Federal Drug Charge Defense Attorneys
Facing federal drug charges is a serious matter and can come with harsh mandatory minimum sentences.
The federal drug team at SBBL Law team is led by former federal prosecutors, former FBI special agents, and former Army JAG officers who work nationwide to defend people charged with federal drug crimes. Our team has litigated thousands of federal drug cases and understands the complexities of the United States sentencing guidelines, the Armed Career Criminal Act, the First Step Act, the Career Offender guidelines, Section 5K1.1 motions for a downward variance, and other intricacies of federal practice in this field. We examine every case for potential motions to suppress statements, searches, traffic stops, and pat-downs. We also regularly file and argue appeals in federal drug cases at the United States Sixth Circuit Court of Appeals.
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
Crimes that take place on 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 US 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
Conspiracies and organized crime
A federal informant or cooperator
Aggravating circumstances, like violence or possessing a firearm during the offense
Using the mail or internet to facilitate a 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.” All three charging methods require the same level of proof: probable cause that a crime has been committed. In federal felony cases, the US Constitution requires that the prosecutor present the case to a grand jury to decide whether charges should be issued. A grand jury is composed of 16-23 members of the public who are called to serve on jury duty. Sometimes federal prosecutors use a criminal complaint or information as a faster way to issue charges — particularly when a grand jury is not in session. If prosecutors charges by way of a criminal complaint, they may arrest the person on the complaint and hold them in jail (subject to a bond hearing) and hold a preliminary hearing. However, they must still bring the case to a grand jury within a certain amount of time.
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. However, under the Armed Career Criminal Act, if the person has three prior convictions for violent felonies and/or “serious drug offenses,” then the mandatory minimum sentence jumps up to 15 years, and the maximum is 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 allegedly 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 can be convicted as if they had committed the larger 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, & Drug Analogues
Besides conspiracy charges, there are other tactics the government can use to expand the reach of federal drug laws. For example, the government can also 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. Additionally, the government can 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 a not-guilty verdict by a jury.
Pretrial Detention and Bond in Federal Cases
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 the conditions of the bond or fails to appear in court.
In federal cases, if the person has any prior history of not appearing in cases, even minor cases, or of violating probation or parole, it is very likely that the judge will rule to detain the person for the remainder of the case. These prior failures on supervision or failures to appear signal to the court that the person should not be trusted to comply or appear in the current case. Any time spent in custody on the federal case or on state charges that turn into federal charges counts towards the federal sentence that might ultimately be imposed.
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 the 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 can 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.
Prescription Drug Diversion
Prescription medications also fall under the same harsh federal 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 targeting the abuse and distribution of prescription pills. The SBBL Law federal drug team has experience negotiating favorable resolutions in prescription drug diversion cases for doctors.
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 under federal drug charges.
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 results from the use of the drug. Federal judges can order fines up to $10 million for an individual drug defendant. Federal prisons do not have parole, meaning that inmates serve the vast majority of their sentence minus a percentage of earned good conduct time and reductions for participation in certain programs, like drug treatment. 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 the drug. For example:
Cocaine, cocoa leaves, and ecgonine (a 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.
If death or serious bodily injury results or the 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 the 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. 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:
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
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 allow for 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 involves 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 might succeed in reducing the sentence significantly by:
Negotiating down the drug quantity.
Knocking out prior convictions — including convictions without legal counsel, convictions not properly referenced in the current charges, or convictions not qualifying 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 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
Every case is different, and the unique characteristics of the offense and criminal history of the defendant determine the sentencing guidelines range. 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.
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 determination of the final guideline 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. 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.
Downward Variance
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. 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 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. 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, SBBL Law will:
Gather and 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.
Explore the benefits of cooperation.
Present evidence/arguments to mitigate any sentence.
Be ready for trial.
Appeal unlawful sentences or convictions.
