San Antonio Federal Drug Charges Lawyer.

Federal drug offenses carry stiff penalties. And prosecutors use these penalties during plea negotiations. This puts clients in a tough spot. They can plead out to get a lower sentence. Or they can go to trial and risk years in jail if they lose.

However, clients in this position have options. A person may qualify for safety-valve relief. This allows a person to get a sentence below the mandatory minimum in some cases. A person can also cooperate with the feds for a substantial-assistance motion. Like the safety-valve option, a substantial assistance motion allows a person to get a lower jail term. Or they can go to trial and raise certain defenses. This post will discuss these options.

But before we consider these options, we need to talk about the most common federal drug charges in San Antonio and South Texas. This will help us understand how drug cases work. And more importantly, what defenses apply.

The most common federal drug charges in San Antonio, Texas.

The four most common federal-drug offenses are:

  1. 21 USC § 841: Drug Dealing;
  2. 21 USC § 846: Drug Conspiracies;
  3. 21 USC § 952Bringing drugs into the United States and
  4. 21 USC § 963Conspiring to bring drugs into the United States.

These charges are identical in several respects. They all carry mandatory-minimum sentences. More importantly, a client facing these charges may qualify for safety-valve relief. Or, he get credit for his substantial assistance to the government.

How do prosecutors convict a person of a federal drug offense?

In every criminal case, prosecutors must connect the drugs to the person on trial. The table below shows how prosecutors do this.

(1)The defendant knowingly possessed a controlled substance;
(2)The substance was in fact a controlled substance, i.e., cocaine, heroin, meth;
(3)The defendant possessed the substance with intent to distribute;
(4)The quantity of the substance was at least a specific amount. [Note: The drug amount triggers mandatory-minimum sentences.]

Unfortunately, the evidence of guilt in these cases is often overwhelming. For example, prosecutors may have confessions from a suspect, wiretap recordings, and texts messages showing the suspect was dealing drugs. In these types of cases, pleading guilty maybe the best option.

Defenses for Federal Drug Charges in Texas.

Yet, there are several defenses available in drug cases. These defenses include duress, entrapment, Miranda violations, and illegal searches and seizures.  Nonetheless, the most common defense raised at trial is lack of knowledge or intent. This is when a defendant argues he did not know about the drugs. Let’s discuss each of these defenses below.

Duress Defense

Duress is an affirmative defense. This happens when a person is forced to commit a crime. For instance, a bad person tells a defendant, “put these drugs in your car or else I will shoot you right now.” The person must then make a choice. Either commit the drug crime, or be killed instantly. This is the duress defense in a nutshell.

Furthermore, to qualify for a duress defense, the person must show:

  1. He was under unlawful and present, imminent, and impending threat of such a nature as to bring about a well-grounded fear of death or serious bodily injury;
  2. He did not recklessly or negligently put himself in a situation where it was likely that he would be forced to choose the criminal conduct;
  3. There was not a reasonable legal option to violating the law. The options include both a chance to refuse to do the criminal act and also to avoid the threatened harm; and
  4. A direct connection between committing the crime and avoiding the threatened harm.

However, this defense requires the person to avoid committing the crime. That means he must call the police as soon as possible. And he must report the crime or threat of harm or violence. Otherwise, he will not be able to raise the defense at trial.

Entrapment Defense

Entrapment is also an affirmative defense. The person must prove police made him do it. This happens when undercover cops push a person into dealing drugs. To qualify, the person must be a law-abiding citizen. If the person has a history of drug dealing, then this defense will not work.

No Criminal Intent or Knowledge

Another approach is to challenge the intent element of the crime. This is a classic-defense strategy. To illustrate, consider the two examples below.

Example 1: Police find drugs in a location with multiple suspects

Police find drugs at a location with multiple people present. It happens in two situations. Namely, when police find drugs in a car during a traffic stop. And the car has multiple passengers. Another example is when police find drugs in a house with multiple tenants.

In these situations, the issues of intent and knowledge are critical. The defense should look at the evidence linking the drugs to the defendant. In other words, it may help the defendant to argue he was at the scene by mistake or accident. Thus, he did not intentionally or knowingly possess the drugs.

