Federal Cannabis Law
The approach taken by the U.S. government to the use of cannabis by its citizens has a long and varied history.
Between 1840 and 1900, cannabis was legal and used medicinally in the United States. In 1860, the first Federal commission to study cannabis was created. By the 1890s, attitudes towards cannabis started to shift.
Recreational cannabis use in the U.S. started at the beginning of the 20th century, as did the movement to regulate its use. In 1914 the Harrison Act was enacted, which declared drug use a crime. In 1915, California became the first State to make it illegal to possess cannabis. In the 1930s, the then U.S. Federal Bureau of Narcotics warned of the increasing abuse of cannabis, and by 1937, 23 States had criminalized possession. Also, in 1937, the Marijuana Tax Act imposed a tax on cannabis and regulated its cultivation, possession, and distribution; violations could result in imprisonment. In 1942, marijuana was removed from the U.S. pharmacopeia. In 1956, cannabis was included in the Federal Narcotics Control Act, leading to strict Federal penalties for its possession.
In the Controlled Substances Act of 1970, codified at 21 U.S.C. § 801, et seq., the Federal government categorized marijuana as a Schedule I substance, meaning it was considered to have “a high potential for abuse,” “no currently accepted medical use in treatment,” and “a lack of accepted safety for use … under medical supervision.” 21 U.S.C. § 812(b)(1).
This classification of cannabis under Federal law has a number of important consequences. First, the classification as a Schedule I substance involves significant penalties for those who illegally manufacture, distribute or possess the drug (see, e.g., 21 U.S.C. § 841; 21 U.S.C. § 844; 21 U.S.C. § 846).
Second, although numerous States have legalized the use of cannabis for either medicinal or recreational use, the status of cannabis as a controlled substance under Federal law has, for the most part, not changed. (See below for information regarding the DEA’s 2018 and 2020 reclassifications of the epilepsy drug Epidiolex, and regarding the 2018 Farm Bill’s removal of low-THC hemp from the Controlled Substances Act.)
The classification of cannabis under Federal law has led to reports that cannabis businesses operating lawfully under State law have experienced difficulties in obtaining banking services, claiming Federal tax deductions for operating expenses, and using the U.S. mail, among other issues.
The situation is also complicated with respect to the conduct of individuals. In particular, despite the success of legalization measures in numerous States, there remains a significant divergence between these State laws and the relevant Federal laws pertaining to cannabis.
For example, States that have legalized recreational use have tended to authorize the possession of limited amounts of cannabis for personal use by adults (typically 1 to 3 ounces for dried leaves and flowers, with other amounts for other products). But under Federal law, even simple possession, with no intent to distribute, of any amount of cannabis remains illegal and subject to civil penalty, currently set at $25,597 per violation. 21 U.S.C. § 844a(a); 28 C.F.R. § 76.2; 28 C.F.R. § 76.3; 28 C.F.R. § 85.5).
At least two Federal court decisions have upheld application of the Controlled Substances Act to cannabis-related conduct permitted under State law. See Gonzales v. Raich, 545 U.S. 1 (2005) (application of CSA provisions criminalizing manufacture, distribution, or possession of marijuana to intrastate growers and users of marijuana for medical purposes did not violate Commerce Clause), on remand 500 F.3d 850 (9th Cir. 2007) (no violation of 10th Amendment in view of Supreme Court holding that Congress acted within bounds of its Commerce Clause authority when it criminalized purely intrastate manufacture, distribution, or possession of marijuana in Controlled Substances Act); Montana Caregivers Ass'n, LLC v. U.S., 841 F.Supp.2d 1147 (D. Mont. 2012) (even though Montana law permitted, in some circumstances, production and consumption of marijuana for medical purposes, Congress had power to prohibit that use under the Commerce Clause, and thus Federal government's enforcement of CSA did not violate 10th Amendment), aff’d 526 Fed.Appx. 756 (9th Cir. 2013).
To address this tension between Federal and State law, the Department of Justice (DOJ) issued a series of memoranda providing guidance with respect to Federal marijuana enforcement policy in the context of State legalization initiatives.
In 2013 the DOJ indicated that it would focus its enforcement efforts on only those cannabis-related activities that threaten the following specified Federal priorities:
1. Preventing the distribution of marijuana to minors;
2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
3. Preventing the diversion of marijuana from States where it is legal under State law in some form to other States;
4. Preventing State-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
6. Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
7. Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
8. Preventing marijuana possession or use on Federal property.
(See Memorandum from James M. Cole, Deputy Attorney General, Guidance Regarding Marijuana Enforcement, Aug. 29, 2013: https://www.justice.gov/opa/pr/justice-department-announces-update-marijuana-enforcement-policy; https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.)
