The Law Changed. The Guidance Didn’t.
By Eric Postow, Esq. & Jason Ehrenberg, Esq.
How the DOJ’s Marijuana Rescheduling Left Federal Prosecutors Without a Roadmap
On April 22, 2026, Acting Attorney General Todd Blanche signed an order that accomplished something federal drug reformers had sought for decades: it moved state-licensed medical marijuana out of Schedule I of the Controlled Substances Act and into Schedule III, formally acknowledging, at the highest level of federal law enforcement, that marijuana does not belong alongside heroin and LSD as a substance with no accepted medical use and high abuse potential. The order took effect immediately. The DEA’s registration portal for medical marijuana operators opened within the week. Treasury announced forthcoming guidance on the 280E tax consequences. The machinery of regulatory implementation moved quickly.
What did not move was the document that tells federal prosecutors how to charge marijuana cases and what sentences to seek.
That document — the February 2025 memorandum issued by Attorney General Pam Bondi directing all federal prosecutors to charge and pursue the most serious, readily provable offense — remains operative, unchanged, and written entirely for a world in which all marijuana was a Schedule I controlled substance. The result is a structural contradiction at the heart of federal drug enforcement: the government has formally revised its legal and moral assessment of what marijuana is, while leaving the men and women who prosecute marijuana cases with instructions calibrated to the old assessment. That contradiction is not abstract. It will play out in courtrooms, at sentencing hearings, and in the lives of defendants whose conduct the government itself has now acknowledged belongs in a different legal category than the one under which they are being charged. The DOJ should address that contradiction now, with a targeted supplemental memorandum governing the charging and sentencing of qualified state medical marijuana licensees and those operating within licensed medical marijuana frameworks.
Three Administrations, Three Approaches
To understand how the DOJ arrived at this gap, it helps to trace the arc of federal marijuana charging policy across the past decade.
The first Trump administration’s approach was set by the 2017 Sessions memorandum, which directed federal prosecutors to charge the most serious, readily provable offense, including mandatory minimum charges, and explicitly rescinded the more lenient Obama-era guidance. The philosophy was maximalist: use every tool the statute provides, and use it consistently. In the marijuana context, this meant that drug weight drove charging decisions, and mandatory minimums were the norm rather than the exception.
The Biden administration reversed course with the December 2022 Garland memorandum, a detailed and carefully reasoned document that directed prosecutors to avoid triggering Title 21 mandatory minimums for defendants who met a specific set of criteria: no violence, no weapon, no significant managerial role in drug trafficking, no significant ties to a criminal organization, and no meaningful history of violent criminal activity. The memo acknowledged explicitly that mandatory minimum sentences based on drug type and quantity had produced “disproportionately severe sentences for certain defendants and perceived and actual racial disparities in the criminal justice system.” This concern was particularly acute in marijuana cases, where the mandatory minimum framework — built on drug weight thresholds bearing no necessary relationship to individual culpability — had for decades produced outcomes that neither judges nor prosecutors could consistently defend.
The Garland memo was not a grant of leniency for its own sake. It was a calibrated attempt to align prosecutorial charging decisions with the actual culpability of the defendant in front of the prosecutor — to reserve the government’s heaviest weapons for its most serious targets. A low-level participant in a marijuana supply chain who satisfied the Garland criteria was not, under that framework, an appropriate candidate for a charge carrying a ten-year mandatory minimum. The memo’s logic was straightforward: the charge should fit the defendant, not just the drug weight.
The second Trump administration rescinded all of that on February 5, 2025. The Bondi memorandum explicitly listed the Garland charging memo among the prior policies it was eliminating, and it directed a return to the Sessions-era principle: charge the most serious offense, including the most significant mandatory minimums. Deviations require supervisory approval, documented justification, and are expected to be rare. The Bondi memo specifically identified 21 U.S.C. § 851 recidivist enhancements — the same enhancements the Garland memo had instructed prosecutors to use sparingly in marijuana cases — as tools prosecutors should deploy as a matter of course.
Each of these positions was coherent within its own framework. The Sessions and Bondi approaches reflect a theory of deterrence and consistency: prosecutorial discretion exercised uniformly, without the judgment calls that can produce disparate outcomes. The Garland approach reflects a theory of proportionality: charging decisions should track actual culpability, not quantity thresholds. What neither framework anticipated was a scheduling change that fundamentally altered the legal and moral status of the specific substance at the center of a substantial share of federal drug prosecutions.
What Rescheduling Actually Changed — and What It Didn’t
The April 2026 order is precise in its scope. It reschedules marijuana — as defined by the CSA — when it appears in an FDA-approved drug product or is subject to a qualifying state-issued medical marijuana license. It does not reschedule recreational marijuana, unlicensed cultivation, or any marijuana outside those two categories. For all of that, Schedule I status and its attendant penalties remain fully in force. The Bondi memo’s aggressive charging framework applies without modification to recreational cannabis, unlicensed trafficking, and cartel-connected distribution. That application is appropriate, and nothing in this article suggests otherwise.
