In New York an arrest for possession of less than 500 mg of cocaine is classified as criminal possession in the 7th degree, a Class A misdemeanor which carries a penalty of up to one year in jail.
Crack Cocaine 100 Guns 200
An arrest for possession of 500 mg or more of cocaine or a cocaine mixture is classified as criminal possession in the 5th degree, a Class D felony punishable by 1 to 2 years in prison. Second time offenders may face up to 4 years in jail, and a previous violent offenders could face 4 years.
An arrest for possession of 1/8 of an ounce or more of cocaine or a cocaine mixture is classified as criminal possession in the 4th degree, a Class C felony punishable by 1 to 5 years in prison. Second time offenders may face up to 8 years in jail, and a previous violent offenders could face 9 years.
An arrest for possession of of an ounce or more of cocaine or a cocaine mixture is classified as criminal possession in the 3rd degree, a Class B felony punishable by 1 to 9 years in prison. Second time offenders may face up to 12 years in jail, and a previous violent offenders could face 15 years.
An arrest for possession of 4 ounces or more of cocaine or a cocaine mixture is classified as criminal possession in the 2nd degree, a Class A-II felony punishable by 3 to 10 years in prison. Second time offenders may face up to 14 years in jail, and a previous violent offenders could face 17 years.
An arrest for possession of 8 ounces or more of cocaine or a cocaine mixture is classified as criminal possession in the 1st degree, a Class A-I felony punishable by 8 to 20 years in prison. Second time offenders may face up to 24 years in jail, and previous violent offenders face 15 to 30 years.
An arrest for possessing cocaine with intent to sell or is classified as criminal possession in the 3rd degree, a Class B felony punishable by 1 to 9 years in prison. Second time offenders may face up to 12 years in jail, and a previous violent offenders could face 15 years.
An arrest for selling less than ounce of cocaine is classified as criminal sale of a controlled substance in the 3rd degree, a Class B felony punishable by 1 to 9 years in prison. Second time offenders may face up to 12 years in jail, and a previous violent offenders could face 15 years.
An arrest for selling ounce or more of cocaine or a cocaine mixture is classified as criminal sale of a controlled substance in the 2nd degree, a Class A-II felony punishable by 3 to 10 years in prison. Second time offenders may face up to 14 years in jail, and a previous violent offenders could face 17 years.
An arrest for selling 2 ounces or more of cocaine or a cocaine mixture is classified as criminal sale of a controlled substance in the 1st degree, a Class A-I felony punishable by 8 to 20 years in prison. Second time offenders may face up to 24 years in jail, and previous violent offenders face 15 to 30 years.
The penalties for possession of cocaine are set forth in 21 U.S.C. 844 (*Note: these penalties are for possession only. Possession of even a small amount will usually be charged as possession with intent to distribute):
The penalties for the of sale or possession with intent to sell cocaine are set forth in 21 U.S.C. 841 (*Note: these are the penalties for the first conviction with no enhancing factors):
The penalties for possession of crack are set forth in 21 U.S.C. 844 (*Note: these penalties are for possession only. Possession of even a small amount will usually be charged as possession with intent to distribute):
The penalties for the of sale or possession with intent to sell crack are set forth in 21 U.S.C. 841 (*Note: these are the penalties for the first conviction with no enhancing factors):
The hate crime legislation enacted in 2009 directed the U.S. Sentencing Commission to submit a second report on federal mandatory minimums.28 The commission presented its second report in October 2011.29 A number of things had changed between the first and second Commission reports. Sentencing under the Guidelines had been in place for only a relatively short period of time when the first report was written. By the time of the second report, the number of defendants sentenced by federal courts had grown to almost three times the number sentenced under the Guidelines when the commission wrote its first report.30 The judicial landscape has changed as well. When the commission issued its first report, the Guidelines were considered binding upon sentencing judges.31 After the Supreme Court's Booker decision and its progeny, the Guidelines became but the first step in the sentencing process.32 In addition, the Fair Sentencing Act, passed in 2010, reduced the powder cocaine-crack cocaine ratio from 100 to 10 to roughly 18 to 1.33
