Our lawyers focus on federal cases, like marijuana cultivation, and other government investigations.
Below, we will discuss:
- Marijuana under federal law;
- Difference between state and federal marijuana laws;
- Marijuana cultivation
- Potential punishments for marijuana cultivation
- Crimes related to marijuana cultivation
If you have been charged, or are under investigation, for marijuana cultivation, or any of the related crimes listed below, contact a federal defense attorney now.
Federal Marijuana Laws, Generally – 21 U.S.C. §811 – 814
Under federal law, marijuana is a schedule 1 drug.
A schedule 1 drug, under the Controlled Substances Act, is a drug that has a high probability that it is going to be abused and has no current medical use. This scheduling means that the drug cannot be used in medical treatment at all.
A schedule 1 drug is illegal in its entirety, which means that the growing or manufacturing, selling, possessing, and using the drug is against the law.
Other schedule 1 drugs include
- methaqualone (quaaludes), and
Difference Between State and Federal Law
Under state law, the legality of marijuana varies.
As of October 2018, in 8 states, marijuana is completely legal for both recreational and medical purposes. In 21 states, marijuana is legal for medical use only. In the remaining 31 states, the use of marijuana is completely illegal.
In the past several years there has been a strong push toward the legalization of marijuana for, at the very least, medical purposes.
“What does it mean that marijuana is legal in my state but illegal in the country?”
The legality of marijuana in a state means that you will be not be arrested or face criminal charges for possession and use of marijuana, if it is used as is allowed, in that particular state.
Each state also has specific allowances for how many marijuana plants a person can cultivate at any one time. You will not be prosecuted under state law for cultivating the legal amount of marijuana plants in your specific state.
Under federal law, marijuana is completely illegal. The federal law supersedes any one state’s laws.
If it so desired, the federal government could order the arrest of every person in possession of marijuana in every state – no matter the state laws.
The case Gonzales v. Raich (discussed below) illustrates the federal government’s power in superseding state laws.
Though, in a March 2018 statement, Attorney General Jeff Sessions that the federal government does not have the adequate resources to go after “routine cases” of marijuana possession. The government will instead focus on larger drug trafficking cases and gangs.
Marijuana is, under federal law, illegal to cultivate. This means no person can legally grow any amount of the drug, though punishment is dependant on the weight of the amount grown.
Federal Law Against Marijuana Cultivation
The Controlled Substances Act makes it illegal to, without being registered, manufacture or possess a controlled substance with the intent to manufacture.
In practice, the illegality of the growing of marijuana has become the combination of several laws and Supreme Court cases.
Under the Controlled Substances Act, 21 U.S.C. §822(a), all producers, manufacturers, and distributors of controlled substances must be registered with the Attorney General of the United States.
The complete prohibition of manufacturing or being in possession of a product is the way Congress has chosen to control schedule 1 substances. This means that, for the most part, registration will not be granted for the substances that fall in this category.
Congress can further regulate the illegal growth of marijuana through its powers under the commerce clause.
Powers Under the Commerce Clause
The commerce clause of the United States Constitution gives Congress the power to control any activity that affects commerce between the states, even if it is an activity that takes place solely within one state.
The Supreme Court of the United States held in Wickard v. Filburn that Congress could regulate an activity that takes place in one state, even if it would only have a small effect on interstate commerce.
The Court held that Congress may take all of the “small effect” on commerce acts, add them together, and regulate the conduct based on the potential total effect.
In Gonzales v. Raich, a case specifically dealing with the cultivation of marijuana, the Supreme Court of the United States held, “production of marijuana meant for home consumption had a substantial effect on supply and demand in the national market” and because of that, federal agents had a right to seize it.
Under 21 U.S.C. §801(5) it is impossible to differentiate marijuana produced for in-state use from marijuana produced for intrastate distribution.
Due to this, the court in Gonzales held that Congress was acting within its commerce clause powers when it was regulating the intrastate manufacturing and possession of marijuana. Even if marijuana was being cultivated in, to be used in, California where it is legal.
Who Investigates Marijuana Cultivation?
Investigations into the growing of marijuana are conducted by several government agencies.
The United States Food and Drug Administration (FDA) established the controlled substances act and is in charge of legal drugs, supplements, and additives. The FDA classified marijuana as a schedule 1 substance and passed it on to another federal agency to deal with on a criminal level.
