Fentanyl Charges Under Federal Law: Felonies and Range of Sentencing 

Fentanyl is a primary focus of both state and federal law enforcement today.  The illegal manufacture, distribution, sale, or possession of fentanyl is a serious drug crime in both jurisdictions.  Right now, Texas’ Operation Lone Star has the state governor mandating state and local law enforcement dedicate significant time and effort to investigations and arrests on state fentanyl drug charges.  Read, “Operation Lone Star Combats Growing National Fentanyl Crisis,” written and released by the Office of the Texas Governor on October 21, 2022.

Meanwhile, the corresponding federal focus to find and charge individuals on federal fentanyl felonies is just as intense. Several federal agencies are working in tandem to find and arrest people across the state, and the country, on federal drug crimes involving fentanyl.  Read, “Federal Agencies Detail Their Priorities in Battling the Fentanyl Epidemic,” written by Eric Katz and published in the Government Executive on October 19, 2022.

From the Drug Enforcement Administration (“DEA”) in an August 2022 news release:

Fentanyl remains the deadliest drug threat facing this country.  According to the CDC, 107,622 Americans died of drug overdoses in 2021, with 66 percent of those deaths related to synthetic opioids like fentanyl.  Drug poisonings are the leading killer of Americans between the ages of 18 and 45.  Fentanyl available in the United States is primarily supplied by two criminal drug networks, the Sinaloa Cartel and the Jalisco New Generation Cartel (CJNG).

What is Fentanyl?

The National Institute of Drug Abuse defines “fentanyl” as “… a powerful synthetic opioid that is similar to morphine but is 50 to 100 times more potent.  It is a prescription drug that is also made and used illegally. Like morphine, it is a medicine that is typically used to treat patients with severe pain, especially after surgery. It is also sometimes used to treat patients with chronic pain who are physically tolerant to other opioids…. In its prescription form, fentanyl is known by such names as Actiq, Duragesic, and Sublimaze.

It has been approved for prescription use in the United States since 1968.  Pharmaceutical fentanyl comes in several forms (as do fentanyl analogues):  tablets; injectables; lozenges; patches; and nasal sprays.

The DEA explains that fentanyl is often added to heroin or sold as heroin.  Most of the country’s “clandestinely-produced” fentanyl now comes from Mexico.  It is sold under various street names that include Apace, China Girl, China Town, China White, Dance Fever, Goodfellas, Great Bear, He-Man, Poison, and Tango & Cash.

The danger from fentanyl comes from its ability to depress the respiratory system to be point that the individual may go into a coma or die from respiratory depression.  According to a clinical pharmacy professor, fentanyl needs to be clearly understood by both law enforcement and the general public.  In a November 7, 2022, article published in the Pharmacy Times entitled “Fear and Facts About Fentanyl,” Dr. Anita N. Jacobson explains several key facts about fentanyl.

They include the following:

• Today, illegally manufactured fentanyl (not prescription) and fentanyl analogues are the reason for most overdose deaths in the United States.
• Fentanyl is up to 50 times more potent than heroin.
• Fentanyl tablets are expensive. They may be colorful or masked as other types of drugs.
• Forty percent (40%) of the illegally manufactured fentanyl tablets taken by the DEA and tested were found to contain deadly doses “to the opioid naïve.”
• It is understood that teens and young adults may take tablets that they may or may not know to contain fentanyl.
• Touching fentanyl will not lead to overdose. Passively inhaling air exposed to fentanyl will not lead to overdose.  To be dangerous or deadly, fentanyl must be smoked, snorted, swallowed, or injected.
• Naloxone will reverse the effects of fentanyl.

What are Fentanyl Analogues?

Fentanyl analogues are drugs that are almost identical to fentanyl but with a twist in their chemical makeup.  Manufacturers alter the chemical formula for fentanyl and build a drug to sell that is usually more potent, and more dangerous, than the real thing.

