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Drug Possession

21 U.S.C. § 841 (2005).

The Crime
This section refers to what is known as "possession with intent to distribute," while section 844, below, deals with "mere possession." Under section 841, it is, in most cases, a crime for any person to knowingly or intentionally

  • manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; 21 U.S.C. § 841(a)(1); or
  • create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance. Id. § 841(a)(2).

The Punishment
The complicated parts of the drug laws are the punishment provisions, found at 21 U.S.C. § 841(b). There are four ranges of punishment for a drug crime depending on what schedule the drug is placed, and the quantity of the substance. Furthermore, if any deaths occurred during the drug scheme, the sentence can be enhanced. The four ranges for punishment are:

  • 10 years-life (20 to life, if death or serious injury results from the use of the substance, or if the defendant has a prior final felony drug conviction; life if death or serious bodily injury occurs from the use of such substance, and the defendant has a prior final felony conviction), a fine of up to $4 million (up to $8 million if the defendant has a prior final felony conviction), or both. If the defendant has two prior final felony drug convictions, the defendant will be sentenced to mandatory life imprisonment. 21 U.S.C § 841(b)(1)(A).
  • 5-40 years (20 to life if death or serious bodily injury results from the use of the substance; 10-life if the defendant has a prior final felony drug conviction, and mandatory life in such circumstances if death or serious bodily injury occurs), a fine of up to $2 million (up to $4 million if the defendant has a prior final felony conviction), or both. Id. § 841(b)(1)(B).
  • 0-20 years (20 to life if death or serious bodily injury results from the use of the substance; 0-30 if the defendant has a prior final felony drug conviction), a fine of up to $1 million (up to $2 million if the defendant has prior final felony drug conviction), or both. Id. § 841(b)(1)(C).
  • 0-5 years (0-10 if the defendant has a prior final felony drug conviction), a fine of up to $250,000 (up to $500,000 if the defendant has a prior final felony drug conviction), or both. Id. § 841(b)(1)(D).

Because the sentencing scheme is so complicated, it may be more helpful to see visit the DEA's chart that outlines the punishment. See DEA, Federal Trafficking Penalties, available here (last visited Jul. 29, 2005).

21 U.S.C. § 844 (2005).

The Crime
Generally, under section 844, it is a crime for a person to knowingly or intentionally possess a controlled substance. 21 U.S.C. § 844(a)

The Punishment
A violation of mere possession is typically punished by

  • imprisonment for not more than 1 year, a fine of at least $1,000, or both. Id. § 844(a).

Case Law Dealing With Drug Possession
The government must prove, to convict someone under section 841(a), that the defendant knowingly or intentionally possess a controlled substance with the intent to manufacture, distribute, or dispense it. United States v. Garcia, 252 F.3d 838, 844 (6th Cir. 2001). To satisfy the mens rea portion of the offense, that is, the mental state required, all that is required is that the defendant be aware that he is trafficking in what he believed to be a controlled substance. United States v. Barbosa, 271 F.3d 438, 457-58 (3d Cir. 2001). In other words, the Government "must prove the defendant's awareness that he engaged in one or more of the active verbs in [section 841(a)]: manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense." Id. at 458. The Government does not, however, need show "that the defendant [had] specifically intended to violate the statute in order to be found guilty." Id. Furthermore, there is not requirement "to extend the mens rea requirement to the precise controlled substance at issue." Id. The implications of this are clear: the controlled substance in question does not need to actually be a controlled substance. United States v. Young, 20 F.3d 758, 760, 766 (7th Cir. 1994) (conviction based on defendant's purchase of "mock" cocaine upheld).

Possession under section 841 can be actual or constructive. United States v. Hernandez, 484 F.2d 86, 87-88 (5th Cir. 1973). Constructive possession is possession in law but not in fact; person in constructive possession of item knowingly holds the power and the ability to exercise dominion and control over the item, and it can be proven circumstantially. United States v. Massey, 687 F.2d 1348, 1354 (10th Cir. 1982). Obviously, actual possession is when a person has physical possession of the substance.

Finally, a defendant can be guilty of distribution even if no money is exchanged. United States v. Fregoso, 60 F.3d 1314, 1325 (8th Cir. 1995). Distribution occurs when the defendant freely gives the substance to another, and while "purchasing [a controlled substance] for 'resale' is certainly one type of conduct upon which a conviction … to distribute [a controlled substance] may be obtained, it is not the sole basis upon which one can be convicted." Id; see also United States v. Campbell, 317 F.3d 597 (6th Cir. 2003); United States v. Hester, 140 F.3d 753 (8th Cir. 1998);

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