Drug Offenses

The federal penalties for drug offenses are particularly harsh. For specific amounts of heroin, methamphetamine, cocaine, cocaine base, PCP, fentanyl, and LSD, for instance, an individual’s first offense is punishable by a fine of up to $5 million and between five to 40 years in prison. An individual’s second offense is punishable by a fine of up to $8 million and anywhere from 10 years to life imprisonment.

Sentences are not based upon the instant offense per se. The law allows judges to consider “relevant conduct,” which includes transactions based upon uncorroborated hearsay. The United States Sentencing Guidelines usually also recommend a myriad of enhancements which increases an offender’s Total Offense Level and advisory Guideline Imprisonment Range. These sentencing realities are hard to defend because the evidence only needs to be based upon a preponderance of the evidence, a very low burden of proof. Defense lawyers who do not regularly practice in federal court often fail to appreciate the nuances of the Guidelines which are supported by a large body of appellate cases that stretches for years.

Convictions can also result in civil forfeitures—the loss of personal property such as homes, vehicles, cash, and personal belongings. Proceeds from forfeited property usually go to law-enforcement agencies which presents an incentive for agents to seek forfeiture, whether or not the property is actually associated with an offender’s drug activities.

Drug offenses also carry numerous collateral consequences apart from prison time and fines. Defendants face difficulties in continuing education, obtaining employment, and even procuring financial aid. A conviction can also render a defendant ineligible for professional licenses, and lead to the denial of things such as visas, citizenship, or permanent residency.

The Federal Drug Sentencing Guidelines

The federal sentencing guidelines are primarily intended to reduce sentencing disparities in federal court. They are a complex system for evaluating the severity of a given crime by means of a point system. The more severe the crime, the more points and the final “offense level” determination.

Once the offense level of a given crime is determined, a guideline sentencing range is derived by cross-referencing the offense level with the defendant’s criminal history category. The criminal history category is derived from an analysis of the defendant’s criminal convictions and sentences and how recent they are. Although a federal judge is not required to impose a sentence within the guideline sentencing range, they are required by law to calculate the guideline range and give “consideration” to them when imposing a sentence.

As a practical matter, the vast majority of federal judges impose sentences within the guideline range. If they elect to “depart” or “vary” from the guideline range, they do so by reducing or increasing the offense level or criminal history for some reason not taken into account in the initial offense level or criminal history determination.

What You Can Expect If You Have Been Arrested on a Federal Drug Charge

Most people learn they are the target of a federal drug case when they are arrested and brought to federal court. Unless the complaint or indictment is dismissed, drug defendants face a long battle. Below are the stages of the process.

  • In federal drug cases, the government usually will move to detain the defendant pending trial. Federal law generally presumes the burden is on the defendant to show there is no risk to the community or risk that the defendant will flee the jurisdiction. Your attorney would make this argument at a federal detention hearing.

    Typically, on the day of arrest, the government will request that the detention hearing be delayed two or three days.

  • After the case is indicted and you have made your initial appearance in court, the prosecutor will begin the process of providing your defense team with “discovery.” Discovery primarily consists of all the physical and electronic evidence the prosecution has gathered in the course of its investigation. It often contains paper documents, photographs, emails, bank records, video and audio recordings, etc.

    Oftentimes, discovery does not contain sworn statements of witnesses nor memoranda of interviews of witnesses. Federal investigators rarely collect sworn statements from witnesses but merely record what the witness told them in a memorandum of interview. The defense is not generally entitled to these memoranda prior to trial, but many prosecutors choose to make them available to the defense.

  • Most federal drug cases result in a plea bargain. This is because in most cases, there is strong evidence against the defendant, such as the defendant being the subject of a “sting” operation resulting in video or audio evidence, or the defendant being caught in the presence of large amounts of drugs. Moreover, there are usually several people who are willing to testify against the defendant in exchange for leniency in their own cases.

    With this being said, we have successfully represented numerous defendants in federal drug cases at trial. We can help you understand the best option in your case.

  • If you do not enter a guilty plea (either with or without a plea agreement), eventually your case will go to trial. In federal court, it is common for multiple defendants to be charged in the same indictment. The amount of evidence that must be examined and gathered by all the parties can cause substantial delays before the trial can actually commence. Delays of a year or more from indictment to trial are common.

    Because federal drug trials often involve multiple defendants, numerous witnesses, and lots of exhibits, they usually take at least a week to try. In unusual cases, they may last several months.

    If the jury finds you not guilty on every charge, the case is immediately over. On the other hand, if there is a guilty verdict on any charge, the jury is excused, and sentencing will be set for several months later.

  • If you are found guilty or enter a guilty plea, within a few weeks, you and your attorney will meet with a federal probation officer. This officer is assigned the task of writing a comprehensive presentence report. This report will describe the offense conduct, calculate the guidelines, and provide the court with your personal history, a description of your mental and physical status, and your financial status.

    A draft report will be provided to your defense team a month or two later, and your attorneys may formally object to the guideline calculation or factual inaccuracies in the report. These objections, if not accepted by the probation officer, will be resolved by the court at the sentencing hearing.

  • At the sentencing hearing, both sides can call witnesses relevant to the guideline calculations and usually at least three character witnesses. Your defense team may also submit any number of character letters to the court in advance of the hearing. Finally, you and your lawyer will have the right to address the court before a sentence is imposed.

    In federal drug cases, there is usually no possibility of probation. The average sentence in a federal drug case is 10 years’ imprisonment.

    Given these high stakes, hiring a highly experienced federal drug crimes lawyer is of paramount importance.