel or transportation in aid of racketeering (18 U.S.C. § 1952)
  • Violent crimes in aid of racketeering activity (18 U.S.C. § 1959)
  • Racketeer Influenced and Corrupt Organizations Act (RICO) (which allows law enforcement to charge larger criminal organizations) (18 U.S.C. §§ 1961-1968)   
  • Carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c))
  • Possessing a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c))
  • Felon in possession of a firearm (18 U.S.C. § 922(g))

Armed Career Criminal Act

If a person is convicted of being a felon in possession of a firearm — or of possessing a firearm while prohibited for other reasons under the law — then certain previous drug convictions can enhance the mandatory minimum sentence under the Armed Career Criminal Act (18 U.S.C. § 924(e)). Normally, the mandatory minimum and maximum sentence is 0-10 years for being a felon or other prohibited person in possession of a firearm. But under the Armed Career Criminal Act, if the person has three prior convictions for a “violent felony” or a “serious drug offense,” then the mandatory minimum and maximum sentence jumps up to 15 years to life in prison. Here is a good summary of how and when the Armed Career Criminal Act applies in different situations. 

Federal Drug Conspiracy 

The federal government often charges drug cases as conspiracies, meaning that there was an agreement between two or more people to violate a federal drug law. By knowingly and willingly entering into an agreement — joining a conspiracy — someone can be held just as responsible as if the person carried out the entire crime alone. Being convicted in a drug conspiracy means that all of the co-conspirators can be convicted and sentenced for what each of the other conspirators did. 

Conspiracy law is a powerful tool for law enforcement. It enables the prosecution to expand the reach of the case to those who never had any actual contact with drugs, money, or drug paraphernalia. If the government can prove that someone knowingly and voluntarily entered an agreement to violate a federal drug law, then that person is liable for the entire crime — even if that person only played a small role. Conspiracy law also allows the government to admit evidence at trial that it normally would not be able to, like statements between co-conspirators that would otherwise be prohibited as hearsay. Prosecutors often use a conviction against one person in the conspiracy as leverage to go after others, often pushing associates, friends, and family members to cooperate against others in the conspiracy. 

In drug conspiracy cases, experienced federal defense attorneys will also be able to present evidence to the prosecution and the judge to show that the defendant’s participation in the crime was less than the participation of others, which can result in a significant reduction in charges and at sentencing. 

Federal Drug Crime Attempts, Aiding and Abetting, and Drug Analogues

Besides conspiracy charges, there are other tactics the government can use to expand the reach of the federal drug laws. For example, the government can charge people who attempt to commit a crime, or who aid and abet another in committing a crime, as if they are responsible for the full offense. The government can also bring federal drug charges for offenses involving “analogue” drugs, which are substances that are substantially similar to Schedule I drugs and that have a similar effect but a slightly different chemical makeup.  

Evidence in Federal Drug Cases

The most common types of evidence in a federal case include:

  • Witness testimony – Police officers or agents, cooperating witnesses, informants, bystanders, friends, family, neighbors, and others who are called to testify under federal subpoena.
  • Expert testimony – People with particular knowledge about a topic that is outside the normal understanding of jurors, often in scientific fields like DNA and lab testing.
  • Digital files – Cell phone content, emails, text messages, photos, videos, social media accounts, private messages, app usage, computer files, cloud accounts, and other digital media.
  • Cell phone records Call records, location information, and other data that comes directly from the cell phone company.
  • Seized drugs – Drugs seized during the course of the investigation, such as through a search warrant, in plain sight, or subject to an exception to the warrant requirement.
  • Lab reports – Drug weight, type, potency/purity tests, and other scientific testing.
  • Physical evidence – Digital scales, plastic baggies, pipes, needles, money, notes, firearms, documents, and other items tying the defendants to the crime.
  • Location information – Cell tower records, tracking devices, and GPS records.
  • Audio/video recordings and phone tapping – Surveillance videos from pole cameras or recording devices, security camera footage, recordings made by undercover officers or informants, and audio recordings of phone conversations acquired through a wiretap.

