What is possession with intent to distribute?

| by Max Soni

Last Updated on: 7th October 2025, 08:19 pm

Thanks for visiting Spodek Law Group. We’re a second-generation law firm managed by Todd Spodek – who has over 40 years of combined experience with his legal team. You’ve probably heard about some of the cases we’ve handled. Todd represented Anna Delvey in the case that became a Netflix series, we worked on the Ghislaine Maxwell juror misconduct matter, and handled the Alec Baldwin stalking case. If you’re reading this, you’re probably facing possession with intent to distribute charges – and you need to understand exactly what that means and what you’re up against.

Possession with intent to distribute isn’t simple drug possession. Federal prosecutors charge this offense under 21 U.S.C. § 841 when they believe you didn’t just have drugs for personal use – you had them to sell, give away, or otherwise distribute to other people. The penalties are severe, mandatory minimums apply in most cases, and the government doesn’t need to catch you in the act of selling to prove their case. They build these cases on circumstantial evidence, and they’re very good at it.

This article breaks down what possession with intent to distribute actually is, how prosecutors prove it, what sentences you’re facing, and what defenses exist. We’ve represented clients in federal drug cases for decades, including cases others said were unwinnable – this is what you need to know.

What Makes It “Intent to Distribute” Instead of Simple Possession

The difference comes down to what prosecutors can prove about your intent. Simple possession means drugs for personal use. Possession with intent to distribute means you planned to give those drugs to someone else, whether for money or not – the law doesn’t require a sale, just distribution.

Federal law prohibits knowingly or intentionally possessing any controlled substance with intent to manufacture, distribute, or dispense it. That’s the statutory language. In practice, it means prosecutors charge this offense whenever the circumstances suggest you weren’t just a user.

You’re holding two grams of heroin in your apartment. Is that possession or possession with intent? Depends entirely on what else they find and what story the evidence tells. That’s where these cases get built – and where they fall apart if your attorney knows what they’re doing.

How Prosecutors Actually Prove Intent

Most people think you need to be caught selling drugs to face distribution charges. Wrong. Federal prosecutors almost never have direct evidence of intent – they build cases on circumstantial evidence, and courts allow them to do exactly that.

Drug quantity is the biggest factor. Possessing amounts that exceed typical personal use creates an inference of intent to distribute. There’s no magic number, it varies by drug type. Ten grams of heroin might be personal use for someone with a serious addiction – or it might be packaged for distribution. Prosecutors will argue the latter, always.

Packaging and paraphernalia matter more than most people realize. Digital scales, small baggies, cutting agents, multiple phones – these items don’t prove distribution by themselves, but combined with drug quantity they build the prosecution’s narrative. We’ve seen cases where a kitchen scale tips the balance between possession and distribution charges.

Large amounts of cash, especially small bills, signal drug sales to prosecutors and juries. They’ll present this as “drug proceeds” even when you have legitimate explanations for the money. Doesn’t matter if you work in a cash business or just got paid – prosecutors frame cash as evidence of distribution.

Text messages and phone records become critical evidence. Prosecutors comb through your communications looking for anything that sounds like drug transactions. Coded language, frequent short contacts with multiple people, references to meetings or amounts – they piece together a distribution operation from your digital footprint.

Witness testimony can destroy your case before you even know you’re under investigation. Someone you sold to gets arrested and cooperates, suddenly you’re facing federal charges based on their statements. Prior buyers testifying against you, neighbors reporting suspicious traffic patterns to your house, confidential informants – prosecutors build intent cases on testimony from people you may never see coming.

The Mandatory Minimum Sentences You’re Facing

This is where federal drug cases get brutal. Conviction for possession with intent to distribute triggers mandatory minimum sentences based on drug type and quantity – judges can’t go below these minimums no matter what your circumstances are.

Five-year mandatory minimums apply to first offenses involving specific quantities: 100 grams or more of heroin, 500 grams or more of cocaine, 28 grams or more of crack cocaine, 5 grams or more of pure methamphetamine or 50 grams of meth mixture, 1 gram or more of LSD, 100 kilograms or more of marijuana. These are federal thresholds – and they’re lower than most people expect.

Ten-year mandatory minimums kick in at higher quantities: 1 kilogram or more of heroin, 5 kilograms or more of cocaine, 280 grams or more of crack, 50 grams or more of pure meth or 500 grams of meth mixture, 10 grams or more of LSD, 1,000 kilograms or more of marijuana. Double the quantity, double the minimum sentence.

Fentanyl cases carry particularly harsh penalties in 2025. Possessing 40 grams or more triggers a five-year mandatory minimum – possessing 400 grams or more means ten years minimum. Federal prosecutors prioritize fentanyl cases, and judges show little sympathy given the overdose crisis.

