Penalties for Drug Trafficking Offenses

Mandatory Minimum Penalties For Federal Drug Offenses

heroin_powder
Heroin-DEA Photo

The Anti-Drug Abuse Act of 1986 (hereinafter “The Act”) created severe mandatory-minimum prison sentences for people convicted of federal-drug offenses.

The table below lists the ranges of punishment for Heroin, Powder and Crack Cocaine, Marijuana, and Methamphetamine (Mixture) for first-time offenders.

Click here for more information on mandatory-minimum sentences.

Drug Tables

HEROIN QUANTITYRANGE OF PUNISHMENTSTATUTE
Under 100 Grams0-20 Years21 USC 841(b)(1)(C)
100 Grams or more but less than 1 Kilogram5-40 years21 USC 841(b)(1)(B)(i)
1 Kilogram or More10 years-Life Imprisonment21 USC 841(b)(1)(A)(i)
POWDER COCAINERANGE OF PUNISHMENTSTATUTE
Under 500 Grams0-20 Years21 USC 841(b)(1)(C)
500 or More Grams but less than 5000 Grams5-40 Years21 USC 841 (b)(1)(B)(ii)
5000 or more Grams10 Years-Life Imprisonment21 USC 841 (b)(1)(A)(ii)
CRACK COCAINE QUANTITYRANGE OF PUNISHMENTSTATUTE
Less than 28 Grams0-20 Years21 USC 841 (b)(1)(C)
28 or more Grams but less than 280 Grams5-40 Years21 USC 841 (b)(1)(B)(iii)
280 or more Grams10 Years-Life21 USC 841(b)(1)(A)(iii)
MARIJUANA QUANTITYRANGE OF PUNISHMENTSTATUTE
Less than 100 Kilograms0-20 Years21 USC 841(b)(1)(C)
100 or more but less than 1000 Kilograms5-40 Years21 USC 841(b)(1)((B)(vii)
1000 Kilograms or more10 Years-Life21 USC 841(b)(1)(A)(vii)
METH (MIXTURE TYPE)RANGE OF PUNISHMENTSTATUTE
Less than 50 Grams0-20 Years21 USC 841(b)(1)(C)
50 or more but less than 500 Grams5-40 Years21 USC 841 (b)(1)(B)(viii)
500 Grams or more10 Years-Life21 USC 841 (b)(1)(A)(viii)

Have questions about your case?

Call today to schedule a free confidential consultation.  210.733.7575.  I welcome comments and feed back on this post.


Genaro R. Cortez
Attorney
Phone:  210.733.7575

Three DWI Myths Exposed

DWI:  Reality vs. Myth

Drunk driving is a significant problem nationwide.  According to the National Highway Traffic Safety Administration (NHTSA), more than 10,000 people died in alcohol related crashes in 2012.  The statistics show that drinking and driving sometimes lead to tragic results.

Texas_State_Trooper_crown_vic,_Austin,_TXBut often, in a rush to stop the DWI problem, police officers frequently arrest non-intoxicated drivers on suspicion of DWI.  Because both innocent and intoxicated drivers are arrested for DWI, several misconceptions exist about what is DWI.

[Photo:  Texas State Highway patrol car, taken by me, Dec. 17, 2006 on the ground of the Texas State Capitol in Austin, Texas.  Creative Commons.]

