NEW YORK CITY FEDERAL DRUGS CRIMINAL LAWYER

Both the federal government and all states have enacted criminal statutes regulating the manufacture, distribution and possession of drugs deemed to be addictive or dangerous. Federal law establishes five schedules of drugs subject to control. The schedules are designated I, II, III, IV and V, respectively. The law provides different penalties and regulatory provisions, depending on the schedule in which a drug is listed.

The tightest controls and most severe penalties are imposed for offenses involving drugs listed in Schedules I or II. Although the law lists all the drugs for each schedule, the Attorney General of the United States may add drugs to the various statutory listings. . Schedule I Includes Heroin, Marijuana, LSD, Mescaline, and PeyoteSchedule II Includes Opium, Cocaine, Methadone, and AmphetamineSchedule III Includes NalorphineSchedule IV Includes Meprobamate, Barbital, Chloral Hydrate, and ParaldehydeSchedule V Includes Codeine Combined with Small Amounts of Other Ingredients

Penalties

Federal criminal provisions provide for the draconian sentencing guidelines, including mandatory minimum sentences. The federal sentencing guidelines are discretionary but still very significant. Judges have some latitude within sentencing range. Several factors are considered by judges in sentencing, including defendant's cooperation with authorities, quantity of controlled substance, entering a plea of guilty early in the stages of prosecution, defendant’s criminal history, and the degree of the crime’s violence.

21 U.S.C. § 844 makes it a federal felony to possess a controlled substance without a valid prescription. The possession must occur ''knowingly'' and ''intentionally.'' To convict, the government must prove that (1) possession was knowing and intelligent; and (2) the defendant knew that the item possessed was a controlled substance. The quantity charged in the indictment is not an element of the offense and the prosecution does not have to prove it beyond a reasonable doubt except in cases where the quantity alleged increases the maximum sentence.

Normally, a first-time offender may receive a maximum of one-year imprisonment with no mandatory minimum sentence. One prior conviction for a drug offense will rise a minimum term to at least fifteen days with a maximum possible term of two years. Two or more drug convictions carry a minimum sentence of 90 days and a maximum term of imprisonment of three years. Crack Cocaine If the drug in question is crack cocaine, a first time offender will receive a mandatory minimum sentence of five years if the defendant possessed more than five grams.

A second time ''crack'' offender will receive at least five years if he possessed more than three grams. Two or more crack possession convictions carry the five year mandatory term if the defendant now possessed more than one gram.


Manufacture, Delivery or Possession with Intent to Deliver

21 U.S.C. § 841(a)(1), prohibits any person from knowingly or intentionally manufacturing, distributing, dispensing, or possessing with the intent to manufacture, distribute, or dispense, a controlled substance. ''Manufacture'' means the unlicensed, unauthorized and intentional creation of any of the prescribed controlled substances and ''distribution'' is not limited to the sale of a controlled substance to another person.

Section 841 provides for severe penalties depending upon: (1) the nature of the drug involved; (2) the quantity of the drug involved; and (3) the prior record for drug convictions. Therefore, depending on the drug’s nature and quantity, and defendant’s prior conviction, the first-time offender may expect to receive a mandatory term of imprisonment of 5 to 40 years; the second offender will receive 10 or 20 years to life, and the third time offender will spend his or her life in prison without parole, although some variations are probable.

Distribution to Persons Under Age Twenty-One

21 U.S.C. § 859 addresses criminalizes as an enhancement statute the distribution of a controlled substance by a person eighteen years or older to a person under the age of twenty-one. To obtain conviction, prosecution must prove three elements: (1) distribution of a controlled substance; (2) the person engaged in distribution is at least eighteen years of age; and (3) the recipient of the controlled substance is less than twenty-one years of age.

Section 859 doubles the maximum penalty for distribution provided under 21 U.S.C. § 841. It also provides for the minimum one-year imprisonment.

Distribution or Manufacture in or Near Schools and Colleges

21 U.S.C. § 860 provides for increased penalties for distribution or manufacture of 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. There are two elements that the government must prove to secure conviction: (1) the knowing or intentional distribution, possession with intent to deliver, or manufacture of a controlled substance; and (2) the distance from the act of manufacture or distribution to the facility identified in the Indictment.

