The New Fentanyl Potency Rebuttal: Challenging Your Base Offense Level.

Can Fentanyl Purity Evidence Lower the Federal Base Offense Level?

One of the most common mistakes is failing to distinguish between the calculation of your federal offense level and the determination of whether you are subject to a mandatory-minimum sentence. Although both are determined by the drug quantity involved, the Federal Sentencing Guidelines (which calculate the offense level) and federal drug statutes (which determine the statutory penalty) apply distinct rules. Thus, it may be possible to successfully rebut the offense level without affecting your exposure under 21 U.S.C. § 841, or vice versa. Drug quantity serves as a principal determinant of the base offense level under the Federal Sentencing Guidelines. As a result, which specific drug is alleged is critically important. However, the Federal Sentencing Guidelines generally use the weight of the entire mixture or substance containing a detectable amount of fentanyl, without regard to purity, and 21 U.S.C. § 841 likewise uses mixture weight for its fentanyl thresholds. Under 21 U.S.C. § 841, the total mixture weight of the drugs involved can be a primary determinant of whether the defendant is subject to a mandatory-minimum penalty. Ultimately, the government’s accusations must determine if the total amount and/or weight of pure fentanyl is the driver behind your potential sentencing. But, again, this differs from the analysis under the Federal Sentencing Guidelines. Pure fentanyl content and total mixture weight are analytically distinct quantities, and each has the potential to play a different role in the determination of your exposure under federal law. For example, in a scenario in which you are facing charges for manufacturing a fentanyl mixture, your defense attorney would focus on rebutting any and all factors contributing to the Federal Sentencing Guidelines and 21 U.S.C. § 841. The primary focus should not be on the Sentencing Guidelines, as the guidelines serve to guide the judge rather than set the statutory penalty. Instead, the focus should remain on 21 U.S.C. § 841 and reducing your federal exposure there first, and then turn to the guidelines as a separate matter. Additionally, when it comes to rebutting a federal drug charge, defendants must distinguish between disputes over a substance’s identity and disputes over the amount of the controlled substance it contains. While the former can be an easy one to determine, rebutting the amount contained in the mixture is a matter of fact. With reliable quantity and purity evidence, a judge or jury can determine that the amount of fentanyl involved was insufficient to trigger a specific mandatory minimum sentence.

Which Evidence Can Rebut the Fentanyl Amount Attributed to You?

If you are facing federal fentanyl charges, there are several options for challenging the drug quantity attributed to you. These options include rebutting the government’s accusations through:

• Laboratory testing,
• Challenging the testimonial evidence of government witnesses,
• Challenging the federal agents’ determination of constructive possession,
• And challenging the government’s use of the illegally obtained evidence.

Challenging the Testimony of Cooperating Witnesses

In many cases, federal drug investigations rely heavily on the testimony of cooperating witnesses. While these witnesses can provide valuable insights, their testimony is often not as reliable as it may seem. Specifically, witnesses who are cooperating in exchange for plea deals or other benefits often have incentives to overstate the drug quantity attributed to others. At Spodek Law Group, we closely examine the testimony of government witnesses and develop a defense strategy based on factual analysis of the drug amount.

Challenging the Accuracy of Drug Testing

If a laboratory test determines the drug quantity involved, there are several factors that can be used to challenge that determination. These include:

• Testing methodology,
• Possibility of contamination,
• Inadequate chain of custody,
• Lack of quality control,
• And the government’s reliance on a field test instead of a definitive laboratory test. While a field test may be used to establish initial suspicions, it cannot provide definitive identification or provide a reasonably accurate reading of the amount of drug involved in a mixture. This means that the government must rely on a laboratory test to establish the identity of fentanyl, and it must establish an accurate reading of the substance’s quantity.

Challenging the Determination of Constructive Possession

The government can establish constructive possession if they can show that a defendant had knowledge of the controlled substance and possessed some level of control over the substance. However, this can be difficult to prove in scenarios involving shared vehicles or residences, such as homes with common areas or the apartments of multiple individuals. Finding a fentanyl mixture in a common area is not sufficient evidence to establish that the quantity is attributable to every occupant.

Challenging the Constitutionality of Evidence Collection

Finally, if your case involves evidence obtained from search, seizure, warrants, wiretaps, or electronic surveillance, there are various constitutional issues that can lead to the suppression of the evidence. If the underlying evidence is suppressed, then the government will not be able to establish an amount of fentanyl, and it may not even be able to confirm the drug’s identity.

