New Federal Drug Laws, New Sentencing Guidelines

For those who hoped for a stop to the escalation of the war on drugs, this isn't your year. During 2008, Congress snuck a few new laws in, and today the Sentencing Commission released its proposed guideline amendments for 2009 (pdf), adding the new offenses and increased penalties. They will appear in tomorrow's federal register and there are 60 days to provide comments.

What's new?

  • Ryan Haight Online Pharmacy Consumer Protection Act of 2008. (starts at page 25)
  • Drug Trafficking Vessel Interdiction Act of 2008 (starts at page 30)

The first prohibits controlled substance sales and advertising over the internet. The second prohibits drug sales on submarines (ok submersible vessels, and the difference is explained here.)

The Act amends the Controlled Substances Act (21 U.S.C. § 801 et seq.) to create two new offenses involving controlled substances. The first is 21 U.S.C. § 841(h) (Offenses Involving Dispensing of Controlled Substances by Means of the Internet), which prohibits the delivery, distribution, or dispensing of controlled substances over the Internet without a valid prescription.

The applicable statutory maximum term of imprisonment is determined based upon the controlled substance being distributed. The second new offense is 21 U.S.C. § 843©(2)(A) (Prohibiting the Use of the Internet to Advertise for Sale a Controlled Substance), which prohibits the use of the Internet to advertise for sale a controlled substance. This offense has a statutory maximum term of imprisonment of four years.

In addition to the new offenses, the Act increased the statutory maximum terms of imprisonment for all Schedule III controlled substance offenses (from 5 years to 10 years), for all Schedule IV controlled substance offenses (from 3 years to 5 years), and for Schedule V controlled substance offenses if the offense is committed after a prior drug conviction (from 2 years to 5 years).

The Act added a sentencing enhancement for Schedule III controlled substance offenses where
“death or serious bodily injury results from the use of such substance.”

Among the questions the Commission seeks input on: What about hydrocodone?

The Commission requests comment regarding whether offenses involving hydrocodone substances are adequately addressed by the guidelines. Currently, the guidelines do not distinguish between hydrocodone substances and other Schedule III substances (except Ketamine).

The Act increased the statutory maximum term of imprisonment for all Schedule III offenses, including hydrocodone offenses, from 5 years to 10 years. Should hydrocodone be treated differently than other Schedule III substances and, if so, how? If the Commission should revise the guidelines as they relate to hydrocodone, what justifies doing so?

On to the Yellow Submarines:

Drug Trafficking Vessel Interdiction Act of 2008, Pub. L. 110–407 (the “Act”). The Act creates a new offense at 18 U.S.C. § 2285 (Operation of Submersible Vessel or Semi-Submersible Vessel Without Nationality), which provides:

“Whoever knowingly operates, or attempts or conspires to operate, by any means, or embarks in any submersible vessel or semi-submersible vessel that is without nationality and that is navigating or has navigated into, through, or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country's territorial sea with an adjacent country, with the intent to evade detection, shall be fined under this title, imprisoned not more than 15 years, or both.”

Section 103 of the Act also directs the Commission to promulgate or amend the guidelines to provide for increased penalties for persons convicted of offenses under 18 U.S.C. § 2285.

Among the offenses: Drugs. For example, the guideline for drug offenses will become:

If the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft other than a regularly scheduled commercial air carrier was used to import or export the controlled substance, or (B) a submersible vessel or semi-submersible vessel as described in 18 U.S.C. 2285 was used, or (C) the defendant acted as a pilot, copilot,captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance, increase by 2 levels. If the resulting offense level is less than level 26, increase to level 26.

There's probably more, I've only skimmed the proposed new guidelines so far. Bottom line: You really have to watch these Congress critters. What they enact often flies under the radar. "We all live in a yellow submarine."

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  • Display: Sort:
    Does U.S. control the internet? (none / 0) (#1)
    by Saul on Mon Jan 26, 2009 at 06:38:29 PM EST
    If the internet is world wide how is this law implemented.  If I live in Germany and I buy one of the mentioned drugs on the internet from someone in Spain is that a crime?  

    Please verify in more detail how this works.

    I think you're good.... (none / 0) (#3)
    by kdog on Mon Jan 26, 2009 at 06:51:22 PM EST
    unless you're breaking German law.

    It's people buying/selling drugs without a script in the US over the net who are commiting a crime.  Though I suppose if you're processing payment through an American bank the state could mess with you that way....like when you try to gamble online with an offshore site in the US.


    Also (none / 0) (#4)
    by squeaky on Mon Jan 26, 2009 at 06:54:40 PM EST
    The US works with other governments and to shut down these distributors. Even buying drugs with a prescription from Canada, where the drugs could be much less expensive, are subject to US customs seizures.

    There goes my retirement plan!! (none / 0) (#2)
    by Militarytracy on Mon Jan 26, 2009 at 06:43:03 PM EST
    The only thing left was to go in hock and spring  for the Hammacher Schlemmer two man sub and start trafficking.......this blows that out of the water :)  Here's my tax dollars at work again against me and a strong economy :)

    lol Tracy.... (none / 0) (#5)
    by kdog on Mon Jan 26, 2009 at 06:58:43 PM EST
    and good point...is this the time economically to hurt the associated legal business? The shippers and credit card transactors and submersible sub manufacturers?

    Not that any legislation will have any meaningful effect, except keeping the prisons full and the lawyers busy....hmmm, maybe it is part of the economic stimulus and the international shippers can't match the prison industry in lobbying power?

    Yeah...that's the ticket.


    Thanks for adding the smilies (none / 0) (#6)
    by Jeralyn on Mon Jan 26, 2009 at 07:00:34 PM EST
    All sorts of people and government agencies read these threads and they don't have much of a sense of humor. I'd hate for them to think you were serious.

    These days (none / 0) (#8)
    by Militarytracy on Mon Jan 26, 2009 at 07:41:26 PM EST
    with big brother every place, it is scary to think that we can't even kid about such things.  How many of us will be guilty of a dry sense of humor if these yahoos don't wise up?

    You were kidding? (none / 0) (#11)
    by NYShooter on Mon Jan 26, 2009 at 11:03:37 PM EST
    Rats! I just had to delete my request for an order form.

    ha (none / 0) (#7)
    by Nasarius on Mon Jan 26, 2009 at 07:13:16 PM EST
    I was going to suggest setting up shop in a diving bell.

    i'm still unclear (none / 0) (#9)
    by cpinva on Mon Jan 26, 2009 at 08:41:38 PM EST
    as to the difference between a submersible (submarine?) and semi-submersible craft. it's been my personal experience (don't ask!) that semi-submersible is usually by accident, not design.

    follow the money trail. who stands to gain financially from these new laws? that would be the law enforcement and prison industries. there's no such thing as too many prisons.

    So... (none / 0) (#10)
    by MileHi Hawkeye on Mon Jan 26, 2009 at 09:04:35 PM EST
    The first prohibits controlled substance sales and advertising over the internet.

    Why, in the name of all that is holy, can't we ban such advertising from television?  

    I take it the hydrocodone bit is an over-reaction to the percieved "addiction crisis".  By golly, locking folks for 15+ years will certainly cure their addiction!

    Unless your name is Rush, of course.