Federal Marijuana Trafficking: Still a Federal Crime.

Does Texas Law or a State Marijuana License Block a Federal Marijuana Trafficking Charge?

No. Marijuana continues to be listed as a Schedule I controlled substance, and while several states have passed laws authorizing various forms of marijuana use (and many state governments authorize certain forms of commercial marijuana operations under specific state licenses), state authorization does not itself authorize the conduct involving marijuana under the federal Controlled Substances Act. While states can choose to decriminalize marijuana under their own laws (or in some cases, specifically authorize its commercial use and sale), they cannot legalize the conduct at the federal level.

Marijuana remains prohibited under the CSA, and federal authorities are authorized to investigate and prosecute marijuana trafficking offenses regardless of state law and state marijuana license.

What Counts as “Federal Marijuana Trafficking”?

Marijuana “trafficking” is not a specific offense under federal law; and federal law does not specify a particular amount of marijuana that is required to trigger federal marijuana trafficking charges. Instead, federal prosecutors routinely charge marijuana distribution and possession with intent to distribute (pursuant to § 841(a)(1)) to prosecute marijuana offenses at the federal level. The amount of marijuana, in some cases, will determine whether these types of marijuana charges lead to mandatory minimum sentences, and the other circumstances involved in the offense can also affect the sentencing exposure.

What are the Sentencing Penalties for Marijuana Possession vs. Federal Marijuana Distribution?

Federal marijuana possession and distribution penalties are entirely distinct. While there are cases where simple possession will be the focus of a federal investigation and prosecution, most federal marijuana trafficking prosecutions involve allegations of distribution or possession with intent to distribute. Marijuana trafficking charges under the CSA include a variety of criminal offenses that carry different potential sentencing penalties. Again, the amount of marijuana involved and the other circumstances involved in the case will largely determine the actual sentencing exposure in cases involving federal marijuana trafficking.

With our experience, knowledge, and insights, the federal criminal defense attorneys at Spodek Law Group can do whatever it takes to help you navigate the complex federal criminal justice system while working to protect you against criminal charges.

How do federal prosecutors prove marijuana delivery or intent to distribute?

1. Explaining the legal definition of marijuana trafficking: Begin by citing U.S.C. § 841(a)(1), which prohibits knowingly manufacturing, distributing, dispensing, or possessing marijuana with the intent to distribute. This clarifies the statute’s broad reach.

2. Discussing the types of evidence federal prosecutors use: Describe how federal indictments for marijuana trafficking often rely on cooperating witnesses, wiretaps, search warrants, and surveillance footage. Explain that prosecutors may use these to establish liability or intent.

3. Explaining “possession with intent to distribute”: Detail how intent is proven when no actual delivery occurred. Discuss factors like quantity, packaging, cash, and communications as evidence used by federal prosecutors to infer distribution intent.

4. Discussing legal defenses against evidence collection: Mention challenges based on the Fourth Amendment, specifically the ability to file a motion to suppress evidence obtained via unconstitutional searches.

5. Clarifying Miranda rights and custodial interrogation: Address the Fifth Amendment, explaining that Miranda warnings should generally be read prior to custodial interrogation by law enforcement to protect a defendant’s rights.

How Do Federal Prosecutors Prove Marijuana Delivery or Possession with Intent to Distribute?

Under 21 U.S.C. § 841(a)(1), federal law prohibits knowingly manufacturing, distributing, or dispensing a controlled substance, or possessing a controlled substance with intent to manufacture, distribute, or dispense it; importing or exporting controlled substances is addressed principally by 21 U.S.C. §§ 952, 953, and 960. While prosecutors can target any one of these acts, many federal indictments target individuals under multiple provisions of § 841(a)(1). Depending on the specific circumstances involved, evidence from cooperating witnesses, wiretaps, warrants, surveillance, and communications may be used to establish guilt beyond a reasonable doubt.

When prosecuting individuals for marijuana offenses under § 841(a)(1), federal prosecutors typically rely on evidence obtained through a federal grand jury indictment and the subsequent discovery process. From grand jury subpoenas and search warrants to informants and wiretaps, various sources of information can play a role in establishing the requisite elements for federal marijuana trafficking.

How is “Possession with Intent to Distribute” Proven?