Why Does a Lower Guideline Quantity Leave Some Mandatory Minimums Intact?

Under federal law, a defendant’s exposure to a mandatory-minimum sentence typically depends on the quantity of drugs involved. As provided under 21 U.S.C. § 841(b), for fentanyl mixtures, a quantity of 40 grams or more can result in a five-year mandatory minimum sentence, while a quantity of 400 grams or more can result in a ten-year mandatory minimum sentence. Thus, if a defendant’s case involves a fentanyl mixture exceeding 40 or 400 grams, respectively, rebutting the quantity may not necessarily remove the mandatory-minimum penalty. In this scenario, it is possible to avoid the applicable mandatory-minimum sentence through safety-valve relief or other means. In addition to the quantity-based mandatory minimums, defendants may face enhanced mandatory-minimum sentencing exposure based on the consequences of their alleged criminal conduct. For example, if a defendant is accused of distributing a drug and death or serious bodily injury results from the use of the substance, they may face a twenty-year mandatory-minimum sentence under 21 U.S.C. § 841(b)(1)(A) or (B), rather than an additional twenty-year sentence. To remove mandatory-minimum exposure, defendants in these cases must focus on rebutting the government’s allegations by any means available.

What Is the Safety Valve?

The safety valve is a provision of federal law that allows certain eligible defendants to avoid their mandatory-minimum sentence. Under 18 U.S.C. § 3553(f), a judge can impose a sentence below an otherwise applicable mandatory minimum if the defendant satisfies several statutory conditions, including:

• The defendant does not have more than four criminal-history points, excluding points resulting from a 1-point offense, a prior 3-point offense, or a prior 2-point violent offense, as determined under the Sentencing Guidelines;
• The defendant did not use violence or credible threats of violence, possess a firearm or other dangerous weapon, or induce another participant to do so in connection with the offense;
• The defendant did not use violence or credible threats of violence, possess a firearm or other dangerous weapon, or induce another participant to do so in connection with the offense;
• The offense did not result in death or serious bodily injury to any person, and the defendant was not an organizer, leader, manager, or supervisor of others in the offense and was not engaged in a continuing criminal enterprise;
• Not later than the time of the sentencing hearing, the defendant truthfully provided the Government with all information and evidence concerning the offense or offenses that were part of the same course of conduct or common scheme or plan. If you have questions about how the safety valve, or any other provision of federal law, may help you avoid a mandatory-minimum sentence, we encourage you to get in touch with our lawyers today.

What Can Still Move the Federal Sentence After a Quantity Win?

While which drug is involved is one of the most critical factors in any case, it is by no means the only one. Even after securing a “quantity win,” there are still a variety of other factors that have the potential to increase or decrease your sentencing exposure. These factors include:

• Your criminal history category,
• Firearm involvement,
• Your role in the drug offense,
• Acceptance of responsibility,
• and substantial assistance.

Other Factors That Can Increase or Decrease a Defendant’s Sentencing Exposure

From criminal history category to firearm possession, there are various factors that can increase a defendant’s sentencing exposure. Under the Federal Sentencing Guidelines, a defendant’s criminal history category is one of the most important factors for determining a sentencing range. The higher your criminal history category, the greater your sentencing exposure, regardless of the drug quantity involved. Additionally, if you are facing federal charges involving the use, possession, or trafficking of firearms, you could also be subject to an additional sentencing enhancement. On the other hand, certain factors can potentially reduce a defendant’s sentencing exposure as well. If you played a minor role in the offense charged, or had minimal involvement in the federal offense you are accused of, you could be eligible for a minor role reduction. Pleading guilty to a federal crime can potentially result in an acceptance of responsibility reduction, as can truthful, timely, and complete acceptance of responsibility in other circumstances. Finally, if you can provide the government with substantial assistance in its efforts to prosecute others, the U.S. Attorney’s Office may file a motion for a § 5K1.1 reduction. As a result, a Government motion under 18 U.S.C. § 3553(e), typically made in conjunction with a § 5K1.1 motion, may permit a sentence below an otherwise applicable mandatory minimum.

Speak With Counsel Before You Answer Anything

If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.