Under federal law, possession of a controlled substance with the intent to distribute it is a felony crime.

While simply possessing illegal drugs is a criminal offense, the added intent to sell or distribute constitutes a much more serious crime. Most states have adopted statutes that align with federal laws, however, state laws regarding controlled substances may vary.

Penalties for possession with intent to distribute depend on multiple factors, such as the offender’s criminal record. A conviction is likely to carry severe consequences and could result in a lengthy prison sentence. If you’ve been charged with possessing a controlled substance with the intent to distribute it, it’s important that you find a federal criminal defense attorney who can represent you.

Your attorney will recommend the strongest possible defense strategy based on the unique facts of your case.

Call Today – 800-834-6434

What is a ‘controlled substance?’

If a substance has some likelihood to be abused or lead to dependency, the U.S. government will deem it a “controlled substance.” Federal law limits or outlaws the use, possession, and distribution of controlled substances.

The Controlled Substances Act, 21 U.S.C. § 812 groups controlled substances into five schedules, according to their potential for abuse, the likelihood that a user might become dependent, and whether they might have a legitimate medical use. The five schedules range from the most dangerous to the least dangerous. Schedule I substances are considered the most dangerous and include substances that have the highest potential for abuse and no legitimate use as a medical treatment. Schedule V controlled substances are those deemed the least dangerous and include medications with small amounts of narcotics and other substances that are considered least likely to be misused. Examples of substances in each of the five schedules include:

Schedule 1 substances – Heroin, lysergic acid diethylamide (LSD), marijuana (cannabis)
Schedule 2 substances – Cocaine, fentanyl, methamphetamine
Schedule 3 substances – Tylenol with codeine, anabolic steroids
Schedule 4 substances – Benzodiazepines (like Xanax), sedatives or medications used to treat insomnia (such as Ambien)
Schedule 5 substances – Cough medicines with codeine, antidiarrheal medications that contain atropine/diphenoxylate

Certain Schedule I drugs, like heroin and LSD, have no medical use and are illegal to possess in any quantity. Possession of other substances may be less cut and dry. Drugs in Schedules II through V are considered to have some potential for medical use and may require more investigation to determine whether a person has a right to possess them.

For example, pain medications may be legally prescribed or illegally distributed. Additionally, laws regarding possession of cannabis, a Schedule I drug, vary from state to state and may conflict with federal laws.

Possession of drugs with the intent to distribute – 21 U.S.C. § 841

The federal statute 21 U.S.C. § 841 defines a group of drug offenses related to the distribution, possession with intent to distribute, and manufacturing of controlled substances. More information about some of the specific offenses covered by 21 U.S.C. § 841 is given below.

21 U.S.C. § 841(a)(1) – Distribution of controlled substances and possession with the intent to distribute

According to this statute, a person is considered guilty of possession of a controlled substance with intent to distribute if:

They knowingly possessed a controlled substance
They knew that the substance was a controlled substance, and
They intended to distribute the substance to another person

Defendants who successfully follow through with the distribution of a controlled substance will also be charged under 21 U.S.C. § 841(a)(1).

21 U.S.C. § 841(c)1-2) – Possession of a listed chemical with intent to manufacture and possession or distribution of a listed chemical for use in the manufacture of a controlled substance

Under 21 U.S.C. § 841(c)1-2), it is illegal to possess or distribute certain chemicals for the purpose of manufacturing controlled substances. The Chemical Diversion and Trafficking Act (CDTA) defines which chemicals apply to this offense.

Chemicals listed by the CDTA are known as “listed chemicals.” In order to be found guilty of violating 21 U.S.C. § 841(c)1-2), the defendant does not need to have known that the chemical was a listed chemical. The prosecutor only needs to prove that the defendant knowingly possessed or distributed the chemical and that it is reasonable to believe that the chemical was used or intended to be used to manufacture a controlled substance.

21 U.S.C. § 846 – Attempted distribution and attempted possession with attempt to distribute

Due to the seriousness of federal offenses, attempting to commit a federal offense is often considered a crime. Such is the case with possession with attempt to distribute.

For example, if someone is expecting a shipment of 15 kilograms of heroin in order to sell it but the shipment will not arrive for another week, police can’t charge them with possession with attempt to distribute, because they are not technically in possession of the heroin. However, they may still be charged with attempted possession with intent to distribute.