In a 2014 memorandum the DOJ indicated that investigations and prosecutions of financial institutions or individuals providing banking services to marijuana-related businesses should be subject to the same eight enforcement priorities outlined in the memorandum of August 29, 2013. (See Memorandum for All United States Attorneys from James M. Cole, Deputy Attorney General, Guidance Regarding Marijuana Related Financial Crimes, Feb. 14, 2014: https://www.justice.gov/sites/default/files/usao-wdwa/legacy/2014/02/14/DAG%20Memo%20-%20Guidance%20Regarding%20Marijuana%20Related%20Financial%20Crimes%202%2014%2014%20(2).pdf.)
Another significant consequence of the classification of cannabis under Federal law has been that research institutions face restrictions in obtaining cannabis for investigating potential medical applications and treatment efficacy.
In response to this situation, in July 2015 a group of eight Democratic senators called for the Federal government to “facilitate scientific research on the potential health benefits of marijuana when used for medical purposes” by, among other things, reassessing marijuana’s classification as a Schedule I substance. (See Letter from Senators Warren, Merkley, Wyden, Mikulski, Markey, Boxer, Booker, and Gillibrand to HHS Secretary Burwell, ONDCP Director Botticelli, and DEA Acting Administrator Rosenberg, July 9, 2015: https://www.warren.senate.gov/files/documents/HHS_ONDCP_DEA_Marijuana_letter.pdf.)
In August 2016 the Drug Enforcement Administration (DEA) denied two petitions to reschedule marijuana under the Controlled Substances Act. (See https://www.federalregister.gov/articles/2016/08/12/2016-17954/denial-of-petition-to-initiate-proceedings-to-reschedule-marijuana?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov and https://www.federalregister.gov/articles/2016/08/12/2016-17960/denial-of-petition-to-initiate-proceedings-to-reschedule-marijuana?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov.) The DEA did, however, announce a policy change designed to foster cannabis research by allowing additional entities to apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes. (See https://www.federalregister.gov/articles/2016/08/12/2016-17955/applications-to-become-registered-under-the-controlled-substances-act-to-manufacture-marijuana-to?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov.)
In January 2018, the Justice Department rescinded the Aug. 29, 2013 and Feb. 14, 2014 memoranda referenced above and directed Federal prosecutors to follow “the well-established principles that govern all federal prosecutions” when deciding which marijuana activities to prosecute under Federal law. (See Memorandum for All United States Attorneys from Jefferson B. Sessions, Attorney General, Marijuana Enforcement, Jan. 4, 2018: https://www.justice.gov/opa/pr/justice-department-issues-memo-marijuana-enforcement ; https://www.justice.gov/opa/press-release/file/1022196/download.)
In June 2018 the Food and Drug Administration (FDA) approved the drug Epidiolex, an oral solution containing cannabidiol (CBD) extracted from the cannabis plant, for the treatment of seizures associated with two rare and severe forms of epilepsy, in patients two years of age and older. (See FDA News Release, June 25, 2018: https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm611046.htm.) Following this action, the DEA rescheduled the Epidiolex formulation from Schedule I to Schedule V of the Controlled Substances Act (see DEA Final Order, Sep. 28, 2018: https://www.federalregister.gov/documents/2018/09/28/2018-21121/schedules-of-controlled-substances-placement-in-schedule-v-of-certain-fda-approved-drugs-containing). In 2020 the DEA removed Epidiolex from the controlled substances schedules altogether (see https://www.jdsupra.com/legalnews/dea-removes-cbd-from-controlled-71065/). In the United States, Epidiolex is currently available to patients by prescription.
In December 2018, Congress passed and the President signed the 2018 Farm Bill (known as H.R.2, the “Agriculture Improvement Act of 2018”), which included a provision removing low-THC hemp (defined as cannabis with a THC concentration of not more than 0.3 percent on a dry weight basis) from the Controlled Substances Act. (See Public Law 115-334 §§ 10113, 12619: https://www.congress.gov/bill/115th-congress/house-bill/2/text.)
On October 6, 2022, President Biden issued a presidential proclamation pardoning individuals who committed or were convicted of simple marijuana possession offenses under the Controlled Substances Act. The proclamation applies only to Federal offenses, including D.C. Code offenses, but does not apply to offenses under State or local law. Pres. Proc. No. 10467, 87 F.R. 61441. A second presidential proclamation dated December 22, 2023, pardoned additional individuals who committed or were convicted of simple possession of marijuana, attempted simple possession of marijuana, or use of marijuana in violation of the Controlled Substances Act, the D.C. Code, and related provisions in the Code of Federal Regulations prohibiting simple possession or use of marijuana on Federal properties or installations, or in other locales. Pres. Proc. No. 10688, 88 F.R. 90083.
