Controled Substances Law- Attack Sheet

8/12/2019 Controled Substances Law- Attack Sheet

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Summary

I. The CS processa. I. Classification (scheduling)

i. Eg. Criteria for schedule under CSA 812(b)(1)1. (A) The drug or other substance has a high potential for abuse.2. (B) The drug or other substance has no currently accepted medical use

in treatment in the United States.

3. (C) There is a lack of accepted safety for use of the drug or othersubstance under medical supervision.

ii. Procedure: 811(a) Delegation and Rulemaking1. (a) Rules and regulations of Attorney General; hearing2. The Attorney General shall apply the provisions of this subchapter to

the controlled substances listed in the schedules established by section

812 of this title and to any other drug or other substance added to such

schedules under this subchapter. Except as provided in subsections (d)and (e) of this section, the Attorney General may by rule

3. (1) add to such a schedule or transfer between such schedules any drugor other substance if he

4. (A) finds that such drug or other substance has a potential for abuse,and

5. (B) makes with respect to such drug or other substance the findingsprescribed by subsection (b) of section 812 of this title for the schedule

in which such drug is to be placed; or

6. (2) remove any drug or other substance from the schedules if he findsthat the drug or other substance does not meet the requirements forinclusion in any schedule.

7. Rules of the Attorney General under this subsection shall be made onthe record after opportunity for a hearing pursuant to the rulemaking

procedures prescribed by subchapter II of chapter 5 of title 5.

Proceedings for the issuance, amendment, or repeal of such rules may

be initiated by the Attorney General (1) on his own motion, (2) at the

request of the Secretary, or (3) on the petition of any interested party

iii. Right to petition under 553(e)1. Any interested party has the rt to peititon for the issuance, amendment

or repeal of a rule

iv. DEA Rulemaking Procedure1. When the DEA Administrator has determined that a drug or other

substance should be controlled, decontrolled, or rescheduled, a

proposal to take action is published in the Federal Register.

2. The proposal invites all interested persons to file comments with theDEA and may also request a hearing with the DEA.


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v. Emergency Scheduling1. The CSA was amended by the Comprehensive Crime Control Act of

1984. This Act included a provision which allows the DEA Administrator

to place a substance, on a temporary basis, into Schedule I, when

necessary, to avoid an imminent hazard to the public safety.

2. This emergency scheduling authority permits the scheduling of asubstance which is not currently controlled, is being abused, and is a risk

to the public health while the formal rulemaking procedures described

in the CSA are being conducted.

3. This emergency scheduling applies only to substances with no acceptedmedical use. A temporary scheduling order may be issued for one year

with a possible extension of up to six months if formal scheduling

procedures have been initiated.

4. The notice of intent and order are published in the Federal Register, asare the proposals and orders for formal scheduling. [21 U.S.C. 811 (h)]

vi. Judicial Review of DEA determinations1. Go directly to the Circuit Court2. Policy decisions reviewed under the arbitrary and capricious standard3. Factual determinations reviewed under the substantial evidence

standard

4. Statutory interpretation issues reviewed under the two-step Chevrondoctrine

b. II. Offense definitioni. Basic Concepts

1. Actual and constructive possession2. Complicity, conspiracy, and attempt3. Usueable v. measurable quantities4. Knowledge and willful blindness

ii. Key Fed Drug Crimes1. Fed CSA21 USC 841

a. (a) Unlawful actsb. Except as authorized by this subchapter, it shall be unlawful for

any person knowingly or intentionally--

c. (1)to manufacture, distribute, or dispense, or possess withintent to manufacture, distribute, or dispense, a controlled

substance; or

d. (2)to create, distribute, or dispense, or possess with intent todistribute or dispense, a counterfeit substance.

2. 846 Attempt and Conspiracya. Any person who attempts or conspires to commit any offense

defined in this subchapter shall be subject to the same penalties


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as those prescribed for the offense, the commission of which

was the object of the attempt or conspiracy.