Example 2: Police find drugs in a hidden compartment

Likewise, the same issues occur when police find drugs in a hidden compartment.  To illustrate, during a traffic stop, police find drugs hidden in the floorboard of a car. When this happens, courts require the government to provide additional evidence connecting the defendant to the drugs:

The necessary knowledge and intent can be proved by circumstantial evidence.  Knowledge of the presence of a controlled substance may be inferred from the exercise of control over a vehicle in which the illegal substance is concealed.  But where drugs are concealed in a hidden compartment, [the Fifth Circuit] also requires circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.  Such circumstantial evidence may include evidence of “consciousness of guilt, conflicting statements, or an implausible account of events.

United States v. Lopez-Monzon, 850 F.3d 202, 206 (5th Cir. 2017) (Emphasis added.)

The hidden-compartment scenario frequently occurs along border cities such as Del Rio, Eagle Pass, or Laredo. Drug dealers often hide drugs in cars. Then they recruit innocent drivers to transport the drugs. But if the driver did not know drugs were in the car, then he is not guilty of a drug crime.

What are mandatory-minimum sentences for first-time federal drug charges?

Mandatory-minimum sentences require judges to give at least a minimum jail term. In other words, a judge must order a defendant to serve at least 5 or 10 years in jail–depending on the case. This creates unfair prison sentences for many drug offenders. Additionally, in drug cases, the drug amount determines the minimum sentence. See the table below.  

Penalties for Federal Drug Offenses: Five-Year Mandatory Minimum

100 grams or more5 years40 years
500 grams or more5 years40 years
Cocaine Base (Crack)
28 grams or more5 years40 years
Phencyclidine (PCP)(Angel dust)10 grams or more5 years40 years
Fentanyl Analogues

Note: See 28 CFR 50.21(d)(4)(vi) (defining "N-phenyl-N[1-(2-phenylethyl)-4-piperidinyl] propenamide" as Fentanyl.
10 grams or more5 years40 years
Fentanyl40 grams or more5 years40 years
100 kilograms or more5 years40 years
Methamphetamine5 grams or more of Meth Actual (pure)

50 grams or more of Meth (mixture)
5 years40 years
Lysergic Acid Diethylamide (LSD)1 gram or more5 years40 years

The penalties for these drugs are listed in 21 USC 841(b). However, 21 USC 841(b) does not contain the actual word "fentanyl." Instead, it uses the chemical definition for fentanyl. And this definition is listed in the table above.

Penalties for Federal Drug Offenses: 10-Year Mandatory Minimum

Heroin1 kilogram or more10 yearsLife
Cocaine5 kilograms or more10 yearsLife
Cocaine Base (Crack)280 grams or more10 yearsLife
Phencyclidine (PCP) (Angel Dust)100 grams or more10 yearsLife
Marijuana1,000 kilograms or more10 yearsLife
Lysergic Acid Diethylamide (LSD)10 grams or more10 yearsLife
Methamphetamine50 grams or more of Meth Actual (pure)

500 grams or more of Meth (mixture)
10 yearsLife
Fentanyl Analogue100 grams or more10 yearsLife
Fentanyl400 grams or more10 yearsLife
Table lists drug types and quantities that trigger a 10-year minimum sentence.

How do you avoid a Mandatory Minimum Sentences in federal court?

Judges can give people jail time below the mandatory minimum in two situations. Namely, if a person qualifies for “safety-valve,”or if he provides the government with “substantial assistance.”

5K1.1 Motions (Substantial Assistance).

18 USC § 3553(e) is the “substantial assistance” law. It allows the government to request a lower sentence for a cooperating defendant.

The statute provides:

Upon motion of the government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.

18 USC Section 3553(e)

The key to a 5K1.1 motion is a government request. The government must file the motion with the court. If the government does not file a 5K1.1. motion, then the person is not eligible for this relief.

5K1.1 Guidelines

The sentencing guidelines provide additional guidance for 5K1.1 motions. According to USSG 5K1.1:

The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:

  1. The court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
  2. The truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
  3. The nature and extent of the defendant’s assistance;
  4. Any injury suffered, or any danger of risk of injury to the defendant or his family resulting from his assistance;
  5. The timeliness of the defendant’s assistance.