Myths Exposed

  1. If my breath (or blood) test is over the limit, then that means I’m automatically guilty of Driving While Intoxicated.False.   Under Texas DWI Law, intoxication maybe proven in either of two ways:  (i) impairment theory, i.e., loss of normal use of mental or physical faculties; or (ii) per se theory, i.e., alcohol concentration in blood, breath, or urine of .08 or more.  See Kirsch v. State, 306 S.W.3d 738 (Tex. Crim. App. 2010). The Texas Court of Criminal Appeals stated  that “a BAC [blood alcohol concentration]-test result, by itself, is not sufficient to prove intoxication at the time of driving. There must be other evidence in the record that would support an inference that the defendant was intoxicated at the time of driving as well as at the time of taking the test.”  Id. (emphasis added).In other words, the State must prove to the jury beyond a reasonable doubt that: (1) the chemical test provides trustworthy evidence of a defendant’s BAC; and (2) an inference can be made from the results of the chemical test that a defendant had a BAC of .08 or greater at the time of the offense.This is a key issue in many DWI prosecutions because breath and blood tests are frequently taken some time (an hour or more) after a person is stopped and arrested for suspicion of DWI.  The BAC in a person can either increase or decrease during this time.In short, chemical tests are important–but not dispositive pieces of an evidentiary puzzle.  Your attorney must examine other evidence such as videotapes from the arrest, rates of error for the chemical test, and whether the State can show that the test taken sometime after your arrest can support an inference that you were intoxicated at the time of driving.  This inference is often called retrograde extrapolation testimony.  Click here for an overview of retrograde extrapolation.
  2. There is no point to requesting an Administrative License Revocation (ALR) hearing because I’m going to lose.False.  ALR hearings are the administrative process used by DPS to suspend your driver’s license after you are arrested for DWI or BWI.It is true that DPS has a high success rate at these hearings.  However, these hearings give you an invaluable tool to help defend your DWI case at trial.  Specifically, if you timely request an ALR hearings and subpoena the arresting officer–then you get an opportunity to cross-examine the officer under oath and freeze his testimony for trial.If done properly, the ALR hearing transcripts can be used to impeach the arresting officer at trial and help set up your case for a verdict of “Not Guilty.”
  3. The arresting officer says I “failed” the Standard Field Sobriety Tests (SFST’s), that means I’m intoxicated.False.  SFST‘s are a battery of tests administered by police to help determine if a driver is impaired.  Theses tests include Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT); and One-leg Stand (OLG).  Click here for a history on the development and use of these tests.  To be sure–many drivers fail these tests because they are intoxicated.But there are alternate reasons why a person would “fail” these tests.  Some people have medical or back problems that prevent them from performing well on these tests.  Others are simply nervous performing these tests in the middle of the night on the side of a road.  Finally, police officers sometimes fail to give proper instructions or conduct the tests inappropriately.  The result is the officer will score your performance poorly and subjectively decide you are intoxicated–even if you are not.These issues must be explored during jury selection with prospective jurors to get a fair trial.

Some Final Thoughts

DWI is a problem not only for society, but also for anyone arrested on suspicion of driving impaired.   It causes significant personal, financial, and emotional turmoil for anyone accused of this crime.  It is best to make plans before you go out to designate a driver to avoid being arrested for DWI.

However, if you are arrested for DWI–here are some suggestions–ask for an attorney before answering any questions and always be courteous to law enforcement–they are just doing their jobs.  If you disagree with the officer’s decision to arrest you for DWI, then remember you will get to defend yourself in a court of law.

I welcome comments and questions to this and other posts.


Genaro R. Cortez
Attorney
Phone:  210.733.7575

Preliminary hearing–should I waive it?

What is a preliminary hearing?

If you are charged with a federal offense, other than a petty offense, you are entitled to a preliminary hearing before a magistrate judge unless:

  1. the defendant (you) waives the hearing;
  2. the defendant is indicted;
  3. the government files an information under Fed. R. Crim. P. 7(b) charging the defendant with a felony;
  4. the government files an information charging the defendant with a misdemeanor; or
  5. the defendant is charged with a misdemeanor and consents to a trial before a magistrate judge.

See Fed. R. Crim. P. 5.1.  For our discussion, we will assume exceptions (2)-(5) do not apply.  So the question is–to waive or not to waive?

Purpose of Preliminary Hearing

1024px-Colorado_Supreme_Court_courtroomAt a preliminary hearing, a magistrate judge determines if there is probable cause to believe an offense has been committed and the defendant committed it.  Fed. R. Crim. P. 5.1(e).  A defendant also has an opportunity to cross-examine witnesses at the hearing and may introduce evidence on his behalf.  See id.  However, this hearing is less formal than a trial on the merits and the magistrate judge will admit evidence that may have been “unlawfully acquired.”  [Note:  The defendant should file a motion to suppress to challenge illegally obtained evidence after he or she is indicted, but before trial.]

If the magistrate judge finds that probable cause exists that a defendant committed the offense, then the judge must “promptly require that the defendant appear for further proceedings.”  Id.  But if the judge finds no probable cause that the defendant committed the offense, then the magistrate judge “must dismiss the complaint and discharge the  defendant.”   Fed. R. Crim. P. 5.1(f).  This discharge does not prevent the government from prosecuting the defendant on the same offense in the future.

Should I waive the hearing?

It depends on the type of offense charged, the strength of the evidence, and the defendant’s background.

For instance, in Illegal Re-Entry (8 USC 1326) prosecutions, it is very common for defendants to waive both the preliminary and detention hearings.  This is because the alien file (a-file) almost always establishes probable cause that the defendant re-entered the country illegally.