3. 848 Continuing Criminal Enterprisea. (c) "Continuing criminal enterprise" definedb. For purposes of subsection (a) of this section, a person is

engaged in a continuing criminal enterprise if

c. (1) he violates any provision of this subchapter or subchapter IIof this chapter the punishment for which is a felony, and

d. (2) such violation is a part of a continuing series of violations ofthis subchapter or subchapter II of this chapter

e. (A) which are undertaken by such person in concert with five ormore other persons with respect to whom such person occupies

a position of organizer, a supervisory position, or any other

position of management, and

f. (B) from which such person obtains substantial income orresources.

4. 856- Drug Involved premisesa. Text on pg. 303

5. 859 Dist. to persons under age 21a. (a) First offenseb. Except as provided in section 860 of this title, any person at

least eighteen years of age who violates section 841(a)(1) of this

title by distributing a controlled substance to a person under

twenty-one years of age is (except as provided in subsection (b)

of this section) subject to (1) twice the maximum punishment

authorized by section 841(b) of this title, and (2) at least twice

any term of supervised release authorized by section 841(b) of

this title, for a first offense involving the same controlled

substance and schedule. Except to the extent a greater

minimum sentence is otherwise provided by section 841(b) of

this title, a term of imprisonment under this subsection shall be

not less than one year. The mandatory minimum sentencing

provisions of this subsection shall not apply to offenses

involving 5 grams or less of marihuana.

6. 860 Dist. or manufacture in or near schools and collegesa. Any person who violates section 841(a)(1) of this title or section

856 of this title by distributing, possessing with intent to

distribute, or manufacturing a controlled substance in or on, or

within one thousand feet of, the real property comprising a

public or private elementary, vocational, or secondary school

or a public or private college, junior college, or university, or a

playground, or housing facility owned by a public housing


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authority, or within 100 feet of a public or private youth

center, public swimming pool, or video arcade facility, is

(except as provided in subsection (b) of this section) subject to

(1) twice the maximum punishment authorized by section

841(b) of this title; and (2) at least twice any term of supervised

release authorized by section 841(b) of this title for a first

offense. A fine up to twice that authorized by section 841(b) of

this title may be imposed in addition to any term of

imprisonment authorized by this subsection. Except to the

extent a greater minimum sentence is otherwise provided by

section 841(b) of this title, a person shall be sentenced under

this subsection to a term of imprisonment of not less than one

year. The mandatory minimum sentencing provisions of this

paragraph shall not apply to offenses involving 5 grams or less

of marihuana.

iii. Firearms in Drug Trafficking cases1. 18 USC 924(c)

a. (1) (A) Except to the extent that a greater minimum sentence isotherwise provided by this subsection or by any other provision

of law, any person who, during and in relation to any crime of

violence or drug trafficking crime (including a crime of violence

or drug trafficking crime that provides for an enhanced

punishment if committed by the use of a deadly or dangerous

weapon or device) for which the person may be prosecuted in a

court of the United States, uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm,shall, in

addition to the punishment provided for such crime of violence

or drug trafficking crime

b. (i) be sentenced to a term of imprisonment of not less than 5years;

c. (ii) if the firearm is brandished, be sentenced to a term ofimprisonment of not less than 7 years; and

d. (iii) if the firearm is discharged, be sentenced to a term ofimprisonment of not less than 10 years.

e. (B) If the firearm possessed by a person convicted of a violationof this subsection

f. (i) is a short-barreled rifle, short-barreled shotgun, orsemiautomatic assault weapon, the person shall be sentenced

to a term of imprisonment of not less than 10 years; or

g. (ii) is a machinegun or a destructive device, or is equipped witha firearm silencer or firearm muffler, the person shall be

sentenced to a term of imprisonment of not less than 30 years.


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iv. Look to CO and WA stts in large outlinec. III. Investigation and Apprehension

i. 4thamd1. terry

a. Reasonable person test for seizureb. Reasonable suspicion testc. Frisk must be justified apart from the stopd. Frisk limited to pat down of outer clothing

2. Traffic stopsa. Always justified by PC to stop for citationb. During the stop police may observe drugs in plain view, ask for

consent, run a records check, perform a canine screening

c. Stop may not last longer than reasonably necessary to issue thecitation

d. But may be prolonged if RS of drug offenses arisese. Dog sniffs ok so long as they dont unduly prolong the stop