Audio recordings obtained through a wiretap (“Title III” or “T3” intercept order) are one of the most powerful tools available to law enforcement in drug investigations and prosecutions. A T3 order allows law enforcement to listen to conversations as they are happening in real time over a “target phone.” Law enforcement can obtain a T3 intercept order from a federal judge by demonstrating that (1) the target phone has been used as an instrumentality of drug trafficking and (2) less invasive means will not provide sufficient evidence to prosecute the crime. Messages sent over text, social media, and other apps are also subject to T3 intercepts and similar orders. These orders are frequently used, and it is not uncommon for a defendant in a federal drug case to learn for the first time in court that his or her phone has been tapped for months or even years. 

Defenses in Federal Drug Cases 

In a federal drug case, an experienced defense attorney can pursue an acquittal by identifying and exploiting weaknesses in the prosecution’s case, including that: 

  • The search or seizure of the evidence was illegal.
  • The chain of custody for the evidence was broken — mishandling, mislabeling, or improperly storing of evidence. 
  • The drugs were not tested correctly.
  • The evidence against the person is too weak, unreliable, or circumstantial to convict.
  • DNA analysis is questionable, indeterminate, or non-existent. 
  • Pieces of evidence and information are missing. 
  • The prosecution’s witnesses are unreliable or motivated to lie, including government informants and cooperators.
  • Drug quantities are unknown or unproven. 
  • The charges are wrong — wrong drug type, wrong quantity, wrong place, or wrong people.

In a drug conspiracy case, an experienced federal defense attorney can also present defenses that:  

  • The defendant never entered an agreement.
  • The agreement was for something other than what the charge alleges.
  • The defendant never intended to go through with the conspiracy, or deliberately withdrew from the conspiracy by choosing not to participate any longer.

These drug conspiracy defenses can result in charges being dropped or an acquittal.

Pretrial Detention and Bond

In a federal drug case, the court can order a defendant to be locked up pending trial, rather than being released on bond. In deciding whether someone facing federal charges should be released or detained in jail, the judge will consider whether the defendant presents a danger to the community or a risk of non-appearance at future court hearings. To make the decision, the judge will hold a hearing to learn more about the person’s criminal history and personal character, the severity of the offenses charged, the potential that the defendant will attempt to threaten or intimidate witnesses, and other factors. If the judge does not order detention, the judge will set a bond that may require the defendant to be monitored by a supervising court officer, submit to drug testing, live in a certain place or with certain people, not travel outside the district, maintain employment, and other restrictions. The judge may also require the bond to be “secured” by cash or property, which the court can seize if the defendant violates conditions of the bond or fails to appear in court. 

Federal Trial Preparation and Evidence

By the time the government charges a defendant, prosecutors and investigators have usually been working on the case for a long time. A defendant does not have as much time to develop a strategy and come up with a defense, especially in a complex conspiracy charge. 

The federal “Speedy Trial Act” requires trials to take place within specified time limitations unless certain exceptions apply. While the law, by its name, was meant to protect the rights of defendants to a timely trial, one of its unintended effects is that it shortens the amount of time for the defendant to develop a strong strategy. Because evidence in federal cases is often voluminous and has been available to the prosecuting attorney much longer than the defendant, this has the potential to put defendants and their attorneys on their heels. 

The defense can gain access to the government’s evidence in a number of ways. In the pretrial “discovery” process, the government is required to disclose a limited amount of information about the evidence it intends to use at trial. An independent investigation by the defense attorney can be a critical step to finding out more about the government’s case. An experienced criminal defense attorney will use any lawful means at his or her disposal, including public records review, interviews, and research, to challenge the government’s evidence and its theory of the case. The Freedom of Information Act (FOIA) and other federal laws also allow the defense to obtain public records from government agencies under certain circumstances. While there are exceptions to FOIA that can delay or prevent production, the statute provides opportunities to learn facts the prosecuting attorney is not otherwise required to disclose to the other side.

An experienced federal criminal defense attorney can press the government to disclose more of its evidence and information, request additional time as needed to prepare a defense, and obtain additional information through FOIA and other means. 

Sentences for Federal Drug Crimes

The importance of having a criminal defense attorney who understands the complexities of federal drug laws cannot be understated. Even first-time, non-violent offenders can face stiff penalties. 

Prescription medications also fall under these harsh sentencing laws. Selling or distributing prescription drugs and pills can result in severe federal prison sentences — whether the drugs were obtained through legal or illegal means, and whether or not the person has any prior criminal history. The Department of Justice has publicly announced a crackdown on the opioid epidemic, including by targeting the abuse and distribution of prescription pills. 