Most often, the Drug Enforcement Agency (DEA) will conduct investigations into claims and charges of marijuana cultivation.
The Federal Bureau of Investigations (FBI) can also investigate marijuana crimes and generally is involved in the investigations of the cultivation of marijuana when there is organized crime or larger drug trafficking network involved.
In addition, local police forces may be involved in physical raids on premises that are believed to have marijuana growing on, or within, them.
Potential Penalties for Conviction for Cultivating Marijuana
If you are convicted of cultivating marijuana, the sentence can vary depending on how much marijuana you are caught growing. All possible penalties are listed within the Controlled Substances Act, 21 U.S.C. §841.
The possible prison sentence minimums and maximums are wide-ranging. In order to find your actual sentence, if you are convicted, a judge will rely on the Federal Sentencing Guidelines. The Federal Sentencing Guidelines take into account several factors, including but not limited to:
- Seriousness of the offense;
- Prior criminal offenses; and
- Level of participation in the crime.
The guidelines do not factor in the legality of the offense at the state level.
More than 1,000 Marijuana Plants or 1,000 kilograms of Marijuana
If you are caught with more than 1,000 marijuana plants, regardless of weight, or 1,000 kilograms or more of a substance or mixture that contains a detectable amount of marijuana the punishment is as follows.
- If this is your first drug-related conviction, the potential penalty is between 10 years in prison to a lifetime imprisonment. A fine of $10 million could be imposed for an individual or $50 million if the defendant is anything other than an individual. The court may choose to implement a prison sentence, a fine, or both.
- If this is your second drug felony, the potential penalty is between 20 years to life in prison. The fine in this instance could be $20 million for an individual defendant and $75 million for anything other than an individual. The court may choose to implement a prison sentence, a fine, or both.
- If this is your third drug felony, a mandatory life sentence must be imposed upon conviction.
- Following the release from imprisonment, there is a mandatory period of 5 years of supervised release for a first offense and 10 years of supervised release following a second offense.
More than 100 Marijuana Plants or 100 Kilograms of Marijuana
If you are caught with more than 100 marijuana plants or 100 kilograms or more of a substance or mixture that contains a detectable amount of marijuana the punishment is as follows.
- If this is your first drug-related felony, there is a mandatory prison sentence of between 5 and 40 years. A fine could also be imposed of $5 million for an individual defendant and $25 million for a defendant that is not an individual. The court may choose to implement a prison sentence, a fine, or both.
- If this is your second drug-related felony, there is a mandatory prison sentence between 10 years and life imprisonment. A fine will be imposed of $8 million for a defendant that is an individual and $50 million for a non-individual defendant. The court may choose to implement a prison sentence, a fine, or both.
- After release from prison, there is a mandatory supervised release period of 4 years if this is your first drug-related felony and 8 years if there has been a prior felony drug conviction.
More than 50 Marijuana Plants or less than 50 Kilograms of Marijuana
If you are caught with less than 50 marijuana plants or 50 kilograms of marijuana, the penalties could be as follows.
- If this is your first felony drug offense, there is a possibility of up to 5 years in prison, a fine of $250,000 for an individual defendant or $1 million if the defendant is “other than an individual,” or both a prison sentence and a fine.
- If you have a prior conviction for a felony drug offence, you may face a prison sentence of up to 10 years, a fine of $500,000 for an individual defendant or $2 million if the defendant is “other than an individual,” or both a fine and a prison sentence.
- After release from prison, there is a mandatory supervised release period of 2 years if this is your first drug-related felony and 4 years if there has been a prior felony drug conviction.
Cultivating Marijuana on Federal Property
If you are charged with and convicted of growing marijuana on federal property, the penalties will be as follows.
- A prison sentence depending on the amount of marijuana being grown. This is outlined above.
- A fine that cannot be more than:
- the fines above depending on the amount of marijuana being grown;
- $500,000 for an individual;
- $1 million if the defendant is “other than an individual;” or
- Up to double the amount of money gained through the crime, if any had been made.
- The court may choose to impose both a prison sentence and a fine.
If you are caught with cultivating a smaller amount of marijuana than any of those amounts stated above, you will most likely be charged with simple possession of a controlled substance (21 U.S.C. §844).
Growing Marijuana Near a School or College
In addition to all of the above, if you are caught cultivating marijuana in or near a school or college, the court may up to double the maximum penalty that would have imposed if not near a school or college, as outlined above.
