Possession with the Intent to Deliver

There are many types of drug-related charges. Drug charges may be relatively minor, such as possession of a small amount of certain drugs, or they may be more severe, such as manufacturing, distributing and delivering drugs. Generally, the criminal charges increase depending upon the type and quantity of drugs a person possesses and whether a person is charged with manufacturing or distribution of the illegal narcotics. In the Commonwealth of Pennsylvania, as in all states, it is illegal to manufacture, hold, sell, offer for sale, deliver, or possess any controlled substance. “Controlled substances” are generally defined as those drugs or their components that appear on the federal schedules, which include many pharmaceuticals, not just illegal “street drugs.” Pursuant to 35 P.S. § 780-113, you can face potential felony charges depending on the nature of the drug-related offense and the type of substance and amount possessed.

There is a monumental difference, however, between being charged with an attempt to sell or deliver a controlled substance and simple possession of that substance. If you’ve been charged with “Knowing and Intentional Possession,” often abbreviated as a “K&I” by police, you’ve likely been charged under Title 35, § 780-113(a)(16) of the Pennsylvania Code, which prohibits “[k]nowingly or intentionally possessing a controlled or counterfeit substance.” In layman’s terms, this means that you are charged with simple possession of narcotics as a misdemeanor, and the police likely believe you possessed the substances only for personal use. A conviction under § 780-113(a)(16) is punishable by less than one year in prison, a fine not exceeding $5,000, or both, provided you are not in possession of GHB. Often, those charged with a K&I are addicts in need of rehabilitation and sentencing alternatives, which the attorneys at the Zeiger Firm can advocate for. However, if you or a loved one was charged under 35 P.S. § 780-113(a)(30), this is a very serious “Possession with Intent to Distribute” or PWID charge. Essentially, you’ve been accused of manufacturing or dealing drugs.

Overview of Pennsylvania PWID Law

Possession with Intent to Distribute differs in both form and substance to a K&I charge in that it is not generally assumed you’re an addict in need of rehabilitation. Instead, police will most likely believe you are making a profit from the sale of narcotics, which is contributing to the addiction epidemic. While it can be argued that a simple drug possession charge is a victimless crime because you are doing harm to only yourself, a PWID charge is not considered “victimless.” You have been charged with making or attempting to make a profit off of that “victim.” For these reasons, a PWID charge, although still a drug-related offense, is elevated far above a K&I. Whether a charge of PWID is punishable as a felony or misdemeanor depends on the nature of the substance possessed, but it is most often charged as a felony. For example, possession with the intent to deliver any of the following Schedule I and II narcotic controlled substances or a counterfeit thereof is punishable as a felony with up to 15 years in prison:

  • Morphine;
  • Oxycodone;
  • Codeine;
  • Opium;
  • Fentanyl;
  • Heroin;
  • LSD; and
  • Cocaine.

It is the element of intent that often differentiates a misdemeanor possession crime from a felony distribution crime, and the amount and type of the substance possessed will often dictate the level of punishment. However, the element of intent is not often apparent to police and must be proved by circumstantial evidence. Often the police will look at the nature of the substance, the amount of the substance possessed, and the presence or absence of drug paraphernalia in order to determine whether the drugs possessed were solely intended for personal use or meant for sale as part of an enterprise. The police will also look for cash, ledgers, and books of contacts in the location where the drugs were found in order to determine whether the felony charge of PWID should apply.

If you or a loved one is charged with Possession with the Intent to Distribute or Manufacture, contact the Philadelphia drug crimes lawyers at The Zeiger Firm. Our attorneys understand that PWID is a serious charge that can hold grave consequences when mandatory minimum sentences come into play. We represent people from our offices in Philadelphia throughout the state of Pennsylvania on PWID cases. Police are arresting people for marijuana, cocaine, heroin, PCP, methamphetamine, MDMA (ecstasy), and many other drugs, and our attorneys have the experience to fight those cases in both federal and state court.