3. Arresta. Must be justified by PCb. Permitted in public without a warrantc. Police need a warrant to force entry into private homes to

arrest

i. Unless exigent circumstances, like disposal of drugs,which here is big deal

4. Search incident to arresta. Protective sweep

i. A quick and limited search of a presence, incident to alawful arrest, and conducted to protect police officers

ii. Looking for people hiding, not evidenceiii. Limited to areas where people might be hiding

b. Temporal limitationsi. Sequence of search and arrest

1. Crts don't really care what happens first, so longas its all about the same time,

2. Just can't be that the search gives the PCc. Can still pretty much, search clothes or something you could

have

5. Searcha. The REP-or-trespass testb. Administrative search doctrine applies when purpose of

inspection (e.g., school drug testing) is not criminal prosecution

c. In criminal cases, warrant or a categorical exception required


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d. Exceptions include Terry, arrest in public, exigent circumstances,hot pursuit, vehicle searches, and consent

6. Exclusionary rule exceptionsa. Standingb. Attenuationc. Independent sourced. Inevitable discoverye. Good faith reliance

ii. Entrapment1. Federal testsubjective test (and most states, but of course, no cali)2. MPC 2.13(and CA) testObjective test3. CA TESTobjective test

a. the proper test of entrapment in California is the following: wasthe conduct of the law enforcement agent likely to induce a

normally law-abiding person to commit the offense? Barazza

(CA 1979)

b. For the purposes of this test, we presume that such a personwould normally resist the temptation to commit a crime

presented by the simple opportunity to act unlawfully. Official

conduct that does no more than offer that opportunity to the

suspect -- for example, a decoy program -- is therefore

permissible;

c. but it is impermissible for the police or their agents to pressurethe suspect by overbearing conduct such as badgering, cajoling,

importuning, or other affirmative acts likely to induce a

normally law-abiding person to commit the crime.

d. Thus, in California, entrapment occurs if the following threecircumstances existed:

i. (1) an officer communicated with the defendant beforehe committed the crime with which he was charged,

ii. (2) the officers communication included an inducementto commit the crime, and

iii. (3) the inducement was such that it would havemotivated a normally law-abiding person to commit

it.

d. IV. Adjudicationi. Prosecutorial Discretion

1. Constitutional selective-prosecution doctrine requires actual subjectiveinvidious motive

2. Prosecutorial charge selection otherwise unconstrained3. Holders new policy


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a. Prosecutors will be told that they may not write the specificquantity of drugs when drafting indictments for drug

defendants who meet the following four criteria:

i. Their conduct did not involve violence, the use of aweapon or sales to minors;

ii. They are not leaders of a criminal organizationiii. They have no sig ties to large-scale gangs or cartels; andiv. They have no sig criminal history

ii. Suppression motion practice1. Pleadings and burdens2. Discovery3. Officer testimony4. Defendant testimony5. Interlocutory appeal by

e. V. Sentencingi. Mandatory mins

1. Under 841(b) by quantity2. 846 adopts 841(b) sentencing scheme

ii. Multipliers1. 859 doubles the 841 sentence for sales to minors2. 860 doubles the 841 sentence for sales near schools and colleges

iii. Sttry Safety Valve1. Text on pg. 4152. Limited applicability; no sig criminal history, no gun, truthful info

iv. Firearm allegations1. 18 USC 924(c)

a. (1) (A) Except to the extent that a greater minimum sentence isotherwise provided by this subsection or by any other provision

of law, any person who, during and in relation to any crime of

violence or drug trafficking crime (including a crime of violence

or drug trafficking crime that provides for an enhanced

punishment if committed by the use of a deadly or dangerous

weapon or device) for which the person may be prosecuted in a

court of the United States, uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm,shall, in

addition to the punishment provided for such crime of violence

or drug trafficking crime

b. (i) be sentenced to a term of imprisonment of not less than 5years;

c. (ii) if the firearm is brandished, be sentenced to a term ofimprisonment of not less than 7 years; and


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One of the specific base offense characteristics for fraud (which has a base offense level of 7

if the statutory maximum is 20 years or more) increases the offense level based on the

amount of loss involved in the offense. If a fraud involved a $6,000 loss, there is to be a

2-level increase to the base offense level, bringing the level up to 9. If a fraud involved a

$50,000 loss, there is to be a 6-level increase, bringing the total to 13.

