DRUG CONSPIRACY CHARGES

The sentence for participating in a drug conspiracy depends on the type and quantity of drugs involved in the offense.

For marijuana, if there is no quantity of marijuana alleged, there is no mandatory minimum sentence, while the maximum sentence is 20 years. If there are 100 kilograms or more of a substance containing marijuana, there is a mandatory minimum sentence of 5 years and a maximum sentence of 40 years. If there are 1000 or more kilograms of a substance containing marijuana, there is a mandatory minimum sentence of 10 years and a maximum sentence of life in prison.

For cocaine and “crack” cocaine, if there is no quantity of cocaine or crack cocaine specified, there is no mandatory minimum sentence, while the maximum sentence is 20 years. If there are 500 grams or more of a substance containing cocaine or 28 grams or more of a substance containing crack cocaine, there is a mandatory minimum sentence of 5 years and a maximum sentence of 40 years. If there are 5 or more kilograms of a substance containing cocaine or 280 grams or more of a substance containing crack cocaine, there is a mandatory minimum sentence of 10 years and a maximum sentence of life in prison.

For methamphetamine, if there is no quantity of methamphetamine specified, there is no mandatory minimum sentence, while the maximum sentence is 20 years. If there are 5 grams or more of a substance containing methamphetamine, there is a mandatory minimum sentence of 5 years and a maximum sentence of 40 years. If there are 50 or more grams of a substance containing methamphetamine, there is a mandatory minimum sentence of 10 years and a maximum sentence of life in prison.

For heroin, if there is no quantity of heroin specified, there is no mandatory minimum sentence, while the maximum sentence is 20 years. If there are 100 grams or more of a substance containing heroin, there is a mandatory minimum sentence of 5 years and a maximum sentence of 40 years. If there is 1 or more kilograms of a substance containing heroin, there is a mandatory minimum sentence of 10 years and a maximum sentence of life in prison.

Law enforcement is also now prosecuting drug conspiracies involving opioids, especially fentanyl and fentanyl analogues. A controlled substance “analogue” is a chemical compound that is “substantially similar” to a controlled substance, both in chemical structure and in the effects it produces when consumed.

While fentanyl is a Schedule II drug, a fentanyl analogue is classified under Schedule I. There are no mandatory minimum sentences for drug crimes involving fentanyl or fentanyl analogues.

There are six basic defenses to drug conspiracy crimes:

1. THERE WAS NO AGREEMENT  – This is a straightforward defense that asserts the government cannot prove the existence of a conspiracy. No agreement exists, for example, where the individuals involved do not share a common goal and are not working together. Similarly, there may be an agreement between multiple people to accomplish something, but if the objective is not illegal, the agreement is not a conspiracy.

2. THE PERSON CHARGED DID NOT INTEND TO JOIN THE AGREEMENT –  Like the defense that there was no agreement, this defense attacks the government’s case as lacking evidence. For there to be a conspiracy, one must intentionally join the conspiracy. This means taking an “overt action” to participate in the conspiracy. Jim and Bob may jokingly agree to rob a bank, and Bob may go out the next day and actually do it, but Jim is not guilty of conspiracy to rob a bank if Jim believed Bob was joking and he didn’t take any steps towards helping him rob that bank, such as renting a getaway car.

3. THE PERSON CHARGED WAS INVOLVED IN A DIFFERENT CONSPIRACY – This may sound counterintuitive, but a person has a valid defense if the conspiracy they are involved in is not the conspiracy they were charged with. The government may accuse a person of distributing heroin from their house, but if they were actually distributing marijuana, that’s a valid defense to the government’s accusations.

4. THE PERSON CHARGED WITHDREW FROM THE CONSPIRACY – Withdrawing from a conspiracy is a defense to a conspiracy, but it’s not enough to simply throw one’s hands up and say: “I quit.” In order to succeed with a withdrawal defense, a person has to have been pro-active in withdrawing from the conspiracy. This means showing that they took an affirmative action to stop participating in the conspiracy, that they informed your co-conspirators of their withdrawal, and that they withdrew before the conspiracy was complete. Sometimes, it also means a person withdrawing has to take steps to prevent the conspiracy from accomplishing its criminal objective, such as by notifying law enforcement.

5. THE PERSON CHARGED WAS ENTRAPPED BY LAW ENFORCEMENT – While this is a difficult defense to succeed on, it can be powerful when used correctly. Entrapment occurs when law enforcement essentially “traps” a person by convincing them to commit a crime they ordinarily wouldn’t have committed. The key to an entrapment defense is to show that the person wouldn’t have committed the crime but for the government’s actions to entice them. It’s not entrapment just because an undercover agent or government informant created an opportunity for a person to sell him drugs, but if they threaten that person, harass them, or pressure them to sell illegal drugs, that may be entrapment. Entrapment is similar to duress, which is a defense one can use if they were physically threatened to do something illegal.

6. THERE WAS AN ILLEGAL SEARCH OR INTERROGATION – The U.S. Constitution protects us from “unreasonable searches and seizures.” This means law enforcement generally has to have a valid search warrant before wiretapping a person’s phone, searching their house for drugs, or pulling them over to search their car. This also means law enforcement has to read you your Miranda rights if you are arrested, including your right to remain silent and not incriminate yourself. If the person charged can prove that the warrant for a wiretap or search of their house is not supported by probable cause or that law enforcement conducted a traffic stop without having any reasonable suspicion that that person committed a crime, they can ask a court to suppress evidence that was seized by law enforcement, meaning the government cannot use it against them in their case. In drug cases, that usually means the government cannot introduce the drugs themselves as evidence, likely killing their case. Similarly, if a person can prove law enforcement did not advise them of their right to remain silent, that person can have any self-incriminating statements they made suppressed. It is also always a good idea to determine whether any search that led to the discovery of drugs, currency or other evidence was legal. If evidence was discovered in a vehicle, the attorney will have to determine if the officer who stopped the vehicle had a sufficient reason to do so, or if voluntary consent was given by the person who had possession of the vehicle. If drugs were discovered in a home, the attorney will have to verify that the search was based upon a valid search warrant or other probable cause or consent. If the police violated a person’s rights, a judge may be required to suppress any evidence that was seized.

There are several other potential defenses available to a person accused of a drug conspiracy or another federal drug crime. In some cases, an affirmative defense like entrapment or duress may be available and successful if diligently pursued. A good lawyer will also consider whether other affirmative defenses may apply, depending on the specific facts of the case.

If you have been charged with a federal drug crime such as conspiracy, you need the assistance of an experienced federal criminal lawyer who will defend your legal rights. For many years, our firm has successfully represented clients charged with federal drug conspiracy and related offenses. We have won several federal drug cases and have successfully resolved others with very favorable pretrial rulings and plea agreements.