Marijuana is harvested from cannabis plants. The active chemical ingredient that produces a “high” in users is tetrahydrocannabinol (THC). The strongest concentration of THC is found in the flowering portion of the plant (or “buds”) but THC is also present in plant leaves. All parts of the plant except mature stalks and stems are defined as a controlled substance for the purpose of federal law.

Federal and state laws regulating drug distribution tend to be similar in many respects, although federal punishments are often more severe. Marijuana is the clearest example of the departure between state and federal drug policy. Marijuana is the most widely used illicit drug in the United States. Its possession and distribution is illegal under federal law in nearly all circumstances.

Many states, however, have enacted medical marijuana laws that permit marijuana to be prescribed and used for medical treatment. Two states have legalized marijuana for recreational use, while some cities have enacted ordinances directing local police to make marijuana possession their lowest law enforcement priority.

Medical Marijuana Exceptions

The current state of the law makes it possible for an individual in Colorado to purchase marijuana legally (under state law) for recreational use, while that same purchase is illegal under federal law. Whether the Justice Department will enforce federal laws prohibiting sales of marijuana in states that permit recreational or medicinal use of marijuana depends upon the administration in power at any given time.

For instance, medical marijuana “clinics” in California were raided by federal authorities during the Bush administration even if they held a state license to dispense marijuana to patients holding a prescription. The current administration has directed federal law enforcement authorities to “look the other way” in Colorado. Drug enforcement policies are subject to change with each presidential election, making it impossible to predict how the tension between state and federal laws will eventually be resolved.

In states that continue to prohibit marijuana possession, there is no constraint on federal enforcement of marijuana laws. While the Justice Department tends to leave simple possession and small distribution offenses to local authorities, it routinely prosecutes distribution or cultivation of significant quantities of marijuana.

What counts as “significant” generally depends on how busy the federal prosecutors in the district are with other, more important crimes. In addition, even simple possession is occasionally prosecuted federally, either because the offense is added onto an indictment charging more serious crimes or because the possession occurred on federal property.

A separate federal statute makes it illegal to grow marijuana on federal land. The law is most commonly enforced in national parks and forests. The penalties described below also apply to that offense.

Penalties Regarding Marijuana Offenses

In Texas, despite polls showing widespread support for the reform of marijuana laws, it is still possible to receive a life sentence for the distribution of large quantities of marijuana.

A federal sentence for distributing (or possessing with intent to distribute) a mixture or substance containing marijuana, for growing marijuana, or for conspiracy to distribute marijuana, depends upon the amount of the drug, whether the defendant has a prior drug conviction under state or federal law, and whether a serious injury or death resulted from use of the distributed drug.

Since the chances of serious injury or death resulting from marijuana use are miniscule, defendants rarely face enhanced penalties for that reason. Offenses involving larger quantities require the court to impose a mandatory minimum sentence.

Determining quantity in a marijuana case can be tricky. Leaves are counted as part of the “mixture of substance” containing marijuana, but stems and stalks are not. In addition, fresh marijuana tends to include water weight.

When the plants are dried and reweighed, they tend to weigh less. Congress tried to overcome some of these problems by creating a separate penalty structure for the cultivation or possession of plants, regardless of weight. While it is not always clear whether cultivated marijuana counts as a plant, it is generally understood that it if it has a root ball, it is a plant. A six inch plant and a six foot plant are treated in the same way, on the theory that an immature plant would have grown to maturity if its grower had not been arrested.

  • Less than 50 kilograms or 1 to 49 plants:
    • First offense:  Maximum sentence of 5 years.
    • Second or subsequent offense:  Maximum sentence of 10 years.
  • At least 50 kilograms but less than 100 kilograms or 50 to 99 plants (no injury):
    • First offense:  Maximum of 20 years.
    • Second or subsequent offense:  Maximum sentence of 30 years.
  • At least 50 kilograms but less than 100 kilograms or 50 to 99 plants (serious injury or death):
    • First offense:  Minimum sentence of 20 years, maximum of life.
    • Second or subsequent offense:  Minimum sentence of life.
  • At least 100 kilograms but less than 1,000 kilograms or 100 to 999 plants (no injury):
    • First offense:  Minimum sentence of 5 years, maximum of 40 years.
    • Second or subsequent offense:  Minimum sentence of 10 years, maximum of life.
  • At least 100 kilograms but less than 1,000 kilograms or 100 to 999 plants (serious injury or death):
    • First offense:  Minimum sentence of 20 years, maximum of life.
    • Second or subsequent offense:  Minimum sentence of life.
  • At least 1,000 kilograms or more or 1,000 plants or more (no injury):
    • First offense:  Minimum sentence of 10 years, maximum of life.
    • Second or subsequent offense: Minimum sentence of 20 years, maximum of life.
  • At least 1,000 kilograms or more or 1,000 plants or more (serious injury or death):
    • First offense:  Minimum sentence of 20 years, maximum of life.
    • Second or subsequent offense:  Minimum sentence of life.

The maximum penalties described above may increase substantially and different mandatory minimum penalties may apply if:

  • the drug was distributed to a person under the age of 21;
  • the drug was distributed to a pregnant woman;
  • minors were employed to assist in the commission of the offense; or
  • distribution occurred near a protected area.

Penalties For Simple Possession

Simple possession is the term used to describe possession of a drug for personal use, not with the intent to distribute the drug to others. The range of sentences available for simple possession of marijuana depends upon whether the defendant has a prior conviction for a drug offense under state or federal law.

  • First offense:  Maximum sentence of 1 year.
  • Second offense:  Minimum sentence of 15 days, maximum of 2 years.
  • Third or subsequent offense:  Minimum sentence of 90 days, maximum of 3 years.

In addition to a potential prison sentence, fines and costs can be imposed, as well as a term of supervised release.

Consult With a Drug Lawyer Today

A drug crime involving marijuana can have serious consequences, particularly when it is prosecuted in federal court. If you have been arrested for or charged with a federal marijuana offense, the attorneys at Hamilton Grant can help you.

Marijuana Charges in Lubbock