One of the specific offense characteristics for robbery (which has a base offense level of 20)

involves the use of a firearm. If a firearm was brandished during the robbery, there is to be

a 5-level increase, bringing the level to 25; if a firearm was discharged during the robbery,

there is to be a 7-level increase, bringing the level to 27.

Adjustments

Adjustments are factors that can apply to any offense. Like specific offense characteristics,

they increase or decrease the offense level. Categories of adjustments include: victim-related

adjustments, the offenders role in the offense, andobstruction of justice. Examples of adjustments

are as follows:

If the offender was a minimal participant in the offense, the offense level is decreased by 4

levels.

If the offender knew that the victim was unusually vulnerable due to age or physical or

mental condition, the offense level is increased by 2 levels.

If the offender obstructed justice, the offense level is increased by 2 levels.

Multiple Count Adjustments

When there are multiple counts of conviction, the sentencing guidelines provide instructions

on how to achieve a combined offense level. These rules provide incremental punishment for

significant additional criminal conduct. The most serious offense is used as a starting point. The

other counts determine whether and how much to increase the offense level.

Acceptance of Responsibility Adjustments

The final step in determining an offenders offense level involves the offenders acceptance of

responsibility. The judge may decrease the offense level by two levels if, in the judges opinion, the

offender accepted responsibility for his offense.

In deciding whether to grant this reduction, judges can consider such factors as:

whether the offender truthfully admitted his or her role in the crime,

whether the offender made restitution before there was a guilty verdict, and


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whether the offender pled guilty.

Offenders who qualify for the 2-level reduction and whose offense levels are greater than 15,

may, upon motion of the government, be granted an additional 1-level reduction if, in a timely

manner, they declare their intention to plead guilty.

Criminal History

The guidelines assign each offender to one of six criminal history categories based upon the

extent of an offenders past misconduct. Criminal History Category I is the least serious category

and includes many first-time offenders. Criminal History Category VI is the most serious category

and includes offenders with serious criminal records.

Determining the Guideline Range

The final offense level is determined by

taking the base offense level and then adding or

subtracting from it any specific offense

characteristics and adjustments that apply. The

point at which the final offense level and the

criminal history category intersect on the

Commissions sentencing table determines the

defendants sentencing guideline range. In the

following excerpt from the sentencing table, an

offender with a Criminal History Category of I and

a final offense level of 20 would have a guideline

range of 33 to 41 months.

Sentences Outside of the Guideline Range

After the guideline range is determined, if an atypical aggravating or mitigating

circumstance exists, the court may depart from the guideline range. That is, the judge may

sentence the offender above or below the range. When departing, the judge must state in writing

the reason for the departure.

In January 2005, the U.S. Supreme Court decided United States v. Booker, 543 U.S. 220

(2005). The Booker decision addressed the question left unresolved by the Courts decision in

Blakely v. Washington, 542 U.S. 296 (2004): whether the Sixth Amendment right to jury trial

applies to the federal sentencing guidelines. In its substantive Booker opinion, the Court held that

the Sixth Amendment applies to the sentencing guidelines. In its remedial Booker opinion, the

Court severed and excised two statutory provisions, 18 U.S.C. 3553(b)(1), which made the

federal guidelines mandatory, and 18 U.S.C. 3742(e), an appeals provision.


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Under the approach set forth by the Court, district courts, while not bound to apply the

Guidelines, must consult those Guidelines and take them into account when sentencing, subject to

review by the courts of appeal for unreasonableness. The subsequent Supreme Court decision in

Rita v. United States, 551 U.S. 338 (2007), held that courts of appeal may apply a presumption of

reasonableness when reviewing a sentence imposed within the guideline sentencing range.

The Supreme Court continued to stress the importance of the federal sentencing guidelines

in its most recent sentencing-related cases. See Gall v. United States, 128 S. Ct. 586 (2007) (Asa

matter of administration and to secure nationwide consistency, the Guidelines should be the starting

point and initial benchmark at sentencing); Kimbrough v. United States, 128 S. Ct. 558 (2007)

(After Booker, *a+ district judge must include the Guidelines range in the array of factors warranting

consideration).

Controled Substances Law- Attack Sheet

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