Also in 2022, Congress passed and the President signed the “Medical Marijuana and Cannabidiol Research Expansion Act,” establishing a new registration process designed to facilitate medical research on marijuana. (See H.R.8454 — 117th Congress, 2021-2022.)
On August 29, 2023, Dr. Rachel Levine, Assistant Secretary for Health of the U.S. Department of Health and Human Services formally recommended that the DEA reclassify cannabis from a Schedule I drug to a Schedule III drug under the Controlled Substances Act. Schedule I focuses on substances with no accepted medical use and a high possibility of misuse. In contrast, a Schedule III drug classification focuses on substances with legitimate medical uses and moderate to low possibility of physical and psychological dependence.
On May 16, 2024, the Justice Department submitted a notice of proposed rulemaking, initiating a formal rulemaking process to transfer marijuana from a Schedule I to a Schedule III drug under the Controlled Substances Act. See https://www.justice.gov/opa/pr/justice-department-submits-proposed-regulation-reschedule-marijuana ; https://www.dea.gov/sites/default/files/2024-05/Scheduling%20NPRM%20508.pdf .
As of this writing, no final decision has been reached about rescheduling cannabis on the Federal level.
Source: Deschaine, D., Dzwierzynski, J., & Gora, L. (2023). HHS Recommends Re-Classification of Marijuana as a Schedule III Controlled Substance – A Bellwether for the Future of Cannabis-ness. JD Supra. https://www.jdsupra.com/legalnews/hhs-recommends-re-classification-of-9… . Accessed October 3, 2023.
FEDERAL CITATIONS AND RELEVANT TEXT EXCERPTS
§ 812. Schedules of controlled substances
(a) Establishment
There are established five schedules of controlled substances, to be known as schedules I, II, III, IV, and V. Such schedules shall initially consist of the substances listed in this section. * * *
(b) Placement on schedules; findings required
Except where control is required by United States obligations under an international treaty, convention, or protocol, in effect on October 27, 1970, and except in the case of an immediate precursor, a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance. The findings required for each of the schedules are as follows:
(1) Schedule I--
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.
* * *
(3) Schedule III--
(A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.
* * *
(c) Initial schedules of controlled substances
Schedules I, II, III, IV, and V shall, unless and until amended1 pursuant to section 811 of this title, consist of the following drugs or other substances, by whatever official name, common or usual name, chemical name, or brand name designated:
Schedule I
* * *
(c) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
(1) 3,4-methylenedioxy amphetamine.
(2) 5-methoxy-3,4-methylenedioxy amphetamine.
(3) 3,4,5-trimethoxy amphetamine.
(4) Bufotenine.
(5) Diethyltryptamine.
(6) Dimethyltryptamine.
(7) 4-methyl-2,5-dimethoxyamphetamine.
(8) Ibogaine.
(9) Lysergic acid diethylamide.
(10) Marihuana.
(11) Mescaline.
(12) Peyote.
(13) N-ethyl-3-piperidyl benzilate.
(14) N-methyl-3-piperidyl benzilate.
(15) Psilocybin.
(16) Psilocyn.
(17) Tetrahydrocannabinols, except for tetrahydrocannabinols in hemp (as defined under section 1639o of Title 7).
(18) 4-methylmethcathinone (Mephedrone).
(19) 3,4-methylenedioxypyrovalerone (MDPV).
(20) 2-(2,5-Dimethoxy-4-ethylphenyl)ethanamine (2C-E).
(21) 2-(2,5-Dimethoxy-4-methylphenyl)ethanamine (2C-D).
(22) 2-(4-Chloro-2,5-dimethoxyphenyl)ethanamine (2C-C).
(23) 2-(4-Iodo-2,5-dimethoxyphenyl)ethanamine (2C-I).
(24) 2-[4-(Ethylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-2).
(25) 2-[4-(Isopropylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-4).
(26) 2-(2,5-Dimethoxyphenyl)ethanamine (2C-H).
(27) 2-(2,5-Dimethoxy-4-nitro-phenyl)ethanamine (2C-N).
(28) 2-(2,5-Dimethoxy-4-(n)-propylphenyl)ethanamine (2C-P).
(d)(1) Unless specifically exempted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of cannabimimetic agents, or which contains their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation.
