What the government has to prove
Under 21 U.S.C. § 841(a)(1), it is a federal crime to knowingly or intentionally manufacture, distribute or dispense a controlled substance, or to possess one with intent to manufacture, distribute or dispense it. Most federal drug cases are charged under this statute, often with a conspiracy count added.
The government must prove that the person acted knowingly or intentionally. Many cases turn on what the person actually knew, what they agreed to and how much of the drug can fairly be tied to them.
In federal drug cases, the quantity alleged often drives the sentence.
Federal drug charges and penalties
The statute sorts penalties mainly by drug type and quantity. These are the charges that come up most often in South Florida federal court.
| Charge | What it covers | Minimum prison term | Maximum prison term |
|---|---|---|---|
| 21 U.S.C. § 841(b)(1)(A) | Larger quantities, such as 1 kilogram or more of a heroin mixture, 5 kilograms of a cocaine mixture, 280 grams of cocaine base, 400 grams of a fentanyl mixture or 500 grams of a methamphetamine mixture | 10 years | Life |
| 21 U.S.C. § 841(b)(1)(B) | Smaller tiers, such as 100 grams of a heroin mixture, 500 grams of a cocaine mixture, 28 grams of cocaine base, 40 grams of a fentanyl mixture or 50 grams of a methamphetamine mixture | 5 years | 40 years |
| 21 U.S.C. § 841(b)(1)(C) | Schedule I or II substances in amounts below those tiers | None, unless death or serious bodily injury results | 20 years |
| Attempt or conspiracy, 21 U.S.C. § 846 | Attempting or agreeing with others to commit a federal drug offense | The same as the underlying offense | The same as the underlying offense |
| Importation, 21 U.S.C. §§ 952 and 960 | Bringing controlled substances into the United States, with penalty tiers similar to section 841 | 5 or 10 years at the higher quantity tiers | 40 years or life at those tiers; 20 years otherwise |
If death or serious bodily injury results from use of the drug, the minimum at the two higher tiers is 20 years. A prior final conviction for a serious drug felony or serious violent felony raises the minimum to 15 years at the highest tier and 10 years at the next. The sentence in any case depends on the charges, the evidence and the sentencing guidelines.
Why quantity matters so much
The thresholds in section 841(b) are measured by the weight of a mixture containing a detectable amount of the drug, not only the pure drug, with some exceptions such as methamphetamine. A difference of a few grams can move a case from one tier to another.
In conspiracy cases, the government often alleges a total amount for the whole group. How much of that total can be attributed to each person, and how the drugs were weighed and tested, are frequently contested.
The safety valve and other paths below a minimum
The safety valve in 18 U.S.C. § 3553(f) lets a judge sentence under the guidelines without regard to the statutory minimum in cases under sections 841, 844, 846, 960 and 963. The court must find, after the government has a chance to make a recommendation, that:
- Criminal history. The person’s record falls within the limits the statute sets, measured by sentencing guidelines criminal history points.
- No violence or weapons. The person did not use violence or credible threats, or possess a firearm or other dangerous weapon, in connection with the offense.
- No death or serious injury. The offense did not result in death or serious bodily injury to anyone.
- No leadership role. The person was not an organizer, leader, manager or supervisor of others and was not engaged in a continuing criminal enterprise.
- Truthful disclosure. By the sentencing hearing, the person has truthfully given the government all the information and evidence they have about the offense.
Separately, on the government’s motion, 18 U.S.C. § 3553(e) allows a sentence below a statutory minimum to reflect substantial assistance in investigating or prosecuting another person. Either path is a serious decision to make with counsel.
How these cases usually unfold
- InvestigationAgents gather evidence through surveillance, informants, seizures and phone records.
- Arrest and first appearanceThe person is brought before a magistrate judge, and the government may ask for detention.
- Detention hearingMany drug cases carry a presumption of detention that the defense must address.
- Indictment and discoveryA grand jury returns charges, and the defense reviews the government’s evidence.
- Plea or trialThe case resolves by agreement, by motion or in front of a jury.
- SentencingThe judge applies any mandatory minimum, the guidelines and the factors in 18 U.S.C. § 3553(a).
Where these cases are often defended
Every case turns on its own facts. Issues that frequently matter include:
- Knowledge. Whether the person knew drugs were involved, especially in cases built on a vehicle, package or shared residence.
- The search. Whether stops, searches and warrants were lawful, and whether evidence should be suppressed.
- Quantity and testing. How the drugs were weighed, tested and attributed to each person.
- Cooperating witnesses. The credibility, deals and motives of informants and co-defendants.
- Sentencing options. Whether the safety valve or other relief from a minimum is available.
How Kaufman Legal Group can help
Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz, who has practiced criminal defense since 1985 and spent decades on the CJA panel in the Southern and Middle Districts of Florida, and Victor E. Rocha, who was admitted to The Florida Bar in 1983, practices in federal courts including the Eleventh Circuit and the Southern District of Florida, and speaks Spanish. Together they bring more than 100 years of combined experience.
In drug cases, the team prepares for the detention hearing, reviews searches, lab work and quantity calculations, and builds the case for trial while evaluating sentencing options. Spanish-speaking clients and families can speak directly with Victor Rocha. The first consultation is free and confidential.