In summary, 18 USC 3553(e) and USSG 5K1.1 treat a person’s cooperation with authorities as a mitigating factor. This allows judges authority to sentence a person below the mandatory minimum.

Safety-Valve Relief

Dangerous weapons disqualify a defendant from safety-valve relief.
A defendant is not eligible for safety valve relief if he possessed a firearm or dangerous weapon in connection with the offense.

18 USC 3553(f) is the safety-valve law. If a person meets the criteria, then he may get a sentence below the mandatory minimum. Below is a summary of the safety-valve criteria:

  1. The person does not have more than 4 criminal history points.
  2. He did not use violence, credible threats of violence, possess a firearm or other dangerous weapon in connection with the crime. (Or encourage anyone else to use violence, possess a firearm, or other dangerous weapon);
  3. No one died or was seriously injured during the crime;
  4. The person did not organize, lead, or supervise others during the crime; and
  5. The person must truthfully disclose all information he has related to the crime before the sentencing hearing begins.

Safety Valve vs. 5K1.1 Motions

The safety-valve and the “substantial assistance” laws have similar features. Both allow a judge to give a sentence below the statutory minimum.  Both laws require a person to cooperate with the government.  However, they also differ in several ways.

The safety-valve law only requires the person to reveal all evidence and information he has about his case. Moreover, the person will qualify for safety valve even if his information is not useful to police.

Additionally, he must have a low criminal history score. If he has more than four criminal history points, then he will not be eligible. Finally, if the person meets the safety valve criteria, then he will be eligible for a sentence below the minimum.  This is true even if the government opposes the person’s request for safety-valve relief.

In contrast, the “substantial assistance” (5K1.1) law requires the government to approve the request. This means the person’s information must be helpful to authorities. If the information is not useful to the government, then they will not file the 5K1.1 motion. Finally, a person is eligible for a 5K1.1 motion even if he has more than 4 criminal history points.

The table below summarizes the similarities and differences between safety valve and 5K1.1. Motions.  

Comparison between Safety Valve and 5K1.1 (Substantial Assistance)

FeaturesSafety-Valve Relief.
18 USC 3553(f)
Substantial Assistance Motions. 18 USC 3553(e) and USSG 5K1.1
Can a judge give a sentence below the statutory minimum?Yes.Yes.
Is government approval required?No.Yes.
Can you be excluded if you have a prior criminal record?Yes.

Defendant is not eligible if he has more than 4 criminal history points.

Eligibility is based on a government recommendation.
Who qualifies this relief?Limited to low-level drug offenders who meet the 18 USC 3553(f) requirements.No limits.

5K1.1 motions are used in a wide variety of cases.
What if the government opposes your request?A defendant is still eligible for for safety-valve relief even if the government opposes the reduction.

However, he must prove to the court he satisfies the five requirements.
Not eligible.

The substantial assistance provisions require the government to file a motion requesting a downward departure. If the government is opposed, then they will not file the motion.
What type of information must the defendant provide?Limited to all information and evidence the defendant has related to the offense or common scheme or plan he was involved in.Broader requirement. Information on any offense.
What if the defendant used violence or credible threats of violence during the offense?Not eligible for safety-valve relief.Eligible with government approval.
What if the defendant possessed a firearm or other dangerous weapon in connection with the offense?Not eligible for safety-valve relief.Eligible with government approval.
Is it dangerous?Yes.Yes.
The table outlines the similarities and differences between safety-valve relief and a 5K1.1 motions for substantial assistance.

San Antonio Drug Charges Defense Attorney.

Federal drug offenses carry stiff penalties. Prosecutors frequently use these mandatory-minimum sentences as leverage during plea negotiations, i.e., “plead guilty or else we’ll throw the book at you.” However, a person should review every element of the charge to determine if he has a defense at trial. Finally, a person should consider if he qualifies for a reduced sentence under 18 USC 3553(e)&(f). 

Phone: 210-733-7575.