DOES FEDERAL LAW ACTUALLY PREEMPT RELAXED STATE MARIJUANA LAWS?

Tangerine_

Well-Known Member
I have personally watched a case play out very similar to what Potroast explains in his post. My friend was charged by the DA, case thrown out, Feds picked it up and he received an indictment a couple of yrs later.
There was no "interstate commerce". I read his discovery papers because I couldn't believe it myself. I was certain there had to be more to the case...other illicit drugs, guns, etc. nothing but rootballs, stalks, a couple of grow lights and 2 - 2 ounce packs of cannabis under the seat of his roommates new truck. A truck he had paid cash for when he received his full VA benefits. The truck was seized as well. They both paid out 15-20k in atty fees just to get the sentence reduced to 8 mos. They both had med cards and they both served the full 8 months.
Until its rescheduled, I will always remain cautious.

US Border Patrol harass people all the time in my legal state as well.
 
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TacoMac

Well-Known Member
Well, sadly some people lie a lot.

If you're dumb enough to fuck around on FEDERAL PROPERTY then you deserve what happens to you.
 

iPerculate

Well-Known Member
Well, sadly some people lie a lot.

If you're dumb enough to fuck around on FEDERAL PROPERTY then you deserve what happens to you.
Not sure if this guy is trolling, or just that far gone.

You're telling me if you were at a beautiful national park, you wouldn't want to light up?

And if you did, you deserve federal punishment?

Are you on the right forum?
 

greg nr

Well-Known Member
Again, anybody prosecuted by the Federal Government was caught trafficking illegally. Otherwise, they have no standing. That is simply the law. Period.

The Federal Government to this day has never prosecuted anybody for simple possession. Ever.
Simply not true. Sorry.
 

greg nr

Well-Known Member
https://www.legalmatch.com/law-library/article/federal-marijuana-laws.html?intakeredesigned=1

Federal Laws for Marijuana Possession and Distribution


What Are Federal Marijuana Laws?


Under federal law, marijuana is considered a Schedule I substance and it is illegal to use, possess, cultivate, or distribute. While each state has its own marijuana laws, they cannot overturn or preempt federal law. Therefore, it is important to understand the federal penalties for marijuana possession and distribution.

The Obama Administration discouraged federal prosecution of marijuana users when state law permitted recreational or medicinal use. However, it is unclear what will happen under the current administration. To date, May 2017, the President and Attorney General have issued mixed messages about the enforcement of federal marijuana laws.

What Amount of Marijuana Do I Have to Carry to Violate Federal Law?
While federal authorities typically focus on high volume distributors, there are sentencing guidelines for possessing even the smallest amounts of marijuana. They include:

  • First offense: a misdemeanor involving up to a year of incarceration and a $1,000 fine,
  • Second offense: a misdemeanor involving a mandatory minimum of 15 days (and up to two years) of incarceration and a $2,500 fine, and
  • Third offense or more: a misdemeanor or felony involving a mandatory minimum of 90 days (and up to three years) of incarceration and a $5,000 fine.
Mandatory minimum sentencing is a controversial part of federal law. If an offense involves a mandatory minimum, the judge is required to impose at least the minimum sentence—and cannot take extenuating circumstances into account or offer alternative sentencing options. Additionally, you typically are ineligible for parole before you complete the mandatory minimum sentence.

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What about Selling and Growing Marijuana?
If you are convicted of selling or cultivating significant amounts of marijuana, you will face strict federal penalties. (The gifting of small amounts of marijuana is treated as possession under federal law.) Federal sentences vary, depending on the scope of your production. They include:

  • Less than 50 plants or 50 kg: felony involving up to five years of incarceration and a $250,000 fine,
  • 50-99 plants or kilograms: felony involving up to 20 years of incarceration and a $1,000,000 fine,
  • 100-999 plants or kilograms: felony involving 5-40 years of incarceration and a $500,000 fine, and
  • 1,000 or more plants or kilograms: felony involving between 10 years to life and a $1,000,000 fine.
Sales to a minor or within 1,000 feet of a school, youth center, or other protected areas result in doubled penalties. And, if you are a repeat offender or convicted of trafficking, you may also face increased penalties and mandatory minimums.

