Heroin Trafficking in Texas and Federal Sentencing Guidelines
Posted on by Michael Lowe.
Criminal defense after arrest on federal charges of heroin trafficking in Texas
First things first: if you are arrested on heroin trafficking under federal law, then you must be prepared to spend a significant amount of time behind bars. Statistics reveal almost every person (96.3%) convicted of heroin trafficking in the federal system is sentenced to prison for several years (average sentence is 65 months, or 5.4 years).
One reason for this is federal authorities build their drug trafficking cases over time. Federal law enforcement can work years on targeting individuals before a single arrest is made. Consider the recent arrests made here in North Texas as reported by CBSDFW on July 12, 2018 in a story entitled “38 People Charged In North Texas Drug-Trafficking Ring.” The investigation that resulted in the July 2018 sweep began four years earlier, in 2014.
From a criminal defense standpoint, this means that the federal government may have been working full-time on building a case against the accused for literally years before the defense lawyer even begins to advocate for his client.
It also means the accused must face the harsh reality that prosecutors today hold tremendous power, and when this is combined with these lengthy investigations, the fight for the defense is almost always in minimizing the federal sentence the accused can expect to be imposed by the judge. Heroin trafficking cases are almost never tried before a jury in a courtroom. See, e.g., Conrad Jr, Robert J., and Katy L. Clements. “The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges.” Geo. Wash. L. Rev. 86 (2018): 99.
Federal Criminal Charges in Heroin Trafficking
The first hurdle for a criminal defense lawyer hired to represent someone on heroin trafficking charges in Texas is to learn what the AUSA (Assistant United States Attorney) has chosen as the federal charges the accused will face. Law enforcement agents (DEA, FBI, etc.) will make the arrest, but the ultimate decision on formal charges is left to the federal prosecutor.
In heroin trafficking, the accused must deal with allegations that he or she has committed federal crimes like the following:
1. The Crime of Heroin Trafficking
In 1970, Congress passed the Controlled Substances Act (CSA), which makes the trafficking of an illegal drug, like heroin, its own specific crime under federal law. (Possession of heroin is a separate federal crime.) Pursuant to 21 USC §841(a), it is unlawful for any person knowingly or intentionally:
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
2. The Crime of Conspiracy to Traffic Heroin
Conspiracy to traffic in heroin (21 U.S.C. § 846) is another criminal charge. This crime is defined as just two (2) people who work together to manufacture, distribute, or dispense heroin. (Of course, trafficking usually involves a lot more than two people who are dealing heroin here in Texas). The punishment for Heroin Trafficking Conspiracy is the same as Drug Trafficking under 21 USC §841(a), but these are two distinct charges.
3. Other Potential Federal Crimes Tied to Heroin Trafficking
In addition to the above federal crimes for heroin trafficking and conspiracy to commit heroin trafficking, the AUSA will look to the evidence collected in the investigation to determine if charges can be brought based upon other federal criminal laws. These can include:
- 21 U.S.C. §859: distribution of heroin to someone under the age of 21;
- 21 U.S.C. §860: distribution or manufacturing of heroin near a school or college (“protected location”);
- 21 U.S.C. §861: employing minors (those under 18 years old) in heroin trafficking operations;
- 21 U.S.C. § 848: operating a continuing criminal enterprise;
- 21 U.S.C. § 843(b): use of a communication facility in heroin trafficking operations, defined as any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communications;
- 21 U.S.C. § 863: sell, offer to sell, import, export, or transport over interstate commerce any kind of “drug paraphernalia” means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing heroin into the human;
- 21 U.S.C. § 858: endangering the life of someone while trafficking in heroin (manufacturing, distribution, etc.); and
- 21 U.S.C. § 960a: as part of heroin trafficking, attempts or conspires to provide, directly or indirectly, anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity (as defined in section 1182(a)(3)(B) of title 8) or terrorism (as defined in section 2656f(d)(2) of title 22.
4. The Mandatory Minimum Law
Here’s the thing with these drug-related crimes under federal law: there is a bottom line prison sentence required upon conviction of these charges. Congress mandates that anyone convicted of heroin trafficking or heroin trafficking conspiracy, as well as these other drug trafficking-related crimes, must serve prison time.