But for the universe of defendants whose conduct falls within the rescheduled category — state-licensed medical operators, employees of licensed dispensaries, cultivators and processors operating under qualifying state licenses, and patients and caregivers acting within state medical marijuana frameworks — the government has now formally declared that what they were doing is categorically different from what Schedule I suggested. The HHS scientific evaluation underlying the rescheduling found that marijuana has a lower abuse potential than Schedule I and II substances, that its abuse may lead to moderate or low physical dependence, and that its epidemiological harm profile is substantially less severe than comparators like heroin, oxycodone, and cocaine. The government, in other words, has made an official finding about what kind of substance this is and what level of harm it poses. It has not told its prosecutors to take that finding into account when deciding what to charge or what sentence to recommend.
The criminal penalty structure for marijuana does not automatically adjust with rescheduling. The quantity-based mandatory minimums embedded in Title 21 are keyed to marijuana as a named substance, not to its schedule — meaning that a prosecutor can still charge a quantity of state-licensed medical marijuana sufficient to trigger a ten-year mandatory minimum, and can do so under the Bondi memo’s directive to charge the most serious readily provable offense, without any internal policy guidance suggesting otherwise. A licensed dispensary employee moving product within a state-regulated medical supply chain faces the same mandatory minimum exposure today as a cartel trafficker, at least as far as the operative prosecutorial guidance is concerned.
This is not a theoretical problem. It is an instruction to charge aggressively a substance the government has simultaneously reclassified as less dangerous than previously believed, in the hands of actors the government’s own order has now brought into a federal regulatory framework designed to protect the public interest.
The Section 3553(a) Problem
The tension extends beyond the charging decision to the sentencing recommendation. Federal sentencing is governed by 18 U.S.C. § 3553(a), which requires courts to impose sentences sufficient — but not greater than necessary — to comply with the purposes of punishment, including the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence to reflect the seriousness of the offense and promote respect for the law.
A court sentencing a defendant in 2026 for conduct involving state-licensed medical marijuana is now in a legally anomalous position. The U.S. Sentencing Guidelines were drafted and calibrated when all marijuana was Schedule I. The drug quantity tables, the base offense levels, the relevant conduct provisions — none of them were designed to account for the possibility that the federal government would formally distinguish between licensed medical marijuana and illicit trafficking marijuana, or that it would acknowledge through an official rescheduling order that the former involves a substance with a meaningfully different harm profile. The advisory range produced by applying those guidelines to a state-licensed medical marijuana defendant does not reflect the government’s current assessment of what that defendant did or how seriously the law now regards it.
A prosecutor who stands before a court and recommends a guidelines sentence for a state-licensed medical marijuana defendant, without acknowledging the April 2026 rescheduling and its implications for the Section 3553(a) analysis, is effectively arguing for a sentence calibrated to a legal framework the government has just publicly repudiated. Defense attorneys have already begun to make this argument, and courts are going to hear it with increasing frequency. The Section 3553(a) factors require consideration of the nature and circumstances of the offense as they currently exist — not as they were characterized when the guidelines were written or when the indictment was filed. A defendant whose relevant conduct the government now classifies as involving a Schedule III substance is, by the government’s own formal reckoning, a different kind of defendant than the guidelines assumed. The question is not whether courts will engage with this argument. They will. The question is whether federal prosecutors will be equipped with consistent guidance when they do, or whether the absence of a memo will produce the kind of district-by-district inconsistency that the DOJ’s charging policies have always been designed to prevent.
The Precedent the DOJ Has Already Set
This is not unprecedented terrain. The DOJ has navigated the relationship between policy change and prosecutorial guidance before, and the right model is one the prior administration itself employed.
The 2022 Garland memorandum did not wait for Congress to eliminate the crack/powder sentencing disparity before directing prosecutors to treat crack and powder cocaine equivalently for charging purposes. It recognized that the department’s institutional position — that the disparity was unjustified — had direct consequences for how prosecutors should exercise their discretion in the cases in front of them. It issued guidance accordingly.
The same logic applies here, and the institutional position is now embedded in a formal order signed by the Acting Attorney General himself. The April 2026 rescheduling order is not a policy preference or a legislative proposal. It is final agency action, grounded in an HHS scientific evaluation, carrying the force of law, and effective as of April 28, 2026. It represents the government’s official, current legal position on what state-licensed medical marijuana is and where it belongs in the hierarchy of controlled substances. That position has consequences for every marijuana prosecution involving a qualifying state licensee that is currently pending, in the charging phase, or approaching sentencing. The DOJ should provide its prosecutors with guidance on how to apply those consequences consistently, as it has done when prior policy shifts created analogous gaps between institutional position and prosecutorial practice.