What If I My State Permits Recreational or Medicinal Marijuana?
Federal law always preempts (or overrules) state laws. This means that even if your state has authorized you to grow or sell marijuana, federal agents can still arrest you. And, if you are found guilty, you will be sentenced under the federal guidelines (discussed above).

If you grow or distribute marijuana legally in your state, you should contact a criminal lawyer about your rights, even if you haven't been arrested. A criminal lawyer can help you understand your rights and provide the best possible defense (if necessary).

Do I Need a Lawyer?
Criminal offenses involving marijuana laws often result in large fines and long jail sentences. If you are facing criminal charges involving marijuana, you should contact a criminal defense attorney immediately. An experienced criminal attorney will be able to explain all the risks in greater detail, as well as the complex interaction of federal and state laws in this issue.​
 

Tom Tucker 313

Active Member
Title 21 United States Code (USC) Controlled Substances Act


SUBCHAPTER I — CONTROL AND ENFORCEMENT

Part D — Offenses And Penalties
§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 of this chapter. It shall be unlawful for any person knowingly or intentionally to possess any list I chemical obtained pursuant to or under authority of a registration issued to that person under section 823 of this title or section 958 of this title if that registration has been revoked or suspended, if that registration has expired, or if the registrant has ceased to do business in the manner contemplated by his registration. It shall be unlawful for any person to knowingly or intentionally purchase at retail during a 30 day period more than 9 grams of ephedrine base, pseudoephedrine base, or phenylpropanolamine base in a scheduled listed chemical product, except that, of such 9 grams, not more than 7.5 grams may be imported by means of shipping through any private or commercial carrier or the Postal Service. 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 of this chapter, 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 of this chapter, 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. Notwithstanding any penalty provided in this subsection, any person convicted under this subsection for the possession of flunitrazepam shall be imprisoned for not more than 3 years, shall be fined as otherwise provided in this section, or both. 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.

(b) Repealed. Pub. L. 98–473, title II, §219(a), Oct. 12, 1984, 98 Stat. 2027
(c) "Drug, narcotic, or chemical offense" defined

As used in this section, the term "drug, narcotic, or chemical offense" means any offense which proscribes the possession, distribution, manufacture, cultivation, sale, transfer, or the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell or transfer any substance the possession of which is prohibited under this subchapter.

(Pub. L. 91–513, title II, §404, Oct. 27, 1970, 84 Stat. 1264; Pub. L. 98–473, title II, §219, Oct. 12, 1984, 98 Stat. 2027; Pub. L. 99–570, title I, §1052, Oct. 27, 1986, 100 Stat. 3207–8; Pub. L. 100–690, title VI, §§6371, 6480, Nov. 18, 1988, 102 Stat. 4370, 4382; Pub. L. 101–647, title XII, §1201, title XIX, §1907, Nov. 29, 1990, 104 Stat. 4829, 4854; Pub. L. 104–237, title II, §201(a), Oct. 3, 1996, 110 Stat. 3101; Pub. L. 104–305, §2(c), Oct. 13, 1996, 110 Stat. 3808; Pub. L. 109–177, title VII, §711(e)(1), Mar. 9, 2006, 120 Stat. 262; Pub. L. 111–220, §3, Aug. 3, 2010, 124 Stat. 2372.)

Amendments
2010—Subsec. (a). Pub. L. 111–220 struck out "Notwithstanding the preceding sentence, a person convicted under this subsection for the possession of a mixture or substance which contains cocaine base shall be imprisoned not less than 5 years and not more than 20 years, and fined a minimum of $1,000, if the conviction is a first conviction under this subsection and the amount of the mixture or substance exceeds 5 grams, if the conviction is after a prior conviction for the possession of such a mixture or substance under this subsection becomes final and the amount of the mixture or substance exceeds 3 grams, or if the conviction is after 2 or more prior convictions for the possession of such a mixture or substance under this subsection become final and the amount of the mixture or substance exceeds 1 gram." after "$5,000."

2006—Subsec. (a). Pub. L. 109–177 inserted after second sentence "It shall be unlawful for any person to knowingly or intentionally purchase at retail during a 30 day period more than 9 grams of ephedrine base, pseudoephedrine base, or phenylpropanolamine base in a scheduled listed chemical product, except that, of such 9 grams, not more than 7.5 grams may be imported by means of shipping through any private or commercial carrier or the Postal Service."