(2) In paragraph (1):
(A) The term “cannabimimetic agents” means any substance that is a cannabinoid receptor type 1 (CB1 receptor) agonist as demonstrated by binding studies and functional assays within any of the following structural classes:
(i) 2-(3-hydroxycyclohexyl)phenol with substitution at the 5-position of the phenolic ring by alkyl or alkenyl, whether or not substituted on the cyclohexyl ring to any extent.
(ii) 3-(1-naphthoyl)indole or 3-(1-naphthylmethane)indole by substitution at the nitrogen atom of the indole ring, whether or not further substituted on the indole ring to any extent, whether or not substituted on the naphthoyl or naphthyl ring to any extent.
(iii) 3-(1-naphthoyl)pyrrole by substitution at the nitrogen atom of the pyrrole ring, whether or not further substituted in the pyrrole ring to any extent, whether or not substituted on the naphthoyl ring to any extent.
(iv) 1-(1-naphthylmethylene)indene by substitution of the 3-position of the indene ring, whether or not further substituted in the indene ring to any extent, whether or not substituted on the naphthyl ring to any extent.
(v) 3-phenylacetylindole or 3-benzoylindole by substitution at the nitrogen atom of the indole ring, whether or not further substituted in the indole ring to any extent, whether or not substituted on the phenyl ring to any extent.
(B) Such term includes--
(i) 5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497);
(ii) 5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol or CP-47,497 C8-homolog);
(iii) 1-pentyl-3-(1-naphthoyl)indole (JWH-018 and AM678);
(iv) 1-butyl-3-(1-naphthoyl)indole (JWH-073);
(v) 1-hexyl-3-(1-naphthoyl)indole (JWH-019);
(vi) 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (JWH-200);
(vii) 1-pentyl-3-(2-methoxyphenylacetyl)indole (JWH-250);
(viii) 1-pentyl-3-[1-(4-methoxynaphthoyl)]indole (JWH-081);
(ix) 1-pentyl-3-(4-methyl-1-naphthoyl)indole (JWH-122);
(x) 1-pentyl-3-(4-chloro-1-naphthoyl)indole (JWH-398);
(xi) 1-(5-fluoropentyl)-3-(1-naphthoyl)indole (AM2201);
(xii) 1-(5-fluoropentyl)-3-(2-iodobenzoyl)indole (AM694);
(xiii) 1-pentyl-3-[(4-methoxy)-benzoyl]indole (SR-19 and RCS-4);
(xiv) 1-cyclohexylethyl-3-(2-methoxyphenylacetyl)indole (SR-18 and RCS-8); and
(xv) 1-pentyl-3-(2-chlorophenylacetyl)indole (JWH-203).
* * *
Schedule III
(a) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
(1) Amphetamine, its salts, optical isomers, and salts of its optical isomers.
(2) Phenmetrazine and its salts.
(3) Any substance (except an injectable liquid) which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers.
(4) Methylphenidate.
(b) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system:
(1) Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid.
(2) Chorhexadol.
(3) Glutethimide.
(4) Lysergic acid.
(5) Lysergic acid amide.
(6) Methyprylon.
(7) Phencyclidine.
(8) Sulfondiethylmethane.
(9) Sulfonethylmethane.
(10) Sulfonmethane.
(c) Nalorphine.
(d) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof:
(1) Not more than 1.8 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium.
(2) Not more than 1.8 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, non-narcotic ingredients in recognized therapeutic amounts.
(3) Not more than 300 milligrams of dihydrocodeinone per 100 milliliters or not more than 15 milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium.
(4) Not more than 300 milligrams of dihydrocodeinone per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(5) Not more than 1.8 grams of dihydrocodeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(6) Not more than 300 milligrams of ethylmorphine per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(7) Not more than 500 milligrams of opium per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(8) Not more than 50 milligrams of morphine per 100 milliliters or per 100 grams with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(e) Anabolic steroids.
* * *
§ 841. Prohibited acts A
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
(b) Penalties
Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows:
(1)(A) In the case of a violation of subsection (a) of this section involving--
* * *
(vii) 1000 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 1,000 or more marihuana plants regardless of weight;
* * *
such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $10,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both. If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after 2 or more prior convictions for a serious drug felony or serious violent felony have become final, such person shall be sentenced to a term of imprisonment of not less than 25 years and fined in accordance with the preceding sentence. * * *
(B) In the case of a violation of subsection (a) of this section involving--
* * *
(vii) 100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight;
* * *
such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $5,000,000 if the defendant is an individual or $25,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $8,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. * * *
* * *
(D) In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil, such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an individual, or both. * * *
* * *
§ 844. Penalties for simple possession
(a) Unlawful acts; penalties
It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter II. * * * Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both, except that if he commits such offense after a prior conviction under this subchapter or subchapter II, or a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, he shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $2,500, except, further, that if he commits such offense after two or more prior convictions under this subchapter or subchapter II, or two or more prior convictions for any drug, narcotic, or chemical offense chargeable under the law of any State, or a combination of two or more such offenses have become final, he shall be sentenced to a term of imprisonment for not less than 90 days but not more than 3 years, and shall be fined a minimum of $5,000. * * * The imposition or execution of a minimum sentence required to be imposed under this subsection shall not be suspended or deferred. Further, upon conviction, a person who violates this subsection shall be fined the reasonable costs of the investigation and prosecution of the offense, including the costs of prosecution of an offense as defined in sections 1918 and 1920 of Title 28, except that this sentence shall not apply and a fine under this section need not be imposed if the court determines under the provision of Title 18 that the defendant lacks the ability to pay.