For the trafficking itself, how much time is a required minimum prison sentence depends upon how much heroin is included in the federal allegations. For instance, under 21 USC §841(1)(A)(i), 1 kilogram or more of a mixture or substance containing a detectable amount of heroin means a mandatory minimum sentence of imprisonment “which may not be less than 10 years or more than life, and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life.”
Under other heroin-related charges, the mandatory minimum is defined within the law itself. For example, conviction for violation of 21 U.S.C. § 863, the drug paraphernalia law, in a heroin trafficking cases brings a mandatory minimum of three years’ imprisonment.
For more on mandatory minimum sentences in federal criminal prosecutions read our discussion in “Mandatory Minimum Penalties in Federal Sentencing.”
Defending in Heroin Trafficking: Charges and Sentencing
After learning of the list of charges the accused faces, the defense lawyer delves into ways to fight against them. Can some of them be dismissed because of arguments like insufficient evidence to substantiate the charge; or was there an Illegal search and seizure?
1. Challenge the Charges
For instance, if there is a charge for drug paraphernalia, then the defense lawyer will look into the search and seizure. Was the search where the paraphernalia legally valid? Is there a due process problem with the warrant? Does the property meet the definition of “drug paraphernalia” in the federal statute?
Efforts will be made to get these charges dismissed. Perhaps this will happen in negotiations with the AUSA. Early plea negotiations may point to discovered weaknesses in the government’s case. If the prosecutor is intransigent, it may be necessary to seek an order from the court. See, “What Is A Motion To Suppress?”
2. Challenge the Sentencing
Once the defense has worked to cull out only those heroin trafficking charges that survive scrutiny, the defense efforts shift in focus.
Now, the key is to work within the sentencing process and the United States Sentencing Guidelines to try and minimize the sentence facing the accused on the remaining charges. This means understanding how the United States Sentencing Manual works alongside corresponding case precedent (e.g., United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) and its progeny.)
A. The United States Sentencing Guidelines Manual
The 2016 U.S. Sentencing Guidelines Manual is the product of the United States Sentencing Commission, an independent federal agency operating pursuant to 28 USC 994(a). The Commission’s job is to create guidelines for all federal judges to follow so there is consistency in federal sentences in all parts of the country. These Guidelines are controversial, and they are no longer mandatory. See, e.g., Demleitner, Nora V., et al. Sentencing Law and Policy: Cases, Statutes, and Guidelines. Wolters Kluwer Law & Business, 2018.
B. Calculation under the Sentencing Guidelines Manual
The judge will decide the sentence to be imposed upon the accused after considering calculations under the Sentencing Guidelines Manual. Two calculations are made: (1) the offense level; and (2) the criminal history level.
In making the calculations, a standardized table is referenced called “the Sentencing Table.” It is found in the Sentencing Guidelines Manual. Here is an example:
For a detailed discussion of how the Sentencing Table works, see:
- Federal Sentencing Guidelines on Federal Child Pornography Cases
- Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases.
Sentencing Guidelines for Heroin Trafficking
Looking to the United States Sentencing Manual, several sentencing guidelines may apply to heroin trafficking offenses under the federal system. These include the following seven guidelines:
USSG 2D1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy.
USSG 2D1.2 Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy
See page 176 of the Manual. This covers charges of violating the following federal laws: 21 U.S.C. §859: distribution of heroin to someone under the age of 21; 21 U.S.C. §860: distribution or manufacturing of heroin near a school or college (“protected location”); and 21 U.S.C. §861: employing minors (those under 18 years old) in heroin trafficking operations.
USSG 2D1.5 Continuing Criminal Enterprise; Attempt or Conspiracy
USSG 2D1.6 Use of Communication Facility in Committing Drug Offense; Attempt or Conspiracy
See page 178 of the Manual. This covers charges of violating the following federal law: 21 U.S.C. § 843(b): use of a communication facility in heroin trafficking operations, defined as any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communications.
USSG 2D1.8 Renting or Managing a Drug Establishment; Attempt or Conspiracy
See page 179 of the Manual. This covers charges of violating the following federal law: 21 U.S.C. § 863: sell, offer to sell, import, export, or transport over interstate commerce any kind of drug paraphernalia” means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing heroin into the human.
USSG 2D1.10 Endangering Human Life While Illegally Manufacturing a Controlled Substance; Attempt or Conspiracy
See page 181 of the Manual. This covers charges of violating the following federal law: 21 U.S.C. § 858: endangering the life of someone while trafficking in heroin (manufacturing, distribution, etc.)