But what if you are a U.S. Citizen who is arrested for a drug trafficking offense?  Then it depends on the facts of that case.  Preliminary hearings allow defendants to cross-examine government witnesses.  This gives defense counsel the opportunity to get a sort of early discovery.  But the information provided by government witnesses at these hearing is usually limited. These proceedings are also recorded–so if the government witnesses changes his story–then the transcripts can be used to impeach the witness at trial.

In short, there are many reasons to either waive or proceed with the hearing.  You should discuss the pros and cons of the hearing with your attorney before you file a waiver.


Genaro R. Cortez
Attorney
Phone:  210.733.7575

Federal Detention Hearings and Pretrial Release

Federal Detention Hearings

Your first step after being arrested for a federal offense is to secure pretrial release, i.e., bail.  Clients are often surprised by the difference between state and federal pretrial release.  In state court, it is very common for defendants to secure their pretrial release by posting bail through a bondsman.  The federal-bail system is materially different.

Arrested?The Bail Reform Act of 1984 (hereinafter, “The Act”) governs pretrial release.  See 18 USC 3142.  The Act gives trial courts four options for setting or denying bail:

  1. Release person on personal recognizance or on execution of an unsecured bond;
  2. Release person on condition or combination of conditions:
  3. Temporarily detain person to permit revocation of conditional release, deportation, or exclusion; or
  4. Detain the person.

The court will deny pretrial release if “the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community[.]” 18 USC 3142(e).

In plain English–you must show:  (1) you will make all court appearances; and (2) you will not cause more trouble or re-engage in criminal activity if released on bond.

Right to a  Detention Hearing

A defendant has the right to a detention hearing and an attorney to present evidence showing he or she will attend all court appearances and not be a danger to the community if released on bond.  18 USC 3142(f).

The court will hold a hearing that is less formal than a jury trial.  It will hear a range of evidence including the:  (1) nature and circumstances of the offense; (2) weight of the evidence against the accused; (3) history and characteristics of the accused; and (4) nature and danger to anyone or the community if the accused is released on bond.  18 USC 3142(g).

More importantly, certain offenses carry a presumption that no condition or combination of conditions would secure the safety of the community if the person is released on bond.  Examples of these cases are drug trafficking offenses that carry a minimum term of imprisonment of ten (10) years and offenses that carry a maximum term of up to life imprisonment.  If you are charged with one of these cases, you must rebut that presumption at the detention hearing or the court will deny you pretrial release.

Conclusion

If you are arrested for a federal offense, you are entitled to a detention hearing to request “bail.”  At the hearing, you need to show that you will make all court hearings and not be a danger to the community.

To improve your chances of securing pretrial release, it is important that you retain an attorney who has the skill and experience representing defendants in federal court.


Genaro R. Cortez
Attorney
Phone:  210.733.7575

Federal Drug Offenses

Background on Federal Drug Offenses

While snooping around the Internet the other day, I came across an article by Eric E. Sterling on the PBS website.  Although this article is somewhat dated, it provides an excellent primer on how Congress created our drug laws.  His article also raises several topics that are important for people facing federal criminal charges.  So let’s get started.

Purpose of Post

Clients charged with federal drug offenses frequently asked me the following questions:  (1) What are mandatory minimum-sentences; (2) What are sentencing guidelines; and (3) how can a drug offender avoid mandatory minimum sentences.  I’d like to discuss these topics with this post.

drugsMandatory Minimum Sentences

Mandatory minimum sentences are the minimum number of years that a Defendant serves if convicted for certain offenses.  In drug offenses, they are typically between 5-10 years in federal court.  The mandatory minimum depends on the quantity and type of drug involved.  Mandatory minimum sentences combined with sentencing guidelines serve as the backbone and template that court’s use to determine what sentence to give a defendant.

Sentencing Guidelines Created To Reduce Unfair Disparity

Congress created the Sentencing Guidelines in the 1980’s to ensure fairness in federal sentencing.  Congress wanted to ensure defendants with similar offense and offender characteristics received a substantially similar sentence regardless of who the sentencing judge was in the case.  Unfortunately, the guidelines have become complex and often turn on technicalities.

For an excellent discussion on the history and issues created by the guidelines, read Supreme Court Justice Stephen Breyer’s article on the subject.

Drug Guidelines

Sentencing guidelines provide a drug-quantity table that helps answer the question:  “How much time am I looking at for my federal drug charge?”  The other factor that courts use to calculate a projected sentence is the offender characteristics, i.e., a defendant’s prior criminal history and background.  Once the offense level and criminal history are scored, then you can get a general idea of where you fall on the sentencing table.

This, of course, is a very simplified overview of guideline calculations.  There are multiple factors that will affect the final sentence that are beyond the scope of this article.  [Click here for a primer on drug sentencing–but be aware the article is hyper-technical.]