Controlled Substances and Pharmaceuticals: Why the Schedule Makes a Difference

Drugs, and even certain chemical components of those drugs, are classified by the Drug Enforcement Administration (DEA) into five categories. The “experts” classify the drugs based on whether the drug has an “accepted medical use” and the potential for dependency, i.e., addiction. For example, it is said by some that you can actually become addicted to heroin after only one use, while marijuana will not produce the same level of physical dependency. In fact, according to the DEA, the abuse-rate is typically the determining factor in “scheduling” a drug. Schedule I drugs have the highest potential for abuse and dependency, with Schedule V drugs representing those controlled substances that have the least potential for dependency and abuse. Currently, the following drugs are considered Schedule I because they have no recognized medical use and high potential for abuse:

  • Heroin;
  • LSD;
  • Marijuana;
  • Ecstasy;
  • Methaqualone, and
  • Peyote.
You may be surprised to find marijuana on that list, as some states have legalized marijuana and many physicians claim it has medical uses, especially in the alleviation of chemotherapy symptoms. If you were shocked by a charge of PWID of marijuana, contact the attorneys at The Zeiger Firm. They may be able to argue against the federal classification and get your sentence reduced.

Schedule II substances include many pharmaceuticals, and even though they have a high rate of dependence, they are classified below the Schedule I substances because they serve a medical purpose and can be legally possessed in many circumstances. Schedule II substances include, but are not limited to, the following:

  • Vicodin;
  • Cocaine;
  • Methamphetamine;
  • Demerol;
  • OxyContin;
  • Adderall, and
  • Ritalin.

If you are familiar with the effects of methamphetamine, you are probably shocked to have just seen that it is classified lower than marijuana! Further, did you know that we all likely have a Schedule V controlled substance in our house, as Schedule V substances include many common cough medications such as Robitussin? The federal drug schedules are somewhat archaic, and they should not be the end-all when it comes to the seriousness of your charges and potential sentence. The attorneys at the Zeigler Firm will fight to ensure that every detail of your case is considered during prosecution and that you are not unfairly charged or sentenced because of an outdated system.

Federal Drug Charges

Did you know that, according to the Federal Bureau of Prisons, nearly 46% of all inmates are incarcerated on drug charges? With the hundreds of crimes one can be federally charged with, this number is a staggering reflection of how drug crimes are often overcharged. Those imprisoned have typically be charged with the federal equivalent of PWID, and this charge tends to be much more serious in federal court because of mandatory congressional minimums. Mandatory federal drug sentencing guidelines tend to be much harsher than their state-based counterparts, and unlike in Pennsylvania, there is no parole in the federal prison system.

Federal drug-trafficking offenses, which are similar to possession with intent to distribute offenses if the drugs are coming from or crossing over state lines, carry some harsh mandatory minimum penalties depending on the weight and nature of the controlled substance. For example, if you are found with between 100 and 999 grams of heroin, you are subject to a five-year mandatory minimum term in prison if convicted. Even the federal judge has little to no authority to override a mandatory minimum sentence, which is set by Congress. If you are found with over 1 KG of heroin, then the mandatory minimum sentence is 10 years imprisonment, again with no possibility of parole. You should be aware, however, that this is just the minimum sentence, and the judge has discretion to increase your sentence depending on your criminal history and extenuating circumstances, such as use of a firearm during a drug deal. Further, if your crime is linked to the death or serious bodily injury of another, for example, someone overdoses and dies as a result of a drug transfer, then you are subject to a minimum sentence of 20 years.

When it comes to federal minimum sentences, it’s all in the details. Under 21 U.S. Code § 841, it is illegal to “knowingly or intentionally” manufacture, distribute, dispense, or possess a controlled substance or a controlled substance analog. Whether you’re subject to no minimum or a five, ten, or twenty-year minimum, however, can be determined based on one or two small facts. Federal law states that “if death or serious bodily injury results from the use of such substance,” you are subject to a 20-year minimum. However, this can be a hard charge to prove. What if an addict’s death was caused by intervening factors, such as a deadly mixture of medications? What if his death was unrelated to the drug that you are alleged to have sold him? What if there were multiple drugs in his system and there is no way of knowing which actually caused or contributed to his death? In this case, the attorneys at the Zeiger Firm may be able to get this portion of your charges dismissed by showing the court that there are flaws in the prosecutor’s evidence.

