The Difference Between Federal And State Drug Charges

There are several important and distinct differences in being charged with a drug offense at the state level and being charged at the federal level, even though the underlying conduct may be the same. The manufacturing, trafficking, and possession of “controlled substances” (i.e. substances whose use and distribution are governed by law) such as cocaine, heroin, methamphetamines, and opiates are illegal at both the state level and the federal level. It is often times the case however, that an individual charged at the state level can end up having the charges upgraded to the federal level, as the investigation unfolds.

In most circumstances, an individual can be charged with a federal drug crime if:

  • The incident took place on federal property (e.g. national park)
  • Involved the crossing of state lines, or bringing drugs into the country
  • Was investigated by a federal agency, such as the Drug Enforcement Administration (DEA)
  • Involved other federal crimes (such as money laundering related to the drug proceeds)
  • Involved an organized crime enterprise
  • Involved the sale of drugs in large quantities
  • Involved transporting drugs through the mail
  • Came to be discovered by a federal informant

While this is not an exhaustive list of the means in which federal charges may be brought against a defendant, they are some of the most common instances. Another important distinction between state and federal drug charges is that there is no parole in the federal system. This means individuals convicted of federal drug crimes will not be eligible for early release.

What Does Federal Law Say About Drug Crimes?

Federal drug offenses are prosecuted under the Comprehensive Drug Abuse Prevention and Control Act of 1970, also known as the Controlled Substances Act. Some of the drug crimes under the Act include: drug trafficking, manufacturing, continuing enterprise crimes, conspiracy crimes, protected locations, and possession. Compliance with the rules and regulations put forth under the Controlled Substances Act is monitored and enforced by the United States Drug Enforcement Administration (DEA).

Violations of federal drug laws can carry extremely harsh penalties. Federal law specifies the minimums and maximums terms of imprisonment for violations, and vary based on the type and quantity of the drug or dugs involved.  While for the most part judges may have discretion in sentencing, they must stay within the minimums and maximums set by federal law. 

Some other factors a judge may take into account when sentencing a convicted defendant are: whether the crime involved injury to another person, whether the crime involved the use or possession of a firearm or other weapon, and the defendant’s criminal history.

Types Of Federal Drug Crimes

Drug Trafficking: Drug trafficking is the manufacturing, distributing, dispensing or possessing with the intent to distribute illicit drugs. Penalties for violations vary depending on the substance and the amount involved. For example, federal guidelines provide for 10 years up to life in prison for 1 kilogram of heroin, 5 kilograms of cocaine or 1,000 kilograms of marijuana.

Drug Manufacturing: Drug manufacturing occurs when there is an operation that exists for the purpose of manufacturing, distributing or using illicit drugs, or endangering human life while doing so. This charge does not apply to valid “registrants”, which are those entities that are in the business of manufacturing, distribution, and dispensing of controlled substances (i.e. drug manufacturing companies).

Continuing Criminal Enterprises: Continuing enterprise crimes occur when a person traffics in illicit drugs in concert with five or more other people. Federal law imposes a penalty of imprisonment for not less than 20 years, all the way up to life in prison for persons convicted of this crime, as well as a fine up to $2,000,000.

Conspiracy: A federal drug conspiracy is simply an agreement made with at least one other person to commit a federal drug crime. The government must prove:

(1) that an agreement was made,

(2) the defendant voluntarily participated in the conspiracy, and

(3) the defendant knew that the conspiracy existed.

Protected Locations: Protected location drug offenses occur when a person distributes illicit drugs to a person under 21 years of age, or within a school or playground zone, or employing persons under age 18 in drug operations. Persons charged with these crimes typically face harsher punishments, due to the vulnerability of the victims.

Possession: Federal drug possession charges involve possession of controlled substances without a valid prescription from a licensed medical practitioner, or possession of drug paraphernalia. A person does not have to intend to distribute the drugs, just being in possession of the illicit is enough to be charged.  

Federal Schedules

Federal law has certain schedules by which drugs are classified.  There are five Schedules which classify drugs according to accepted medical use.  Drugs listed on Schedule I are considered by the federal government to have no accepted medical use.  Whereas, drugs on Schedules II through V are considered to have some accepted medical use and are viewed by the federal government as less addictive.  The Schedules are as follows:

            Schedule I:      Heroin, LSD, Marijuana, Methaqualone, Peyote and “Ecstasy”

            Schedule II:     Morphine, PCP, Cocaine, “OxyContin,” “Fentanyl”

            Schedule III:   Anabolic Steroids, Codeine, Hydrocodone and some Barbiturates

            Schedule IV:   Most Benzodiazepines (e.g. Darvocet, Valium and Xanax)

            Schedule V:    Over the counter medications with codeine. 

What Happens When Charged With Drug Crimes?

Often times the government has been working, researching and building a federal drug case against a defendant long before they are ever charged with a crime.  Prosecutors have broad discretion with what charges they intend to bring. Many times, the government will seize property belonging to the defendant including seizing bank accounts, land, cars, homes, and other assets. 

These things are not returned unless and until it can be proven in court that these assets were not acquired as a result of the alleged drug-related activities.  Additionally, the federal government will also bring additional federal charges in most drug cases which can include money laundering, tax charges and conspiracy.

If you find yourself in a situation where you’ve been charged with a federal drug crime, you should contact an attorney as soon as possible. The process of navigating through a federal criminal case can be extremely complicated and tiresome, and it is extremely important to contact an attorney who is experienced with the federal court system in order to protect and preserve your legal rights. 

Additionally, because most federal drug crimes carry mandatory minimum sentences, a conviction can carry very stiff penalties.  Having an attorney in your corner familiar with the federal system is not only important, it is crucial.  Federal drug crimes carry stiff penalties.  Don’t gamble with your future.    


The law is very nuanced. Federal prosecutors have almost unlimited advantages and resources at their disposal. Having attorneys on your team that understand the law, keep abreast of legal developments in the law, have the experience dealing with the complexities of federal statutes and, finally, possess the skills to stand before a jury to make a compelling case on behalf of a client are not just important qualities, they’re critical. At The Federal Defenders. we pride ourselves on being advocates for our clients. With decades of experience with all variety and manner of federal criminal issues and defenses, we understand what it takes to put our clients in a winning position. For a free and confidential consultation, call us today at (800) 712-0000. Just like our toll-free number, we operate nationwide.