What a Supplemental Memorandum Should Address
The DOJ does not need to reverse the Bondi memo to resolve this inconsistency. It needs to supplement it with a narrow, targeted memorandum specifically governing the treatment of qualified state medical marijuana licensees in charging, plea, and sentencing proceedings. That memorandum should address at least the following.
Charging decisions for qualifying defendants. Prosecutors should be directed to identify, at the outset of any marijuana case, whether the defendant’s relevant conduct falls within the rescheduled category — that is, whether the conduct involved marijuana subject to a qualifying state medical marijuana license. Where a defendant’s relevant conduct is entirely or substantially within that category, the memorandum should establish that this is a material factor in the mandatory minimum charging analysis. The case for invoking a ten-year mandatory minimum against a licensed cultivator, a dispensary manager, or a licensed processor is qualitatively different from the case for invoking the same minimum against an unlicensed trafficker. The Bondi memo already requires supervisory approval for mandatory minimum charges. The supplemental guidance should direct that supervisors treat the state-licensed status of the defendant’s conduct as a significant factor in that approval decision.
Sentencing recommendations for qualifying defendants. Prosecutors should be directed to address the April 2026 rescheduling in any sentencing submission involving a state-licensed medical marijuana defendant, and to take a position on whether the advisory guidelines range — calculated under a framework that classified all marijuana as Schedule I — appropriately reflects the government’s current assessment of the offense. Where the guidelines range was calculated based on drug weight attributable to licensed medical activity, the government’s sentencing submission should acknowledge the changed legal landscape and evaluate whether a variance is warranted. Recommending a sentence as though the rescheduling never happened is not a neutral position. It is an active choice to seek punishment calibrated to a classification the government has formally abandoned.
The § 851 recidivist enhancement. The Bondi memo directs prosecutors to file § 851 enhancements as a matter of course. The supplemental guidance should direct prosecutors to evaluate, before filing a § 851 notice in a marijuana case, whether the predicate offense involved conduct within the state-licensed medical marijuana framework. Where a defendant’s prior conviction involved licensed medical marijuana activity in a jurisdiction where such activity was authorized under state law, filing a § 851 enhancement — which can double the applicable mandatory minimum — requires a considered judgment that goes beyond the default charging calculus. The potential for unwarranted sentencing disparities created by § 851 enhancements in this context is precisely the kind of issue the supplemental guidance should address.
Pending cases and retroactive application. Defendants who were charged, are awaiting trial, or are pending sentencing for conduct that falls within the rescheduled category have legitimate arguments that the April 2026 order is relevant to their cases. Prosecutors need consistent guidance on how to respond when those arguments are raised. The supplemental memorandum should establish a framework for evaluating whether the government’s position in a pending case should be revised to reflect the rescheduling, and should direct prosecutors not to contest the relevance of the rescheduling to the Section 3553(a) analysis for qualifying defendants.
Defining the qualifying class. The memorandum should provide prosecutors with practical guidance on what it means for a defendant’s conduct to fall within the state-licensed medical marijuana framework — what documentation is relevant, what the government’s burden is in evaluating a defendant’s claimed status as a qualifying licensee, and how to handle cases involving defendants who operated within licensed frameworks but whose conduct also extended into unlicensed activity.
The Integrity of the System
There is a principle at stake here that transcends the marijuana debate specifically. Federal sentencing is premised on the idea that the punishment should fit the crime as the government currently understands it. When the government formally revises its understanding — when it moves a substance out of the most restrictive federal classification and into a lower-harm category, grounded in official scientific findings — that revision should flow through the enforcement system coherently. Prosecutors should know how to apply it. Sentencing courts should be able to rely on the government taking positions that are internally consistent with its own legal determinations. Defendants operating within state-authorized frameworks should not receive sentences calibrated to a legal classification the government has publicly repudiated.
Forty states have established medical marijuana licensing regimes. Tens of thousands of businesses and individuals operate within those regimes, employing hundreds of thousands of people in work the April 2026 order now formally recognizes as categorically different from illicit drug trafficking. The federal prosecutors who encounter those individuals in criminal proceedings deserve clear guidance on how the rescheduling affects their obligations. So do the courts. And so, frankly, do the defendants.
The April 2026 rescheduling order was a significant act of institutional honesty. The government acknowledged, formally and finally, that its decades-long classification of state-licensed medical marijuana alongside the most dangerous controlled substances was not scientifically or legally justified for this class of participants. It acted on that acknowledgment in the regulatory space with speed and specificity — the registration portal, the 280E guidance, the expedited hearing process. The remaining step is to act on it in the prosecutorial space with equal seriousness, by issuing the supplemental charging and sentencing memorandum that the April 2026 order implicitly requires.
The law changed on April 22, 2026. The guidance should follow.
This article draws on publicly available DOJ memoranda, DEA final orders, and Congressional Research Service analyses. It is intended for informational and policy discussion purposes and does not constitute legal advice.
