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Drug Manufacturing

Since the war on drugs officially began in 1971, federal drug trafficking and distribution has become one of the most investigated, charged and litigated types of actions in federal court.
The Federal Bureau of Prisons statistics page indicates that more people are in Federal Prison for drugs than any other type of federal crime. In addition, an accused person might find themselves charged in a state court with a state crime, followed by federal prosecutors coming in and charging the person federally.

Federal drug manufacturing and distribution are very serious violations of federal law. The wide ranging text of the federal drug manufacturing laws can swoop in persons manufacturing the drugs, certain suppliers of materials, and others who might not traditionally be considered as drug manufacturers. In addition, certain actions that may not be considered crimes under various state laws may constitute federal drug manufacturing. Further, the mandatory minimums that are demanded by federal law for drug manufacturing cases are serious and easily triggered.

If you or someone you know is charged with a federal drug manufacturing crime, it is important to reach out to an attorney immediately. The veteran criminal defense attorneys at the Law Office of Jeremy Gordon have years of experience in fighting federal drug trafficking and distribution crimes. Contact one of our attorneys today to see how we can help you with your case.

Our goal is to fight for your freedom at every stage of your case because your life is truly on the line. This could be when you are a suspect, when you are charged and seeking bond, preparing your defense by conducting vigorous investigations, zealously representing you at a jury trial or presenting mitigation evidence at sentencing. Our years of federal criminal experience help us obtain the best possible outcomes for someone charged with federal drug manufacturing.

What is a Federal Drug Manufacturing Crime | 21 U.S.C. 841

Federal Drug Manufacturing

Federal law makes it a crime to “manufacture” a controlled substance.  In terms of the United States code, “manufacture” means to “produce, prepare, propagate, compound or process a drug.  Other things that can constitute manufacturing include:

  • Extracting substances from natural origins
  • Extracting independently by means of chemical synthesis
  • Packaging or repackaging substances
  • Labelling or relabelling containers

Federal Law also prohibits attempts to manufacture a controlled substance, to conspire with others to manufacture or attempt to manufacture a controlled substance or to aid and abet others in the manufacturing of a controlled substance.

The extraction of materials from cold medicine to make methamphetamine is typical type of manufacturing

Federal Drug Possession with Intent to Manufacture

Federal law makes it a crime to possess a controlled substance with intent to manufacture.  This is a separate type of crime that can include stiff penalties.  Intent can be inferred by the types of evidence present and the circumstances involved with the case.  Police can use the following in order to determine if a person has the intent to manufacture a controlled substance:

  • Large amounts of raw materials present
  • Large amounts of cash present
  • Equipment used to manufacture drugs
  • Drugs present with firearms and other types of weapons

Creation of Counterfeit Drugs

Federal law makes it a crime to manufacture a “counterfeit substance.”  A counterfeit substance may bear the trade name or other identifiers of a controlled substance but is not actually not the controlled substance that it purports to be.  An example of this would be labelling an aspirin to look like a prescription pill.  A person can be charged with a controlled substance in that circumstance even if the drug is harmless. 

Who Can be Charged With Federal Drug Manufacturing?

Based on the above definitions, anyone involved in the drug manufacturing process could be charge with with a drug manufacturing crime including:

  • Providers of chemicals that are used in the drug manufacturing process if they know that the chemicals are going to be used for illegal drug manufacturing.
  • A drug lab supervisor or manager if they know that the lab is going to be used for illegal drug manufacturing.
  • A person who supplies “drug making equipment” if they know that the equipment is going to be used for illegal drug manufacturing.
  • A cultivator of marijuana plants or marijuana seeds can be charged federally even if the marijuana plants are legal in the state where the person currently resides.

What is a Controlled Substance?

Most drugs are listed and categorized into several schedules under the Federal Controlled Substances Act based on their abuse potential, accepted medical applications in the United States and the safety and potential for addiction.

Schedule I Drugs

These drugs have a high potential for abuse and no current medical use in the United States. Examples include LSD, Marijuana, and Heroin.

Schedule II/IIN Drugs

These drugs have a high potential for abuse, but have an accepted medical use in the US. Examples include Oxycodone, fentanyl, methadone, cocaine, codeine, hydrocodone, and methamphetamine.

Schedule III/IIIN Drugs

These drugs have a moderate to low potential for abuse/dependence.  Examples include Tylenol with Codeine, ketamine, anabolic steroids, and Suboxone.

Schedule IV Drugs

These drugs have a low potential for abuse and low risk of dependence compared to Schedule III, and have a currently accepted medical use in the US. Examples include Xanax, Soma, Klonopin, Valium and Ambien.

