Methamphetamine Trafficking and Federal Sentencing
Posted on by Michael Lowe.
Things to know when you are arrested for crystal meth distribution in Texas.
There are 94 federal district courts in this country and according to the United States Sentencing Commission, three of the top five federal district courts hearing the highest number of criminal charges for methamphetamine are in Texas. Two of these three are in the Dallas-Fort Worth area: the Northern District of Texas and the Eastern District.
Meth is big business here. Which means criminal defense lawyers in our area see a tremendous amount of criminal arrests by both state and federal law enforcement for dealing in crystal meth, or methamphetamine trafficking.
Both Texas and federal penalties for trafficking in methamphetamine are serious felonies. Our focus in this article will be upon federal methamphetamine trafficking charges and the impact of a conviction and sentencing for these charges under the federal sentencing guidelines.
Meth under the Controlled Substances Act
The Controlled Substances Act (21 U.S.C. §§ 801 et seq.) defines what drugs are considered illegal under federal law and sets the penalties (punishment) for its violation. Not all drugs are ranked the same. The legislation breaks down various drugs into various schedules. The higher the government considers the drug to have a potential for abuse or dependency, the higher it is ranked. Schedule 1 drugs are considered to have the highest likelihood of abuse or dependency.
The current five categories or schedules can be found in the Code of Federal Regulations (C.F.R.). These replace the initial set of schedules found in the CSA itself (21 U.S.C. § 812). The schedules are updated each year:
- 21 C.F.R. Part 1308 (controlled substances)
- 21 C.F.R. Part 1300.01 (anabolic steroids)
- 21 C.F.R. Part 1310 (listed chemicals)
What about copycat drugs? The Controlled Substance Analogue Enforcement Act (21 U.S.C. §§ 802(32) and 813) provides that unscheduled analogues of controlled substances in the CFR Schedules I or II will be treated as controlled substances in Schedule I.
Meth is a Schedule II Drug
Schedule II drugs are those considered by the federal government to have a “high potential for abuse, with use potentially leading to severe psychological or physical dependence.”
Methamphetamine, along with cocaine, methadone, hydromorphone (Dilaudid), meperidine (Demerol), oxycodone (OxyContin), fentanyl, Dexedrine, Adderall, and Ritalin are listed as Schedule II Drugs. 21 C.F.R. §1308.12 Schedule II(d).
Crime of Drug Trafficking
Under the Controlled Substances Act, drug trafficking is defined as a specific crime, distinct from possession. 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.
Crime of Conspiracy
Conspiracy to traffic in drugs, including methamphetamine, is defined as two or more people working together to manufacture, distribute, or dispense the illegal drug (like crystal meth). Federal prosecutors can extend their reach with this criminal charge, arresting even the most minor player in a distribution chain (like a mule or a driver).
The punishment for Drug Trafficking Conspiracy (21 U.S.C. § 846) is the same as Drug Trafficking under 21 USC §841(a):
Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
Mandatory Minimum Penalties
Sentencing for violation of meth drug laws involves a mandatory prison sentence defined by Congress in the Controlled Substances Act (CSA). The more meth is involved, the harsher the punishment.
Under 21 USC §841(1)(a)(viii) (1) 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or (2) 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers results in a term of imprisonment which may not be less than:
- 10 years or more than life;
- if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life;
- a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $10,000,000 if the defendant is an individual, or $50,000,000 if the defendant is other than an individual, or both.
The defined punishment increases under the CSA if there is a prior felony drug conviction on file. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than:
- 20 years and not more than life imprisonment;
- if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment;
- a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both.
- If any person commits after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and be fined $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both.
For more on mandatory minimum sentences in federal criminal prosecutions read our discussion in “Mandatory Minimum Penalties in Federal Sentencing.”
Sentencing on a Federal Meth Charge
In the federal system, someone is arrested on a meth charge and faces two procedural hurdles: first, the determination of guilt or innocence under the law; and if found guilty, then sentencing, where punishment is ordered by the court.
Expect to Negotiate a Plea Deal
Theoretically, this means a trial by jury to determine whether or not the prosecutor can meet his evidentiary burden to prove guilt by a reasonable doubt without any violation of the defendant’s constitutional rights.
In reality, it means negotiation of a plea deal where having an aggressive and experienced criminal defense lawyer is vital to the accused. Why?
Most people who have been arrested for crimes that come with mandatory minimum sentences will opt to negotiate a deal with the prosecution because if they exercise their Sixth Amendment right to trial, and lose, then they will face much longer prison sentences. This is called “the trial penalty.”
In a report released on July 10, 2018, entitled “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.” the National Association of Criminal Defense Lawyers (NACDL) has documented its research findings in the loss for almost every defendant of a criminal jury trial.