From the National Library of Medicine comes the following explanation:

In natural science, the term analogue, derived from the Latin and Greek analogia, has always been used to describe structural and functional similarity. Extended to drugs, this definition implies that the analogue of an existing drug molecule shares structural and pharmacological similarities with the original compound. Formally, this definition allows the establishment of three categories of drug analogues: analogues possessing chemical and pharmacological similarities (direct analogues); analogues possessing structural similarities only (structural analogues); and chemically different compounds displaying similar pharmacological properties (functional analogues).

Wermuth CG. Similarity in drugs: reflections on analogue design. Drug Discov Today. 2006 Apr;11(7-8):348-54. doi: 10.1016/j.drudis.2006.02.006. PMID: 16580977.

For more on fentanyl analogues, read our discussion in Carfentanil, Fentanyl Analogues, Heroin, China, the Police, and Felony Arrests.

Fentanyl Charges Under Federal Law

The federal Controlled Substances Act (“CSA”) defines illegal drugs as “controlled substances” that cannot legally be possessed, sold, dispensed, distributed, produced, or manufactured in the United States.  See,  21 U.S.C. § 802(6),  21 U.S.C. § 841(a).  Different drugs are categorized according to their perceived danger to public health and safety; they appear in “schedules” with the most dangerous drugs placed in Schedule I, etc.

Under federal criminal drug laws, Fentanyl is a Schedule II Controlled Substance. Fentanyl analogues are Schedule I (with some exceptions).   Notice that the analogues are given a higher ranking by federal law than fentanyl itself.

As Schedule I and II drugs, convictions based upon fentanyl under federal law can result in long prison terms and the possibility of life imprisonment in some cases.

Federal Sentencing on Fentanyl Charges

For those arrested on federal charges, punishment upon conviction will have to comply with the United States Sentencing Guidelines (“USSG”).  This can mean serious long-term sentencing for the accused, especially if other federal crimes are the basis of additional charges.

Of importance are recent amendments to the sentencing guidelines adopted by the United States Sentencing Commission (“USSC”).  Because the number of fentanyl offenders jumped 3592% from 2015 to 2019 with fentanyl analogue offenses skyrocketing 5725% from 2016 to 2019, the drug became a focus of the federal commission on sentencing.  Couple this with confirmation that in 2019, 75% of the federal drug trafficking offenses involved fentanyl or fentanyl analogues, the sentencing guidelines became harsher.  And the USSC continues to monitor fentanyl cases for additional amendments in the future.  Read, United States Sentencing Commission report, Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns (January 2021) (“USSC Report”), page 42.

Why is this a big deal from a criminal defense perspective?  Federal defendants, unlike those in the Texas system, face sentencing before a judge that is mandated to follow national sentencing guidelines in every case.  Compare this to the State of Texas, where state judges have no Sentencing Manual they are required to follow.  Things are stricter in sentencing in federal cases.  Criminal defense negotiations in plea bargaining and in sentencing hearings are much more complicated.  Mandatory minimum sentences may be imposed in federal court. See, Mandatory Minimum Penalties In Federal Sentencing.

Fentanyl and Fentanyl Analogues Under the Federal Sentencing Guidelines

Guideline §2D1.1 of the USSG currently provides as follows for those who are convicted on fentanyl and fentanyl analogue charges (quoting heavily from USSG Report, pages 11-12):

• Cases are differentiated between those convicted of an offense that establishes death or serious bodily injury and those where these were not involved.
• For those without death or serious bodily injury, the type and quantity of drugs for which the defendant is held responsible is considered “the most important factor in determining the sentence.”
  • Here, the base offense level specified in the Drug Quantity Table apply; they are base offense levels 24 and 30.
  • Statutory mandatory minimum penalties correspond to base offense levels 24 and 30.
• Offenses involving (1) 40 or more grams of fentanyl or (2) ten grams or more of fentanyl analogue are assigned a base offense level of 24, which provides for a guideline range that includes the five-year penalty (51 to 63 months at Criminal History Category I).
• Offenses involving (1) at least 400 grams of fentanyl or (2) at least 100 grams of fentanyl analogue are assigned a base offense level of 30, which provides for a guideline range that includes the ten-year penalty (97 to 121 months at Criminal History Category I).