Enhanced penalties apply when death or serious bodily injury results from use of the drugs – that adds a twenty-year mandatory minimum on top of the base offense. If you have two or more prior felony drug or violent crime convictions, the mandatory minimum jumps to 25 years. Third-time offenders face mandatory life imprisonment under the federal three-strikes provision.

Maximum sentences range up to 40 years for first offenses, with fines reaching $5 million for individuals. These aren’t theoretical – federal judges impose these sentences regularly. Unlike state courts, federal courts follow the sentencing guidelines closely, and mandatory minimums eliminate judicial discretion at the low end.

Conspiracy and Attempt Charges Carry the Same Penalties

Here’s something that surprises people – you don’t actually need to possess the drugs to face possession with intent to distribute charges. Federal conspiracy and attempt statutes carry the same mandatory minimums as the completed offense.

Conspiracy under 21 U.S.C. § 846 means an agreement between two or more people to violate drug laws. You can be convicted of conspiracy even if the actual distribution never happened – the agreement itself is the crime. Prosecutors love conspiracy charges because they can rope in everyone involved in the operation, from suppliers to street-level dealers, under the same case.

The quantity that determines your mandatory minimum in a conspiracy case is the total amount involved in the conspiracy, not just the amount you personally handled. You drove a package from one city to another without knowing the exact contents? If that package contained 500 grams of cocaine, you’re facing the five-year mandatory minimum for the full amount even though you never touched the drugs.

Attempt charges work similarly – trying to possess drugs with intent to distribute triggers the same penalties as actual possession. Prosecutors charge attempt when law enforcement interrupts the transaction before completion, like controlled deliveries or undercover operations.

Defenses That Actually Work

Challenging the government’s proof of intent is where these cases are won or lost. Prosecutors must prove beyond a reasonable doubt that you intended to distribute – if the evidence is consistent with personal use, that creates reasonable doubt.

Drug quantity arguments can be effective when amounts are borderline. Someone with a serious addiction can possess quantities that look like distribution amounts to prosecutors but represent personal supply. We bring in addiction experts, medical records, and evidence of the defendant’s usage patterns to establish personal use.

Challenging the packaging and paraphernalia evidence is critical. A scale in your kitchen doesn’t prove drug distribution – people weigh food, packages, jewelry, all sorts of things. Multiple small baggies? Could be for organization, not sales. Text messages with ambiguous language? Could reference legitimate activities, not drug deals. The government’s circumstantial evidence often has innocent explanations – an experienced attorney forces prosecutors to prove their interpretation is the only reasonable one.

Attacking the search and seizure gets evidence suppressed when law enforcement violated your Fourth Amendment rights. If police lacked probable cause for the search, or exceeded the scope of a warrant, or obtained evidence through an illegal stop – that evidence gets excluded. Without the drugs and related evidence, the government’s case collapses.

Witness credibility becomes crucial when the case relies on cooperating defendants or informants. These witnesses are testifying to reduce their own sentences – they have every incentive to exaggerate or fabricate your involvement. Thorough cross-examination exposes their motives, inconsistencies, and reliability problems.

Lack of knowledge defenses apply when you didn’t know the drugs were present. If someone else put drugs in your car, your house, your bag without your knowledge – you can’t possess something you don’t know about. The government must prove you knowingly possessed the controlled substances.

Why You Need an Attorney Who Handles Federal Drug Cases

Federal drug prosecutions aren’t like state cases – the rules are different, the penalties are harsher, and the prosecutors are more experienced. We have former federal prosecutors on our team who understand exactly how the government builds these cases, what evidence they need, and where their weak points are.

Many of the cases we’re famous for handling – are cases that others said were unwinnable. We represented a businessman in a Gold Coast Ponzi scheme with over 40 victims and $12 million in losses, and secured only six months despite the massive fraud. Federal drug cases require that same level of aggressive representation.

At Spodek Law Group, we start working on your case immediately – examining the evidence, interviewing witnesses, filing motions to suppress illegally obtained evidence, and negotiating with prosecutors before charges are even filed when possible. Every day matters in federal cases. Evidence disappears, witnesses become unavailable, prosecutors lock into positions. Early intervention by experienced defense attorneys changes outcomes.

We’re available 24/7 because federal arrests don’t happen on a schedule. When DEA or FBI agents execute a search warrant at 6 AM, you need an attorney who answers the phone and gets to work immediately. We handle cases coast to coast – federal charges can be prosecuted anywhere the alleged crime occurred, and we’re licensed and experienced in federal courts nationwide.

Regardless of how complicated your case is, or how challenging it is – we can help you get the outcome you need. Possession with intent to distribute charges aren’t unbeatable. With the right defense strategy, aggressive advocacy, and detailed preparation, these cases can be won or reduced to lesser charges. Contact us for a consultation – we’ll review your specific situation and explain your options in clear terms.