Chicago Federal Drug Crime | Controlled Substance | US Attorney Rockford | Indictment

Federal law on possession of a controlled substance

December 22, 2010

Possession of a controlled substance is a federal criminal offense under Title 21, United States Code, Section 844. Although most controlled substance offenses are prosecuted under state law, possession can become a federal charge in many circumstances. For example, it is a federal offense where either the defendant or the drug crossed state lines, or the offense took place in a national park, federal land, or aboard an airplane.

Crossing state lines is probably the most common basis of a federal possession charge. Under the Constitution, Congress can make conduct a federal offense where it relates to interstate or foreign commerce. Congress made possession of a controlled substance a federal crime pursuant to 21 USC 801(3) (providing that controlled substances “have a substantial and direct effect upon interstate commerce.”)

The statute defines the crime as ‘simple possession’ because it does not apply to possession with intent to distribute. That is a separate offense with much greater penalties.

A controlled substance can be a recreational drug such as cocaine or a prescription medication. If the drug is a medication, it is not against the law to possess it as long as it was prescribed. The law says the following:

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.

See 21 USC 844(a).

The statute applies to marihuana, cocaine, methamphetamine, heroin, ecstasy, psychedelic mushrooms, LSD, and peyote, just as it does to prescribed medications such as oxycodone (OxyContin) and hyrdocodone (Vicodin). The Drug Enforcement Administration (DEA) is responsible for regulating controlled substances. Read the DEA list of abused chemicals.

The penalty for possession of a controlled substance is up to one year imprisonment and a fine of at least $1,000 but no more than $100,000. It is a misdemeanor offense.

However, if the defendant has prior convictions for drug offenses under either state or federal law, then the offense is a felony with enhanced penalties.

With one prior conviction, the defendant must be sentenced to a minimum 15 days in prison, or a maximum of 2 years. The court must also impose a fine of at least $2,500 but not more than $250,000.

This is known as a mandatory minimum sentence. The court is not permitted to deviate from the minimum, it is mandatory.

It does not matter that the prior conviction was a misdemeanor under state law (such as possession of cannabis), or whether the defendant received a special sentence for first-offenders. Any finding of guilt for a prior state law drug offense is enough to trigger the mandatory minimum sentence in federal court.

In cases where the defendant has two prior convictions, the mandatory minimum sentence is 90 days imprisonment, with a maximum of 3 years. The fine would be at least $5,000 but not more than $250,000.

Possession of a mixture or substance containing cocaine base, also known as crack cocaine, is an offense with much greater penalties. Cocaine base is a type of cocaine that can be smoked. Crack cocaine is penalized far worse than ordinary cocaine because it is considered highly addictive.

The mandatory minimum sentence for possession of cocaine is 5 years in federal prison, with a maximum of 20. The fine can be up to $250,000.

There are several restrictions, however.

For a first offense, the mandatory minimum is 5 years in federal prison only if the defendant possessed more than 5 grams of cocaine base. If the net weight is less than 5 grams, then the 5-year minimum does not apply.

If the defendant has a prior federal conviction for crack cocaine, then the defendant only has to possess more than 3 grams for the 5-year minimum to apply.

Finally, if the defendant has two prior federal convictions for crack cocaine, then the defendant only has to possess more than 1 gram for the 5-year minimum to apply.

Doctors and pharmacists must apply to the DEA for a license to dispense controlled substances. If that person’s license is expired, suspended, or revoked,  it is a criminal offense for that person to possess any controlled substances. Likewise, it is against the law for anyone to purchase controlled substances from such a person.

It is a federal offense for any person to purchase in any 30-day period more than 9 grams of ephedrine base, pseudoephedrine base, or phenylpropanolamine base.

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