Unlawful Drug Manufacturing

The four most common types of illegal drug charges police enforce range from simple possession of marijuana and drug paraphernalia to the unlawful manufacturing and distribution of controlled substances.

This article looks at the crime and penalties of illegal drug manufacturing, including:

• The legal defenses and types of penalties for the crime of drug manufacturing
• A review of the five federally scheduled drug categories
• Law enforcement’s battle against the unlawful manufacture of illegal drugs
• The number of deaths caused by drug overdoses

Illegal Drug Manufacturing

Federal Regulation and Enforcement Powers

In the fight against the unlawful manufacture and distribution of illegal drugs, on December 20, 2022, the nation’s leading drug enforcement agency, the F.D.A., announced it had seized over 50 million fentanyl-laced, counterfeit prescription pills and over 10,000 pounds of fentanyl powder.

Deaths By Overdose

While progress continues in the fight against the illegal manufacture of illicit drugs, a 2023 report by the National Center for Health Statistics (N.C.H.S) reported that over 106,000 U.S. deaths resulted from drug overdoses in 2021. The number of reported overdose deaths continues to increase every year.

Legally Manufactured Drugs and Distribution

The Federal government, through the F.D.A., regulates a diverse range of legally established and lawful drug manufacturing activity.

Ways In Which Illegal Drugs Are Manufactured

The Federal Drug Enforcement Administration (D.E.A.) is the primary agency enforcing the manufacturing of narcotics and controlled substances.

Included in the category of manufacturing is the illegal:

• Processing of illegal drugs
• Production of illegal drugs
• Preparation of illegal drugs
• Compounding of illegal drugs
• Conversion into illegal drugs

Enforcement and Prosecution of Drug Manufacturing

The Federal statutes prohibiting illicit drug manufacturing are described under 21 U.S.C. § 841 and deal with the many aspects of the illegal drug trade practice. Our criminal justice system, through the Department of Justice, enforces and prosecutes violators of our nation’s drug laws.

A drug manufacturing conviction requires the suspect to knowingly possess the chemicals necessary to manufacture a particular type of drug and that the suspect specifically intended to manufacture that drug for sale or distribution.

Manufacturing illicit drugs can include a broad range of actors because the crime also consists of those suspects who supply or sell the necessary chemicals, provide the required lab equipment, or offer the expertise and support to complete the manufacturing process.

Controlled Substances Act

The Controlled Substances Act (C.S.A.) places all federally regulated drug-based substances into one of five schedules or categories based on the drug’s medical use, the potential for abuse, and safety.

The Five Scheduled Drug Categories:

• Schedule I Drugs are typically prohibited by drug laws as they have been deemed to have no safe or medically accepted use. Schedule I drugs include marijuana, L.S.D., MDMA, heroin, and other serious drugs.
• Schedule II Drugs have accepted medical use but are also drugs with a high potential for abuse. Schedule II drug use is permitted only with a prescription and includes methamphetamine (including cocaine), morphine, and other amphetamines.
• Schedules III-V Drugs are classified by varying degrees of severity and impose certain restrictions on their use. Unlike Schedule I drugs, drugs these drugs are not illegal.
• Schedule V Drugs are said to have a low potential for abuse and are presently considered a medically accepted treatment in the United States.

According to the D.E.A., examples of Schedule V drugs include cough control medicines such as those found in common over-the-counter and medically prescribed cough suppressants.

Notwithstanding, it has been found that Schedule V drug abuse can lead to physical and psychological dependency similar to the drugs found under Schedule IV.

Drug Manufacturing and Distribution Sentencing Laws and Penalties

A conviction for drug manufacturing under federal sentencing laws can result in lengthy prison terms and substantial financial penalties.

A single count of drug manufacturing is almost always prosecuted as a felony resulting in at least one year in prison. Depending on the aggravated circumstances of the crime, prison sentences can be as high as ten years or more and include fines up to $25,000 or more.

Those convicted of federal drug crimes are sentenced under the federal mandatory minimum sentencing laws. These sentencing laws can mandate a minimum prison sentence based on the type and amount of drug in the defendant’s possession and the offender’s prior convictions.

Federal minimum sentencing laws have been criticized for taking away the judge’s ability to make discretionary findings in the sentencing process based on the facts of the case, the defendant’s background, and the level of culpability.

21 U.S.C. § 841(a)(1) – Distribution-Manufacturing

Under the sentencing guidelines found in 21 U.S.C. § 841(a)(1) – the prison sentence for manufacturing illicit drugs carries a statutory mandatory of five years and a maximum of forty years, depending on the type and quantity of the drug. Violating 21 U.S.C. § 841(a)(1) is also a deportable offense.

21 U.S.C. § 859

Penalties also can be increased if the defendant is determined to be a career offender, defined as two or more felony drug offenses or crimes of violence in the defendant’s history. Enhanced penalties are also available for distribution to individuals under 21.

21 U.S.C. § 860

Penalties also can be increased if the defendant distributes near schools, playgrounds, youth centers, arcades, pools, and public housing.

Defenses to Drug Manufacturing Criminal Charges

Constitutional Defense – Violation of 4th and 5th Amendments

Most defenses are based on constitutional grounds, such as excluding evidence resulting from an unlawful search and seizure, and by extension, any subsequent evidence obtained from the original unlawful search and seizure must also be excluded.

This subsequent exclusion of evidence comes from the legal doctrine known as the fruit of the poisonous tree.

Buying For Personal Use – Mitigating Defense

In this defense, the accused admits he was present at the drug location for the sole purpose of buying drugs for personal use and that there is no other affiliation or association with that drug’s manufacturers or regional suppliers.

The Defense of Mistaken Identity

This defense is based on the contention that the arrest resulted from mistaken identity. In some circumstances, mistaken identity can be the defendant’s best and most effective defense.

For a mistaken identity defense to succeed, the defendant must be a credible witness and show no prior relationship or association with any of the co-defendants.

The defendant must leave the impression that the defendant’s profile is not consistent with the type of character one would expect from a criminal.

D.E.A. Permit Defense – D.E.A. Controlled Substances

According to pharmaceutical industry reports, the United States is the largest producer of pharmaceuticals in the world.

The D.E.A. Form 225 is required to conduct business related to controlled substances in the following categories: manufacturers, distributors, researchers, canine handlers, analytical laboratories, importers, and exporters.

One common defense to drug manufacturing is to show the defendant, in one capacity or another, falls under the D.E.A. Controlled Substances permit (or State equivalent) such that the accused can establish a legal right to possess the manufacturing equipment or chemicals in their possession.

The Defense of Manufacturing Lawful Substances

In this defense, the defendant will claim that the component drugs and equipment were being used to manufacture legal substances such as vitamins or some legal derivative of a drug that might be considered illicit.

Consult A Criminal Defense Lawyer

If you face charges of possession, distribution, or manufacturing of illicit drugs, consult with a Criminal Defense Lawyer and have your case evaluated.

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