Marijuana: Texas Criminal Lawyer: Federal Law

As of this post 23 US states and the District of Columbia have passed laws allowing some degree of medical use of marijuana, and 14 states have taken steps to decriminalize it to some degree. Two states -Colorado and Washington- have legalized marijuana for adult, recreational use. Voters in three more states and our nation's capital will also decide on new marijuana laws in November 2014. Surveys across the country show that a majority of American adults support marijuana legalization in the United States, and that support appears to be growing.

However, under United States Federal law it is still illegal to possess, use, buy, sell, or cultivate marijuana. since the "Controlled Substances Act" of 1970 classifies marijuana as a Schedule I drug. The Federal government has also criminalized marijuana under the Interstate Commerce Clause.

On June 6, 2005, the United States Supreme Court decided Gonzales v. Raich,  which addressed the constitutionality of the federal Controlled Substances Act as applied to individuals who grow marijuana for personal and medical use under the then recently passed California Compassionate Use Act (CUA).
The court held that the federal government has the constitutional authority to prohibit marijuana for all purposes, even if they reside in a state where medical marijuana use is protected under state law.


The Raich decision does not say that state marijuana laws are unconstitutional; nor does it invalidate them in any way. Decisions about prosecution are still left to the discretion of the federal government, and in August 2013 the federal government announced that they would "...no longer actively pursue marijuana offenses taken place in those states that have legalized the small consumption and possession of marijuana." The Drug Enforcement Agency will only become involved if the offense involve violence or firearms, the proceeds go to gangs and cartels, or when marijuana is distributed to those states where it is illegal.

Under current federal law, possession of marijuana is punishable by up to one year in jail and a minimum fine of $1,000 for a first conviction. For a second conviction, the penalties increase to a 15-day mandatory minimum sentence with a maximum of two years in prison and a fine of up to $2,500. Subsequent convictions carry a 90-day mandatory minimum sentence and a maximum of up to three years in prison and a fine of up to $5,000.

• Manufacture or distribution of less than 50 plants or 50 kilograms of marijuana is punishable by up to five years in prison and a fine of up to $250,000.
• For 50-99 plants or 50-99 kilograms the penalty increases not more than 20 years in prison and a fine of up to $1 million if an individual, $5 million if other than an individual for the first offense. 
• Manufacture or distribution of 100-999 plants or 100-999 kilograms carries a penalty of 5 - 40 years in prison and a fine of $2-$5 Million. 
• For 1000 plants or 1000 kilograms or more, the penalty increases to 10 years - life in prison and a fine of $4-$10 Million.

Distribution of greater than 5 grams of marijuana to a minor under the age of 21 doubles the possible penalties; distribution within 1,000 feet of a school, playground, public housing or within 100 feet of a youth center, public pool or video arcade also doubles the possible penalties. Even the sale of paraphernalia is punishable by up to three years in prison.

When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. A prisoner serving an MMS for a federal offense and for most state offenses will not be eligible for parole. Even peaceful marijuana smokers sentenced to "life MMS" must serve a life sentence with no chance of parole.

If you have been charged with or are under investigation for a serious crime, we are entirely committed to protecting your rights. Richard Kuniansky will provide a thorough evaluation of all the facts of your case, prepare a powerful defense, and use our strong courtroom skills and extensive experience to effectively advocate on your behalf.