The eight substances are heroin, powder cocaine, cocaine base (crack), PCP, LSD, fentanyl, methamphetamine, and marijuana. Criminal penalties related to each substance provide one set of mandatory minimums for trafficking in a very substantial amount listed in Section 841(b)(1)(A), and a second, lower set of mandatory minimums for trafficking in a lower but still substantial amount listed in Section 841(a)(1)(B). The first set (841(b)(1)(A) level) features the following thresholds:
Section 924(c) outlaws possession of a firearm in furtherance of, or use of a firearm during and in relation to, a predicate offense. A "firearm" for purposes of Section 924(c) includes not only guns ("weapons ... which will or [are] designed to or may readily be converted to expel a projectile by the action of an explosive"), but silencers and explosives as well.120 It includes firearms that are not loaded or that are broken.121 It does not include toys or imitations.122 Nevertheless, the government need not produce the gun itself at trial. It need do no more than "present sufficient testimony, including the testimony of lay witnesses, in order to prove beyond a reasonable doubt that a defendant used, possessed or carried a 'firearm' as that term is defined for purposes of 924(c)."123 Yet conviction must rest on some evidence of the presence of a firearm.124
For some time, Section 924(c) consisted of a single long paragraph with brandishing, discharging, short barrels, semiautomatics, machine guns, and bombs all in the same paragraph. When Congress added the "possession in furtherance" language, it parsed the section. Now, the general, brandish, and discharge mandatory penalties provisions appear in one part.149 The provisions for offenses involving a short-barreled rifle or shotgun, a semiautomatic assault weapon, a silencer, a machine gun, or explosives appear in a second part.150 The provisions for second and consequent convictions appear in a third part.151
The Supreme Court decision in Harmelin v. Michigan284 seems to make a defendant's Eighth Amendment arguments in a controlled substances case more difficult. The defendant in Harmelin was a first-time offender convicted of possession of 672 grams of cocaine, enough for possibly as many as 65,000 individual doses. Under the laws of the state of Michigan, the conviction carried with it a mandatory sentence of life imprisonment without the possibility of parole. The Court splintered over the question of whether Harmelin's mandatory sentence offended the Eighth Amendment because it was grossly disproportionate to his offense.
At one time, possession with intent to distribute crack cocaine (cocaine base) was punished 100 times more severely than possession with intent to distribute cocaine in powdered form.294 Defendants claimed the distinction had a racially disparate impact. The claim was almost universally rejected.295
P.L. 111-220, 2(a), 124 Stat. 2372 (2010). Prior to enactment, 5000 grams of powder cocaine or 50 grams of crack cocaine triggered the Controlled Substances Act's 10-year mandatory minimum, 21 U.S.C. 841(b)(1)(A)(ii) and (iii) (2006 ed.), and 500 grams of powder or 5 grams of crack triggered its 5-year mandatory minimum. Id. 841(b)(1)(B)(ii) and (iii) (2006 ed.). The FSA established a 5000 grams to 280 gram ratio for the 10-year mandatory minimum, 21 U.S.C. 841(b)(1)(A)(ii) and (iii), and a 500 grams to 28 gram ratio for the 5-year mandatory minimum. Id. 841(b)(1)(B)(ii) and (iii).
Id. 841(b)(1)(A)(ii), 960(b)(1)(B) ("5 kilograms or more of a mixture or substance containing a detectable amount of- (I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (II) cocaine, its salts, optical and geometric isomers, and salts of isomers; (III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or (IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III)").
Id. 841(b)(1)(B)(ii), 960(b)(2)(B) ("500 grams or more of a mixture or substance containing a detectable amount of- (I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (II) cocaine, its salts, optical and geometric isomers, and salts of isomers; (III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or (IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III)").
E.g., United States v. Trinidad, 839 F.3d 112, 114 (1st Cir. 2016) (114 kilograms of cocaine); Wilchcombe, 838 F.3d at 1183 (more than five kilograms of cocaine and more than 100 kilograms of marijuana); United States v. Cruickshank, 837 F.3d 1182, 1187 (11th Cir. 2016) (more than five kilograms of cocaine); United States v. Cruz-Mendez, 811 F.3d 1172, 1173 (9th Cir. 2016) (568 kilograms of marijuana); United States v. Pena-Santo, 809 F.3d 686, 691-92 (1st Cir. 2015) (more than 150 kilograms of cocaine). 2ff7e9595c
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