Today, especially here in Texas, those accused of meth trafficking almost always choose to surrender their right to a jury trial. Methamphetamine is a common basis for federal felony charges here, and prosecutors are prepared for one more crystal meth case to hit their desk.
Armed with the mandatory minimum sentences and an extensive case load, the USAG is usually ready and willing to enter into plea negotiations with the accused and his defense attorney. The federal prosecutor expects to make a plea deal. They know that most every meth defendant thinks it is much too risky to go to trial.
Negotiation Process in Federal Methamphetamine Charges
Given that crystal meth comes under the Controlled Substances Act, with its mandatory minimum prison sentences, what can someone facing methamphetamine trafficking charges do in order to avoid decades behind bars? There are several defenses that can be presented, as well as adjustments under the Federal Sentencing Guidelines.
Sentencing in Federal Court occurs under the guidance of the United States Sentencing Guidelines and the Federal Sentencing Manual.
For details on how they work in a drug case, read our discussion in “Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases” (which includes examples using the Sentencing Tables) and in “Mandatory Minimum Penalties in Federal Sentencing” (which details deviations including the defendant’s Safety Value and the prosecution’s motions for downward departure).
To summarize, meth trafficking is a felony offense under federal law. The higher the amount of meth charged, the higher the felony.
- Up to 40 grams methamphetamine / 499 grams (meth blend)
Looking to the latest United States Sentencing Guidelines Manual, methamphetamine trafficking involving 5 – 49 grams of methamphetamine / 50 – 499 grams of a methamphetamine blend has a base offense level of 24 – 28.
The federal judge must sentence the accused to a minimum of 5 years’ incarceration for a Class B felony under the Controlled Substances Act. However, this may change at the judge’s discretion if the government prosecutor moves for a lesser sentence (“downward departure”) or if the defendant meets the qualifications for a “safety value” reduction.
- 50 or more grams methamphetamine / 500 or more grams (meth blend)
In the 2016 United States Sentencing Guidelines Manual, methamphetamine trafficking involving 50+ grams of methamphetamine or 500+ grams of a methamphetamine blend carries a base offense level of 30 – 38.
Here, the judge must sentence the accused to a minimum of 10 years’ imprisonment for a Class A felony. Once again, this sentence may be reduced if government prosecutor moves for a lesser sentence (“downward departure”) or if the defendant meets the qualifications for a “safety value” reduction.
- Meth Guideline 2D1.1(b)(5): Enhancing the Offense Level in the Sentencing Table
One Sentencing Guideline applies specifically to meth cases, and can increase the sentencing calculation by two levels (“the Meth Guideline”). It is Guideline 2D1.1(b)(5): read the full text as it appears in the 2016 Sentencing Guidelines Manual:
If (A) the offense involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully, and (B) the defendant is not subject to an adjustment under §3B1.2 (Mitigating Role), increase by 2 levels.
Furthermore, if the accused is found to be a “Leader/Organizer” defendant directly involved in the importation of meth, then an aggravating role adjustment can result in an additional 2 levels, making the total possible upward calculation under the Meth Guideline to 4 levels.
If the defendant receives an adjustment under §3B1.1 (Aggravating Role) and the offense involved 1 or more of the following factors: (C) the defendant was directly involved in the importation of a controlled substance; … increase by 2 levels.
Who is responsible for importation, and subject to the increase in sentencing under this Guideline? The Guideline’s application is interpreted in a broad stroke by the federal appeals court that has jurisdiction over Texas (the Fifth Circuit Court of Appeals).
The Fifth Circuit has ruled that there is no requirement the Meth Guideline sentencing enhancement be applied only to those directly involved in the importing, or even those who contributed in some way to the meth importation.
As long as the government can show by a preponderance of the evidence (either in the Presentence Report or in live testimony at the Sentencing Hearing) the methamphetamine was actually imported from Mexico, the burden is met for the accused to receive a sentence that is increased (“enhanced”) by 2 offense levels.
Note: The Fifth Circuit Court of Appeals has also ruled it is not sufficient for the prosecutor to label the Defendant as a member of a “cartel” and have this meet the burden of proof for the Meth Guideline importation 2 level enhancement. The prosecutor has to have specific facts regarding the importation that can meet the evidentiary requirements of authentication and admissibility.
Prosecutorial Strategy: Stack the Deck
It is important to recognize there may be negotiations on the charges (and sentencing) even though the CSA mandates mandatory minimum penalties. For instance, the USAG may charge someone who is on the periphery of a trafficking operation with the serious felony charge of Conspiracy to Traffic in Methamphetamine, even though everyone realizes that the accused knows little about the business and is not a major player.
