DRUG CONSPIRACY CHARGES

It’s important to be familiar with laws that “enhance” the sentences for certain drug offenses. These laws can dramatically increase the mandatory minimum sentences in drug conspiracy offenses.

There are a few ways that the government can apply these enhancements:

• IF AN INDIVIDUAL DIES OR IS SERIOUSLY INJURED AS A RESULT OF USING THE CONTROLLED SUBSTANCE INVOLVED IN THE DRUG CONSPIRACY. This enhancement can only be applied if the government proves that the deceased individual would not have died or been injured but for the fact that they consumed the controlled substance involved in the offense. The drug must be the independent cause of death or injury, not just a contributing factor. If applied, the mandatory minimum becomes 20 to life.
• IF THE PERSON BEING CHARGED WITH A DRUG CRIME HAS ONE OR MORE PRIOR FELONY CONVICTIONS FOR DRUG OFFENSES. Under 21 U.S.C. § 851, the government must give notice to the court and the defendant that it is seeking this enhancement, and it must identify the particular prior convictions it is relying upon. A defendant with one prior drug conviction generally faces double the mandatory minimum sentence that was previously applicable based on the drug type and quantity. A defendant with two more more prior drug convictions can face a mandatory sentence of life in prison.

If a defendant is eligible for both of these enhancements, that is they had prior drug convictions and their drug offense caused death or serious injury, the penalty is mandatory life in prison.

IF THE PERSON POSSESSED, BRANDISHED, OR DISCHARGED A FIREARM IN CONNECTION WITH THE DRUG OFFENSE. Under 18 U.S.C. 924(c), the government can seek additional mandatory prison time against defendants who possess or use firearms in connection with drug offenses, and the additional prison sentence must run consecutive to the sentence for the separate drug charge. A defendant convicted under 924(c) for using or carrying a firearm, brandishing a firearm, or discharging a firearm is subject to a mandatory minimum additional term of 5, 7, and 10 years, respectively. If the firearm is a short-barreled rifle or shotgun, the minimum is 10 years; if it is a machinegun, the minimum sentence is 30 years. A defendant with a prior 924(c) conviction faces a minimum of 25 years and a mandatory life sentence if the firearm is a machine gun.

There are at least six basic defenses to drug conspiracy crimes, and plenty of other ways to show mitigation in cases that involve sentencing:

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.
7. THE ALLEGED DRUG QUANTITY IS WRONG OR OTHER SENTENCING ENHANCEMENTS DON’T APPLY. In many cases, the government will charge that a defendant dealt with a certain amount of drugs, usually to trigger a higher mandatory minimum and pressure the defendant to plead guilty. On the flip side, however, that means that government has to prove that amount at trial. Additionally, an experienced federal defense lawyer can argue that certain enhancements don’t apply, either because the drug in question did not cause any death or because the defendant’s prior conviction doesn’t qualify for the enhancement.

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.