Federal Sentencing for 50 plants conflicts with Hawaii State laws allowing 50 plants by 5 patients.
A possible key takeaway from this article might be to keep your plant counts at 49 or less.
Hawaii law, HRS 712-1247 – states that promotion in the first degree – cultivating 25 – 49 plants is a class C felony. However, a licensed patient may also allow up to 4 other patients to grow on their property. At 10 plants per licensed patient one could incorrectly assume that 50 plants is a safe number.
According to a criminal defense attorney licensed to practice law in the Federal Courthouse in the United States District Court in the Eastern District of Virginia in Alexandria, “
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.”
According to norml.org, “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.”
You may have read differently or have a different impression of federal mandatory sentencing guidelines. This could be due to the fact that case law in circuit courts take different routes to justice. Some circuits use mandatory minimums and some do not. Patients in Hawaii are fortunate to have had a compassionate 9th circuit in California but Hawaii is run by prohibitionists.
Without a federal exemption for Hawaii’s medical Cannabis program, all patients are subject to federal drug law.
According to Meisinger Law a firm that handles federal Cannabis cases, “Possession of marijuana is punishable by up to one year in jail and a minimum fine of $1,000 for a first conviction.”
Also notable is the looming drug war threat of of a death sentence.
“The sentence of death can be carried out on a defendant who has been found guilty of manufacturing, importing or distributing a controlled substance if the act was committed as part of a continuing criminal enterprise – but only if the defendant is (1) the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders, and (2) the quantity of the controlled substance is 60,000 kilograms or more of a mixture or substance containing a detectable amount of marijuana, or 60,000 or more marijuana plants, or the if the enterprise received more than $20 million in gross receipts during any 12-month period of its existence.”
In “Drug Offenses: Maximum Fines and Terms of Imprisonment for Violation of the Federal Controlled Substances Act and Related Laws“, Legislative Attorney for the Congressional Research Service, Brian T. Yeh summarizes the “maximum fines and terms of imprisonment that may be imposed as a consequence of conviction for violation of the federal Controlled Substances Act (CSA) and other drug supply and drug demand related laws. “We’ve further summarized his information for Cannabis or what prohibitionists call, “Marihuana.”
For Trafficking Marijuana the lowest amount, Under 50 kilograms, 10 kilograms of hashish, 1 kilogram of hashish oil, or 1 to 49 plants $250,000-$1 million dollar fine. Up to 5 years (for 50 100 plants it’s 5-40 years and a 5 million dollar fine.)
Nolo.com notes that in 2005 the Supreme Court of the United States issued a ruling in United States v Booker that effectively threw out the mandatory nature of the sentencing guidelines. The court ruled that judges were to consider the guidelines as advisory only, and could deviate from the mandatory sentences.
Licensed patients rely on an affirmative defense as our only protection from criminal laws. We only know of one case being tried with the patient being able to tell jurors they were licensed by the state at the time of arrest. This 4 year trial resulted in a not guilty verdict by the jury.
Hawaii State Law uses its own unique numbers of plants to prosecute licensed patients. A licensed patient may have 4 other licensed patients growing on the same tax map key. Any federal agent accompanying local and state police on a compliance check at a patient’s home sees the possession of 49 plants differently from local law enforcement. “Except in the case of 50 or more marihuana plants regardless of weight, and except that under Section 841(b)(4) distribution of a small amount of marihuana for no remuneration is treated as a simple possession offense and punished under Section 844, infra.”
In other words, a patient that gives medicine for free and has 48 plants or less may have their case treated as a simple possession offense, 1 -5 year imprisonment or plea bargain. It could mean the difference between a $250,000 fine or a 1 million dollar fine. Judges are issuing search warrants that seem to welcome federal agents into state licensed patient homes.
We feel patients could enjoy some protection by simply informing patients of the differences between state/federal and minimum/maximum sentencing guidelines. Especially if you’re growing hemp and run into a conflict with federal law.
The goal for every licensed or unlicensed patient is to know the law and stay out of court. It is in court that you plead for your freedom and will trade pretty much anything to avoid incarceration.
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