1996—Subsec. (a). Pub. L. 104–305 inserted "Notwithstanding any penalty provided in this subsection, any person convicted under this subsection for the possession of flunitrazepam shall be imprisoned for not more than 3 years, shall be fined as otherwise provided in this section, or both." after "mixture or substance exceeds 1 gram."

Pub. L. 104–237, §201(a)(1), inserted after first sentence "It shall be unlawful for any person knowingly or intentionally to possess any list I chemical obtained pursuant to or under authority of a registration issued to that person under section 823 of this title or section 958 of this title if that registration has been revoked or suspended, if that registration has expired, or if the registrant has ceased to do business in the manner contemplated by his registration." and substituted "drug, narcotic, or chemical" for "drug or narcotic" in two places.

Subsec. (c). Pub. L. 104–237, §201(a)(2), substituted "drug, narcotic, or chemical" for "drug or narcotic".

1990—Subsec. (a). Pub. L. 101–647, §1907, inserted subsec. (a) designation.

Pub. L. 101–647, §1201, substituted "shall be imprisoned not less than 5 years and not more than 20 years, and fined a minimum of $1,000" for "shall be fined under title 18 or imprisoned not less than 5 years and not more than 20 years, or both".

1988—Subsec. (a). Pub. L. 100–690, §6480(1)(A)–(C), struck out "but not more than $5,000" after "$1,000", "but not more than $10,000" after "$2,500", and "but not more than $25,000" after "$5,000" in second sentence.

Pub. L. 100–690, §6371, inserted provisions relating to increased penalties in cases of certain serious crack possession offenses, making offenders subject to fines under title 18 or imprisonment to terms not less than 5 years nor more than 20 years, or both.

1986—Subsec. (a). Pub. L. 99–570 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "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 of this chapter. Any person who violates this subsection shall be sentenced to a term of imprisonment of not more than one year, a fine of not more than $5,000, or both, except that if he commits such offense after a prior conviction or convictions under this subsection have become final, he shall be sentenced to a term of imprisonment of not more than 2 years, a fine of not more than $10,000 or both."

Subsec. (b). Pub. L. 99–570, in amending subsec. (b) generally, substituted "Upon the discharge of such person and dismissal of the proceedings" for "Upon the dismissal of such person and discharge of the proceedings" in par. (2).

Subsec. (c). Pub. L. 99–570, in amending section generally, added subsec. (c).

1984—Pub. L. 98–473 struck out subsec. (a) designation and struck out subsec. (b) which related to probation before judgment and expunging of records for first offense.

Effective Date of 2006 Amendment
Pub. L. 109–177, title VII, §711(e)(2), Mar. 9, 2006, 120 Stat. 262, provided that: "The amendment made by paragraph (1) [amending this section] applies on and after the expiration of the 30-day period beginning on the date of the enactment of this Act [Mar. 9, 2006]."

Effective Date of 1984 Amendment
Amendment by Pub. L. 98–473 effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98–473, set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure.

Effective Date
Section effective on first day of seventh calendar month that begins after Oct. 26, 1970, see section 704 of Pub. L. 91–513, set out as a note under section 801 of this title.
 

A.K.A. Overgrowem

Well-Known Member
Pot itself is not the focus regarding federal preemption, it is States Rights . The Feds. "intent" concerning an area they seek to control determines the extent they may be "pushed back on" regarding that control. It is established that Fed. actions are NOT intended to "OCCUPY THE FIELD" where pot is concerned. Allowing for a SCOTUS. challenge over who calls the tune on weed. Let's hope a case makes it soon.
 

Rob Roy

Well-Known Member
Again, anybody prosecuted by the Federal Government was caught trafficking illegally. Otherwise, they have no standing. That is simply the law. Period.

The Federal Government to this day has never prosecuted anybody for simple possession. Ever.

A woman that I know who was convicted of growing, but not trafficking, was forced to pay a ransom to the FEDS (about $50,000 or so) to get her house back. She also got sentenced by the State to State prison and served over two years with all of the other probation horse shit thrown in etc. Not to mention she was robbed of the cash she had on hand by the arresting County Deputies. This occurred about 9 years ago.

So fuck the Feds and the State, criminals working together to rob and harm peaceful people.
 

Tom Tucker 313

Active Member
Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005) was a decision by the United States Supreme Court ruling that under the Commerce Clause of the US Constitution, Congress may criminalize the production and use of homegrown cannabiseven if states approve its use for medicinal purposes.

