D.C. VOLUNTARY SENTENCING GUIDELINES ADVANCED TRAINING: HOW TO SCORE PRIOR MARIJUANA CONVICTIONS D.C. Sentencing and Criminal Code Revision Commission

DISCLAIMER  This PowerPoint presentation is designed to give individuals an understanding of how prior marijuana convictions are treated under the Guidelines. The presentation is not intended to serve as legal advice. It does not cover every possible situation or occurrence. It is for educational purposes only.  This presentation should not be referenced, used, introduced, or quoted in any proceeding. It may not be reproduced without the expressed permission of the D.C. Sentencing and Criminal Code Revision Commission.

HOW TO CALCULATE A DEFENDANT’S CRIMINAL HISTORY SCORE  This training will focus on how to score prior D.C. Superior Court and out-of-District marijuana convictions.  Including: o The treatment of sealed convictions. o The differences between possession, distribution, and possession with intent to distribute convictions. o Challenges to the initial scoring of a marijuana convictions.

WHAT PROMPTED THE NEW GUIDELINES RULES?  In July 2014, the District decriminalized possessing or transferring, for no remuneration, limited amounts of marijuana.  In February 2015, the District legalized possessing, growing, and/or transferring, for no remuneration, limited amounts of marijuana.

FOLLOWING LEGALIZATION, QUESTIONS AROSE  How are prior convictions for possession or marijuana scored?  How are prior convictions for possession with intent to distribute (PWID) marijuana and/or distribution pf marijuana scored.

GUIDELINES GENERAL RULE  Original Rule 2.2.8:  A prior conviction/adjudication under a statute that was repealed so that the conduct was decriminalized is not scored.  Rule did not address partially repealed statutes.  Marijuana offenses were only partially legalized:  Possession and sharing of small amount becomes legal.  Possession of more than 2oz of marijuana remains illegal.  Distribution for money remains illegal.  Growing more than a few marijuana plants remains illegal. 1  I. It is legal for people to cultivate within their residence up to six marijuana plants, no more than three of which are mature.

NEW MARIJUANA SCORING RULE  Section 2.2.8(b) now explains how to score:  Prior marijuana convictions sealed under D.C. Code § ;  Prior possession of marijuana convictions;  Prior PWID marijuana convictions.  Prior distribution of marijuana convictions; and

SCORING PRIOR SEALED CONVICTIONS  Prior Marijuana Convictions sealed under D.C. Code § are not scored.  Additionally, like all other convictions, prior marijuana convictions sealed on the grounds of actual innocence are not scored.

SCORING PRIOR POSSESSION OF MARIJUANA CONVICTIONS  Prior possession of marijuana convictions are not initially scored.  Not scored in the initial presentence report.  Prior possession convictions can be scored if evidence shows the conduct underlying the conviction was not decriminalized/legalized.  Burden of proof on the government.  Must prove behavior by preponderance of the evidence (more likely than not).  Court makes ultimate finding.  Convictions for marijuana offenses occurring after February 2015 are scored.

SCORING PRIOR POSSESSION WITH INTENT TO DISTRIBUTE MARIJUANA CONVICTIONS  Prior PWID marijuana convictions are not initially scored.  Not scored in the initial presentence report.  Prior PWID convictions can be scored if evidence shows the conduct underlying the conviction was not decriminalized/legalized.  Burden of proof on the government.  Must prove behavior by preponderance of the evidence (more likely than not).  Court makes ultimate finding.  Convictions for marijuana offenses occurring after February 2015 are scored.

SCORING PRIOR DISTRIBUTION OF MARIJUANA CONVICTIONS  Prior distribution of marijuana convictions are initially scored.  Scored in the initial presentence report.  Not scored if evidence shows conduct underlying the conviction was decriminalized/legalized.  Burden of proof on the defendant.  Must prove behavior by preponderance of the evidence (more likely than not).  Court makes ultimate finding.

SCORING PRIOR MARIJUANA PDP CONVICTIONS  Possession of marijuana drug paraphernalia convictions are never scored.  Maximum Punishment <90 days incarceration.

PRIOR OUT-OF-DISTRICT MARIJUANA CONVICTIONS  Initially treated as similar to prior District marijuana convictions.  Possession - not initially scored.  PWID - not initially scored.  Distribution - initially scored.  PDP convictions not scored.  Date of offense does not matter.  Initial scoring can be challenged based on the underling facts (See Guidelines Rule 2.2.6(a)(6)).

EXAMPLE ONE  Defendant has a prior D.C. conviction for possession of marijuana (amount was 4oz).  Initially the offense is not scored.  The government may introduce evidence showing weight (over 2oz).  If proven by preponderance of the evidence, it can be scored.

EXAMPLE TWO  Prior July 2015 Maryland conviction for PWID marijuana.  Offense closely matches PWID marijuana in D.C.  Offense occurred in June  Police report saying the defendant was caught with 7 ounces and admitted that he was planning on selling.  Initially the offense is not scored (initial scoring based on statute, not facts).  The government may introduce evidence showing conduct was not legalized.  If proven by preponderance of the evidence, it can be scored.

ADDITIONAL QUESTIONS  The D.C. Sentencing and Criminal Code Revision Commission is available to answer general questions about the Voluntary Sentencing Guidelines.  The Commission can be reached at:   