Drug Sales and Drug Dealing Charges

In contrast, charges for drug trafficking may include any act involving the making, transporting, and selling of drugs. State and federal laws may also make crimes for possession with the intent to distribute equivalent to drug trafficking.

Generally, the penalties for drug dealing depend on the type of drug sold, the amount of drugs involved, and whether an offender's criminal record includes prior drug convictions. In some cases, the law presumes a person is selling a drug when they have more than a specified amount of the drug in their possession.

This article provides a general overview of drug sales and drug dealing charges.

Federal vs. State Crimes for Drug Dealing

Crimes against drug sales or drug dealing exist at both the federal and state levels. Selling illegal drugs may have different names depending on the jurisdiction. For example, federal law refers to the manufacture, distribution, or dispensing of illegal drugs. A related crime involves possession of drugs with intent to distribute or dispense them. States may use similar titles or refer to these offenses as illegal trafficking in drugs.

In any given drug sale or series of drug deals, both state and federal authorities may investigate. Local and state law enforcement more often focus on the sale of drugs that occur within their state. Federal investigative agencies like the FBI or the Drug Enforcement Administration (DEA) may take over when the drug sale occurs on federal land in Washington D.C. and elsewhere, or on a military base. Federal authorities may also focus on cases where drug trafficking activity crosses state or international borders.

What Is an Illegal Drug?

The federal government established schedules for all controlled substances under the Controlled Substances Act (CSA) in 1970. A controlled substance is a drug or chemical that the government outlaws or regulates to protect public safety. Congress by legislation, and the DEA by regulation, can make changes to the drug schedules. 

For example, drugs listed in Schedule I include heroin, LSD, peyote, and marijuana. At present, these drugs remain illegal to possess or sell under federal law. Most hallucinogens appear in Schedule I. Some exceptions are PCP (Schedule II) and ketamine (Schedule III).

Drugs listed in Schedule II down to Schedule V include prescription drugs. Schedule II includes drugs like cocaine, methamphetamine, oxycodone, and fentanyl. Schedule III includes Tylenol with codeine and anabolic steroids. The federal government views all drugs outside of Schedule I as having legitimate medical uses, but they vary in their potential for addiction or dependency.

Federal Drug Crimes

Federal drug charges related to drug dealing appear in 21 U.S.C. Section 841. This federal law prohibits knowing or intentional conduct by any unauthorized person:

• To manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance
• To create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance

Federal prosecutors may use this statute to bring charges for illegal sale of a controlled substance. Punishment varies based on the amount and type of drug. For example, selling five grams or more of methamphetamine can result in a mandatory minimum of five years in federal prison.

Most illegal drug sales go forward as felony charges. In contrast, simple possession cases without the intent to sell may be a felony or misdemeanor, depending on the circumstances. In states that have decriminalized marijuana, a minor possession charge may be a violation or infraction. An offender may only face a fine and costs.

State and local authorities prosecute the majority of illegal drug cases. Whereas states may align their laws with federal drug offenses, they sometimes vary the elements of the crime and the penalties.

In Texas, state law prohibits the unlawful manufacture or delivery of controlled substances. When an offender knowingly delivers a controlled substance the punishment will depend on the weight and penalty group of the drug at issue. Delivery of a drug includes an offer to sell along with an actual or constructive transfer of a drug from a seller to a buyer. 

Drugs in Penalty Group 1 include cocaine, heroin, methamphetamine, and oxycodone. In this group, the range of penalties includes:

• Less than one gram: a state jail felony with possible punishment of up to two years (minimum 180 days) in jail; fine of up to $10,000
• One gram to under four grams: a 2nd-degree felony punishable by a minimum of two years in prison and a maximum of 20 years; fine of up to $10,000
• Four grams to under 200 grams: a 1st-degree felony punishable by a minimum of five years in prison and a maximum of no more than 99 years; fine of up to $10,000
• 200 grams to under 400 grams: a 1st-degree enhanced felony punishable by a minimum of 10 years in prison and a maximum of no more than 99 years; fine of up to $100,000
• 400 grams or more: a 1st-degree enhanced felony punishable by a minimum of 15 years in prison and up to life; fine of up to $250,000

Defendants who have prior convictions for drug crimes may face more severe penalties.

Aggravating Factors

The federal government and many states provide mandatory minimum sentences for drug offenses when aggravating factors are present. Such enhanced penalties also apply to drug sales and drug trafficking. Mandatory minimums are inflexible laws. They require a prison term of at least a particular length for people convicted of certain crimes.

For example, federal law dictates a prison sentence of not less than one year in cases where a drug deal occurs near a school or on the grounds of public housing. Likewise, selling illegal drugs to someone under 21 years old also results in a mandatory minimum sentence.

Drug dealing while possessing or using a gun can also present enhanced penalties under state or federal laws. When a drug crime includes the use of a firearm, prosecuting authorities often presume serious drug activity. Convicted drug dealers may qualify for greater sanctions, which can include a lifetime ban on firearms ownership or denial of certain professional licenses. Offenders may also face mandatory disclosure of a conviction when applying for certain types of employment.

Under federal law, possession of a firearm in furtherance of drug trafficking can expose a drug offender to five years in prison, consecutive to time for the drug offense itself. If the offender brandished the gun, the sentence increases to another seven years. Discharging the firearm brings the enhancement up to 10 years.

Recently, courts have questioned the firearm ban on those in possession of illegal drugs in light of New York Rifle and Pistol Association v. Bruen (2022). Bruen was a U.S. Supreme Court decision that set a new standard for reviewing laws restricting gun ownership. In U.S. v. Daniels (2022), the Fifth Circuit Court of Appeals struck down the federal gun ban as applied to a marijuana user who possessed firearms but was not under the influence at the time of his arrest.

To be certain of the penalties at issue in a specific case, you want to consult with a criminal defense lawyer.

Marijuana Laws

Many states have legalized marijuana for medical and recreational use, but as of 2023, under federal law marijuana is still illegal as a Schedule I controlled substance. This presents an obvious conflict between state law and federal law. It is unlikely that anyone would face federal charges for selling marijuana for personal use or medical use in such a state. 

The Biden Administration and the Attorney General's Office have taken a limited role. Their policy permits state experimentation in this area. Although gaps remain between federal and state marijuana laws and policy, Congress could change that. The DEA can also make such a change. It is currently reviewing a proposal to move marijuana to Schedule III.

Have More Questions About Drug Dealing Charges? Get Legal Help

Although there are widespread efforts to reduce penalties for certain drug offenses across the United States, drug-related crimes remain very serious. Low-level drug offenses may lead to jail time or probation. Drug dealing may lead to federal or state prison.

If you are facing drug dealing or drug sales charges, consider speaking with an experienced criminal defense attorney to protect your rights. A legal consultation may help you decide the best defense strategy going forward.