Trafficking and Enhancements
This is the third and final post in this series on Mississippi drug cases. The first covered possession. The second covered sale, transfer, and manufacturing. This one covers a serious provision of the statute — trafficking under Section 41-29-139(f), aggravated trafficking under (g), and the three principal sentencing enhancements that ride along with drug cases in this state: a firearm in the picture, a prior conviction, and distribution to a person under twenty-one or activity within a school zone.
I want to start with something that needs to be understood plainly, before any of the rest of this makes sense. Trafficking in Mississippi is a different and harsh. The penalties are not just longer than the penalties for sale or possession with intent. They are mandatory. They cannot be suspended. The defendant cannot get probation, parole, or earned-release credit. The judge has limited room to do anything other than impose the sentence the statute requires. .
Trafficking under Section 41-29-139(f).
“Trafficking” in Mississippi is not, despite what the word suggests, about moving drugs across a border or running an organized operation. It is, in most cases, a quantity charge. When the amount of a controlled substance crosses certain weight or dosage-unit thresholds, the offense — whether it is sale, possession with intent, or even simple possession — is automatically elevated to trafficking, regardless of what the defendant was actually doing with the drugs.
For Schedule I and II drugs other than marijuana — the cocaine, methamphetamine, heroin, fentanyl, and oxycodone cases — the trafficking threshold is only thirty grams or forty dosage units. For Schedule III, IV, and V drugs, it is five hundred grams or twenty-five hundred dosage units. If those weights are possessed, the case is no longer about whether you sold anything; it is about how much you had.
The penalty for trafficking is ten to forty years in prison and a fine of $5,000 to $1,000,000. The ten years is mandatory — it cannot be suspended or reduced — and the defendant is not eligible for probation or parole. That is the whole sentence, served day-for-day, with no early release.
Aggravated trafficking under Section 41-29-139(g).
If the case involves two hundred grams or more of a Schedule I or II drug other than marijuana or synthetic cannabinoids, the charge is aggravated trafficking. The penalty is twenty-five years to life in prison and a fine of $5,000 to $1,000,000. The twenty-five-year sentence is mandatory. No probation. No parole. No suspension.
Two hundred grams sounds like a lot of cocaine. But it is well within the range of what shows up in a single search of a single residence in a Mississippi case, and aggravated trafficking is a charge that comes up here every year. A young man who has agreed, for whatever reason, to hold a package for someone is, on paper, looking at twenty-five years to life if that package weighs more than seven ounces.
There is a narrow safety valve in the law. Section 41-29-139(h) allows a sentencing judge, in limited circumstances, to depart below the mandatory sentence if the defendant was not a leader, used no violence, the offense did not result in death or serious bodily injury, the defendant has no prior felony, and the interests of justice would not be served by the mandatory sentence. The judge must put the reasons on the record.
Enhancement #1: A firearm — Section 41-29-152.
The firearm enhancement is the one that catches most people, including people who own their guns lawfully and have done nothing wrong with them.
Section 41-29-152 says that if you violate Section 41-29-139 — any subsection of it, possession through trafficking — and you have a firearm in your possession either at the time of the offense or at the time of arrest, the maximum sentence and the maximum fine can both be doubled. Read that language carefully: it says or. The State does not have to prove the gun was at the offense. It is enough that the gun was there when the arrest happened. Due to the prevalence of person gun ownership in Mississippi, we see this enhancement used frequently. Law enforcement is also starting to use this enhancement in misdemeanor drug cases.
So if a person is pulled over for a traffic violation and the officer finds a small amount of methamphetamine in the console along with his lawful gun, then the charge can be possession of controlled substances while in possession of a weapon, which doubles the punishment.
The statute defines “firearm” as any weapon, including a starter gun, that will or is designed to or may readily be converted to expel a projectile by the action of an explosive. A starter pistol — the kind used at track meets — counts. The Mississippi appellate courts have applied this provision to lawfully owned guns and to guns the defendant did not actually have on him at the moment of the offense, as long as he had one at arrest.
This is one of the most important enhancements for a defense lawyer to fight in the right case. Whether the gun was actually in the defendant’s possession (as opposed to a passenger’s, or a residence’s other occupant’s), whether the State has proved the operability of the weapon, and whether the firearm enhancement applies at all to a trafficking sentence that is already a mandatory minimum — these are real questions, and they have to be raised the right way and at the right time.
Enhancement #2: A prior conviction — Section 41-29-147.
Section 41-29-147 says that any person convicted of a second or subsequent offense under the Uniform Controlled Substances Law may be sentenced to up to twice the term, twice the fine, or both, that would otherwise apply to a first conviction.
There are two things every client needs to understand about this provision. The first is that it is discretionary, not mandatory. The Mississippi Supreme Court has held — in Wells v. State and the cases that have followed it that the trial judge has complete discretion whether to enhance under Section 41-29-147. The judge can apply all the enhancement, can apply some of it, or can apply none of it. That discretion matters, because it gives a defense lawyer something to work with at sentencing in a way the trafficking statute does not. The second important point is that the State has to prove the prior conviction, and it has to prove it the right way. This usually means a certified copy. The conviction has to be a qualifying prior.
Enhancement #3: School zones, churches, and persons under twenty-one.
I covered Section 41-29-142 (school, church, park, and similar zones) and Section 41-29-145 (distribution to a person under twenty-one) in the second post in this series. They belong here too, because in trafficking cases they often have double penalties that are already at the top of the criminal code.
Both statutes provide that the maximum can be doubled. Both of them apply with full force in trafficking cases. When you stack a trafficking charge under Section 41-29-139(f) on top of a school-zone enhancement under Section 41-29-142, you are looking at penalties that, in the worst case, can climb into the range historically reserved for crimes of violence.
Defending these cases.
A trafficking case in Mississippi is, in a real sense, three trials in one. There is the trial about whether the defendant possessed the drugs at all with the requisite knowledge. There may be challenges to the lab work, the weighing, the chain of custody, whether the State has actually proved the threshold quantity. And there may be challenges in trial about the firearm, the prior conviction, the location, the age of any alleged buyer.
It is important for the person charged to have lawyer with real experience. A lawyer with decades of trial experience can review and study the complex search and seizure issues and all the facts that can make or break a case.
Bottom line.
Trafficking and aggravated trafficking carry mandatory time in Mississippi. Ten years for trafficking, twenty-five for aggravated trafficking. Neither can be suspended or granted parole, and they are not subject to early release. The firearm and prior-conviction enhancements can double the maximum on top of that. The school-zone provisions can double it again. These are the cases where the rest of a person’s life is on the table.
They are also cases where good defense work — done early, done thoroughly, done by someone who has tried these cases before in Mississippi state court — may make a substantial difference.
If your family is facing one of these cases, do not wait. Call a Mississippi lawyer, Coxwell & Associates, who handles them. We have been doing this work for forty-five years, and we are still doing it because it is work that matters.
Forty-five years and counting.