In order to be found guilty of 21 U.S.C. § 846, a prosecutor must prove three things:

The defendant intended to possess a controlled substance and/or distribute it to another person
The defendant believed that the substance was a controlled substance, and
The defendant knowingly took a substantial step toward possessing or distributing the substance

It is important to note that the substance in question doesn’t need to be a controlled substance for a defendant to be guilty of violating 21 U.S.C. § 846. The defendant needs only to have believed that it was a controlled substance for the scenario to qualify as an attempt.

Penalties for possessing a controlled substance with the intent to distribute it

Sentencing for 21 U.S.C. § 841 convictions is complex and determined by multiple factors. The first factor that is considered is the type and quantity of controlled substance involved. Some offenses covered under 21 U.S.C. § 841 have mandatory minimum or maximum sentences. An offender’s sentence is also likely to be enhanced if they are a repeat offender or if death or serious bodily injury occurred in connection to the offense. Below are general sentencing guidelines for 21 U.S.C. § 841 convictions involving large quantities of Schedule I substances:

Base-line penalties – a 10-year minimum prison sentence and fines up to $4 million. Prison sentence is based on the facts of the case and may be up to 20 years if death or serious injury occurred in connection to the offense.

Penalties for defendants with one prior felony drug conviction – a prison sentence of 20 years to life and up t $8 million in fines.
Penalties for defendants with two or more prior felony drug convictions – a mandatory life prison sentence without release and fines based on the details of prior offenses.

Penalties for attempted possession with intent to distribute or attempted distribution of controlled substances (21 U.S.C. § 846) are the same as the penalties for possession with intent to distribute under 21 U.S.C. § 841.

In addition to the offenses listed under 21 U.S.C. § 841, there are several other federal drug crimes related to possession with intent to distribute. Those offenses include:

21 U.S.C. § 844 – Possession of a controlled substance, also known as a “simple possession charge.”
21 U.S.C. § 848(e)(1)(A) – The killing of another person in connection to a drug offense
21 U.S.C. § 860 – Distribution or manufacturing of a controlled substance in or near schools and colleges
21 U.S.C. § 843 – Use of a communications facility in the commission of a drug crime. This includes use of cell phones or mail services.

Legal defenses against federal drug possession charges

If you’ve been charged with possession of a controlled substance with intent to distribute, there are legal defenses available to you. It’s important that you work with a skilled federal criminal defense attorney who can build the best possible defense strategy based on the unique facts of your case. Some of the most common legal defenses against 21 U.S.C. § 841 charges are:

Possession of substances was legal – There are instances when a person has a legal right to possess controlled substances. If, for instance, you were in possession of pharmaceutical narcotics that have been legally prescribed to you, you may not be convicted of drug possession. However, you could still face charges if there is evidence that you intended to distribute the drugs in your possession. Laws regarding the possession of cannabis vary from state to state, but in a federal case, it is still considered an illegal substance.
Lack of knowledge or intent – In order to be found guilty of violating 21 U.S.C. § 841, a defendant needs to have known that they were in possession of a controlled substance. If drugs were found near you but you were unaware of their presence or unaware that they were a controlled substance, or you were in legal possession of a controlled substance (such as a prescription drug) and had no intent to distribute it, you may not be convicted under 21 U.S.C. § 841.
Lack of evidence or faulty evidence – If the evidence against you is faulty, insufficient, or was obtained illegally the prosecutor may not be able to bring your case to court or make a conviction.
Illegal search or seizure – All United States citizens are protected from illegal search and seizure under the Fourth Amendment of the U.S. Constitution. If law enforcement searched you or your property or arrested you without probable cause, any evidence obtained in that search could be thrown out along with the charges against you.
Plea to a reduced charge – Sometimes the best strategy is to seek to have your charges reduced from a felony to a misdemeanor. Penalties for misdemeanor offenses are much less severe and can sometimes be expunged later on.

Federal drug crimes defense attorney

The federal government takes drug crimes seriously and a conviction of possession of a controlled substance with intent to distribute, or a related crime, can result in hefty fines and a lengthy prison sentence. Only a qualified criminal defense attorney can advise you on the most effective defense strategies available to you and aggressively defend your rights in court. As an experienced, top-rated defense attorney, Robert M. Helfend offers the kind of legal support and expertise that you need on your side. Call us today for your free case evaluation 800-834-6434.

Published March 28, 2024.