Suspected drug traffickers in Nevada typically face federal charges under 21 U.S.C. § 841 if the narcotics cross state lines or are on federal land. The fines and prison sentence depend on the type and amount of controlled substances involved. A common defense is the defendant possessed the drugs only for personal use, which could get the trafficking charge reduced to simple possession (21 U.S.C. § 844).
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is federal drug trafficking?
- 2. When is drug trafficking a federal crime?
- 3. What are effective defenses?
- 4. What are the penalties?
- 5. What are the consequences for immigrants?
- 6. Can the criminal record be sealed?
1. What is federal drug trafficking?
Federal law under 21 U.S.C. § 841 defines drug trafficking as knowingly manufacturing, dispensing, or distributing:
- Controlled substances, or
- Counterfeit substances meant to be passed off as controlled substances
“Trafficking” also comprises possessing drugs (or fake drugs) with the intent to make, sell, or transport them. The main federal drug crime which “trafficking” does not encompass is the possession of drugs for personal use (“simple possession”).1
Example: Jason ships several kilos of cocaine from Los Angeles to Carson City. There, Thomas buys an ounce from Jason for his own recreational use. If the U.S. Marshals Service catches them, they both could be booked at the Washoe County Detention Center. However only Jason would be charged with drug trafficking in Nevada federal court. Thomas would face charges only for simple possession because Thomas did not manufacture, sell or dispense the cocaine and did not intend to do so.
Also see our article about the federal crime of using guns to carry out drug trafficking (18 U.S.C. 924(c)).
1.1. Federal law vs. Nevada Law
Nevada’s legal definition of drug trafficking (NRS 453.3385) is different from federal law in two main ways:
- In Nevada, the most important consideration is the weight of the drugs; possessing drugs for personal use can be charged as trafficking as long as the drugs exceed a certain weight limit. Under federal law, the most important consideration is what the defendant intends to do with the drugs; recreational possession of even large amounts of drugs would not qualify as trafficking.
- In Nevada, trafficking charges apply only to schedule I drugs, schedule II drugs, Rohypnol, GHB, and marijuana. People who sell, make, or transport other types of drugs would instead face charges under Nevada’s illegal drug acts laws (NRS 453.321). Under federal law, any type of controlled substance can be trafficked.2
Read more about Nevada drug laws.
2. When is drug trafficking a federal crime?
Any act of making, selling, or transporting drugs violates federal law. But in practice, federal prosecutors usually bring trafficking charges when:
- The drugs cross state lines (“affected interstate commerce”),
- The trafficking took place on federal land, such as Lake Mead,3 or
- The case is part of a large-scale drug-trafficking ring
Otherwise, suspects are typically prosecuted in state court under state law.
3. What are effective defenses?
Three potential defenses in drug trafficking cases include:
- Lack of intent to traffic. Trafficking charges do not apply if the defendant had no intent to sell, make, transport, or distribute the drugs. If the defendant meant only to possess the drugs for personal use, then the trafficking charges should be reduced to simple drug possession.4
- Lack of knowledge of the drugs. Perhaps someone planted the drugs on the defendant without him/her knowing it. Or perhaps the police wrongly believed the drugs belonged to the defendant. If prosecutors cannot prove the defendant knew about the drugs, then the case should be dismissed.5
- Illegal police search. Police sometimes make mistakes when executing a search and act outside the bounds of the Fourth Amendment. In these cases, the defense attorney would ask the judge to suppress (disregard) any evidence found from the illegal search. If the judge grants this motion to suppress, then the U.S. Attorney’s Office may be left with too little evidence to prosecute.
Unlike in Nevada state court, it is not a defense to federal drug trafficking charges that the drug’s weight was too low. Under federal law, it is possible to traffic even tiny amounts of illegal drugs.
4. What are the penalties?
The punishment for violating federal drug trafficking laws depends on the type and quantity of the drug, the defendant’s criminal record, and whether anyone was hurt or killed:
4.1. Trafficking penalties for drugs not including marijuana
In contrast, Nevada‘s drug trafficking penalties under NRS 453.3385 are:
|Weight of schedule I or II drugs, GHB, or Rohypnol |
(not including marijuana)
|Nevada trafficking penalties |
|100 to less than 400 grams||“Low-level trafficking” |
|400 grams or more||“High-level trafficking” |
4.2. Marijuana drug trafficking penalties
In contrast, Nevada‘s marijuana trafficking penalties under NRS 453.339 are:
|Amount of Marijuana||Nevada trafficking penalties|
|50 lbs. to less than 1,000 lbs (or 1 lb. to less than 20 lbs. of concentrated cannabis)||Category C felony: |
|1,000 lbs. to less than 5,000 lbs. (or 20 lbs. to less than 100 lbs. of concentrated cannabis)||Category B felony: |
|5,000 lbs. or more (or 100 lbs. or more of concentrated cannabis)||Category A felony: |
5. What are the consequences for immigrants?
Trafficking controlled substances is a deportable offense.6 Non-citizens facing any drug charge should seek out an attorney right away in an attempt to get the charges dismissed.
6. Can the criminal record be sealed?
Unlike in Nevada, federal criminal records for trafficking drugs may never be sealed. (Learn about sealing Nevada criminal records.)
If you have been arrested, call our Las Vegas Federal Crimes Lawyer to discuss your case.
- 21 U.S.C. § 841.
- Same; NRS 453.3385; common schedule I substances include ecstasy, crotonyl fentanyl, peyote, LSD, and heroin, and common schedule II drugs include methamphetamine and Oxycontin.
- See, for example, United States v. Lopez (5th Cir. 2020) 459 F.2d 949; United States v. Sawyers (6th Cir. 1990) 902 F.2d 1217.
- 21 U.S.C. § 841; see, for example, United States v. Johnson (10th Cir. 1992) 977 F.2d 1360.
- See, for example, United States v. Crittenden (5th Cir. 2020) 971 F.3d 499.
- 8 U.S.C. § 1227.