What Are the Common Drug Offense Cases that Your Firm Handles?

I have been representing people facing drug charges, both in the federal courts and in Missouri and Illinois courts, since 1991. The court – state or federal – where the charges are brought makes a big difference. Federal drug charges tend to run in fads. It used to be back in the 90s, it was crack cocaine and then it was methamphetamine. What I am seeing in the federal court here in the Eastern District of Missouri as well as in the Southern District of Illinois and also down south in Benton, Illinois Cape Girardeau, Missouri, are mostly one of two kinds of cases. On the one hand, are great big drug conspiracy cases where there are sometimes as many as 18, 19, 20 different defendants. On the other hand, are charges against one or two defendants, facing a trio of charges: possession with the intent to distribute whatever the drug is, felon in possession of a firearm, which is a violation of 18 United States Code Section 922(g)(1), and a third count of using and possessing a firearm during or in relation to a serious drug trafficking crime, which is a violation of 18 USC Section 924(c). It is a pretty potent combination because in federal court, of course, we have not only the federal sentencing guidelines but also mandatory minimum sentences that are statutory in nature. In other words, depending on the kind of drug that is charged and the amount of drug that is charged, you can be facing a mandatory minimum of 5 years up to 40 years, or 10 years that can go up to life. Those mandatory minimums for the drug charge can be enhanced if my client has a prior conviction for drugs. In other words, if my client has a prior drug conviction, just one, and the United States attorney’s office files the proper paperwork, it is called an information pursuant to 21 United States Code Section 851, the five-year mandatory minimum can be enhanced to ten years, or the ten years mandatory minimum can be enhanced to twenty years. If my client has two prior drug convictions, the ten-year mandatory minimum can be enhanced to life.

So, from a penalty standpoint, the stakes are very high in federal court.

In state court, there is a much wider variety of charges and many more misdemeanor charges. The state of Missouri, for instance, has charges for distribution, delivery, trafficking, possession and they all carry different penalties. What I mostly see in the state are either sale or possession. I do not see as many conspiracies charged in the state courts.

What Determines Whether a Drug Charge is Considered a Misdemeanor Or a Felony?

As with all crimes, the categorization as misdemeanor or felony is based upon the potential penalty. If the maximum penalty is a year or less, the crime is a misdemeanor. If the maximum penalty is more than a year, the crime is a felony.

With drug charges, typically, the seriousness of the charge is based upon the type and amount of drug involved. Even the federal criminal code includes a misdemeanor for simple possession of drugs, rather than possession with the intent to sell or manufacture. The state codes include several types of misdemeanor drug charges — for possession of less than 35 grams of marijuana, for example, or possession of drug paraphernalia. The federal cases tend to be far more serious but the main driving factor is the type of drug and the amount of drug.

From an evidentiary standpoint, what can be determinative may be the way the drug is packaged. If the drug is contained in small, individual baggies, the prosecutor can argue that this packaging shows that the drug is not possessed for personal use, but rather with the intent to distribute or sell it.

What Is An Unlawful Controlled Substance?

The drug laws in the state and in the federal system all have what are called “schedules,” or lists, of controlled substances. There are five different schedules or lists of drugs that are “controlled,” or illegal (unless, in some instances, properly prescribed). The states have adopted what the federal statutes have had in place since the 1970s. The federal Drug Enforcement Administration must make findings before a drug, or chemical can be placed on one schedule as opposed to another one. Placement on the schedule I list, for example, requires findings that a) the drug or other substance has a high potential for abuse, b) the drug or other substance has no currently accepted medical use in treatment in the United States, and c) there is a lack of accepted safety for use of the drug or other substance under medical supervision.

Marijuana is a schedule I controlled substance, both in the federal system and in the state system. This is in spite of the fact that, in a growing number of states, more than half, have now legalized medical uses for marijuana.

Opioids are all on the same schedule, hallucinogens (of which marijuana is considered to be one) are all on the same schedule. Amphetamines and various kinds of drugs like amphetamines are grouped onto the same schedule. Placement on one of the schedules makes a substance, chemical or drug a “controlled substance.”

Missouri also has a definition in the statutes, which defines “controlled substance” as a “drug, substance, or immediate precursor, on schedules I through V as defined in chapter 195.” Missouri’s drug crimes all used to be in chapter 195 until 1 January, 2017 and then almost completely got moved to chapter 579.

Substances other than drugs are controlled. For example, an imitation or fake drug can be a controlled substance under the law. As the Missouri statutory definition suggests, and this is true in federal court as well, an immediate precursor chemical required to manufacture a drug can be a controlled substance. This type of substance is seen most commonly when someone is charged with possessing pseudoephedrine, for example, with the intent to manufacture methamphetamine.

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