A first time offender will receive a mandatory minimum term of imprisonment of at least one year and is subject to twice the maximum punishment applicable for the same offense under 21 U.S.C. § 841(b). A second time offender is subject to a mandatory term of imprisonment of at least 3 years, with the maximum sentence ranging from three times the maximum imposed under Section 841(b) to a term of life imprisonment.

Employment or Use of Persons Under 18 Years of Age

21 U.S.C. § 861 addresses employing a person younger than age 18 to: (1) violate any provision of the federal controlled substances act; or (2) ''assist in avoiding detection or apprehension'' for a federal drug offense. The offender must be over eighteen. To obtain conviction, the government must prove that (1) the offender is eighteen years or older; (2) the offender employed or utilized another person in violating the provisions of the federal drug laws, or in avoiding detection, or must receive drugs from another person; and (3) the second individual must be under the age of eighteen.

A first time offender will receive a mandatory one year term of imprisonment, and the maximum term can be twice that authorized by the substantive offense violated. A second time offender will receive a mandatory term of imprisonment of one year, with the maximum term as high as three times that authorized by the substantive statute violated. If the defendant provided or distributed drugs to a person under the age of eighteen or employed/used a minor under the age of fourteen, the mandatory minimum term is increased to five years.

Continuing Criminal Enterprise

21 U.S.C. § 848 makes it criminal to engage in a continuing criminal enterprise, which is defined as: (1) engaging in a felony drug violation under the federal drug laws; (2) that drug violation is part of a ''continuing series'' of violations of the federal drug laws undertaken by the defendant ''in concert with five or more other persons with respect to whom the defendant occupies a position of organizer, a supervisory position, or other position of management; and the defendant obtains substantial resources or income from the enterprise.

Under this statute, the government must prove that (1) the accused committed a felony violation of the federal drug laws; (2) the violation was part of a continuing series of related violations of the federal drug laws; (3) the continuing series of violations was undertaken by the accused in association or concert with five or more additional individuals; (4) the accused was an organizer, supervisor or in a management position with respect to the five or more additional individuals; and (5) the accused obtained substantial income or resources from the continuing series of drug law violations.

A first offender under Section 848 will receive a mandatory minimum term of 20 years and a maximum term of life imprisonment. A second offender will receive a mandatory minimum term of 30 years imprisonment with a maximum of life. Under certain conditions, these penalties can be increased to a life sentence or even death penalty.

Attempt and Conspiracy to Distribute Narcotics

21 U.S.C. § 846 provides that a conspiracy or attempt to commit an offense under the act is punishable by imprisonment or fine not exceeding the penalty provided for the substantive offense. Otherwise, the crime of attempt is not defined under the drug act. To obtain conviction, the government must prove (1) an intent to engage in criminal conduct, and (2) conduct constituting a ''substantial step'' towards the commission of the substantive offense, which strongly corroborates the actor's original criminal intent.

To prove conspiracy, prosecution must prove that (1) an agreement to commit the specified crime was formed, reached, or entered into by two or more persons; and (2) at some time during the existence of the conspiracy, agreement or understanding, the defendant knew the purpose of the agreement and then deliberately joined the conspiracy. Conspirators are subject to the same penalties as those imposed for the substantive offense that the conspiracy intended to commit.

Import/Export Offenses21 U.S.C. §§ 952 and 953 make it illegal to import and export controlled substances into and out of the United States. The penalties for these offenses are like those for 21 U.S.C. § 841, and depend on the nature of the drugs, the quantity, and the offender's past record.

Racketeering and Corrupt Organizations

18 U.S.C. § 1962(c)(RICO) provides penalties for an interstate enterprise that engages in racketeering. To prove the offense, the following must be established (1) the existence of an enterprise; (2) that the enterprise affected interstate commerce; (3) that the defendant was employed by or associated with the enterprise; (4) that the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise; and (5) that the defendant participated through a pattern of racketeering activity through a knowing commission of at least two racketeering acts within ten years of each other. Punishment for a RICO is severe. There is a maximum of 20 years imprisonment. There could also be a mandatory life sentence.

Drug Paraphernalia Sale/Transport/Importation21 U.S.C. § 863 makes it illegal to sell, offer for sale, import, export, or transport through mail or other facilities of interstate commerce drug paraphernalia and carries a 3 year prison term.

Firearms Charges18 U.S.C. § 924(c) imposes a five-year minimum term of imprisonment upon a person who ''during and in relation to any crime of violence or drug trafficking crime ...uses or carries a firearm.