Drug crimes are prosecuted by both state and federal authorities. While in theory any drug possession or distribution offense can be prosecuted at the federal level, in practice, federal prosecutors will go after big cases involving large quantities of drugs or a large group of drug dealers, while leaving state authorities to pursue smaller — often misdemeanor — offenses involving individual drug users or dealers. Sometimes, state authorities may even refer large cases to federal prosecutors for prosecution.
How Federal Drug Prosecutions Work
Federal drug offenses are criminalized under 21 U.S.C. § 841 et seq. These provisions set forth the prohibited acts and penalties based on type of drug, quantity, and whether death or serious bodily injury resulted from the offense. 21 U.S.C. § 846 is the attempt or conspiracy section. In practice, federal prosecutors will often bring drug charges as a conspiracy under § 846. There are several strategic reasons for this, but the most important one is that by charging a drug offense as a conspiracy, the defendant becomes responsible for all reasonably foreseeable acts of co-conspirators. Thus, for example, a street-level dealer who sold a small quantity of drugs and never touched a firearm can still be held criminally responsible for much larger quantities of drugs sold by co-conspirators and in certain cases can be responsible for co-conspirators’ use of firearms.
If you have been charged with a drug offense, it is important to consult an experienced attorney to determine what additional charges the government may plan to bring and to discuss what possible defenses you may have. Federal drug laws are draconian and the prosecutor has many options to increase the stakes, as in the following examples:
Proceeding To Establish Prior Convictions
21 U.S.C. § 841 provides for enhanced penalties when the defendant has previously been convicted of felony drug convictions in either federal or state court. The enhanced penalties can range from a doubling of the mandatory minimum sentence to life imprisonment.
It is important to note that the enhanced penalties are applied only if a federal prosecutor chooses to file what is known as an “851 information,” named after the section, 21 U.S.C. § 851, that requires a federal prosecutor to file an “information” setting forth the prior convictions to support the enhanced penalties.
In practice, the § 851 information is an exceptionally powerful tool for prosecutors to secure guilty pleas from defendants when the evidence against them might otherwise be marginal. By threatening a potential doubling of the mandatory minimum sentence, such as from five to 10 years, or even life imprisonment, the prosecutor can increase a defendant’s potential exposure by going to trial and bring otherwise unwilling defendants to the bargaining table. While some courts have criticized this practice, judges are generally forbidden from participating in plea negotiations and cannot do anything to prevent it.
When drug cases go to trial, federal prosecutors frequently bring gun charges under 18 U.S.C. § 924(c).
If convicted under this section, a defendant faces additional sentences of between five and 10 years’ imprisonment. The sentences under § 924(c) are required to be consecutive to any other penalties imposed for the underlying drug offense. Thus, for example, a defendant who is convicted of conspiracy to possess 100 grams or more of heroin and has one prior felony conviction faces a mandatory minimum sentence of 10 years on the drug offense. If the prosecutor also brings a § 924(c) charge alleging that the defendant possessed a firearm in connection with the offense, he faces a total mandatory minimum sentence of 15 years.
Even if no additional charges for firearms are brought, a defendant can still face a higher sentencing guidelines range as a result of the presence of firearms. While the sentencing guidelines range is now advisory, courts are still required to consider them. Many judges will frequently refer to the guidelines range when sentencing a defendant. If a defendant (or co-conspirator) is found to have possessed a firearm in connection with the offense, his guidelines range will generally increase by approximately 25 percent.
Representing Defendants In Federal Drug Prosecutions
At Burnham & Gorokhov, we have extensive experience representing individuals charged with federal drug offenses, ranging from possession charges to serious charges of distribution and conspiracy. In many cases, we have been successful in securing below-guidelines sentences for our clients. If you or someone you know has been charged with a drug offense, it is important to have an experienced attorney who can advise you accordingly.
To schedule a free phone consultation, please call our office at 202-386-6920. You can also complete the online contact form.