Exceptions to Mandatory Minimum Sentences

If you are charged with a federal drug offense that carries a mandatory minimum sentence–there are generally two exceptions to a mandatory minimum sentence under 18 USC 3553(e)&(f):  (1) Safety Valve; and (2) Substantial Assistance.   Click here for a chart that shows the differences between safety valve and substantial assistance.    Each provision has different requirements and qualifications.  These are the two ways to get under the mandatory minimum sentence in federal court.  They each have different eligibility requirements that you should discuss with your defense attorney.

Conclusion

If you are charged with a federal drug offense, it is important that you speak with an experienced federal criminal defense attorney to discuss your options.  In addition to working out an agreement–you also have the right to plead not guilty and request a jury trial to contest the charges against you.


Genaro R. Cortez
Attorney
Phone:  210.733.7575

Federal Plea Agreements

Federal Plea Agreements

law booksThe Supreme Court recently observed that ninety-seven percent of federal convictions (and ninety-four percent of state convictions) are the result of guilty pleas.  Missouri v.Frye, 182 L.Ed.2d 379, 389 (2012).  Click here to read opinion.   The numbers show that plea bargain agreements are the focal point of most criminal prosecutions and central to the administration of justice.  See id.

So what does this mean for you if you are charged with a crime?  It means you should consult with an experienced attorney to discuss your full range of options–including the possibility of a plea-bargain agreement.

The options are, generally speaking:  (1) plead not guilty and proceed to trial; (2) plead guilty with or without a plea agreement; or (3) plead nolo contendere with the Court’s consent.  The third option is rare in federal court, but very common in Texas state courts.  Federal Rule of Criminal Procedure 11 discusses the types of pleas that are available in criminal prosecutions.  Click here or here to see the rule.

fed ct  houseAnother option is to enter a conditional plea of guilty reserving “the the right to have an appellate court review an adverse determination of a specified pretrial motion.” Fed. R. Crim. P. 11(a)(2).  This plea is useful to preserve a client’s claim that police violated his or her constitutional rights.  See discussion below.

[Note:  The building on the left is the Austin Federal Courthouse.]

For example, a common issue that arises is when police conduct a traffic stop in violation of the defendant’s Fourth Amendment right against unreasonable search and seizure–and then discover contraband, weapons, or some other incriminating item.  If the trial court denies your motion to suppress, then you can plead guilty with the condition that an appellate court review the trial court’s decision denying your motion to suppress.

When should I plead guilty?  Only after full discovery has been conducted and you have spoken with your attorney about the strengths and weaknesses of your case and possible outcomes.

Finally, and most importantly, although plea-bargain agreements play a central role in criminal justice administration–the client has a right to elect a jury trial and hold the Government to its burden of proof.

Fast-Track Programs

The Department of Justice also offers a discretionary procedure called “Fast-Track” plea agreements that are used in criminal immigration cases.  They are designed to help preserve court resources and streamline criminal proceedings.  In other words, the Government has “bigger fish to fry.”

In general–the program requires that a defendant charged with Illegal Reentry (1326 violation) accept a plea agreement within an expedited time frame  He is also required to give up certain rights.  In exchange, the prosecutors agree to file a 5K3.1 motion that will discount the defendant’s sentence for an early disposition, i.e., fast track.  This program is available nationwide.

Non-Citizen Defendants

One final thought.  If you are a non-citizen defendant, you should always consult with your attorney about the collateral consequences of pleading guilty to any state or federal offense.  This is because convictions for certain offenses may lead to your deportation or exclusion from the United States of America.  The consequences could be catastrophic and tragic–especially if you have lived in the US for a considerable period of time and have little or no connection with your home country.

Conclusion

Plea bargain agreements are a central part of the state and federal criminal justice system.  If you are charged with a crime, then you should consult with an experienced trial attorney to determine if a plea-agreement is your best option.


Genaro R. Cortez
Attorney
Phone:  210.733.7575

Racketeering and White Collar Crimes

RICO Charges Filed in Cyber Crime Cases

The ABA reported this week that the Department of Justice filed RICO charges against individuals accused of buying and selling stolen credit card numbers and identifications.  The Government is using the full set of criminal statutes and procedures to combat emerging cyber and electronic crimes in the United States and abroad.  According to the ABA, this is the first prosecution to use RICO to combat cyber crimes.

