Summary of San Antonio Federal Drug Offenses Article

This article provides important information for people charged with federal-drug offenses in San Antonio or South Texas. It provides an overview of the following topics:

  • Describes the most common federal-drug offenses in San Antonio and South Texas;
  • Shows how prosecutors convict drug dealers;
  • Lists defenses to drug crimes;
  • Discusses the penalties for federal drug trafficking; and
  • Explains how to get a lower prison term by qualifying for either safety-valve relief or a 5K1.1 (substantial assistance) motion.

With this in mind, if you have a question about your case, then feel free to call me at 210-733-7575. All case evaluations are free and confidential.

San Antonio and South Texas Federal Drug Crimes

Federal drug offenses are the most common criminal charges filed in San Antonio and South Texas. This is because drug-trafficking is a serious issue along the Texas-Mexico border. This problem happens in two steps. First, cartels bring drugs into the United States. Second, the drug traffickers return the drug profits to the cartels.

This is profitable for both sides. However, it also creates risks for drug dealers. If they are caught, then they face harsh federal prison sentences. Additionally, the government’s war on drugs creates another problem. Sometimes innocent people are arrested and charged with a federal drug offense.

Regardless, if you are facing a federal drug charge, then you should know your options. This is true even if the evidence indicates you are guilty. So, let’s start by providing an overview of the most common federal drug offenses in San Antonio and South Texas.

What are the most common federal drug offenses filed in San Antonio and South Texas?

The four most common federal-drug offenses are:

  1. 21 USC § 841Drug Dealing: Covers traditional drug-trafficking activities.
  2. 21 USC § 846Conspiracy to Deal Drugs: When two or more people agree to deal drugs. This allows prosecutors to charge multiple defendants in one case.
  3. 21 USC § 952Bringing drugs into the United States.
  4. 21 USC § 963Conspiring to bring drugs into the United States.

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

In every criminal case, prosecutors must prove a certain set of facts to convict a defendant of a crime.  These facts are called the elements of the crime.  The table below lists the elements for a traditional drug possession offense.

Possession with Intent to Distribute Drugs

No.Element
(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 instance, 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 in Federal Drug Cases

Yet, there are several defenses available in drug cases. These defenses include duress and entrapment.  However, the most common defense raised at trial is lack of knowledge or intent. This is when a defendant argues didn’t know about the drugs. We will 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 defendant must then make a terrible choice. Either commit a crime, or be killed instantly. This is the duress defense in a nutshell.

Duress Defense Legal Requirements

Furthermore, to qualify for a duress defense, the defendant 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.

See United States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998) (describing the duress defense.)

However, this defense requires a defendant to avoid committing the crime. See United States v. Bailey, 444 U.S. 394, 410 (1980). 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 defendant must prove police made him do it. This happens when undercover cops push a person into dealing drugs. To qualify, the defendant must be a law-abiding citizen. If the defendant 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.  For example, 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 innocent.

What are mandatory-minimum sentences for federal drug offenses?

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

DRUGQUANTITYMINIMUMMAXIMUM
Heroin
100 grams or more5 years40 years
Cocaine
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
40 grams or more5 years40 years
Marijuana
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
List of drugs and quantities that trigger 5-year federal mandatory minimum sentences.

Penalties for Federal Drug Offenses: 10-Year Mandatory Minimum

DRUGQUANTITYMANDATORY-
MINIMUM
MAXIMUM
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
Table lists drug types and quantities that trigger a 10-year minimum sentence.

Relief from Mandatory Minimum Sentences

Judges can give defendants jail time below the mandatory minimum in two situations. Namely, if a defendant qualifies for “safety-valve,”or 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)

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 defendant’s cooperation with authorities as a mitigating factor. See USSG 5K1.1, comment. (backg’d.) This allows judges authority to sentence a defendant 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 defendant meets the criteria, then he may get a sentence below the mandatory minimum. Below is a summary of the safety-valve criteria:

  1. The defendant 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 defendant did not organize, lead, or supervise others during the crime; and
  5. The defendant must truthfully disclose all information he has related to the crime before the sentencing hearing begins.

In Plain English: 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 defendant to cooperate with the government.  However, they also differ in several ways.

The safety-valve law only requires the defendant to reveal all evidence and information he has about his case. Moreover, the defendant will qualify for safety valve even if his information is not useful to police. Additionally, a defendant 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 defendant meets the safety valve criteria, then he will be eligible for safety-valve relief.  This is true even if the government opposes the defendant’s request for safety-valve relief.

In contrast, the “substantial assistance” (5K1.1) law requires the government to approve the request. This means the defendant’s information must be useful to authorities. If the information is not useful to the government, then they will not file the 5K1.1 motion. See United States v. Barnes, 730 F.3d 456, 458 (5th Cir. 2013) (comparing and contrasting the safety valve and substantial assistance requirements). Finally, a defendant 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.
No.

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 Federal Drug 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 defendant should review every element of the charge to determine if he has a defense at trial. Finally, a defendant should consider if he qualifies for a reduced sentence under 18 USC 3553(e)&(f).   

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578
Email: genaro.cortez@cortezlawyer.org