Federal drug sentences are notoriously harsh and have been the subject of a number of legislative reforms in recent years to reduce the number of non-violent offenders incarcerated for lengthy federal prison terms. One such reform was the First Step Act, which reduced certain enhanced mandatory minimum penalties for some drug offenders; increased the number of offenders eligible for sentences below the mandatory minimum penalties under the “safety valve”; reduced the severity of the “stacking” of certain types of firearm sentences; and applied the Fair Sentencing Act of 2010 retroactively, which reduced mandatory minimum penalties for crack cocaine offenses.

Even with recent legislative efforts, sentences under federal drug laws remain unforgiving. Someone can be convicted for the weight of the entire mixture if there is any trace of illegal drug in it, not just the weight of the drug itself — including fillers like cornstarch and sugar. Mandatory minimum and maximum sentences can increase if the person has prior convictions for serious drug felonies or serious violent felonies, or if death or serious bodily injury resulted from use of the drug. Federal judges can order fines up to $10 million for an individual drug defendant. Federal prisons no longer have parole, meaning that inmates serve the vast majority of their sentence, minus a small percentage of earned good conduct time. Most federal prison sentences are followed by a period of several years of supervised release where the person has to report to a probation officer, submit to drug testing, and follow other conditions imposed by the judge at sentencing. And as part of a federal drug conviction, the government can use the criminal forfeiture process to seize any proceeds, profits, or assets tied in any way to the person’s drug offenses — like houses, cars, and cash. 

The effects of a federal drug conviction can be devastating without the assistance of a qualified and experienced federal criminal defense attorney. 

Manufacturing, Distributing and Possessing with Intent to Distribute

The most common federal drug charges involve manufacturing, distributing, or possessing with intent to distribute controlled substances. The sentences depend on the type and quantity of drug. For example:

  • Cocaine, cocoa leaves, and ecgonine (chemical found in cocoa leaves): For 500 grams or more of any mixture that contains any of these substances, or a combination, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 5 kg or more, then the minimum sentence is 10 years, and the maximum is life in prison. 
  • Cocaine base (crack): For 28 grams or more of any substance containing cocaine base (crack), the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 280 grams or more, then the minimum sentence is 10 years, and the maximum is life in prison. 
  • Fentanyl: For 40 grams or more of any substance containing fentanyl, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 400 grams or more, then the minimum sentence is 10 years, and the maximum is life in prison. 
  • Heroin: For 100 grams or more of any substance containing heroin, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 1 kg or more, then the minimum sentence is 10 years, and the maximum is life in prison. 
  • LSD: For 1 gram or more of any substance containing LSD, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 10 grams or more, then the minimum sentence is 10 years, and the maximum is life in prison. 
  • Marijuana: For less than 50 kg of marijuana, or less than 50 plants, there is no mandatory minimum sentence, and the maximum is 5 years. For 100 kg or more of any substance containing marijuana, or 100 plants or more, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 1,000 kg or more, or 1,000 plants or more, then the minimum sentence is 10 years, and the maximum is life in prison. 
  • Methamphetamine: For 5 grams or more of any substance containing methamphetamine, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 50 grams or more, then the minimum sentence is 10 years, and the maximum is life in prison. 
  • PCP: For 10 grams or more of any substance containing PCP, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 100 grams or more, then the minimum sentence is 10 years, and the maximum is life in prison. 
  • Unknown or unnamed quantities of the above-listed drugs, and any other Schedule I or II controlled substance, and date-rape drugs: If the charge does not list a drug quantity, then there is no mandatory minimum sentence, and the maximum possible sentence is 20 years in prison. 
  • Death or serious bodily injury resulted or defendant has prior conviction(s) for serious drug felony or serious violent crime: The mandatory minimum and maximum sentences increase significantly. For example, for 1 kg or more of heroin, if death or serious bodily injury resulted to anyone from use of the drug during or after the crime, the mandatory minimum sentence jumps from 10 years to 20 years. If the defendant had a prior conviction for a serious drug felony or a serious violent felony, then the mandatory minimum jumps to 15 years; and if the person has two prior convictions of that nature, the mandatory minimum becomes 25 years. If the person has a prior conviction for a serious drug felony or serious violent felony and death or serious bodily injury resulted, then the mandatory minimum is life in prison. 

