Marijuana Trends and Sentencing in the Federal System: New 2023 USSC Report

From a criminal defense standpoint, in federal matters it is extremely important not only to research statutes and court case precedent but to monitor federal agency actions and positions – especially within the Department of Justice (“DOJ”) or the Judicial Branch.  Things change with the times, and with administrations.  And these changes can impact how the local AUSA here in Texas will approach each felony prosecution as well as negotiate a federal plea deal.

As an example, earlier this month we discussed how influential a single memorandum sent by the Attorney General of the United States to all federal prosecutors will be in future criminal defense cases involving federal felony charges.  Read, Policy Changes in Charges, Pleas, and Sentencing for Federal Drug Crime Prosecutions: New AG Garland DOJ Directive.

Another recent publication worthy of study by federal criminal defense lawyers is the new January 2023 report of the United States Sentencing Commission (“USSC”), written by Vera M. Kachnowski, J.D., Christine Kitchens, M.A., and Cassandra Syckes, M.A., and entitled “Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System” (“USSC Report”).

This report updates an earlier 2016 research study conducted by the USSC, and focuses upon federal sentencing in cases involving simple possession of marijuana in violation of federal law.

What is The United States Sentencing Commission?

Within the Judicial Branch, the USSC operates as an independent agency comprised of seven commissioners, each appointed by the President and confirmed by the Senate.  Three of the commissioners, by law, must be federal judges.  The Attorney General of the United States serves the USSC in an “ex officio” capacity (he cannot vote).

Created by the Sentencing Reform Act found within the Comprehensive Crime Control Act of 1984, the Supreme Court of the United States approved its authority in Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989).

August 2022: Biden Appointees to USSC Confirmed by Senate

For several years, the USSC has not been fully functional because it lacked the quorum necessary to act.  Six months ago, that changed.  All seven Biden appointees to the USSC were confirmed by the Senate.  Read, “At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden’s nominees to Sentencing Commission,” published by Sentencing Law and Policy on August 4, 2022.

USSC’s Power in Federal Sentencing

For criminal defense practitioners, this is a big deal.  Why?  The USSC has the power to investigate, research, draft, edit, promulgate, and amend the United States Sentencing Guidelines (“USSG”).  The USSG, in turn, control what punishment can be assessed in a federal case after conviction.  For review, the current USSG Manual can be accessed online.

Essentially, the USSG consider two components to establish the sentencing guideline range: (1) the criminal history of the individual who has been charged and (2) the seriousness of the offense(s) itself.  Read  An Overview of the Federal Sentencing Guidelines published by the USSC.

For more on how the sentencing guidelines work in a particular case, read some of our earlier discussions of the USSG with examples of how the Sentencing Tables are used:

• Heroin Trafficking In Texas And Federal Sentencing Guidelines
• Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases.

The 2023 USSC Report on Marijuana Sentencing

The newly published USSC Report is the latest in a series of research reports compiled by the USSC.  It builds upon an earlier report entitled “Simple Possession Of Drugs in the Federal Criminal Justice System,” published by the Commission on September 21, 2016.  While USSC research reports are not the stuff of formal amendments to the USSG themselves, they are still very important.

For criminal defense lawyers who represent clients facing federal drug crime charges, the new USSC Report is a necessary read.  The USSC Report focuses upon sentencing in cases for the offense of simple possession of marijuana.  Essentially, it does two things:

• In Part One, the USSC Report evaluates trends in these types of sentences since 2014. It goes into details like demographics; past criminal histories; and how these sentences compare to those involving other types of drug charges.
• In Part Two, the USSC considers both federal and state law in prior sentences for simple marijuana possession and analyzes how they impact USSG criminal history calculations for new federal offenses. It calculates how many of the total federal sentences in fiscal year 2021 included criminal history points under USSG Manual Chapter Four for prior marijuana possession sentences.  Lastly, the USSC Report considers how these points impacted the offenders’ criminal history category in the calculation of the sentence to be imposed under the USSG.