The ruling was 6–3 with Justice Stevens writing the opinion of the court, joined by Justices Kennedy, Ginsburg, Souter and Breyer. A concurring opinion was filed by Justice Scalia.

The opinion began by pointing out that the respondents did not dispute that Congress had the power to control or ban marijuana for non-medical uses:

Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause.

Banning the growing of marijuana for medical use, the Court reasoned, was a permissible way of preventing or limiting access to marijuana for other uses:

Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

The majority opinion did not address the contradiction that the respondent's production of marijuana for personal use actually assists Congress' interest in reducing the interstate trade in marijuana rather than confounding that regulation.

Justice Scalia wrote a separate concurrence that had the effect of differentiating the decision from the previous results of United States v. Lopez and United States v. Morrison.
In a departure from his textualist interpretation of the Constitution (he voted for limits on the Commerce Clause in the Lopezand Morrison decisions), Scalia said his understanding of the Necessary and Proper Clause caused him to vote for the Commerce Clause with Raich for the following reason:

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could… undercut" its regulation of interstate commerce.... This is not a power that threatens to obliterate the line between "what is truly national and what is truly local."

Justice O'Connor dissented joined by Chief Justice William Rehnquist, who authored the majority opinions in United States v. Lopez and United States v. Morrison. O'Connor began her opinion by citing Lopez, which she followed with a reference to Justice Louis Brandeis's dissenting opinion in New State Ice Co. v. Liebmann:

We enforce the "outer limits" of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United States v. Lopez, 514 U. S. 549, 557 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting).

She concluded:

Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.

Justice Thomas also wrote a separate dissent, stating in part:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.

Respondent's local cultivation and consumption of marijuana is not "Commerce... among the several States."

Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce."

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."
 

Tom Tucker 313

Active Member
The Rohrabacher–Farr amendment (also known as the Rohrabacher–Blumenauer amendment) is legislation first introduced by U.S. Rep. Maurice Hinchey in 2001, prohibiting the Justice Department from spending funds to interfere with the implementation of state medical cannabis laws. It passed the Housein May 2014 after six previously failed attempts, becoming law in December 2014 as part of an omnibus spending bill. The passage of the amendment was the first time either chamber of Congress had voted to protect medical cannabis patients, and is viewed as a historic victory for cannabis reform advocates at the federal level. The amendment does not change the legal status of cannabis however, and must be renewed each fiscal year in order to remain in effect.

https://merryjane.com/news/a-brief-history-of-rohrabacher-farr-the-federal-amendment-protecting-medical-marijuana
 

greg nr

Well-Known Member
The Rohrabacher–Farr amendment (also known as the Rohrabacher–Blumenauer amendment) is legislation first introduced by U.S. Rep. Maurice Hinchey in 2001, prohibiting the Justice Department from spending funds to interfere with the implementation of state medical cannabis laws. It passed the Housein May 2014 after six previously failed attempts, becoming law in December 2014 as part of an omnibus spending bill. The passage of the amendment was the first time either chamber of Congress had voted to protect medical cannabis patients, and is viewed as a historic victory for cannabis reform advocates at the federal level. The amendment does not change the legal status of cannabis however, and must be renewed each fiscal year in order to remain in effect.

https://merryjane.com/news/a-brief-history-of-rohrabacher-farr-the-federal-amendment-protecting-medical-marijuana

That amendment has not been included in any of the budget bill proposals to date. It is not at all clear it will continue forward. So far, we are operating under a continuing resolution, not a finalized budget bill. The current CR expires thursday, so stay tuned.
 

Rob Roy

Well-Known Member
Jury nullification trumps bad laws.

Google - jury nullification or fully informed jury association


It will make Jersey Weedman smile...

 

schuylaar

Well-Known Member
It's a legal handjob.

They eventually say that the feds still have supremacy, and can prosecute anyone they choose under existing federal law. They are just saying the states don't have to go along with it, which we already knew.

But in the end it's still against federal law. If you are in the realm where feds would prosewcute (100+ plants, moving it across state lines, selling, etc), you better keep looking over your shoulder; you are not protected by state law.
but you're supposed to have the benefit of whichever is better for the citizen.. state over fed and fed over state. in the case of wages you get whichever is higher..it's supposed to be about the citizen.

my how times have changed.
 
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