When there is no evidence of an actual marijuana delivery, or evidence of a marijuana sale, federal prosecutors will frequently target individuals charged with possession with intent to distribute. While drug quantity is a key factor in proving possession with intent to distribute, marijuana trafficking prosecutors may look to a variety of other factors to infer intent to distribute. Evidence of drug packaging, large sums of cash, scales, and communications with known drug users or customers may also be used to establish liability for possession with intent to distribute.

Like any other form of evidence, a defendant may challenge evidence that was illegally obtained. This includes evidence that was obtained during an unconstitutional search, or in violation of the defendant’s Miranda rights. If a defendant is subject to a search or a custodial interrogation by state or federal law enforcement, the defendant’s Fourth and Fifth Amendment protections apply. If applicable, the federal defense attorneys at Spodek Law Group can file a motion to suppress.

Which marijuana quantities trigger federal minimums or life exposure?

1. Section 841(b)(1)(A) Marijuana Quantities: Explain the applicability of Section 841(b)(1)(A) for at least 1,000 kilograms of marijuana or 1,000 marijuana plants. State the corresponding sentencing range of 10 years to life.

2. Section 841(b)(1)(B) Marijuana Quantities: Explain the applicability of Section 841(b)(1)(B) for between 100 and 999 kilograms of marijuana or 100 and 999 marijuana plants. State the corresponding sentencing range of five years up to 40 years in prison.

3. Section 841(b)(1)(D) Marijuana Quantities: Explain the applicability of Section 841(b)(1)(D) for up to (but not including) 50 kilograms of marijuana or 50 marijuana plants. Mention that there are no statutory mandatory minimums for offenses falling under Section 841(b)(1)(D).

4. Other Factors Affecting Marijuana Sentencing Exposure: Elaborate on factors beyond marijuana quantity that affect sentencing exposure, including prior convictions and involvement in organized criminal activity. Mention how these factors can potentially lead to life in prison.

Which Marijuana Quantities Trigger Federal Mandatory Minimums or Exposure to Life in Prison?

Under the Controlled Substances Act (or CSA), Section 841(b)(1) contains multiple sentencing subparagraphs, but only subparagraphs (A), (B), and (D) establish the principal marijuana quantity tiers. The marijuana quantities that trigger each subsection are as follows:

Section 841(b)(1)(A)

Section 841(b)(1)(A) applies to offenses involving the manufacture, distribution, or possession with intent to distribute, in one or more transactions, a marijuana quantity of:

• At least 1,000 kilograms; or
• At least 1,000 marijuana plants

A defendant convicted of a federal offense that falls under Section 841(b)(1)(A) faces a sentencing range of ten years to life in federal prison.

Section 841(b)(1)(B)

Section 841(b)(1)(B) applies to offenses involving the manufacture, distribution, or possession with intent to distribute, in one or more transactions, a marijuana quantity of:

• At least 100 kilograms, but less than 1,000 kilograms; or
• At least 100 marijuana plants, but fewer than 1,000 marijuana plants

A defendant convicted of a federal offense that falls under Section 841(b)(1)(B) faces a sentencing range of five years to 40 years in federal prison.

Section 841(b)(1)(C)

Section 841(b)(1)(C) applies to offenses involving the manufacture, distribution, or possession with intent to distribute, in one or more transactions, a marijuana quantity of:

• At least 50 kilograms, but less than 100 kilograms; or
• At least 50 marijuana plants, but fewer than 100 marijuana plants

Section 841(b)(1)(D)

Section 841(b)(1)(D) applies to offenses involving less than 50 kilograms of marijuana, except when the offense involves 50 or more marijuana plants regardless of weight.

While there are no statutory mandatory minimums under Section 841(b)(1)(D), the statutory maximum is five years of imprisonment for a defendant without a prior felony drug conviction and ten years after such a conviction.

Other Factors That Affect Federal Marijuana Sentencing Exposure

When determining a defendant’s sentencing exposure, federal prosecutors and judges will look to a variety of other factors in addition to the amount of marijuana involved. These factors can include evidence of prior convictions, evidence of involvement in organized criminal activity, possession of a firearm, and other aggravating circumstances. While a first-time offender facing simple possession of marijuana might not be at risk of life imprisonment, evidence of running a criminal organization or participating in gang activity can increase federal sentencing exposure to the maximum.