USSG 2D1.14 Narco-Terrorism
See page 196 of the Manual. This covers charges of violating the following federal law: 21 U.S.C. § 960a: as part of heroin trafficking, attempts or conspires to provide, directly or indirectly, anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity (as defined in section 1182(a)(3)(B) of title 8) or terrorism (as defined in section 2656f(d)(2) of title 22.
Sentencing Calculations and Sentencing Hearing
The AUSA will determine the government’s proposed calculations under these Sentencing Guidelines to support their sentencing position. The defense lawyer will not simply accept their version of things. He will prepare his own sentencing calculations under the Guidelines Manual with supporting documentation to present to the judge. He will also find the weaknesses in the government’s position so that their calculations can be challenged.
At the Sentencing Hearing, the defense lawyer will fight for his sentencing calculations, as well as debating the accuracy of the AUSA’s position, seeking to persuade the judge to accept the defense’s calculation of a proper sentence. The defense arguments may include the introduction of documentary evidence at the sentencing hearing, as well as putting witnesses on the stand (including experts in fields like drug analysis or psychology) to support the defense position.
Federal Prosecutors in Heroin Trafficking Cases
The power of federal prosecutors to send anyone who enters the federal criminal justice system to prison is tremendous. If you are arrested for a federal heroin trafficking crime, then an aggressive criminal defense may well work to limit your imprisonment much more often than he can successfully clear you of all charges and return you to freedom.
Criminal defense victories against these powerful prosecutors do exist. See, e.g., my federal child porn defense victory discussed in an earlier case study.
However, heroin trafficking is essentially a sentencing fight these days. Until there are significant systemic reforms, it will likely remain so. From Said, Wadie E. “Limitless Discretion in the Wars on Drugs and Terror.” U. Colo. L. Rev. 89, 131 (2018): 93 (emphasis added):
…. While legal limits and boundaries may be hard to draw, the least we can do is question the wisdom of pursuing threats that exist in the abstract the world over, knowing what we do about the lack of accountability our legal system places upon law enforcement and prosecutors.
Prosecutors Have Tremendous Power in Heroin Trafficking Cases
These systemic realities are getting more exposure, and the general public is becoming more aware of how powerful government attorneys truly are in criminal prosecutions. It is outrageous.
Consider the humorous and pointed coverage of prosecutorial power – and the propensity for prosecutorial misconduct – recently made the focus of HBO’s Last Week Tonight with John Oliver:
Importance of Zealous Criminal Defense in Heroin Trafficking Cases
Given the fact that less than 5% of federal heroin trafficking cases ever go to trial, the importance of having an experienced federal criminal defense lawyer advocating on behalf of those accused of federal heroin trafficking charges cannot be underestimated. Almost every federal heroin trafficking case will be negotiated into a plea deal. Understanding the nuances of those negotiations is critical to those facing significant (and mandatory) prison terms.
Timing is key here. Defense attorneys cannot begin to fight for lower sentencing and reduced charges, among other things, for their clients until they are brought into the federal case by the accused.
Arguments can be built and structured to include things like challenges to the authenticity of evidence or its admissibility under procedural rules (e.g., hearsay) or constitutional preemptions (e.g., due process violations). An attorney who is able to start work defending when investigations are still in progress has much more ability to help his client than the attorney who is not hired until days before the sentencing hearing.
For instance, a defense lawyer hired by someone under investigation can move the court to quash a search warrant by a federal agency. Victory here means there is no search. An attorney not brought into the case under much later may be left with fighting to exclude evidence taken by the agents during that search, which is now being used by the prosecutors as part of their case.
The point: for those facing arrest in Texas on federal heroin trafficking charges, it is imperative that they have a zealous, aggressive, and experienced criminal defense attorney at their side as soon as possible. Why?
Today, the criminal justice system amounts to federally accused individuals facing the reality that they must fight not in the courtroom before a jury, but in negotiations with the government for the best plea deal and minimum federal prison sentence possible under the current federal sentencing guidelines followed by the courts and corresponding mandatory penalties for drug crimes imposed by Congress.
Comments are welcomed here and I will respond to you -- but please, no requests for personal legal advice here and nothing that's promoting your business or product. Comments are moderated and these will not be published.