Facing Federal Drug Conspiracy Charges in Texas

These cases rarely start with drugs in your hand. They start with a wiretap, an informant, or a co-defendant already talking. The charge is about an agreement. The sentence is about a number. Peter M. Barrett has been licensed in Texas since 1994 and has tried more than 150 jury trials. He is a Past President of the Dallas Criminal Defense Lawyers Association (2005). See our Dallas federal crime defense page.

What 21 U.S.C. §846 actually says

The whole statute is one sentence. 21 U.S.C. §846 reads:

"Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy."

Two things stand out. It sets no lower penalty for agreeing than for doing. And it lists no elements on its face: it does not mention an overt act, and it does not say you must have handled any drug. That is why someone who never touched a package can be indicted beside people who moved kilograms.

The offense behind the conspiracy

Nearly every federal drug conspiracy points back to 21 U.S.C. §841(a), which makes it unlawful to knowingly or intentionally manufacture, distribute, or dispense, or possess with intent to do any of those, a controlled substance or a counterfeit substance. It says nothing about amounts. Those live in §841(b). For the state comparison, see state versus federal drug charges and the Texas drug penalty groups.

How quantity sets the sentence

Section 841(b)(1) has three tiers. Subparagraph (A) is the 10 year tier, (B) the 5 year tier, and (C) covers Schedule I and II substances below those thresholds with no mandatory minimum.

The statute states each weight figure as "a mixture or substance containing a detectable amount." The figures marked pure cover "methamphetamine, its salts, isomers, and salts of its isomers."

Tier A is "not less than 10 years or more than life." Tier B is "not less than 5 years and not more than 40 years." Tier C is "not more than 20 years," no minimum. Two things shift those ranges upward.

• Death or serious bodily injury from use of the substance. Under all three tiers the sentence becomes not less than 20 years and up to life, even in tier C, which otherwise has no minimum.
• A qualifying prior conviction. Under tier A, one prior serious drug felony or serious violent felony that has become final raises the floor to 15 years, and two or more raise it to 25. Under tier B, one raises the range to "not less than 10 years and not more than life." Under tier C, a prior felony drug offense raises the maximum to 30 years. With such a prior, death or serious injury means life under (A) and (B).

Every one of these sentences adds supervised release: at least 5 years under (A), 4 under (B), 3 under (C), doubled with a qualifying prior. Under (A) and (B) there is no probation, no suspended sentence, and no parole. Marijuana under 50 kilograms sits in §841(b)(1)(D), with a 5 year maximum.

The quantity that counts is your quantity

Section 841(b) sets the range by the quantity involved in the violation, and §846 ties your penalty to the offense that was the object of your agreement. In a multi-defendant indictment, the total seized across the investigation is not automatically your number, and that is often the most valuable fight in the case. Moving a defendant from 280 grams of cocaine base to 279 grams drops the floor from 10 years to 5. Nothing else changes.

The guideline range and §2D1.1

The statute sets the floor and ceiling. The advisory guideline range is calculated separately, under U.S.S.G. §2D1.1, whose title covers "Unlawful Manufacturing, Importing, Exporting, or Trafficking ... Attempt or Conspiracy," so it reaches the conspiracy count.

The starting point is the Drug Quantity Table in subsection (c), which assigns an offense level to a drug type and weight. Level 30, for example, covers "At least 3.5 KG but less than 5 KG of Cocaine" and "At least 196 G but less than 280 G of Cocaine Base." From there it adjusts. Under (b)(1), "If a dangerous weapon (including a firearm) was possessed, increase by 2 levels." Subsection (b)(18) subtracts 2 levels for meeting the §5C1.2(a) criteria.

Two routes below a mandatory minimum

The safety valve, 18 U.S.C. §3553(f). For offenses including §841 and §846, the court must sentence "without regard to any statutory minimum sentence" if it finds, after the government has had a chance to recommend, that all five conditions are met. In summary, the defendant: has no more than 4 criminal history points excluding points from a 1-point offense, no prior 3-point offense, and no prior 2-point violent offense; did not use violence or credible threats of violence, possess a firearm or other dangerous weapon, or induce another participant to do so; committed an offense that did not result in death or serious bodily injury; was not an organizer, leader, manager, or supervisor, and was not engaged in a continuing criminal enterprise; and has truthfully given the government all information and evidence about the offense. Having nothing useful to add does not by itself defeat that condition.

Substantial assistance, 18 U.S.C. §3553(e). "Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence" to reflect substantial assistance in the investigation or prosecution of another person. The policy statement, U.S.S.G. §5K1.1, says a sentence below the guideline range may be appropriate on such a motion. Note the shared feature: the government moves, not the defendant.

What the sentencing numbers look like

The U.S. Sentencing Commission publishes Quick Facts on drug trafficking. Of 66,662 cases reported to it in fiscal year 2025, 16,144 involved drug trafficking. From that report:

• 97 percent of individuals sentenced for drug trafficking went to prison.
• The average sentence was 87 months, though it varied by drug type.
• 56 percent were convicted of an offense carrying a mandatory minimum, and 44 percent of those were relieved of it.
• 31 percent had a sentence decreased for meeting the safety valve criteria, and 32 percent had one increased for possessing a weapon.
• Three Texas districts ranked among the five with the most such cases: Western (712), Southern (622), and Northern (537), which covers Dallas.

Those are other people's cases, but they show prison is the ordinary result and mandatory minimum relief is worth working for.

Forfeiture under §853

A drug conviction punishable by more than one year also triggers 21 U.S.C. §853(a). The person forfeits any property constituting or derived from proceeds of the violation, and any property used, or intended to be used, to commit or facilitate it. The court "shall order" forfeiture on top of any other sentence, and §853(b) reaches real property. That is why houses and cars come up early.

If agents contact you, or you learn you are a target

• Do not talk without a lawyer, even to deny it. Your words become the agreement the government is trying to prove. Read about your right to remain silent.
• Do not contact co-defendants or witnesses. A call meant to be harmless can support an obstruction count or cost you bond.
• Preserve records, phones, and devices. Deleting anything creates a new case that is easier to prove than the drug case.
• Understand what a proffer is. It is a contract with terms. Section 3553(f)(5) also requires full disclosure before the safety valve applies.
• Move early. The window before indictment is when the most can be done. Call (214) 526-0555.

How these cases are defended

Every case turns on its own facts, and no outcome can be predicted. The work runs along several lines:

• The scope of the agreement. One conspiracy or several? Buying from the same source as someone else is not agreeing with them.
• The quantity attributed to you. A sentencing fact with statutory consequences, contested with records.
• Informant evidence. Cooperating witnesses often work toward a §5K1.1 motion of their own, and their agreements and prior statements are subject to disclosure.
• Wiretaps. The application, the authorizing order, and the recordings all deserve close review.
• Suppression. Stops, searches, warrants, and consent are still the ground floor. Our drug crime defense page covers this.

Where conviction is likely, the work shifts to criminal history points, weapon findings, and role, because each moves the floor. If the indictment also carries an enterprise count, see what a RICO charge means.

Common questions

This article is general legal information about federal law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed criminal defense attorney about your specific facts. Request a free, confidential case review.