What is Fentanyl?

Fentanyl is a synthetic opioid with an extremely lethal potency. According to the CDC, fentanyl is 50 times stronger than heroin. Similarly, it is 100 times stronger than morphine. Therefore, this drug produces a high risk that users may overdose and die. This high risk of death is what makes fentanyl different from all other drugs.

Of major interest, fentanyl has lawful medical uses. Doctors use it to manage pain. As an example, doctors give it to patients after surgery. They also give it to people with late-stage cancer. In the right setting, it can improve the quality of life for someone in serious pain.

Nonetheless, several factors make this drug a magnet for abuse. First, fentanyl creates a heroin-like high. This establishes a strong demand for the drug. Second, fentanyl is cheaper to get than heroin. In other words, users pay less for a more intense high. Third, and as we will talk about below–this drug is a money maker for the cartels. Consequently, cartels are flooding the country with fentanyl and fentanyl analogues.

At the same time, fentanyl is more dangerous to use than heroin. This is why police are cracking down on illegal fentanyl sales. Equally important, this is why fentanyl drug defense is becoming a big issue along the Texas-Mexico border. Especially in border towns like Del Rio, Eagle Pass, Laredo, and El Paso.

Why is fentanyl drug use rising?

The short answer is money. According to the Wall Street Journal, drug cartels can make fentanyl quicker and easier than heroin. To illustrate, the Journal reports that it costs $6,000.00 to make a kilogram of heroin. In contrast, it only costs $200.00 to make a kilogram of fentanyl. These low costs give cartels a way to cap their losses.

For example, if police find and seize a kilo of heroin at the border, then the cartels lose two things. First, they lose the $6,000.00 cost to make the heroin. Second, they lose the lag time needed to make heroin. In contrast, if police seize a kilo of fentanyl at the border, then drug cartels only lose $200.00. To add to that, cartels can make a new batch of fentanyl faster than heroin.

Finally, the Journal reports that the Sinaloa and Jalisco Cartels cornered the market for this drug. They are now the main suppliers of fentanyl into the United States. They also supply the US with fentanyl pills called “M30s.” These pills are popular with heroin users, but even more dangerous.

What are M30 pills and rainbow fentanyl?

M30 pills are a type of fake medicine. They have different ingredients than the pills doctors give patients in hospitals to manage pain. They are dangerous for a couple of reasons. First, they may have the wrong amount of fentanyl in them. Second, the M30s look like real pills. So it is easy for a user to think they bought a legit pill with the correct drug amount.

Also, drug cartels make M30 pills in different colors. The M30 pills come in bright colors such as red, yellow, green, and orange. And cartels use these colors to market the drug to children and young adults. The feds call this “rainbow fentanyl.”

Accordingly, fake pills cause many people to overdose by accident and die. And this is an important fact for fentanyl drug defense. If someone is seriously hurt or dies in a fentanyl drug case, then the dealer’s minimum jail time will be 20 years.

What is a fentanyl analogue?

A fentanyl analogue is a drug that has a chemical structure that is substantially similar to fentanyl. Specifically, the formula for fentanyl is: C22H28N2O. Drugs with similar formulas will qualify as analogues. But the main difference is that analogues are more dangerous than regular fentanyl.

As a result, the jail time for fentanyl analogues is higher. We can see this by comparing the penalty tables below. The main takeaway is that smaller amounts of analogues trigger higher jail terms compared to the regular fentanyl cases.

How do police know if a person has Fentanyl or a Fentanyl analogue?

DEA tests the drugs at a lab to measure its type, purity, and quantity. The lab report will tell you if the drug is fentanyl or an analogue. In Texas, DEA usually sends the drugs to its Dallas field office for testing. This means that if you go to trial on a fentanyl case, then a lab chemist from Dallas will testify about the type and quantity of drug in your case.

What are the penalties for fentanyl possession?

Fentanyl Penalties:

Level.Fentanyl Amount.Penalties.
1Less than 40 grams.0 to 20 years in jail.
2More than 40 grams, but less than 400 grams.5 to 40 years in jail.
3400 grams or more.10 years to life in jail.
4Case involves serious bodily injury or death.20 years to life in jail.
The table above lists the penalties for Fentanyl possession under 21 USC § 841. Interestingly, the term "fentanyl" does not appear in this statute. However, this statute lists a substance called "N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide." This is the chemical formula for Fentanyl.

On top of that, this definition plays a key role in fentanyl-analogue cases. As we saw above, analogues are drugs that have a similar chemical structure as fentanyl.

Fentanyl Analogue Penalties:

Level.Fentanyl Analogue Amount.Penalties.
1.Less than 10 grams.0 to 20 years in jail.
2.10 grams or more, but less than 100 grams.5 to 40 years in jail.
3.100 grams or more.10 years to life in jail.
4.Crime results in serious bodily injury or death.20 years to life in jail.
Penalties for Fentanyl Analogues under 21 USC § 841. Further, 21 USC § 841 is a federal drug crime.