Federal Drug Sentences for Manufacturing, Distributing or Possessing with Intent to Distribute

Drug and Quantity Mandatory minimum and maximum sentence If death or serious bodily injury resulted from use  With prior conviction (after First Step Act Reforms) Prior conviction and death or serious bodily injury  Statute
Heroin: 1kg or more

Cocaine: 5kg or more

Crack (cocaine base): 280g or more

PCP: 100g or more

LSD: 10g or more

Fentanyl: 400g or more

Marijuana: 1,000kg or 1,000 plants or more

Methamphetamine: 50g or more

Min: 10 years

Max: Life

Min: 20 years

Max: Life

With 1 prior conviction for serious drug felony or serious violent felony: 

Min: 15 years

Max: Life 

With 2 prior convictions for serious drug felonies or serious violent felonies: 

Min: 25 years

Max: Life

Min: Life

Max: Life

21 U.S.C. 

§ 841(b)(1)(A)

Heroin: 100g or more

Cocaine: 500g or more

Crack (cocaine base): 28g or more

PCP: 10g or more

LSD: 1g or more

Fentanyl: 40g or more

Marijuana: 100kg or 100 plants

Methamphetamine: 5g or more

Min: 5 years

Max: 40 years

Min: 20 years

Max: Life

With any prior convictions for serious drug felony or violent felony: 

Min: 10 years

Max: Life

Min: Life

Max: Life

21 U.S.C. 

§ 841(b)(1)(B)

Marijuana: Less than 50kg or less than 50 plants Min: 0 years

Max: 5 years

N/A With prior felony drug conviction: 

Min: 0 years

Max: 10 years

N/A 21 U.S.C. 

§ 841(b)(1)(D)

Lesser amounts or unknown quantity of the above-listed controlled substances

 

Any other Schedule I or Schedule II controlled substance

Date-rape drugs

Min: 0 years

Max: 20 years

Min: 20 years

Max: Life

With prior felony drug conviction: 

Min: 0 years

Max: 30 years

Min: Life

Max: Life

21 U.S.C. 

§ 841(b)(1)(C)

Sentencing Guidelines Enhancements and Reductions for Federal Drug Crimes 

The mandatory minimum and maximum sentences described above are set by statute and are referred to as “statutory” penalties set by law. The judge can only go below the mandatory minimum sentence in limited circumstances allowed by law. If a person is convicted of multiple charges at once, the judge will decide based on a variety of factors whether to run sentences for each count concurrently (overlapping, served at the same time) or consecutively (one and then the other). 

The federal sentencing guidelines help judges determine where to set the sentence within the mandatory minimum and maximum statutory ranges. The sentencing guidelines use a scoring system that accounts for the facts of any given case and the defendant’s criminal history. Certain facts in the case can increase or decrease the sentencing guidelines range. Once the sentencing guidelines range is set, the judge selects an exact sentence within that range. For example, the guidelines provide scoring reductions if the defendant played a “mitigating role” or was a “minimal participant,” received no monetary compensation for the offense, or had minimal knowledge of the offense. On the other hand, the guidelines provide scoring enhancements if the offense involved violence, a dangerous weapon, threats, bribery, or maintaining a drug house. 

Sentencing guidelines enhancements and reductions are highly-contested in court, and an experienced criminal defense attorney who understands the federal system can successfully obtain years off a sentence by:

  • Negotiating down the drug quantity. 
  • Knocking out prior convictions — including convictions without legal counsel, convictions that were not properly referenced in the current charges, or convictions that do not qualify for certain sentencing enhancements.
  • Showing that the defendant’s participation in the offense was minimal compared to others.
  • Raising personal factors that call for a lower sentence.
  • Presenting favorable evidence at the sentencing hearing demonstrating the defendant’s remorse and commitment to not re-offending.

Career Offender Sentencing Enhancement

One of the most severe enhancements under the federal sentencing guidelines is for being a “career offender.” The career offender enhancement applies if the defendant was at least 18 years old at the time of the offense and had at least two prior qualifying felony convictions of either a crime of violence or a controlled substance offense. (U.S.S.G. § 4B1.1)

Sometimes the prosecution and judge will classify a defendant as a career offender in error, resulting in a significantly longer sentence. This is a complex area of the law that changes often. For example, after the 2019 case of United States v. Havis, prior convictions for attempted drug offenses no longer qualify as a “prior felony conviction” for the career offender enhancement in the Sixth Circuit, which includes Michigan. And what qualifies as a “crime of violence” is constantly litigated in court. An experienced federal criminal defense attorney will closely examine any prior convictions and fight against incorrect or unfair sentencing enhancements.   

