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88.3 Drugs, Controlled Substances: Quantity Issues

    88.3.1 Drugs, Controlled Substances: Miscellaneous Quantity Issues

    88.3.1.1 Drugs, Controlled Substances: Quantity Enhancement As Element Of Proof For Jury (e.g., 21 USC 841)
    88.3.1.2 Drugs, Controlled Substances: Quantity Includes Cutting Agent
    88.3.1.3 Drugs, Controlled Substances: Use of Waste Material In Calculating Quantity
    88.3.1.4 Drugs, Controlled Substances: Quantity--Actual Possession Not Necessary For Conspiracy To Purchase

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 VOLUME 7 - CHAPTER 88

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PRACTICE NOTE: In People v. Pieters (CA 1991) 52 C3d 894, 903 [276 CR 918], the California Supreme Court concluded that quantity enhancements are triggered by the weight of a mixture containing the drug plus any cutting agent and not merely by the weight of the pure drug itself. However, the court noted that quantity enhancements should not apply to a situation where the package containing the drug is a "distinct entity." (See also FORECITE National™ 88.3.2.2 [Quantity: Defense Theory That The Substances Were Not A "Mixture"].)

    Further, because the substance in Pieters contained 83% cocaine, there was no claim that the substance was so diluted that it was incapable of producing a narcotic effect. The California Supreme Court declined to decide whether the quantity enhancements would apply when, for example, mere traces of cocaine are found in an otherwise weighty substance.

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: There was a split in federal authority over whether the weight of waste products that are the by-product of a drug manufacturing process and contain a detectable amount of controlled substance should be used for quantity enhancement under the sentencing guidelines. These cases are discussed in the dissent of Justice White and Justice Blackmun from the denial of certiorari in Walker v. U.S. (1999) 506 US 967 [113 SCt 433; 121 LEd 362] and Guerra v. U.S. (1992) 506 US 967 [113 SCt 443; 121 LEd 362].

    The conflict has since been resolved by a statute which provides that the calculation of weight for quantity enhancement purposes "does not include material that must be separated from the controlled substance before the controlled substance can be used." (U.S. v. Turner (4th Cir. 1995) 59 F3d 481, 490.)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 88

PRACTICE NOTE: The defendant need not actually possess the prescribed quantity of drugs to be liable for the drug quantity enhancement. The enhancement may be imposed if substantial evidence is presented that, under the circumstances, the defendant conspired to possess the requisite quantity. (People v. Howard (CA 1995) 33 CA4th 1407, 1415-17 [39 CR2d 766].)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].