The nature of the substance possessed is also important in these cases. For example, you would need to be found with over 1,000 KG of marijuana in order to be subject to the same 10-year mandatory minimum prison term applicable to those found with 1 KG of heroin even though they are both Schedule I substances. If you are found to be in possession of quantities of different types of controlled substances, however, then there is actually a conversion chart that is used to determine what the overall “weight” of the drugs are for sentencing purposes. This is accomplished by giving every controlled substance a “marijuana value,” which is used as a common denominator. It may seem confusing if you receive an indictment or presentencing report that claims you were in possession of an enormous amount of marijuana when such is simply not the case. Because these weights can be added together to trigger certain minimum sentencing guidelines, a drug possession defense attorney at the Zeiger Firm should review your indictment for accuracy. He may be able to argue that the conversion was inaccurate, and you should not be subject to certain mandatory minimum sentences.

Drug Manufacturing & Controlled Substance Analogs

Although the charge is often referred to as Possession with Intent to Distribute, the laws at issue generally include those who are charged with manufacturing or obtaining the drugs for the purpose of eventually distributing the same. Drug manufacturing, distribution, and delivery include the most serious drug crimes such as drug trafficking, drug smuggling and selling drugs offline or online. In Pennsylvania, drug manufacturing includes activities such as growing marijuana, manufacturing methamphetamines or otherwise operating a drug laboratory. At The Zeiger Firm, our attorneys are familiar with the precise details on which the District Attorney will focus his or her case, such as the weight of any roots, capsules, seeds, etc., and we plan our client’s defense to respond to this evidence and to show the errors in the prosecutor’s case.

Further, the manufacturing and sale of controlled substance analogs has been a hot topic when it comes to recent changes in drug possession laws, and the law is constantly evolving. Controlled substance analogs are chemical creations designed to have a similar chemical structure and effect as the “real thing.” For example, a common controlled substance analog is called “spice,” which is a manufactured type of marijuana. There are many distributors who believe that they are selling controlled substance analogs legally because the chemical structures used are not specifically listed on the drug schedules and they are not selling the actual drug. However, the law is constantly evolving when it comes to analog substances as law enforcement continues to try and “catch up” with new manufacturing developments.

Although you might be surprised by a federal or state charge of distributing or manufacturing what is essentially a drug substitute, such manufacturing is being cracked down on because the side effects of taking the analog of the drug are sometimes worse for users than using the drug itself. For example, “spice” contains a multitude of chemicals that should not be ingested because they can cause serious neurological side effects that are not caused by using marijuana itself. Many controlled substance analogs also contain warnings about how they should not be ingested, and some sellers don’t actually know that what they are selling are illegal analogs. However, it should be noted that in order to prove you are guilty of knowing and intentional distribution, you actually have to know that you are distributing an analog. Many such analogs are labeled as aromatherapy products, but they are really designed to be ingested. If you testify that you did not know this, then the government will have to show that you knew the analogs were meant for human consumption by presenting the court with evidence of the same.

For example, if you sell the substances next to drug paraphernalia and give purchasers instructions as to how to ingest them, then the court will likely find you knew you were distributing an analog. On the other hand, if you had the substances next to aromatherapy items and there is no evidence that you intended them to be ingested by your customers, then the attorneys at the Zeiger Firm may be able to get the charges against you dismissed because the possession and sale of the analog drugs was not a “knowing” possession and sale.

Defeating Drug Possession Charges

Under Pennsylvania law, a base conviction for drug-related offense generally requires proof, beyond a reasonable doubt, that the defendant: (1) knowingly and intentionally possessed a controlled substance without a valid prescription; (2) knew the drug was an illegal controlled substance; (3) had actual control or possession of the drug; and (4) intended to sell, distribute, or manufacture the drug. Because the government has the burden of proving that you are guilty of a PWID offense beyond a reasonable doubt, it must have evidence sufficient to show the court that you are guilty of each of the elements listed above. This means that a prosecutor must first prove that you knew you possessed an illegal substance. For example, if you are accidentally given the wrong prescription when you go to the pharmacy, you do not “knowingly” possess the un-prescribed oxycodone. Along the same vein, your possession of the substance has to be intentional. If someone places an illegal substance in your luggage without your knowledge before you go through airport security, then you never knowingly possessed this substance.

Further, if you hand your luggage over to the cab driver, you have not then “knowing and intentionally distributed the controlled substance.