If any of this describes your situation, it is worth talking through with counsel. Spodek Law Group can be reached at 888 348 8028.

When Can Conspiracy, Attempt, or Other Relevant Conduct Expand the Case?

Under 21 U.S.C. § 846, any attempt or conspiracy to commit an offense defined in the Controlled Substances Act carries the same penalties as the underlying offense. For federal prosecutors, this means that even if they are unable to establish that any marijuana was sold or distributed, you may still face the same sentencing exposure as if a federal marijuana transaction had been successfully completed.

Federal Drug Conspiracy

To prove a federal drug conspiracy, federal prosecutors must establish that the defendant conspired (i.e., that there was an agreement to commit the crime), that the defendant knew of the conspiracy, and that the defendant joined the conspiracy with the intent to help it succeed. Notably, this means that if you were involved in a multi-person drug scheme, you could be charged in a federal drug conspiracy regardless of whether you personally sold, distributed, or possessed marijuana.

Attempt to Sell Marijuana or Another Controlled Substance

To prove attempt to sell marijuana or any other controlled substance, prosecutors must show: (i) that you acted with the specific intent to commit the offense; and, (ii) that you took a “substantial step” toward the commission of the offense that went beyond mere preparation.

In order to avoid being convicted of attempt, it is critical that a defendant challenges the prosecution’s evidence as early in the legal process as possible.

Marijuana as Part of a Continuing Criminal Enterprise (CCE)

Finally, while the majority of federal marijuana trafficking cases involve a single offense, sometimes allegations are brought that the defendant was involved in a continuing criminal enterprise (CCE). To prove a CCE, prosecutors must prove that the defendant: (i) was involved in three or more continuing violations of the Controlled Substances Act; and, (ii) acted in a management or supervisory role with at least five other people. While not all marijuana trafficking arrests lead to CCE charges, an indictment for a continuing criminal enterprise can lead to massive federal sentencing exposure.

What Will Determine the Federal Sentence Beyond the Marijuana Weight?

In addition to drug quantity, various other factors are also relevant when it comes to determining a defendant’s federal sentence for marijuana trafficking. These include:

Marijuana Drug Quantities

For a federal marijuana offense to trigger a statutory mandatory minimum sentence, a jury must unanimously determine that the defendant is guilty of distributing a specific quantity of marijuana (or more). While this rule applies regardless of whether the quantity increases sentencing exposure under a statutory mandatory minimum or a statutory maximum, jury determinations are particularly important in cases in which mandatory minimums apply.

Prior Convictions and Section 851

A defendant’s sentencing exposure can also be affected by prior convictions under 21 U.S.C. § 851. Under this section, if a defendant has qualifying prior drug convictions, the government may seek an enhanced sentence. However, for a federal marijuana sentencing enhancement to apply, the government must properly file and serve a Section 851 information before trial or before entry of a guilty plea. While the government can seek enhanced sentencing in many cases, Section 851 does not automatically double every federal drug sentence.

The “Safety Valve”

Although Section 841 is not a “safety valve” eligible offense, certain defendants can qualify for the safety valve in order to avoid mandatory minimum sentences under 21 U.S.C. § 851 and other sections of the Controlled Substances Act (CSA). The safety valve applies in cases involving a non-violent drug offense that is not related to a death or a terrorism attack; and, provided that the defendant does not have a prior criminal record for a violence offense or drug offense, the defendant was not a leader or supervisor in a drug offense, and the defendant cooperated fully with the government.

Federal Sentencing Guidelines and Statutory Minimums

For federal marijuana offenses that fall outside of the safety valve, sentencing judges are required to apply mandatory minimum penalties. While federal judges may look to the sentencing guidelines, the guidelines are advisory, not mandatory. While the sentencing guidelines can recommend harsher penalties than those provided by the CSA, the federal sentencing court is bound by the statutory minimums outlined under federal marijuana law.

Calling About Someone You Love

Most first calls to a defense firm come from a family member rather than the person under investigation. If that is you, Spodek Law Group answers its phone at any hour, and families retain the firm on a relative's behalf every week. Reach it at 888 348 8028.