For other quantities of fentanyl or fentanyl analogue, sentencing is calculated by extrapolating upward and downward in accordance with the USSG.

Key here: Sentencing Guideline §2D1.1 contain entries for both fentanyl and fentanyl analogue that provide for the 5 year and 10-year mandatory minimum sentences in 21 U.S.C. § 841(b)(1).

Fentanyl With Death or Serious Bodily Injury

As a general rule, it is the amount of the illegal drug  that establishes the sentence under USSG §2D1.1. However, things can get worse.

The USSG allow for “alternative heightened base offense levels” when the prosecution proves beyond a reasonable doubt that the defendant committed a federal crime with either death or serious bodily injury resulting from the crime. Here, the USSG allows for a base offense level of 38. If the accused is shown to have at least one prior conviction for a similar offense, then the base offense level jumps to 43. See, USSG Report, pages 11-12.

These sentences are serious.  Someone with a first-time conviction of possession of 40-399 grams of fentanyl without any proof of violent crimes as part of the charges faces a maximum of 40 years In prison (minimum is five years).  Same goes for possession of 10-99 grams of a fentanyl analogue.  Second offense?  The maximum sentence is life (minimum is 10 years).

For those convicted with accompanying death or serious bodily injury charges on a second offense, sentencing can mean life in federal prison and up to $8 Million in fines.

Enhancement: Special Offense Characteristic

Under the USSG, fentanyl is a special offense characteristic as defined under Guideline §2G2.2(b)  that increases the sentencing range for anyone facing conviction on charges that include drug trafficking; importing or exporting of drugs; conspiracy; and more.  Being caught with fentanyl or a fentanyl analogue boosts the possible sentencing in these matters as an enhancement to the sentencing calculation for the other charges.

For more on how the USSG work, including examples of how they are calculated using the USSG Tables, read our earlier discussions in Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases and in Federal Sentencing Guidelines on Federal Child Pornography cases.

Defenses to Federal Fentanyl Felony Drug Charges

Fentanyl in any federal arrest or charge immediately makes a bigger case for the AUSA.  Fentanyl is a professional and political complication in these matters.

Nevertheless, an experienced federal criminal defense attorney will take on a fentanyl representation with the same strategies and tactics as other federal drug crime cases.  The defenses in serious felony drug matters based upon federal law and facing the United States Sentencing Guidelines will include things like:

• Evaluation of the prosecution’s facts and evidence. Was there an illegal search or seizure?  Is there proof of possession by the defendant? See: Search of a Residence in Texas: When Police Search Your Home and Exigent Circumstances: What They Are and How They Allow Police to Search and Seize Without a Warrant.
• What about wiretaps or the use of technological surveillance? Was this done?  If so, did it violate constitutional safeguards?  See: Ring Cameras and Police Surveillance: Growing Police Power Privacy Concerns.
• Should a safety valve defense be considered? Read: Less Time for Federal Drug Crimes: When Safety Valve Defense Circumvents Mandatory Minimum Sentences Under Federal Law.

Finally, an extensive investigation must be independently undertaken by the defense team in the matter.  Sentencing hearings can become a venue for fairness, and it possible that the guidelines can be avoided.

Consider the following, where I defended a young man who was facing serious time behind bars based upon the Sentencing Guidelines.  The case was before the Northern District of Texas, Fort Worth Division.  The judge ruled outside of the USSG after the presentation of evidence at the sentencing hearing.  From the bench, the judge said to the defendant: “I’ve given you the biggest break I’ve ever given in the 26 years I’ve been on this bench.”  For details, read Probation In A Federal Child Porn Case: Case Study By Defense Attorney Michael Lowe.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”