Federal Sentences Below the Mandatory Minimum – Safety Valve

In federal drug cases, the judge can impose a sentence below the mandatory minimum only in limited circumstances — including if the defendant cooperates substantially with the government or the defendant meets the “safety valve” requirements. (18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2; U.S.S.G. § 5K1.1) 

Under the “safety valve” provision, the judge can impose a sentence below the mandatory minimum if the defendant meets certain criteria showing a limited and non-violent criminal history, including that:

  • The defendant’s criminal record is minimal, as defined in 18 U.S.C. § 3553(f).
  • The defendant did not use violence or threats or possess a firearm or other dangerous weapon in connection with the offense.
  • The offense did not result in death or serious bodily injury.
  • The defendant was not an organizer, leader, manager, or supervisor of others in the offense and was not engaged in a continuing criminal enterprise. 
  • The defendant truthfully disclosed to the government all information and evidence the defendant has about the offense or offenses before sentencing, which cannot be used against the defendant to increase the sentence.  

Sentencing Calculator 

This online sentencing calculator is based on the U.S. Sentencing Guidelines and provides a good starting point for what a federal drug sentence might be. It is important to note that the final guidelines determination is made by the judge at the sentencing hearing. 

For offenses involving manufacturing, distributing, or possessing with intent to distribute controlled substances, enter 21 U.S.C. § 841 in the box on the online calculator, and then on the next screen use the pull-down tab to select the specific subsection of the offense that applies. You can refer to the chart above to determine the specific subsection, which appears in the right-hand column, and which is based on the type of drug and quantity involved. For example, in a case involving 100 grams or more of heroin, select 21 U.S.C. § 841(b)(1)(B) from the pull-down menu.  

Sentencing Trends and Averages in Federal Drug Cases

According to the United States Sentencing Commission, drug trafficking makes up approximately 28% of all federal criminal cases nationwide and is the second-largest category of prosecutions, second only to immigration cases. In the Sixth Circuit — which includes Michigan, Ohio, Kentucky, and Tennessee — drug trafficking comprises approximately 34% of all federal cases and is the largest category of all federal prosecutions, followed by firearms and then immigration cases. 

Federal Drug Crime Sentencing

Methamphetamine, heroin, and cocaine are the most prevalent drugs in federal prosecutions nationwide, as well as in the Sixth Circuit:

Federal drug crime meth graphs

The average sentence for federal drug trafficking crime nationwide is 76 months (6.3 years). In the Sixth Circuit (Michigan, Kentucky, Tennessee, and Ohio), the average sentence for federal drug trafficking crime is 91 months (7.5 years). 

In approximately a quarter of all federal cases, the guidelines called for an even higher sentence, but the judge issued a “downward variance” and imposed a sentence below the guidelines range. The judge can vary downward below the guidelines range for any number of reasons — for example, if the defendant: 

  • Has a non-violent history
  • Engaged in criminal activity over a short period of time
  • Has a strong personal history of employment or other positive community involvement
  • Has not previously served a lengthy prison sentence
  • Is a dedicated and responsible family member providing for others
  • Had a difficult upbringing or circumstances that explain a path towards criminal activity
  • Shows genuine remorse and a desire to reform
  • Does not need a lengthy prison term to be deterred from committing future crimes

A skilled federal defense attorney who understands the nuances of federal sentencing law can advocate for these reasons, among others, for a downward variance. Having a skilled federal defense attorney is a critical component of obtaining a downward variance. 

For more information on sentencing statistics nationwide and in the Sixth Circuit, visit the United States Sentencing Commission Quarterly Sentencing Updates and Sixth Circuit Federal Sentencing Statistics. 

Federal Drug Sentencing Guidelines Example

Every case is different, and the unique characteristics of the offense and criminal history of the defendant determine the sentencing guidelines range. Here is an example of how the sentencing guidelines might be calculated in a particular case.