The next element the prosecutor for the Commonwealth must generally prove is whether you had actual control over or possession of the controlled substance. If the prosecutor is arguing that you had constructive possession of the controlled substance, it means that the substance was not found on your person but rather near you or in an area subject to your control. For example, if the drugs are found in your car, under the floorboard of your room, or in your home, the police may assume that they were in your control and possession. Merely being present in a house or car where drugs are found or being sold, however, is not enough to prove that they were actually in your possession or control and that you were part of the transaction. There are those who reside in multi-unit dwellings where they know controlled substances are hidden, but that does not mean they have possession or control of those substances or intent to make money off of them. They may simply allow someone to hide those substances in their vicinities because they are afraid of violence or gang activity. There may not be enough evidence here to prove that you actually had possession or control of the controlled substance, and the drug possession attorneys at The Zeiger Firm can argue that you are simply a victim, like many others, of gang-related activities.

Reducing Your Sentence After a Guilty Verdict or Plea

Especially if you have been charged with a drug distribution offense in federal court, you may be surprised to learn that there is normally about a three-month gap between your guilty plea (or guilty verdict) and your actual sentencing hearing before the judge. This gap is intended to allow your probation officer to prepare a sentencing report for the judge that will set out the following:

  • Your criminal history;
  • Family background;
  • Work situation;
  • Educational history;
  • Notable accomplishments such as military service; and
  • Any aggravating factors relating to the crime.

Certain positive factors, such as whether you cooperated with the police, and any aggravating factors, such as use of a weapon during the drug deal, are actually converted to points, which are added or subtracted from the “base” points assigned to the drug offense. The more serious the “base” offense, the higher its starting point value. The more drugs you possessed, the higher your “base.” The resulting number is then paired with your criminal history level, typically ranging from “0”, meaning no criminal history, to “VI”, meaning that you have either a very serious or extensive criminal history. A conversion table is then used to create a sentencing “range” for the judge.

However, your defense attorney has the right to challenge the probation officer’s findings and object to certain factors that might increase your sentencing range. For example, if the probation officer claims that dealing drugs was your primary means of supporting yourself such that you are charged with a “lifestyle” increase, your attorney can present evidence of your legal income and argue that this was not the case. This may take years off of your sentence. Likewise, your attorney can also argue that you were cooperative and cordial with the police and deserve a reduction. Your attorney can further gather letters of recommendation from friends, family, co-workers, and/or clergymen attesting to your character, family life, and involvement in the community. After receiving all of this information, the judge must consider the following factors before you are sentenced:

  • The nature and circumstances of the offense;
  • Your history and characteristics;
  • The seriousness of the offense;
  • Deferral of future criminal conduct;
  • Whether restitution is due or was paid to any victims;
  • Whether the sentence will help protect the public from future crimes; and
  • The kinds and types of punishments and sentences available.

If the judge does not consider these factors, your attorney may be able to file an appeal to have you resentenced. Your defense attorney also has the right to argue that your characteristics merit special considerations and that you should not be sentenced in accordance with the harsh sentencing guidelines. Our firm is always are prepared with sentencing alternatives to present to judges. Even if after speaking with your defense attorney you decided to plead guilty to a drug-related offense as opposed to go to trial, there is still a lot of work to do to ensure that your sentence is no more than necessary in relation to the crime. We work closely with social workers, treatment facilities and healthcare professionals to provide mitigation reports and earn our clients placement in drug programs if needed.

Call a Pennsylvania PWID and Criminal Defense Attorney in Philadelphia Today

Whether you are charged with drug manufacturing, cultivation or another related distribution crime, it is important to understand that many of these major drug crimes carry serious penalties, including “mandatory minimum” sentences. If found guilty, you inevitably will confront serious jail time and the potential for fines and other punishments. Therefore, you need a lawyer who can construct and execute your strongest possible defense as early as possible. In drug cases, you need an attorney who recognizes that small differences are enormous. We advocate zealously for our clients, never forgetting that our most important goal is obtaining the best results for you or your loved one, whether that means fighting procedural battles or representing our clients before a judge or jury. We work hard for our clients, explaining their options and keeping them updated about the status of their cases.

When you need a Philadelphia, Pennsylvania criminal defense attorney to defend you when you or a loved one has been arrested and charged with drug manufacturing or sale, contact The Zeiger Firm. Our criminal defense attorneys have represented numerous people charged with drug and narcotic crimes in both federal and state court. Remember, you are innocent until proven guilty and the state has the burden of proving each criminal element. Whether you decide to plead guilty, take your case to trial, or have already been convicted of a drug distribution crime and are looking to appeal, we have the attorney for you. To arrange a consultation, please give us a call at 215-546-0340 or send us an email via the form below.


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