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What is a Drug Conspiracy?

A drug conspiracy is defined in the law as an agreement between two or more individuals to commit a drug offense. A federal drug conspiracy occurs when an agreement to violate the federal drug legislation is made.

What Constitutes a Drug Conspiracy?

To demonstrate that a person is guilty of the crime of drug conspiracy, the government needs to present sufficient evidence of two elements:

(1) that an agreement was made between two or more people to violate a federal drug law; and

(2) each of the alleged conspirators knew of the unlawful agreement and joined in it.

Four Types of Drug Conspiracy Offenses

Under 21 U.S.C. § 841 and 21 U.S.C. § 952, there are four types of drug crimes:

Manufacture of a controlled substance – The term “Manufacturing” can include any activity involved in the production, processing, preparation, or extraction of a controlled substance, from cultivating a marijuana plant to pressing pills.

Distribution of a controlled substance – This involves delivering a drug to another person, even if no money is involved.

Possession of a controlled substance with the intent to distribute – Being in possession of an illegal drug is a separate, and less severe, crime than manufacture or distribution. Nevertheless, if the government can show that a defendant intended to distribute the drugs in their possession, the penalties are akin to those required if they actually distributed the drugs. The government can bring up prior drug sales, possession of equipment, like scales and baggies, and even the quanityt of drugs in someone’s possession as evidence of intent to distribute. For example, if an individual gets caught with five pounds of marijuana in their possession, the government can charge them with intent to distribute marijuana.

Importation of a controlled substance – Much like distribution, this is a straightforward offense involving the import of illegal drugs into the U.S.  This usually involves deceiving U.S. Customs or Border Patrol officials.

Possible Penalties for a Drug Conspiracy Charge

Sentencing for participation in a drug conspiracy depends on the type and amount of drugs involved in the offense.



In marijuana cases, if no quantity of marijuana is alleged, then there is no mandatory minimum sentence.  The maximum sentence is 20 years in such a matter. If 100 kilograms or more of a substance containing marijuana is involved, you face a mandatory minimum sentence of 5 years and a maximum sentence of 40 years behind bars. For 1000 or more kilograms of a substance containing marijuana, th mandatory minimum sentence is 10 years.  The maximum is life in prison.

Cocaine and Crack

In cases involving cocaine and “crack” cocaine, if no quantity of cocaine or crack cocaine is specified, there is no mandatory minimum sentence. The maximum is 20 years in these cases. For 500 grams or more of any substance containing cocaine or 28 grams or more of any substance containing crack cocaine, the mandatory minimum sentence is 5 years, maximum 40 years. With 5 or more kilograms of a substance containing cocaine or 280 or more grams of a substance containing crack cocaine, there is a mandatory minimum sentence of 10 years.  Again the maximum sentence is life in prison.


In meth cases, if there is no quantity of methamphetamine alleged, then there is no mandatory minimum sentence, while the maximum is 20 years behind bars. When 5 grams or more of a substance containing methamphetamine are involved, the mandatory minimum sentence is 5 years, while the maximum is 40 years. When 50 or more grams of a substance containing methamphetamine are concerned, there is a mandatory minimum of 10 years in prison and a maximum sentence of life.


For heroin, if no quantity of heroin is alleged, no minimum sentence is mandatory, while the maximum is 20 years. For 100 grams or more of a substance containing heroin, the mandatory minimum sentence is 5 years, the maximum sentence is 40. If 1 or more kilograms of a substance containing heroin is involved, there is a mandatory minimum sentence of 10 years.  The maximum sentence is life in prison.


Law enforcement is also additionally prosecuting drug conspiracies that involve opioids, particularly fentanyl and fentanyl analogues. The term “analogue” in reference to a controlled substance is a chemical compound that is “substantially similar” to a controlled substance, both in chemical structure and in the effects it produces when taken.

While fentanyl is indeed a Schedule II drug, a fentanyl analogue gets classified under Schedule I. No mandatory minimum sentences exist for drug crimes involving fentanyl or fentanyl analogues.

Possible Sentence Enhancements in Drug Conspiracy Cases

In dealing with drug laws, one needs to be familiar with the statutes that “enhance” the sentences for certain drug crimes. The enhancement laws dramatically increase the mandatory minimum sentences in drug conspiracy offenses.

Here are the two ways that the government can apply these enhancements:

  1. If someone dies or is seriously injured as a result of taking the controlled substance involved in the drug conspiracy, an enhancement can be applied. That said, this enhancement can only be applied if the government can demonstrate that the deceased person would not have died or been injured if they had not consumed the controlled substance involved in the crime.
  2. If the individual being charged with a drug offense has one or more prior felony convictions for drug offenses.

Pursuant to 21 U.S.C. § 851, the government is required to give notice to the court and the defendant that it is seeking the enhancement, and it must identify the particular prior convictions it is relying upon for the enhancement.

