WEED BETWEEN THE LINES CANNABIS IN THE HIGH COURT

U.S. Supreme Court weighs definition of marijuana

BY WILL BRENDZA

Police raided the Pennsylvania home of Justin Rashaad Brown in November 2016. Upon searching his residence, they found cocaine, cash and a firearm. He was arrested. At the time, Brown was already a convicted felon with five prior drug offenses — one for delivering cocaine and four for possessing marijuana with intent to deliver.

Those prior offenses and the presence of the gun changed things for Brown. The 10-year maximum he would have otherwise faced was bumped to a 15-year minimum because of a federal law known as the Armed Career Criminal Act (ACCA). In July 2019, Brown pleaded guilty to the charges and was sentenced to 15 years in prison.

In 2018, after his arrest and before his sentencing, another law was passed that has given Brown legal grounds to challenge the ACCA enhancement. The United States Department of Agriculture’s (USDA) Agricultural Improvement Act — commonly called the 2018 Farm Bill — changed the federal definition of marijuana, removing hemp from the Controlled Substances Act (CSA). Brown’s lawyer, Jeffery Green, argues that the act of decriminalization invali- dated four of Brown’s five prior state drug offenses, negating the basis for his federal ACCA enhancement.

The U.S. Supreme Court rarely weighs in on cannabis-related cases. But Brown v. U.S.A. highlights a gap being created as federal and state laws surrounding cannabis change and drift apart. Green made his oral arguments on Nov. 27.

Boulder Weekly reached out to Green for comment, but he declined.

The two pieces of federal legislation at the core of Brown v. U.S.A. are separated by 34 years. The ACCA was passed in 1984, and it mandates that anyone with three prior violent felonies or serious drug offenses — like Brown — caught in possession of a firearm should receive an extra five-year minimum sentence on top of the 10-year sentence convicted felons automatically receive when found in possession of a firearm.

The 2018 Farm Bill has nothing to do with criminal sentences. It’s an agricul- tural bill meant to support American farmers with government programs, insurance and conservation assistance.

But according to Green, the section lawmakers included on hemp fundamentally changes Brown’s case. Among many other things, the Farm Bill narrowed the legal definition of “marijuana” within the CSA to exclude any plant containing less than .3% THC by dry weight and any product derived from it.

The eventual ruling in Brown v. U.S.A. could affect many other criminal defendants in the American prison sys- from the Federal ACCA enhancement applied to his sentence in 2019. In his opening arguments, Green told the justices that the sentencing court should use the schedules that are current at the time of sentencing, not those that were in place at the time of the original drug offenses.

“The goal of the ACCA is to incapacitate only the most serious offenders,” Green told the Court. “To do otherwise, as the government suggests, would be to ignore entirely Congress’s choice to change those drug schedules with the 2018 Farm Bill.”

Justice Samuel tem. Any felon facing mandatory minimum sentences for gun possession, resulting from past drug crimes related to cannabis, could have their case reexamined.

Alito, the court’s most conservative member, expressed skepticism about Green’s arguments. Justice Neil Gorsuch, another conservative member of the court, seemed open to the line of reasoning behind Brown’s case.

Green argues that because the 2018 Farm Bill decriminalized the substance Brown was convicted for possession of, he should be disqualified

More liberal justices like Ketanji Brown Jackson and Sonia Sotomayor seemed to agree with Green, that the courts should only consider drug laws at the time of the firearm possession conviction — not those in place at the time of arrest.

“This Court has said that the ordinary practice is to apply current law, including at sentencing,” Green said. “There’s no reason to deviate from that ordinary practice here.”