Under federal law, 21 U.S.C. § 812, there are five schedules of controlled drugs. The schedules are designated I, II, III, IV and V. Every controlled narcotic drug is listed in one of the schedules. Knowing to which schedule a particular drug belongs is important because it determines the penalty for the offense. The most severe penalties are designated for offenses involving drugs listed in Schedules I and II.
Schedule I includes heroin, marijuana, LSD, mescaline, and peyote.
Schedule II lists opium, cocaine, methadone, amphetamine, as well as other substances.
Schedule III includes nalorphine, anabolic steroids and lysergic acid.
Schedule IV includes meprobamate, barbital, chloral hydrate, and paraldehyde. Most drugs listed in Schedule IV are hypnotics and sedatives.
Schedule V lists Codeine mixed with other ingredients. These drugs have a low potential for abuse compared to the drugs in Schedule IV, are used for medical use, and have a potential for limited physical dependence or psychological dependence as compared to the drugs in Schedule IV.
What are Federal Drug Offenses?
Possession One commonly prosecuted federal drug crime is possession. 21 U.S.C. § 844 makes it a federal crime to possess a controlled substance without a valid prescription. The possession must occur ''knowingly'' and ''intentionally.'' It makes no difference what the amount of the substance was; amount does matter for sentencing purposes once the defendant is guilty of possession. Section 844 discusses several penalties for drug possession that vary depending on the circumstances. A first offense normally has no mandatory minimum of imprisonment and a maximum of one year assuming there are no prior state or federal convictions for drug offenses. If there is one prior conviction for a drug offense there is a minimum of 15 days with a maximum of two years imprisonment. Where there are two or more drug convictions, there is a minimum of 90 days and a maximum of three years.
The situation is drastically different when the person possessed cocaine base, also known as crack. For a first offender, there is a minimum sentence of five years if the possession involved more than 5 grams. For the second time offender, there is a five year mandatory imprisonment for possession of only 3 grams or more. Two or more prior crack convictions will bring the five year mandatory sentence if the new conviction is for possession of only one gram or more.
Manufacture, Delivery or Possession with Intent to Deliver.
21 U.S.C. § 841(a)(1), is used in most of federal drug prosecutions. The statute makes it a crime to knowingly or intentionally manufacture, distribute, dispense, or possess a controlled substance with the intent to manufacture, distribute, or dispense. Section 841 provides truly draconian penalties that depend on several factors such as the nature and quantity of the drug, and the prior record for drug convictions of the defendant. Generally, minimum terms of imprisonments are at least 5 years (up to life) for first time offenders, 10 years (up to life) for second and third time offenders. Distribution to Persons Under Age Twenty-One Under 21 U.S.C. § 859, it is a crime for a person eighteen years or older to distribute a controlled substance to a person under the age of twenty-one. The maximum penalties are doubled and tripled for second and third time offenders respectively and the minimum imprisonment is at least one year.
Distribution or Manufacture in or Near Schools and Colleges
It is a separate offense under 21 U.S.C. § 860 to distribute or manufacture a controlled substance in, on or within 1,000 feet of a school, college, playground or a public housing facility, or within 100 feet of a public or private youth center, a public pool, or a video arcade facility. Penalties for this crime range from the mandatory one year imprisonment minimum to twice the maximum punishment applicable for the same offense under 21 U.S.C. § 841(b). A second time offender will be eligible for a minimum 3 year imprisonment; the maximum sentence may be from three times the maximum imposed under Section 841(b) to a term of life imprisonment.
Continuing Criminal Enterprise
21 U.S.C. § 848 prohibits ''engaging in a continuing criminal enterprise (CCE). A CCE means engaging (together with five or more others) in a federal felony drug violation, which is part of a ''continuing series'' of violations of the federal drug laws. To be convicted under this law, the defendant must also play the role of an organizer, a supervisor, or a manager in the organization and he or she must have received substantial resources or income from the enterprise. A first offender under Section 848 is eligible for a mandatory minimum term of 20 years and a maximum term of life in prison. A second time offender is subject to a mandatory minimum term of 30 years imprisonment with a maximum of life. However, under some circumstances, the penalties can increase to a life sentence or even death penalty.
Conspiracy
One of the most widely used statutes in federal drug prosecutions is conspiracy. Under 21 U.S.C. § 846, to secure conviction in a drug conspiracy case, the prosecutors must prove that two more persons had an agreement to commit a federal drug offense and that the defendant knew the purpose of the agreement and then deliberately joined the conspiracy. Convicted conspirator are subject to the same penalties as those imposed for the substantive offense that the conspiracy intended to commit. Federal conspiracy cases are often difficult to defend because Federal Rules of Evidence allow admission of ''a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy'' as non-hearsay. This rule makes it easier for the government to use statements made by co-conspirators.
Import/Export Offenses
21 U.S.C. §§ 952 and 953 prohibit importing and exporting controlled substances into and out of the United States except for some exceptions that involve specific scientific purposes and the authorization of the Attorney General.
Racketeering and Corrupt Organizations
The anti-racketeering statute, 18 U.S.C. § 1962(c), is used against larger drug organizations. The RICO statute is aimed at interstate criminal enterprises that conduct their business through a pattern of racketeering. To obtain conviction on a RICO charge, the government must prove several facts, including the existence of an enterprise, that the enterprise affected interstate commerce, that the defendant was associated with the enterprise and that he participated in the business of the enterprise, and that such participation was through a pattern of racketeering activity through a knowing commission of at least two racketeering acts within ten years of each other. A RICO conviction carries a maximum of 20 years imprisonment, however, in some cases it could be a life imprisonment.
Drug Related Firearms Charges
Federal firearm charges are not technically related to federal drug charges; however they are commonly used in drug prosecutions. Under 18 U.S.C. § 924(c), there is a minimum 5-year sentence for anyone who uses or carries a gun during and in relation to any federal drug or violence crime.
Sentencing for Federal Drug Crimes.
Sentencing in federal criminal cases is a complex process where many important factors are considered. Federal criminal statutes provide for minimum and maximum penalties, but the actual sentencing until fairly recently was controlled by the Federal Sentencing Guidelines. The Guidelines are now discretionary but they still remain very important in the sentencing process. Along with the Sentencing Guidelines, there are other equally important considerations which weight heavily with the sentencing court: cooperation with authorities, quantity of the drug in question, entering the guilty plea and previous criminal history of the defendant. These factors can significantly reduce the Sentencing Guideline calculations. Judges may and do consider cooperation and other factors as grounds for a lighter sentence, sometimes even below the mandatory minimum.
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Joseph Potashnik is a criminal defense attorney who defends individuals facing criminal charges in New York City and New Jersey. You can visit his websites at http://www.jpdefense.com for NY and http://www.jpcriminaldefense.com for NJ.
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