We’ll bet that you didn’t know this: Cocaine is legal in the United States. Coca leaves are imported legally from Peru, legally converted to cocaine in Maywood, New Jersey, and legally purified in St. Louis, Missouri. It is legally prescribed by doctors and dentists, and legally possessed and used by their patients.
Sure, cocaine is regulated at each stop of this process, but all of this is in contrast to marijuana, which most people reasonably consider less dangerous than cocaine, but which cannot legally be imported, processed, prescribed, possessed or used.
Under federal law, marijuana (along with LSD, heroin, MDMA, methaqualone, and peyote) is a Schedule I controlled substance (it cannot be prescribed). Cocaine is a Schedule II controlled substance (it can be administered by a doctor).
Of course, most people using, possessing, processing, and importing cocaine in the United States are not doing so under the permits and licenses required for it to be legal.
They are bringing it in from Mexico, then breaking it up, cutting it, and reselling it in smaller and smaller packages, or cooking up cocaine base (“crack”), and selling to consumers. And every step along the way is a felony under both Texas and federal law.
Texas Cocaine Penalties
In Texas cocaine is a controlled substance in Penalty Group 1. The punishment depends on the quantity, and the intent of the possession:
|0–1 grams||6 months to 2 years in prison.|
|1–4 grams||2–10 years in prison.|
|1–4 grams with intent to deliver, or 4–200 grams||2–20 years in prison.|
|4–200 grams with intent to deliver, or 200–400 grams||5 years to life in prison.|
|200–400 grams with the intent to deliver, or more than 400 grams||10 years to life in prison.|
|More than 400 grams with the intent to deliver.||15 years to life in prison.|
As a practical matter, possession of more than 200 grams (a gram is about the amount of artificial sweetener in a restaurant packet) of cocaine will be charged as “intent to deliver.”
Federal Cocaine Penalties
Under federal law, possession of 5 kilograms or more of cocaine has a punishment range of 10 years to life in prison. Possession of between 500 grams and 5 kilograms of cocaine has a punishment range of 5 years to life in prison. And possession of less than 500 grams of cocaine has a punishment of up to 20 years in prison.
Texas prison sentences and federal prison sentences do not equate: There is parole in the Texas system, and not in the federal system. If you get ten years in Texas prison for drug possession, you might be eligible for parole within two years. If you get ten years in federal prison for drug possession, you are unlikely to get out in under eight years.
Defending Cocaine Cases
Bennett & Bennett have successfully represented people charged with possession of cocaine from trace amounts (residue in crack pipes — just because you can’t see it doesn’t mean it isn’t there) to six tons (a Panamanian-flagged freighter bound from Colombia to Portugal with a hold full of cocaine).
The usual defenses for possession of cocaine — like those for the possession of anything illegal — are:
- I didn’t possess it (I didn’t exercise control over the bag);
- I didn’t know I possessed it (I didn’t know the bag was in the car);
- It wasn’t the illegal thing (the bag was actually full of sheetrock);
- I didn’t know it was the illegal thing (I thought it was a bag full of sheetrock); and
- The government broke the law to find the evidence against me (the search of my bag violated the constitution).
Aside from those defenses, there are things that defense lawyers and defendants can sometimes do to make cocaine cases go away, or if not to make them go away then to minimize their impact on the defendants.
Under both state and federal law, the government does not have to prove that the defendant owned the cocaine, or even that he had his hands on it, if he was a party to the offense (because, knowing about the offense, he helped or encouraged it). This is the essence of Texas’s law of parties, the federal aiding-and-abetting statute, and both state and federal conspiracy statutes (though Texas’s conspiracy law is seldom invoked.
If you or a loved one are facing possession-of-cocaine charges, please call Bennett & Bennett at 713.224.1747.