Schedule V Drugs

These drugs have a lower potential for abuse schedule IV, and have a currently accepted medical use in the US.  Examples may include certain cough medicines, Lomotil, Motofen, Lyrica, and Parepectolin.

What is the Difference Between a State and Federal Drug Crime?

Many drug cases are handled by local jurisdictions and state prosecutors. The United States congress has the power to regulate any activity that pertains to interstate commerce. This is given broad interpretation and encompasses many federal crimes. In situations where the defendant is an individual, the government can charge a person in federal court when:

The accused person is being investigated and accused by a federal agency

The Drug Enforcement Agency (DEA), Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA), Department of Homeland Security (DHS), Department of Alcohol Tobacco and Firearms (ATF), Immigration and Customs Enforcement (ICE), ad United States Postal Service (USPS) all investigate federal crimes.  If you are accused of a crime by one of these agencies, you may find yourself in federal court.  In addition, many local police officers work on Federal Drug Task forces to share resources.

The accused person is charged with moving drugs or their ingredients across state or federal lines

Many drugs are not prepared in the continental United States.  Transporting them in either their finished form or in preparatory pieces across state lines or into the country from another place may be sufficient to charge a person with a federal crime.

An informant cooperated against an alleged drug conspiracy

As previously indicated, drug conspiracies may involve many people and substantial amounts of drugs.  Law enforcement works to bust these conspiracies by charging lower level individuals with crimes that involve mandatory minimums in order to get them to cooperate against other individuals in the conspiracy in exchange for various benefits.

Federal Prosecutors exercise their discretion to go after an accused person

The prosecutors have a great deal of power to decide who to charge with a crime and how to charge them.  In many cases, prosecutors will take cases of particular importance, cases where death or serious bodily injury results, individuals with prior offenses, or other cases that the prosecutors believe to be a case of particular interest.

Penalties for Drug Charges in Federal Court

Under normal circumstances, a person can be sentenced to a term of punishment up to twenty years for federal drug charges. Statutory mandatory minimums or increased guideline ranges can, however, affect this.

Mandatory Minimums

Mandatory minimum sentences are minimum penalties that have been written into law. They only apply in certain situations, but when they apply, it will be regardless of the unique circumstances of the case.

Mandatory Minimum of 5 - 40 Years

  • 100 grams or more of heroin;
  • 500 grams or more of powder cocaine;
  • 28 grams or more of cocaine base (crack);
  • 10 grams or more of pure phencyclidine (PCP);
  • 1 gram or more of LSD;
  • 100 kilograms or more of marijuana; or
  • 5 grams or more of pure methamphetamine
  • 50 grams of mixture or substance containing methamphetamine


An individual can be ordered to pay a fine of up to $5,000,000 under these circumstances.  

Supervised Release

An individual found guilty under this part of the law is subject to a term of supervised release of at least 4 years.   If the individual had a prior conviction, then the court must impose a term of supervised release of at least 8 years. 

Mandatory Minimum of 10 Years - Life

  • 1 kilogram or more of heroin
  • 5 kilograms or more of powder cocaine
  • 280 grams or more of cocaine base (crack)
  • 100 grams or more of pure phencyclidine (PCP)
  • 1 Kilogram or more of a mixture containing phencyclidine (PCP)
  • 10 grams or more of LSD
  • 1,000 kilograms or more of marijuana
  • 1,000 or more marijuana plants
  • 50 grams or more of pure methamphetamine
  • 500 grams or more of a mixture of methamphetamine


In addition, an individual can be ordered to pay a fine of up to $10,000,000 under these circumstances.  A person may be subject to a statutory mandatory minimum of life imprisonment if death or serious bodily injury occurs due to the use of the drugs in the case.

Supervised Release

In addition, an individual found guilty under this part of the law is subject to a term of supervised release of at least 5 years. If the individual had a prior conviction, then the court must impose a term of supervised release of at least 10 years.

Special Situations Affecting Mandatory Minimums

In addition to the above, there are a number of factors that can further modify mandatory minimums. Common examples include the following:

School Zones

The statutory mandatory minimums can be doubled here if the crime was near a “school zone.”  This has a very broad interpretation and can include:

  • Private Schools
  • Public Schools
  • Secondary School
  • Junior College
  • Universities
  • Playgrounds
  • Public Swimming Pools
  • Video Arcade Facilities

Prior Convictions

Our laws provide that a person can be subject to further mandatory minimums if they have been previously convicted of a “serious drug felony” or a “serious violent felony.”  The applicable “serious” prior felony must be a crime for which a defendant served at least 12 months and occurred less than 15 years ago.  Further, to be “serious” the offense must be punishable by a term of 10 years or more.