In short, the tables above list the jail time in federal court for fentanyl and fentanyl analogue drug possession.

Fentanyl Drug Defense.

The penalties for fentanyl crimes are harsher than for regular-drug crimes. Despite this fact, fentanyl drug defenses are the same as those for other drug cases. Stated differently, a person facing a fentanyl drug charge has the same options as a person charged with any other type of drug crime.

To see how this works, lets review five ways a fentanyl drug defense is similar to a regular drug case.

1. “Possession” Defense:

Possession is a key fact in most drug cases. This requires prosecutors to show two things. They must show the person knew about the drugs and had control over them. This defense is summarized as follows: knowledge + control = possession.

This gives a person different ways to fight a drug charge. He can show he did not know anything about the drugs. He can show he did not control the drugs. Or he can do both.

This is a key point. If the prosecutor cannot show the person knew about the drugs or had control over them, then they cannot show he was in possession of the drugs. Without this link, then the person is not guilty of drug possession. Most important of all, this defense can be used in all drug possession cases.

2. Drug Conspiracies:

A conspiracy is a deal between two or more people to commit a crime. In drug cases, police usually have the following evidence to show there was a conspiracy:

  1. Text messages between the person and the other people talking about drug deals;
  2. Snitches;
  3. Wiretaps; and
  4. Confessions.

If police have this type of proof in their file, then fighting the drug case will be tough. This is a major reason why so many people plead guilty to drug crimes.

Nonetheless, you should review the file carefully with your attorney. Sometimes there is overwhelming evidence that drug deals were going on, but little or no evidence connecting the person to the drug transactions. This happens when you are friends with a drug dealer. But you are not otherwise helping the drug dealer commit the crime.

Equally important, even if the evidence connects you to the drug deals, a review of the facts can help show that you played a small role in the crime. This is important because low-level dealers often get less jail time than the “big guys” in the drug crime. In sum, this can help you put the crime in its proper context and help you get a minor or minimal role adjustment. This will lead to less jail time.

3. Fourth Amendment Defense:

The first questions you should ask in any criminal case is “how did police find the evidence?” This is because police need a good reason before they can arrest you or search your things.

The three most common reasons why police stop a person, arrest him, or search his things are:

  1. Reasonable Suspicion: Police have specific and articulable facts that lead them to believe that criminal activity may be going on. This allows police to stop a person for a short time and check things out. Also, if police believe the person is armed or dangerous, they can pat down the person’s outer clothing to search for weapons.
  2. Probable Cause: The totality of the facts and events would lead a reasonable person to conclude that the suspect committed or was in the process of committing a crime. This is the standard police use to make an arrest.
  3. Consent Searches: The person gives police permission to search. Surprisingly, many people consent to a search and don’t even know they did it. It happens when a police officer asks you a simple question: “Do you mind if I look around?” If you say yes, then you just gave police consent to look through your things. Worst of all, if they find drugs, then you may go to jail.

Police do not need a lot of proof for the first two options. But even with this low standard, police still need facts to support their decision to do a search or make an arrest. If they don’t have a good reason, then you can fight the arrest or search by filing a motion to suppress. You can do this in all criminal cases including drug cases.

4. Targeted-Motions to Suppress:

Nonetheless, motions to suppress are not always silver bullets. Often, judges deny these motions. When this happens, then a plea deal may be your best option.

But there is another way to use a motion to suppress. You can target specific evidence that may improve your chances of getting a better plea offer. To illustrate, assume police had probable cause to search your car after a traffic stop. During the search, they find drugs and arrest you.

However, if during the search of your car, police search your cellphone without either a warrant or your consent, then you can file a motion to suppress targeting the search of your cell phone. This is because police need a warrant to look through your cell phone.

And cell phones are solid gold for police. Phones contain a ton of information that can link you to the drug deal. Without this phone evidence, police may not be able to link you to the drug deal. When this happens, prosecutors may be more willing to make a better plea offer.

5. Cooperation:

Cooperation is the best way to lower your jail time in a drug case. Critically, there are two ways to cooperate. One option is safety valve.

But this option comes with a catch. It is for people with mostly clean records. Additionally, it must be a pure drug crime. In other words, if someone is hurt or killed during the crime, then this option will not work. Finally, it requires that the person not use a gun or threats of violence during the crime.

The second way is called substantial assistance. This option is more flexible than safety valve because it does not contain the limits described above. However, the government must approve. Plus, the government must make a motion to the court asking for a lower jail term. If the government does not make this motion, then the judge cannot give you jail time below the mandatory minimum.

San Antonio Fentanyl Drug Defense.

The potency of fentanyl makes it different from other drug crimes. This drug creates a real risk that people will die from a drug overdose. As a result, the penalties for fentanyl crimes are extreme. This is true even for first-time drug offenders.

Even so, a person charged with this type of crime has good options to consider. Consequently, you should review them carefully with your attorney to develop a realistic plan for your case. Above all, you should work with your attorney to prepare the right defense based on the facts of your case.

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