Here are its “Key Findings” as summarized by the USSC in its Summary:

Federal Sentencings for Simple Possession of Marijuana

• The number of federal offenders sentenced for simple possession of marijuana is relatively small and has been declining steadily from 2,172 in fiscal year 2014 to only 145 in fiscal year 2021.
• The overall trends were largely driven by one district, the District of Arizona, which accounted for nearly 80 percent (78.9%) of all federal marijuana possession sentencings since 2014. As the number of such cases in the District of Arizona declined from a peak of 1,916 in 2014 to just two in fiscal year 2021, the overall federal caseload followed a similar pattern.
• Federal offenders sentenced for marijuana possession in the last five fiscal years tended to be male (85.5%), Hispanic (70.8%), and non-U.S. citizens (59.8%). A little over two-thirds (70.1%) were sentenced to prison; the average prison sentence imposed was five months.
• As of January 2022, no offenders sentenced solely for simple possession of marijuana remained in the custody of the Federal Bureau of Prisons.

Impact of Prior Sentences for Simple Possession of Marijuana

• In fiscal year 2021, 4,405 federal offenders (8.0%) received criminal history points under the federal sentencing guidelines for prior marijuana possession sentences. Most of the prior sentences (79.3%) were for less than 60 days in prison, including non-custodial sentences. Furthermore, ten percent (10.2%) of these 4,405 offenders had no other criminal history points.
• The criminal history points assigned under the federal sentencing guidelines for prior marijuana possession sentences resulted in a higher criminal history category for 1,765 of the 4,405 offenders (40.1%).
• Of the 1,765 offenders whose criminal history category was impacted by a prior marijuana possession sentence, most were male (94.2%), U.S. citizens (80.0%), and either Black (41.7%) or Hispanic (40.1%).
• Nearly all (97.0%) of the prior marijuana possession sentences were for state convictions, some of which were from states that have changed their laws to decriminalize (22.2%) or legalize (18.2%) marijuana possession, states that allow for expungement or sealing of marijuana possession records (19.7%), or some combination thereof. Prior sentences for marijuana possession from these states resulted in higher criminal history calculations under the federal sentencing guidelines for 695 offenders.

Federal Offense of Marijuana Possession: CSA Schedule I Controlled Substance

Under federal law, as defined in the USSC Report, “…[s]imple possession of marijuana refers to possessing a small amount of marijuana to consume or use, but without an intent to sell or give it to another person.”  USSC Report, p. 1.

The authors of the USSC Report acknowledge the changing tide in marijuana possession laws among the states and territories, with more and more jurisdictions not only permitting marijuana use for medicinal purposes but allowing personal recreational marijuana use in small amounts (“decriminalization”).  See: The New 2016 Marijuana Laws: What It Means For Texas.

As of September 30, 2021, marijuana remains illegal in the State of Texas while more and more states are allowing its use within the state jurisdiction.  See Map, USSC Report, p. 4.

This, of course, flies in the face of the continued classification of marijuana as a Schedule I controlled substance under the federal Controlled Substances Act (CSA) (21 USC §802.(32)(A)).  USSC Report, p. 1.

Marijuana appears alongside drugs like heroin, LSD, methaqualone, and ecstasy as a Schedule I Controlled Substance in the CSA.  These are defined in the law as having “… no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.”

By comparison, oxycodone and fentanyl are both categorized as lesser Schedule II controlled substances, defined as having “…a high potential for abuse which may lead to severe psychological or physical dependence.”

The legal distinction between marijuana and fentanyl, for instance, can be difficult for any federal criminal defense lawyer to explain to their client and the client’s loved ones.  Even more so with the current law enforcement focus upon fentanyl arrests and prosecutions at both the state and federal level.  See, e.g., Fentanyl Charges Under Federal Law: Felonies And Range Of Sentencing and Texas Governor’s Designation of Mexican Cartels As Terrorist Organizations: Criminal Defense Perspective.

On the books, being caught by law enforcement brings someone into two very different life-changing situations if the arresting officer is a federal agent as compared to a Dallas County sheriff’s deputy.  Two reasons.  Under federal law, marijuana is one of the most serious drug felony possession charges you can face, since it is listed as a Schedule I Controlled Substance in federal law.  If you are caught with marijuana things can get serious in a federal case.  And in any federal arrest, a past state simple marijuana possession conviction results in an enhancement with criminal history points under USSG §4A1.1.

