Judge James K. Bredar, a Maryland federal district court judge, took a bold move granting a two-level downward departure from the US Sentencing Guidelines to each of 22 defendants convicted in a marijuana distribution conspiracy.
Citing the evolving changes in federal marijuana enforcement policy, and the prodigious effect that state laws have had in shaping the federal enforcement policy, Judge Bredar found that a two-level downward departure was warranted to “impose a sentence sufficient, but not greater than necessary to accomplish the goals of sentencing.”
Critical to the Judge’s reasoning was the fact that the federal sentencing guidelines regarding marijuana have not changed since they were enacted in 1987. Since then, “State level marijuana laws have evolved significantly,” said the Judge. The court cited the recent Senate hearing statements of Deputy US Attorney Cole, which said that 21 states and the District of Columbia have passed medical marijuana related cultivation, possession and use legislation. Cole further stated in his Senate hearing that an additional six states passed such legislation in 2013.
In light of these statistics, Judge Bredar stated: “If one adds to these states those that have decriminalized small quantities of marijuana for personal use, one arrives at a total of 25 states and the District of Columbia that have liberalized their marijuana laws.” The court further noted the voter initiatives of Colorado and Washington that legalized recreational use.
The court stated that these state based legislative accomplishments, “Reflect a change in the way the citizens of various states perceive the dangerousness of marijuana.”
In turn, the court cited to the Ogden Memo of 2009 and the Cole Memorandum of 2011, which dramatically altered the strategy and prioritization of federal marijuana enforcement policy in light marijuana’s accepted stature as a medical alternative to many diseases and ailments. Under those memoranda, patients and medical dispensary providers would not be prosecuted as long as they were acting in compliance with state law. With the advent of the recreational use legislation of Colorado and Washington, Judge Berdar found that Deputy US Attorney Cole retreated from his earlier declarations and implemented an even more deferential position in that, "'Large-scale, for-profit commercial enterprises’ involved in the cultivation, distribution, [and] sale of marijuana'” would no longer be subject to federal law enforcement because of strong state statutory regulations which now govern."
The court concluded that it would not serve to second-guess Congress’ designation of marijuana as a Schedule I drug, and would not overlook the fact that the 22 defendants had indeed violated federal law because they were not part of a regulated state-sanctioned commercial enterprise, but it did find that the sentencing guidelines were out of proportion to the goals of sentencing.
Therefore, Judge Berder found that a two-level downward departure, which served to reduce the sentences imposed by 20-25%, was warranted for each of 22 defendants.