Defenses to a Drug Conspiracy Charge

Our lawyers have won “not guilty” verdicts in numerous federal drug conspiracy cases.

Six basic defenses against drug conspiracy crimes:

No Agreement – This straightforward defense asserts the government is not capable of proving the existence of a conspiracy. No agreement exists, for instance, where the persons involved do not share a common goal and are not working in collaboration. Similarly, an agreement may have been struck between individuals to accomplish something, but if the objective is not illegal, then the agreement is not a conspiracy.

No intent to the enter agreement –  Akin to the no agreement defense, here we attack the government’s deficiency of evidence. To demonstrate a conspiracy, the accused must have intentionally joined the conspiracy. They must have taken “overt action” to enter an agreement and participate in the conspiracy. For instance, Joe and Brian may jokingly agree to rob a bank, and Brian might actually do it the next day.  In this case, Joe is not guilty of conspiracy to rob a bank if he truly believed Brian was joking.  If Joe didn’t take any action towards helping him do the bank job, such as renting a getaway car, then he clearly had no intent to enter an agreement with Brian.

The individual charged was involved in a different conspiracy – As counterintuitive as this may appear, a person has a valid defense if the conspiracy they happen to be involved in is not the conspiracy they were charged with. For example, the government might accuse an individual of distributing heroin from their home, but if they were distributing marijuana and not heroin, that’s a valid defense to the government’s accusations.

The accused withdrew from the conspiracy – Withdrawing from a conspiracy is a defense to a conspiracy charge, but it’s not enough simply to say: “I’m tapping out.” In order to successfully withdraw from a conspiracy and use this as a defense, the accused must have been pro-active. This means demonstrating that they took action to stop taking part in the conspiracy. They would have informed your co-conspirators of their withdrawal, and that they withdrew before the conspiracy was carried out. At times, it can also mean that the person withdrawing has to take measures to prevent the conspiracy from accomplishing its criminal goal, such as by notifying authorities.

Entrapment – Although this is a challenging defense on which to succeed, it can be powerful when employed correctly. Entrapment has taken place when law enforcement essentially “traps” a person by convincing them to commit a crime they ordinarily wouldn’t have done. The key to an entrapment defense is to demonstrate that the accused would never have committed the crime except that the government’s actions had enticed them.

If an undercover agent or an informant created an opportunity for a person to sell him drugs, that is not entrapment.  On the other hand, if they threaten, harass, or pressure the suspect to sell illegal drugs, that might be entrapment. The entrapment is akin to duress, which is a defense that can be used if the person were physically threatened to commit a crime.

Improper or illegal search or interrogation – We are protected by the U.S. Constitution from “unreasonable searches and seizures.” Law enforcement officials must have a valid search warrant before wiretapping a person’s phone, searching a person’s home for drugs, or pulling them over to search their vehicle. Also, law enforcement is obligated to read you your Miranda rights if you are under arrest.  These include your right to remain silent and not incriminate yourself.

In drug cases, a successful illegal search defense usually means the government is not able to introduce the drugs themselves as evidence, likely killing their case. Similarly, if a defendant can prove that law enforcement did not advise them of their right to remain silent, they can have any self-incriminating statements they made suppressed

Several other strong potential defenses are available to a person accused of a drug conspiracy or another federal drug crime. In some situations, an affirmative defense like entrapment or duress may be available and successful if diligently pursued. An experienced defense attorney will also consider whether other affirmative defenses might apply, depending on the unique facts of the case.

Property Forfeiture and Seizure in Drug Conspiracy Cases

Federal drug crime may come along with seizure and forfeiture of your property, even if you were never actually convicted of any crimes. Any property that the government can prove came from a drug-related crime will be forfeited. Additionally, any property that was used or intended to be employed in the  commission of such a crime or to facilitate a crime will be forfeited. An individual convicted of engaging in a criminal enterprise would also forfeit any interest or rights in the continuing criminal enterprise.


According to 21 U.S.C. § 853, the government may seize and retain any property and money in a person’s possession that had been “obtained, directly or indirectly, as a result of” a drug crime or any property used “to facilitate the commission of” such an offense. There is a lighter “burden of proof” in forfeiture cases than is required for a criminal conviction. This means that the government doesn’t have to demonstrate beyond a reasonable doubt that the individual got the property from a criminal source or that they used the property in connection with their alleged offenses.

Our lawyers have won criminal forfeiture trials.  They have also been able to negotiate the return of client’s property and currency that had been seized by federal law enforcement.

Call Us Today

If you are facing charges related to federal drug crimes, including conspiracy, then you need the support of an experienced federal criminal lawyer who will fiercely defend your legal rights. Over the years, our firm has successfully represented clients in federal drug conspiracy cases. We have won several federal drug cases and have successfully resolved others with very favorable pretrial rulings and plea deals.



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