USSC Report: Changing Federal Policy Towards Marijuana Possession

What the USSC Report advises is that “… federal policy regarding marijuana possession appears to be shifting. On October 6, 2022, President Joseph Biden granted a pardon to current U.S. citizens and lawful permanent residents convicted of the federal offense of simple possession of marijuana.  The President also asked for expedited review of marijuana’s scheduling under the CSA. In addition, the U.S.  Department of Justice generally has treated marijuana possession offenses as a low enforcement priority in recent years.”  USSC Report p. 1.

USSC Report:  State vs Federal Marijuana Possession

Critical to criminal defense advocacy is the recognition in the USSC Report that many federal defendants faced enhancements under the USSG because of past convictions on marijuana crimes in state court.  This is true even if that state has changed its marijuana laws or even made marijuana possession legal since the person was convicted on  the state marijuana charge. From the Report:

The majority (79.3%) of the 5,878 prior marijuana possession sentences (“marijuana priors”) were assigned one point under §4A1.1(c), which applies to any prior sentence of less than 60 days’ imprisonment, including non-custodial sentences (Figure 7). An additional 14.7 percent of the marijuana priors were assigned two points under §4A1.1(b), which applies to prior sentences of at least 60 days’ imprisonment, and 6.0 percent of the marijuana priors were assigned three points under §4A1.1(a), which applies to prior sentences of imprisonment exceeding one year and one month.

USSC Report, p. 14.

Meanwhile, since 2014 there have been less and less federal AUSAs pursuing federal marijuana possession charges despite the literal language of the CSA.  From the Report:

Across all judicial districts, the overall number of marijuana possession sentencings followed the same pattern, declining from a high of 2,172 in fiscal year 2014 to a low of 145 in fiscal year 2021.

 USSC Report, p. 7.

Criminal Defense: Marijuana Charges and Federal Sentencing

From a criminal defense viewpoint, the USSC Report appears to be the necessary cornerstone for the USSC to amend its USSG for marijuana possession charges in the future.  How much the new USSC Report can sway lawmakers to amend the current Controlled Substances schedule of the CSA, removing marijuana from its current Schedule I classification, has yet to be seen.

Insofar as individual federal representations, the USSC Report may be helpful in negotiations with the AUSA when the case involves a prior simple marijuana possession charge.  The USSC Report successfully identifies the unfairness of the current system where a cannabis possession conviction can mean a significantly enhanced sentence because of a higher criminal history calculation in the USSG.

From the USSC:

For federal offenders sentenced for any crime type, however, prior marijuana possession sentences—both federal and state—often affected their criminal history calculations under the guidelines. The Commission identified 4,405 offenders sentenced in fiscal year 2021 who received criminal history points under §4A1.1 for prior marijuana possession sentences, representing 8.0 percent of all offenders sentenced that year. About ten percent (10.2%) of these offenders (n=448) had no criminal history points other than those assigned for prior marijuana possession sentences. For 40.1 percent (n=1,765) of these offenders, the points assigned to their prior marijuana possession sentences resulted in a higher criminal history category, which in turn resulted in a higher sentencing guideline range.

USSC Report, p. 28.

In federal plea negotiations, it can be life-changing to have an experienced criminal defense attorney as advocate – particularly when past marijuana charges are involved.  Too many times, there are those who will take a plea offered by the government attorney because they have no faith in the system itself, or because they do not understand the complexities of the federal system.  A federal defense lawyer will understand that federal plea negotiations must consider the possibility of cooperators offering assistance and their self-serving bias in the case, for instance.  The lawyer will also be well-versed in the innerworkings of the USSG Manual and its Sentencing Tables.

For more, read:

• Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview
• Bail after Federal Arrest in Texas and The Bail Reform Act of 1984
• What Happens When You Plead Guilty to a Federal Drug Crime? From Guilty Plea to Sentencing Hearing in a Drug Case
• Prosecutors Have Standards to Follow: the Federal Principles of Prosecution
• 5 Things to Know About Plea Bargains.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Federal Sentencing Guidelines on Federal Child Pornography cases.”