Legal Commentary

New Federal Drug Laws, New Sentencing Guidelines

By Jeralyn

For those who hoped for a stop to the escalation of the war on drugs, this isn't your year. During 2008, Congress snuck a few new laws in, and today the Sentencing Commission released its proposed guideline amendments for 2009 (pdf), adding the new offenses and increased penalties. They will appear in tomorrow's federal register and there are 60 days to provide comments.

What's new?

• Ryan Haight Online Pharmacy Consumer Protection Act of 2008. (starts at page 25)
• Drug Trafficking Vessel Interdiction Act of 2008 (starts at page 30)

The first prohibits controlled substance sales and advertising over the internet. The second prohibits drug sales on submarines (ok submersible vessels, and the difference is explained here.)

The Act amends the Controlled Substances Act (21 U.S.C. § 801 et seq.) to create two new offenses involving controlled substances. The first is 21 U.S.C. § 841(h) (Offenses Involving Dispensing of Controlled Substances by Means of the Internet), which prohibits the delivery, distribution, or dispensing of controlled substances over the Internet without a valid prescription.

The applicable statutory maximum term of imprisonment is determined based upon the controlled substance being distributed. The second new offense is 21 U.S.C. § 843©(2)(A) (Prohibiting the Use of the Internet to Advertise for Sale a Controlled Substance), which prohibits the use of the Internet to advertise for sale a controlled substance. This offense has a statutory maximum term of imprisonment of four years.

In addition to the new offenses, the Act increased the statutory maximum terms of imprisonment for all Schedule III controlled substance offenses (from 5 years to 10 years), for all Schedule IV controlled substance offenses (from 3 years to 5 years), and for Schedule V controlled substance offenses if the offense is committed after a prior drug conviction (from 2 years to 5 years).

The Act added a sentencing enhancement for Schedule III controlled substance offenses where
“death or serious bodily injury results from the use of such substance.”

Among the questions the Commission seeks input on: What about hydrocodone?

The Commission requests comment regarding whether offenses involving hydrocodone substances are adequately addressed by the guidelines. Currently, the guidelines do not distinguish between hydrocodone substances and other Schedule III substances (except Ketamine).

The Act increased the statutory maximum term of imprisonment for all Schedule III offenses, including hydrocodone offenses, from 5 years to 10 years. Should hydrocodone be treated differently than other Schedule III substances and, if so, how? If the Commission should revise the guidelines as they relate to hydrocodone, what justifies doing so?

On to the Yellow Submarines:

Drug Trafficking Vessel Interdiction Act of 2008, Pub. L. 110–407 (the “Act”). The Act creates a new offense at 18 U.S.C. § 2285 (Operation of Submersible Vessel or Semi-Submersible Vessel Without Nationality), which provides:

“Whoever knowingly operates, or attempts or conspires to operate, by any means, or embarks in any submersible vessel or semi-submersible vessel that is without nationality and that is navigating or has navigated into, through, or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country's territorial sea with an adjacent country, with the intent to evade detection, shall be fined under this title, imprisoned not more than 15 years, or both.”

Section 103 of the Act also directs the Commission to promulgate or amend the guidelines to provide for increased penalties for persons convicted of offenses under 18 U.S.C. § 2285.

Among the offenses: Drugs. For example, the guideline for drug offenses will become:

If the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft other than a regularly scheduled commercial air carrier was used to import or export the controlled substance, or (B) a submersible vessel or semi-submersible vessel as described in 18 U.S.C. § 2285 was used, or (C) the defendant acted as a pilot, copilot,captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance, increase by 2 levels. If the resulting offense level is less than level 26, increase to level 26.

There's probably more, I've only skimmed the proposed new guidelines so far. Bottom line: You really have to watch these Congress critters. What they enact often flies under the radar. "We all live in a yellow submarine."

Full post as published by TalkLeft on January 26, 2009 (boomark / email).