The court may also up to double the amount of time that is required for your mandatory supervised release after your prison sentence has been served for a first-time offense.
The court may also double the fines stated above in addition to a prison sentence.
Crimes Related to Marijuana Cultivation
Simple Possession – 21 U.S.C. §844
It is unlawful for any person to possess, knowingly or intentionally, a controlled substance without a valid prescription from a medical professional acting in their official capacity.
It is unlawful for any person to be in possession, knowingly or intentionally, a schedule 1 substance no matter if it had been prescribed by a medical professional.
For a first time offender, the punishment is to be not more than 1 year in prison, a fine of a minimum of $1,000, or both.
For a second time offender, the punishment is to be between 15 days and 2 years in prison, a fine of a minimum of $2,500, or both.
A conviction for a third offense carries with it a prison sentence of between 90 days and 3 years in prison, a fine of a minimum of $5,000, or both.
Attempt and Conspiracy – 21 U.S.C. §846
Any person who attempts to, or conspires to, grow, possess, or manufactures a controlled substance without a valid prescription or registration is guilty of this crime.
A conviction of attempt or conspiracy carries the penalty that is equal to the crime attempted or conspired to.
Continuing Criminal Enterprise – 21 U.S.C. §848
Any person who, in concert with 5 other people, grows, possesses, manufactures, or distributes any controlled substance without a valid registration may be found guilty of this crime.
If the defendant is the leader or principal organizer of the criminal enterprise and either was involved with over 300 times the amounts defined in 21 U.S.C 841(b)(1)(B) or received over $10 million in gross receipts, they may be sentenced to life and fined for their role.
If the defendant is simply a piece of the larger criminal enterprise puzzle, they may be sentenced to a prison term of no less than 20 years and up to life imprisonment, a fine no more than $2 million if the defendant is an individual or $5 million is the defendant is “other than an individual” for a first offense.
Investment of Illicit Drug Profits – 21 U.S.C. §854
Any person who (1) receives any income from the possession, manufacture, or selling or controlled substance without proper registration or valid prescription and that is punishable by up to 1 year in prison and then (2) invests any of that income to gain anything which would affect interstate or foreign commerce may be guilty of this crime.
If convicted of this crime, the defendant may be punished with a fine of up to $50,000, up to 10 years in prison, or both.
Possible Defenses to a Charge of Marijuana Cultivation
Federal charges of marijuana cultivation are serious and can carry with them a heavy penalty. The potential fines you could face, if convicted, are in the millions and there is a potential for a lifetime in prison.
An experienced attorney will be able to make the proper challenges and arguments appropriate to your case to ensure that your rights and interests are adequately protected.
An example of potential motions that an attorney may make include motions to suppress evidence because of improper search and seizure or motions to suppress because of improper testing in a crime lab.
The prosecution must be able to prove that you were in possession of the plants and that the plants were actually marijuana. Improper testing techniques, either done in the field at the time of seizure or in a laboratory, can mean that the evidence could be thrown out which would lead to a potential acquittal or re-trial.
There is no one-size-fits-all defense to marijuana cultivation cases, and an attorney who has knowledge of federal criminal cases and the federal court may be the only thing separating you and the harshest penalties available.
Marijuana Growth Cases
Oxford Man Sentenced to 14 Years in Federal Prison for Leading Marijuana Growing and Distribution Conspiracy
In August 2011, a man was sentenced to 168 months (14 years) in prison, followed by 5 years of supervised release, and was ordered to pay a $50,000 fine. He also forfeited 2 cars as a result of the charges.
Over the course of 2 years, the defendant led a group of other people in the growth and distribution of large quantities of marijuana.
In November 2008, the DEA and local law enforcement agencies executed search warrants and seized over 1,400 marijuana plants and the various equipment necessary to grow and process marijuana.
2 of the other defendants were charged with conspiracy to manufacture with intent to distribute and were sentenced to 37 months (about 3 years) in prison.
The third conspirator was sentenced to just over 3 and ½ years in prison (specifically, 46 months) and was made to pay a fine of $50,000.
Call A Federal Criminal Lawyer You Can Trust
Our attorneys are experienced, well respected federal litigators with expansive knowledge in all federal judicial practices and procedures.
Just as we have protected both private individuals and public companies in the past, we will strive to protect you, your family and your rights from charges and accusations of marijuana cultivation.