* * *
§ 844a. Civil penalty for possession of small amounts of certain controlled substances
(a) In general
Any individual who knowingly possesses a controlled substance that is listed in section 841(b)(1)(A) of this title in violation of section 844 of this title in an amount that, as specified by regulation of the Attorney General, is a personal use amount shall be liable to the United States for a civil penalty in an amount not to exceed $10,000 for each such violation.
* * *
§ 846. Attempt and conspiracy
Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
§ 76.2 Definitions.
* * *
(h) The term Personal Use Amount means possession of controlled substances in circumstances where there is no other evidence of an intent to distribute, or to facilitate the manufacturing, compounding, processing, delivering, importing or exporting of any controlled substance. * * * The following criteria shall be used to determine whether an amount of controlled substance in a particular case is in fact a personal use amount. The absence of any of the factors listed in paragraphs (h)(1) through (h)(5) of this section and the existence of the factor in paragraph (h)(6) of this section shall be relevant, although not necessarily conclusive, to establish that the possession was for personal use, and amounts in excess of those listed in paragraph (h)(6) of this section may be determined to be personal use amounts where circumstances indicate possession of the substance without an intent to distribute or to facilitate the manufacturing, compounding, processing, delivering, importing or exporting of the controlled substance.
(1) Evidence, such as drug scales, drug distribution paraphernalia, drug records, drug packaging material, method of drug packaging, drug “cutting” agents and other equipment, that indicates an intent to process, package or distribute a controlled substance;
(2) Other information indicating possession of a controlled substance with intent to distribute;
(3) The controlled substance is related to large amounts of cash or any amount of prerecorded government funds;
(4) The controlled substance is possessed under circumstances that indicate such a controlled substance is a sample intended for distribution in anticipation of a transaction involving large amounts, or is part of a larger delivery; or
(5) Statements by the possessor, or otherwise attributable to the possessor, including statements of co-conspirators, that indicate possession with intent to distribute.
(6) The amounts do not exceed the following:
(i) One gram of a mixture or substance containing a detectable amount of heroin;
(ii) One gram of a mixture or substance containing a detectable amount of—
(A) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivations of ecgonine or their salts have been removed;
(B) Cocaine, its salts, optical and geometric isomers, and salts of isomers;
* * *
(iii) 1/10 gram of a mixture or substance described in paragraph (h)(6)(ii) of this section which contains cocaine base;
(iv) 1/10 gram of a mixture or substance containing a detectable amount of phencyclidine (PCP);
(v) 500 micrograms of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);
(vi) One ounce of a mixture or substance containing a detectable among of marijuana;
(vii) One gram of methamphetamine, its salts, isomers, and salts of its isomers, or one gram of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.
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§ 76.3 Basis for civil penalty.
(a) Any individual who knowingly possesses a controlled substance that is listed in § 76.2(h) in violation of 21 U.S.C. 844a shall be liable to the United States for a civil penalty in an amount of not to exceed $10,000 for each such violation occurring before September 29, 1999, and not to exceed $11,000 for each such violation occurring on or after September 29, 1999. For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, see the civil penalty amount as provided in 28 CFR 85.5.
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(c) A civil penalty may not be assessed under this part if the individual previously was convicted of a federal or state offense relating to a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).
(d) A civil penalty may not be assessed on an individual under this part on more than two separate occasions.
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§ 85.5 Adjustments to penalties for violations occurring after November 2, 2015.
(a) For civil penalties assessed after February 12, 2024, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are adjusted as set forth in the seventh column of table 1 to this section.
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(d) All figures set forth in table 1 to this section are maximum penalties, unless otherwise indicated.
Table 1 to § 85.5
U.S.C. citation * * * CFR citation * * * DOJ penalty assessed after 2/12/2024 ($)
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21 U.S.C. 844a(a) * * * 28 CFR 76.3(a) * * * 25,597
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