Serious Bodily Injury Or Death

A person may be subject to a statutory mandatory minimum of life imprisonment if death or serious bodily injury occurs due to the use of the drugs in the case. This is something that must be either pled guilty to or found by a judge or jury listening to the case in the context of a trial.  There are important Supreme Court cases that impact this issue so please reach out to our office for more information.

Federal Sentencing Guidelines

Separate from statutory mandatory minimums, the Federal Sentencing Guidelines substantially impact sentencing in a federal drug case.  These are issues that might not be immediately apparent to individuals charged with crimes because their lawyer may not tell them.  In our time as a criminal defense firm, we find it vital to understand these things as soon as possible in the litigation and explain their significance to the client.

The guidelines put forth by the United States Sentencing Commission can adjust the advisory guideline range higher or lower based on factors learned during the case.  Examples of things that can raise the guideline range include:

  • How much drugs are attributable to the accused person.
  • Whether the drugs were imported from another country.
  • If the accused person was a leader/organizer in the criminal activity.
  • If death results from drug trafficking.
  • If the drugs were imported from another country.
  • If the accused person kept a residence to house the drugs (a “stash house”).
  • Whether the accused person carried a firearm in furtherance of the drug trafficking.
  • Whether there was a person under 18 years of age involved in the criminal activity.
  • Whether the accused person gave false statements to impede the investigation.
  • Whether the accused person engaged in criminal activity near a school
  • Whether the person has a prior conviction for a felony

Examples of things that can lower the guideline range include:

  • Whether the accused person engaged in substantial cooperation before they were found guilty
  • Whether the accused person had a minor role in the criminal activity.
  • Whether the person was subject to safety valve relief

Supervised Release

All convictions of this type come with a term of supervised release.  Additional conditions may be required here such as electronic monitoring, drug classes and further education.  This may be reduced after a year of serving supervised release.

Collateral Consequences

Federal drug convictions cannot be expunged or erased, even with a pardon. In addition, there are substantial "collateral consequences" such as the inability to receive certain jobs or licensing from the state, possible denial of federal benefits and the stigma of a criminal conviction.

Federal Drug Charge Defenses

Unknowing Possession of the Drugs

Federal drug charges sometimes result from a simple traffic stop by police. After performing a search of the vehicle, the police officer may find a large amount of money or illegal drugs concealed in the car. In federal drug possession cases, one possible defense is that the defendant lacked personal knowledge of the presence of the drugs.

Possession with Intent to Distribute vs. Personal Use

Federal drug charges involving possession with the intent to distribute can sometimes be defended on the ground that the amount of drugs involved were for personal use. This defense is based on the elements of 21 U.S.C. § 841(a)(1), which require that the quantity of drugs be sufficient to constitute a distributable amount, and that the person "intended" to distribute the drugs.

Search Warrants/Search and Seizure Issues

If there was an illegal search warrant in the case, there may be a defense based on inadequacy of the police affidavit used to obtain the warrant. Untimely execution of the search warrant may also be used as a defense. In some federal drug cases, police may attempt to use a warrant where the information creating probable cause is "stale” because it involves events that occurred weeks or even months prior to the search for illegal drugs. A federal criminal defense attorney may also be able to challenge whether a search warrant was supported by probable cause.  This happens when the warrant contains insufficient information as to the exact place to be searched and the exact type of drugs that were expected to be found.

Informant Cases/Entrapment

Many federal drug charges involve the sale of illegal drugs to a government informant or an undercover police officer. Entrapment may be an available defense in such cases. This defense is available when a government agent induces someone to commit a crime that they were not predisposed to doing.

Lack of Knowledge of Conspiracy

The federal government frequently relies on the concept of "conspiracy" to bring federal drug charges against individuals. To convict someone of conspiracy, the government does not need any physical evidence, such as seized drugs or large amounts of money.

This crime of conspiracy is based on the "agreement" of two or more persons, whether known or not known to the defendant, to perform the object of the conspiracy. The object of the conspiracy can vary, but usually takes the form of possession with the intent to distribute drugs, distribution alone, or importation of illegal drugs.

Federal drug conspiracy cases are challenging to defend and require an experienced attorney.  We know how to attack the credibility of the government’s witnesses and fight vigorously for your innocence.

Canine Search Issues

If there was a search involving a police dog, a defense may be brought as to the admissibility of drug evidence found if the dog was not properly trained, if the dog did not have any record of success in prior drug recognition, and if the dogs handler was not properly trained. If a police dog can be shown to be unreliable, there may be a lack of probable cause for a search.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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