INTRODUCTION
The Federal Sentencing Guidelines provide federal courts with guidance as how to sentence people convicted of violating the criminal code of the United States. They do not apply to cases tried in state courts.
Note, at the outset, that a detailed description of the guidelines is beyond the scope of this FAQ. What will be presented here is a basic description of how the guidelines work and how people convicted of growing or possessing marijuana are sentenced under the guidelines. You should not rely on this document as legal advice. Consult your lawyer if you have any questions about how the guidelines apply to you.
BASE OFFENSE LEVEL
For any conviction of the U.S. criminal code, the guidelines assign a base offense level. The more severe the violation, the higher the base offense level. For base offense level one, the range of punishment is from 0-6 months. For base offense level forty three (the highest level contemplated by the guidelines), the only sentence is life in prison.
CRIMINAL HISTORY CATEGORY
Once the base level is determined, other factors are considered. First, the Defendant’s criminal history is categorized. Category I is a first offense, Category VI is 13 or more prior convictions. For most offenses, prior convictions effectively increase the sentencing range for the base offense level. For instance, a level 10 conviction, without other prior convictions, has a range of 6-12 months. But, with 3 prior convictions the range increases to 8-14 months.
ZONES
The guidelines are zoned across base offense levels and categories. Zone A includes the least onerous sentences, Zone D contains the most severe sentences. In our example above, a level 10 conviction, with 1 or fewer prior convictions is a Zone B conviction. However, with 3 prior convictions it becomes a Zone C conviction.
MITIGATING OR AGRRAVATING FACTORS
Once the base level and category are identified, other factors are considered in increasing or reducing the base level. There are some kinds of conduct, for instance making a living through criminal activity, which bring in a minimum base offense level (in this case base offense level 13). Conversely, if the Defendant had a mitigating role in the criminal activity, the guidelines mandate that his base offense level be reduced 4 levels.
HOW THE GUIDELINES RELATE TO GROWERS
Under the federal Trafficking statute, a conviction of possession of 250 grams of marijuana or less is a level 6 offense, category I, which carries with it a sentencing range of 0-6 months. If the Defendant is convicted under the same statute for possession of 30,000 kilograms or more, then a base offense level 38, Category I applies, which has a range of 235-293 months (19.5-24.4 years).
One startling note in the guidelines reads as follows: “In the case of an offense involving marihuana plants, treat each plant, regardless of sex, as equivalent to 100 G of marihuana. Provided, however, that if the actual weight of the marihuana is greater, use the actual weight of the marihuana.” That means that every plant, including little clones and skinny ass males, will be treated as if it weighs almost 4 ounces. 10 plants to the kilo, unless they actually weight more. Take heart though, the commentary instructs that if the harvested marijuana has so much moisture in it that it can’t be smoked, then an estimation as to its dry weight is to be used.
MANDATORY TIME
There is no mandatory jail time for a Zone A offense, unless there is some other provision applicable to a specific offense which mandates imprisonment. For Zone B offenses, the Defendant may be sentenced to probation. For Zone C offenses, the Defendant must be sentenced to prison but is eligible for supervised release. For Zone D offenses, the Defendant must be sentenced to prison.
For trafficking in marijuana, there is no mandatory sentence for less than 1 kilogram. Jail is possible, but not inevitable for possession of up to 2.5 kilograms. Jail is very likely for more than 2.5 kilos but less than 5 kilos. Jail is a certainty for more than 5 kilos.