If a defendant is charged with possessing with intent to distribute 50 grams or more of methamphetamine, the guidelines might look like this, depending on the particular facts of the case:

Situation 1:

2D1.1(a)(5) & (c)(8) Base Offense Level — 50 grams of Methamphetamine 24
2D1.1(b)(1) possession of a dangerous weapon (including a firearm)  +2
2D1.1(b)(2) the defendant used violence, made a credible threat to use violence, or directed the use of violence +2
2D1.1(b)(7) use of interactive computer service to market controlled substances +2
2D1.1(b)(12) maintained a premises for the purpose of manufacturing or distributing a controlled substance +2
Total offense level for this count 32

If the defendant had several prior convictions of varying severity, his criminal history score might be Criminal History Category III, depending on the charges and the sentences. 

If the defendant qualifies as a “career offender” based on being at least 18 years old at the time of the current offense and having at least two prior qualifying felony convictions of either a crime of violence or a controlled substance offense, then the Criminal History Category would increase to VI.

With an offense level of 32 and Criminal History Category VI, the sentencing guidelines range would be 360 months to life in prison. 

Situation 2:

Taking the same example above, an experienced federal defense attorney could attempt to negotiate a reduction in the drug quantity, eliminate some of the offense level enhancements (such as, for example, using an interactive computer service to market controlled substances and maintaining a drug premises), and challenge the criminal history calculation. The result could be, for example:

2D1.1(a)(5) & (c)(9) Base Offense Level — 48 grams of Methamphetamine 22
2D1.1(b)(1) possession of a dangerous weapon (including a firearm)  +2
2D1.1(b)(2) the defendant used violence, made a credible threat to use violence, or directed the use of violence +2
Total offense level for this count 26

If the defendant pleads guilty to the reduced drug quantity (under 50 grams) and does so in a timely manner according to the prosecutor’s deadlines, that could result in a 3-point reduction, bringing the offense level down to 23.

The defense could challenge the application of the career offender enhancement by arguing that certain prior convictions do not qualify as “crimes of violence”, which would result in a Criminal History Category of only III rather than VI.

With an offense level of 23 and a Criminal History Category of III, the sentencing guidelines range would be 57-71 months (approx. 5-6 years). 


This example is one of countless combinations of scoring factors and demonstrates the enormous impact of a strong defense at sentencing. Because every case is different, it is important to connect with an experienced federal defense attorney to discuss the potential guideline range in any particular case.

Federal Drug Attorneys

Federal drug charges are serious and carry notoriously high sentences. You need experts on your side to face the federal government. The federal criminal defense attorneys at Springstead Bartish Borgula & Lynch, PLLC are extremely knowledgeable when it comes to avoiding, defending, or minimizing the fallout from federal drug charges. Our lawyers are honest and trustworthy and include former federal prosecutors, a former US Attorney, former FBI agents, and former Army JAG attorneys. 

Our lawyers spent years building cases for the federal government and know how to defend you and your best interests smartly and effectively. Our firm is devoted to criminal defense, both in state and federal court. We work throughout Michigan and in federal courts around the country. Our attorneys know the federal system inside and out, take time to explain what can seem like a foreign process, and are able to lay out a strategy for a successful resolution of the case quickly and effectively, whether that includes negotiating a favorable plea agreement, challenging an illegal search and seizure, or taking the case to trial. 

In order to try and win your case or get you the best result possible, our firm of expert federal criminal defense lawyers will:

  • Carefully review the evidence against you.
  • Discuss the case in detail with you and keep you updated as the case evolves.
  • Identify weaknesses in the prosecution’s case.
  • Identify mistakes that were made in the investigative or charging process.
  • Challenge any illegal searches and seizures or violations of your Miranda rights.
  • Advise on and advocate for bond while awaiting trial.
  • Estimate your sentencing guideline range if you were to be convicted of the offense.
  • File motions to vary downward from the applicable guideline range, where appropriate.
  • Seek alternatives to incarceration, such as pretrial diversions, lesser charges, or probation.
  • Explore the benefits of cooperation.
  • Present evidence/arguments to mitigate any sentence.
  • Be ready for trial.
  • Appeal unlawful sentences or convictions.

Call Federal Criminal Defense Attorneys Now for a Free Consultation 

If you have been charged with a federal drug crime, call Springstead Bartish Borgula & Lynch, PLLC at our Grand Rapids office at (616) 458-5500 or our Fremont office at (231) 924-8700, or contact us online to schedule your free consultation.

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