Drug Smuggling/ Importing a Controlled Substance

A conviction for smuggling drugs over the federal border carries much harsher penalties than a conviction for a similar drug possession from a State court, and includes mandatory prison sentences and severe fines. Because the consequences of a conviction are life altering, it is vital that anyone charged with a smuggling crime be represented by an attorney who is experienced when dealing with the federal courts and these charges. William R. Burgener has over three decades of experience successfully representing clients who face felony drug smuggling charges.  If you, or your loved one, has been charged with drug smuggling, time is of the essence in order to build a successful defense. Call William R. Burgener today at (619) 291-8565.

Understanding the Charge

Under USC § 952, Importation of a Controlled Substance listed in Schedule I, II, III, IV, or V, or any ephedrine, pseudoephedrine, or phenylpropanolamine (drugs commonly used in the manufacture of methamphetamine), or coca leaves, is unlawful. The list of Controlled Substances is long and inclusive, and not limited to illegal “street drugs” such as heroin and marijuana. Prescription drugs which often cost less in Mexico are also Controlled Substances, and sometimes charges stem from bringing a benign substance across the border, such as cough medication containing a low dose of codeine. Regardless of what the substance is, the government prosecutes these charges aggressively, and a defendant who is represented by an equally aggressive attorney will get the best results, including reduced charges, reduced penalties, dismissed charges, or acquittal.

In order to convict a defendant of unlawfully importing a controlled substance, the Government must prove:

  1. The defendant knowingly brought the controlled substance into the United States, and
  2. The Defendant knew that it was a controlled substance or a prohibited drug.

Penalties of Conviction

If convicted of drug smuggling, the penalty a defendant faces depends on what the controlled substance is, and the quantity of the substance. Second or third offenses or aggravating circumstances can increase penalties. The following is examples of some of the sentences imposed following a first conviction for drug smuggling:

  • Heroin:
    • Less than 100 grams: Imprisonment up to 20 years, fines up to $1 million
    • 100-999 grams: Mandatory imprisonment 5-40 years, fines up to $5 million
    • 1 kg. or more: Mandatory imprisonment 10 years to life, fines up to $10 million
  • Cocaine, crack, coca leaves
    • Less than 28 grams: Imprisonment up to 20 years, fines up to $1 million
    • 28 to 279 grams: Mandatory imprisonment 5-40 years, fines up to $5 million
    • 280 grams or more: Mandatory imprisonment 10 years to life, fines up to $10 million
  • Marijuana
    • Any amount under 50 kg.: Imprisonment up 5 years, fines up to $250,000
  • Methamphetamine
    • Less than 5 grams, or 50 grams of mix: Imprisonment up to 20 years, fines up to $1 million
    • 5-49 grams, or 50-499 grams of mix: Mandatory 5-40 years imprisonment, fines up to $5 million
    • 50 grams, or 500 grams of mix: Mandatory 10 years to life, fines up to $10 million
  • Any other Schedule I or II substance (including LSD, PCP, peyote, morphine, opium, methadone, hydrocodone, codeine, oxycodone, etc.)
    • Imprisonment up to 20 years, fines up to $1 million
  • Any Schedule III substance (including low dose hydrocodone, codeine, etc.)
    • Imprisonment up to 15 years, fines up to $500,000
  • Any Schedule IV substance (including Xanax, Soma, Valium, Klonopin, etc.)
    • Imprisonment up to 5 years, fines up to $250,000
  • Any Schedule V substance
    • Imprisonment up to 1 year, fines up to $100,000

Defending the Charge

Because of the severity of the penalties following a conviction for drug smuggling, the charges must be defended assertively by an experienced attorney. William R. Burgener is prepared to use his skills to defend you or your loved one, whether the goal is a favorable plea bargain, a dismissal, or an acquittal. Facing these charges is intimidating and overwhelming, but a conviction is not guaranteed, especially when a solid defense can be presented by an adept attorney:

  • Duress, coercion, or compulsion: When a defendant was forced to commit a crime against their will, even if all the other elements of the crime can be met, there can be no conviction. The Court must consider what a reasonable person would do under the same circumstances. If the defendant was threatened with immediate death or serious bodily injury or such a threat was made against another person, such as a family member, and the defendant had a well-founded fear the threat would be carried out, and there was no reasonable opportunity to escape the harm, this defense can be used against a drug smuggling charge. If the defendant was forced to bring the controlled substance across the border because of duress, coercion, or compulsion, they cannot be found guilty of the crime.
  • Beat an element of the charge: In order to convict a defendant, the Government must prove beyond a reasonable doubt that the defendant was “knowing” in both the importation and the controlled substance status of the drug. If the defendant did not know they were bringing in the substance (e.g., carrying another person’s luggage), or did not know the substance was controlled, the charges can be beat.
  • Government Error: It comes to no surprise that the Government and its’ agents are capable of making mistakes. A violation of search and seizure laws, mishandling of evidence, false identifications, or any other error can lead to a dismissal of charges.
  • The defendant is prescribed the controlled substance: U.S. Customs requires that all prescribed medication cross the border in its original container with the prescription label, or with a copy of the prescription or a letter from the prescribing doctor. If the defendant was charged with importing a drug which they are legally prescribed, demonstrating the existence of the prescription should lead to a dismissal.

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William R. Burgener, Esq.

William R. Burgener, Esq.

San Diego Criminal Defense Attorney