What is RICO?

rico photoThe Racketeer Influenced and Corrupt Organizations Act (RICO) is a law Congress passed in 1970 to help stop organized crime.  However, the RICO statute gave law enforcement a significant tool to prosecute a wide array of unlawful activities including:  (1) political corruption; (2) sophisticated white-collar crime schemes; and (3) traditional Mafia-type endeavors.  See Commentary by Professor G. Robert Blakey, 18 U.S.C. Section 1961.

In short, it allows for the prosecution of illegal activities relating to an enterprise that affect interstate commerce.  See the United States Attorney’s Manuel for more information on how RICO charges are initiated.

How do you violate RICO?

A person violates RICO if he engages in a “pattern” of “racketeering activity” that is connected to the acquisition, control, establishment, or conduct of an “enterprise.”  See 18 U.S.C. Section 1962 (a)-(d); see also St. Paul Mercury Ins. v. Williamson, 224 F.3d 425, 439 (5th Cir. 2000).

The Fifth Circuit online library also has pattern jury instructions that are used by the trial court to instruct the jury on the law for civil and criminal cases.  Click here to read the pattern jury charge for a RICO violation.  (Note, the jury charge is listed on Page 317 under section 2.78).  This will give you the definition that a jury will use to determine if a defendant violated the RICO statute.

How much time will I get if I am convicted of a RICO charge?

The maximum range of punishment for a RICO charge is either 20 years imprisonment or up life if the violation is based on racketeering activity for which the maximum penalty includes life imprisonment.  18 USC 1963 (An example of where a life sentence may be imposed is if the underlying racketeering activity supporting the RICO charge included murder.)  However, you must also consult with the United States Sentencing Guidelines (USSG) to see where your cases falls on the sentencing table.

Conclusion

If you are charged with a RICO violation and need an attorney, then contact my firm at 210.733.7575.  The first consultation is free.  I will review your options with you and help you determine the best way to resolve the case.

Genaro R. Cortez
Attorney
Phone:  210.733.7575

Divorce and Social Media

Divorce and Your Social Media Sites

Getting a divorce today creates issues that did not exist even ten years ago.  One of the biggest changes is the rise of social media and the digital footprints we leave on sites like  Facebook, Twitter, Instagram, and Foursquare.  This article discusses issues that arise before and after a divorce has been finalized.  But first, lets talk about social media issues that arise while a divorce is pending or being contemplated.

Spoliation of Evidence

law libraryThe Texas Supreme Court handed down an opinion last week addressing spoliation of evidence.  The case is Brookshire Brothers, L.T.D. vs. Aldridge,__S.W.3d__ (7-3-2014).  Click here to read the opinion.  The case provides a framework for trial judges and attorneys to address spoliation issues.

In plain English–spoliation means that a party destroys or conceals evidence that would have been harmful to him (or her) at trial.  See Simmons & Ritter, Texas’s Spoliation “Presumption”, 43 St. Mary’s L.J. 691, 696 (2012).

The duty to preserve evidence arises when a party knows or reasonably should know that there is a substantial chance that a suit (claim) will be filed and that the evidence in his (or her) possession or control will be material and relevant to that suit (claim).  In other words, if you are going through a divorce or expect to file a divorce petition, then you have a duty not to destroy evidence.  This may include deleting photos and posts from your social media websites.

So what does this mean for you?  If you expect to file a suit for divorce or custody (or if you are currently in a divorce or custody proceeding), then you should consult with your divorce attorney before deleting any embarrassing or harmful photos or posts from your social media websites.

Otherwise, you could be asking for trouble if your ex’s attorney files a motion for discovery sanctions alleging that you destroyed evidence relevant to the divorce or custody proceeding.  [Note:  I’ve blogged about this before–don’t put anything on the Internet that will hurt you–like drug use, risque pictures, or evidence that you committed a crime.  This statement is self evident–but the issue continues to arise in many civil and criminal cases I handle.]

Divorce and Beyond

Social Media PostsBut what about after the divorce and custody fight is over?  What happens after you no longer have a duty to preserve relevant evidence?  How do you deal with photos and other digital information on the Internet of you and your ex?

Nick Bilton of the New York Times wrote a great article in today’s paper called ‘Tangled Web of Memories Lingers‘.  In that article he talks about how he dealt with removing photos of himself with his ex after they decided to get a divorce.  It was a painful experience for him and the article is worth reading.  It also brings to mind the scene in The Social Network where Erica Albright tells Mark Zuckerberg that “the Internet is not written in pencil, its written in ink.”

Nick Bilton’s story does a great job of addressing how, and if, you should erase some of the ink stains from the past off the Internet.


Genaro R. Cortez
Attorney
Phone:  210.733.7575