Why charge him or her with a crime that has the same punishment as Methamphetamine Trafficking? Doing so may encourage the individual to make a plea deal where he will provide state’s evidence against the higher-ups in exchange for avoiding the Methamphetamine Trafficking sentence. For details, read our discussion of “cooperation” in “Mandatory Minimum Penalties in Federal Sentencing.”
Moreover, the current Attorney General position is to go for the maximum drug charges and harshest sentences possible in meth cases as well as other illegal drug trafficking arrests.
Read the directive given to all federal prosecutors by Attorney General Sessions here: USAGs are to “charge and pursue the most serious, readily provable offense.”
This does not mean that the charges will hold, or that negotiations cannot succeed in getting them reduced or tossed.
Sessions has declared the new White House strategy on the War on Drugs, but this does not mean that in the individual meth trafficking case there is not hope for a strong defense – and perhaps even victory with a dismissal of the charges.
Defenses in Federal Meth Trafficking Cases
During plea negotiations, an aggressive criminal defense lawyer will look for holes in the prosecution’s case. There may be both legal arguments as well as factual weaknesses that can be asserted both in plea negotiations and at the sentencing hearing.
1. Insufficient Admissible Evidence
It is the burden of the USAG to investigate and compile authenticated, admissible evidence under the Federal Rules of Criminal Procedure and the Federal Rules of Evidence, as well as substantive law and constitutional precepts.
Can the government prove beyond a reasonable doubt that the accused had the meth in his or her possession, custody, or control? If so, then how much? Did anyone else have access to this location?
2. Illegal Search and Seizure
Police officers and law enforcement agents are notorious for pushing the edge of the envelope when it comes time to search for illegal drugs. If the federal agents (or local police) cross the Fourth Amendment’s constitutional line protecting against “unreasonable search and seizure,” then they will have committed an illegal act.
Consider the overreaching of law enforcement discussed in “The Police Power to Search Your Car: SCOTUS May Change Things in Byrd and Collins.”
If the defense arguments are sound, then the drugs that may have been found and seized during the illegal search will be inadmissible. Search and seizure arguments against evidence within the government’s case are made in a Motion to Suppress Evidence, which is argued in a hearing before the judge. See, “What Is A Motion To Suppress?”
If the suppression arguments are strong enough, then there is always the possibility that the case cannot survive without the inadmissible evidence. Under Attorney General Sessions’ directive, the case is no longer “readily provable.” In these circumstances, the defense can move the federal judge for a dismissal of the charges.
Most meth trafficking cases will be supported with enough evidence to withstand a dismissal motion, however. Here, the defense strategy will be to minimize the sentence in negotiations with the prosecutor.
When a plea is negotiated with the USAG, a contractual agreement is made. It’s a formalized deal between both sides. It’s a signed document.
However, this will not finalize the punishment. The defendant must go before the federal district court judge in a formal sentencing hearing. The judge has the power to disregard that agreement.
At the sentencing hearing, evidence can be presented by both sides: the federal government and the defense. The federal judge will also have information on the case from other sources, including statements from any victims and in the Presentence Report.
The criminal defense lawyer will use this opportunity to present “mitigation factors” to the judge. He can put witnesses on the stand, he can file legal briefs and memoranda into the court record for the judge’s consideration.
Perhaps there will be some prison time under the CSA’s mandatory minimums, but the defense can still argue for no additional time to be included in the punishment.
Defending Against Long Meth Trafficking Prison Terms
In sum, under the Controlled Substances Act an individual can face mandatory imprisonment upon conviction of knowingly or intentionally manufacturing, distributing, or dispensing (1) 5 grams or more of methamphetamine or (2) 500 grams or more of any substance containing a detectable amount of methamphetamine.
Congress has set minimum prison sentences, and the current Attorney General has issued a directive that federal prosecutors are to be looking for the harshest possible drug charges with the longest prison terms and severest punishment.
For those in Texas who are arrested for methamphetamine trafficking, it is a serious charge and possibly a life-altering event.
As the recently released NACDL report points out, less than 3% of all federal criminal cases (not just drug crimes) in this country go to trial. Almost all federal criminal prosecutions (97%) are negotiated in a plea deal.
From a criminal defense perspective, this is unacceptable. It is an abuse of the system. There is a reason the Sixth Amendment provides for the following:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
However, the reality today – until reforms are successful – is that those who are arrested in Texas on federal meth trafficking charges must understand that their fight is not in a courtroom (despite what they see on TV).
It is in having a zealous, aggressive, and experienced criminal defense counsel that will fight for the optimal plea deal and minimum federal prison sentence possible under the mandatory penalties for drug crimes imposed by federal law.
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