In federal court, you may be charged with possession of drugs with intent to distribute (21 U.S.C. § 841 (2005)), or importing drugs (21 U.S.C. § 952 (2005)), or conspiracy to traffic in drugs (21 U.S.C. § 846 (2005)). Federal charges may be brought in addition to state drug charges if the alleged offense involves interstate movement.
Upon conviction, sentencing is based in part on the quantity and type of controlled substances involved as described in 21 U.S.C. § 811 (2005). The federal scheme for determining the type of drugs involved is found in the federal Controlled Substances Act, Formal Schedule. A more detailed table of specific drugs, their classifications, and their characteristics is available from the DEA here.
Possession of Drugs with Intent to Distribute (21 U.S.C. § 841 (2005))
Under federal law, it is a crime to “knowingly or intentionally…manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” (21 U.S.C. § 841(a)(1))
One trend in the “war on drugs” has been to assess increasingly harsh sentences for narcotics convictions. In the complicated federal sentencing scheme there are four levels of penalties that may be assessed upon conviction based on the amount and type of drugs involved. Each may be enhanced if serious bodily injury or death results from the underlying offense, or if an accused individual has prior felony drug convictions.
Note that if conspiracy is alleged in addition to possession, you can be charged with possession of narcotics that are discovered well after your involvement in the alleged conspiracy ends. An experienced federal defense attorney can help stop the clock on subsequent amounts if consulted early enough in the investigation.
· 0-5 years in prison, or a fine of up to $250,000, or both
· 0-20 years in prison, of a fine of up to $1 million, or both
· 5-40 years in prison, or a fine of up to $2 million, or both
· 10 years to life in prison, or a fine of up to $4 million, or both
It is also possible to be charged with simple possession under 21 U.S.C. § 844 (2005). Under this law, it is a crime to “knowingly or intentionally to possess a controlled substance.” Penalties include up to 1 year in prison, or a fine of at least $1,000, or both.
Importing Drugs (21 U.S.C. § 952 (2005))
Under federal law, it is a crime to import into the United States any narcotic or non-narcotic substances listed in Schedules I through V of the Controlled Substances Act (21 U.S.C. § 952(a) and (b)). Exceptions include any narcotic–crude opium, poppy straw, or coca leaves–in amounts determined necessary for manufacture for legal medical or scientific uses (21 U.S.C. § 952(a)(1) and (a)(2)).
Note that importation does not require the intent to distribute or market the drugs for commercial purposes (United States v. Probert, 737 F. Supp. 1006, 1006-07 (E.D. Mich. 1989)).
As is the case for possession of narcotics, the penalty scheme is complex and is based on the amount and type of drugs imported into the country.
Conspiracy to Traffic in Drugs (21 U.S.C. § 846 (2005))
Under federal law, any attempt or conspiracy to possess or import controlled substances, whether or not there is actual possession or importation by an individual, can be penalized in the same way as actual act. In other words, the government does not have to alleged an “overt act” in violation of a drug statute (United States v. Shabani, 513 U.S. 10 (1994)).
However, the government must prove beyond reasonable doubt that (1) there was an agreement among two or more people to violate a federal drug law, (2) knowledge of the the scheme and an intent to join it, and (3) voluntary participation in the alleged conspiracy (United States v. Turner, 319 F.3d 716 (5th Cir. 2003)). This very broad statute permits proof based on circumstantial evidence of an illicit association. (Id.)
Penalties are assessed according to the amount and type of drugs associated with the conspiracy, including amounts that may be involved both before and after the alleged participation in the scheme.