On December 18, 2025, President Trump signed an executive order directing Attorney General Pam Bondi to “take all necessary steps” to complete the rescheduling of marijuana from Schedule I to Schedule III of the Controlled Substances Act. The executive order, titled “Increasing Medical Marijuana and Cannabidiol Research,” followed a rulemaking process that began under the Biden administration in 2022 and stalled through most of 2024 and 2025.
Headlines declared it the most significant change in federal cannabis policy in over 50 years. And in one narrow sense, it is: rescheduling acknowledges that marijuana has a currently accepted medical use, which the federal government has denied since 1970. But for anyone facing federal marijuana charges right now, or anyone who has already been sentenced, the rescheduling creates a dangerous illusion.
Moving marijuana from Schedule I to Schedule III does not reduce the punishment range for federal marijuana offenses under either the Controlled Substances Act or the United States Sentencing Guidelines. The penalties stay the same. And unless the U.S. Sentencing Commission independently amends the guidelines, they will continue to stay the same.
As a federal defense attorney who represents clients in the Northern and Eastern Districts of Texas, I want to explain why this is the case, what the current debate looks like, and what it means for anyone facing federal marijuana charges in Texas.
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What the Executive Order Actually Does — and What It Does Not
First, a critical clarification: as of this writing, marijuana has not yet been formally rescheduled. The executive order directs the Attorney General to complete the rescheduling process. It does not reschedule marijuana directly. The DEA must still finalize a rule through the Administrative Procedure Act, which includes compiling the administrative record and potentially conducting hearings. Most observers expect the rescheduling to take effect sometime in 2026, but litigation could delay it further.
When rescheduling does take effect, here is what will change:
- Section 280E tax relief: Cannabis businesses will no longer be prohibited from deducting ordinary business expenses under IRC §280E, which currently applies only to Schedule I and II substances. This is a massive financial change for the industry.
- Research access: Schedule III substances face fewer restrictions on research, potentially expanding clinical trials and medical studies.
- Prescriptions: Marijuana could theoretically be prescribed (not just “recommended”) if FDA-approved formulations are developed.
Here is what will not change:
- Federal legalization: Rescheduling does not legalize marijuana. Manufacturing, distributing, and possessing marijuana without a valid prescription will remain federal crimes.
- State-legal marijuana operations: State-licensed dispensaries and growers will still be operating in violation of federal law.
- Federal criminal penalties for marijuana trafficking: The statutory penalties under 21 U.S.C. §841(b) for marijuana are written specifically for marijuana by name and quantity and not by schedule classification. They do not change when the schedule changes.
- Federal sentencing guidelines for marijuana offenses: The Drug Quantity Table at USSG §2D1.1 calculates offense levels based on the weight of marijuana, not its schedule classification. Rescheduling has no effect on these calculations.
This last point is the one that matters most for anyone currently facing charges or already serving a sentence.
Why Federal Marijuana Penalties Are Immune to Rescheduling
Most federal drug penalties are tied to the schedule of the substance. If a drug moves from Schedule I to Schedule III, the statutory penalties typically decrease because the CSA assigns lower penalties to lower-schedule substances. But marijuana is different. Congress wrote the penalties for marijuana specifically for marijuana, independent of its schedule classification.
The CSA Statutory Penalties
Under 21 U.S.C. §841(b)(1)(A) and (B), the penalties for marijuana trafficking are defined by the weight of marijuana involved. For example, 1,000 kilograms or more, or 100 plants or more, triggers a mandatory minimum of 10 years. These provisions reference marijuana by name. They do not say “Schedule I substances.” They say “marijuana.” As the Congressional Research Service confirmed in its analysis: “Many CSA penalties for marijuana violations are written specifically for marijuana and are not tied to its Schedule I classification. Those penalties would remain the same if marijuana moves to Schedule III.”
The Federal Sentencing Guidelines
The U.S. Sentencing Guidelines calculate offense levels for drug trafficking under USSG §2D1.1 using a Drug Quantity Table. This table assigns base offense levels based on the type and weight of the controlled substance. Marijuana has its own rows in the Drug Quantity Table, with offense levels calculated by the weight of marijuana in kilograms or the number of plants. These rows reference marijuana specifically and not Schedule I substances generally.
For example, under the current guidelines:
- 30,000 kg or more of marijuana = Base Offense Level 38
- 10,000–30,000 kg = Level 36
- 3,000–10,000 kg = Level 34
- 1,000–3,000 kg = Level 32
- 700–1,000 kg = Level 30
- 400–700 kg = Level 28
- 100–400 kg = Level 26
These offense levels produce guideline ranges that can mean decades in federal prison. And because they are keyed to marijuana by name and weight, not by schedule, rescheduling marijuana from Schedule I to Schedule III has zero effect on the guideline calculations. A defendant convicted of trafficking 1,000 kilograms of marijuana will face the same Base Offense Level 32 whether marijuana is Schedule I or Schedule III.
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The Sentencing Commission Debate
This creates an obvious tension: the federal government is acknowledging that marijuana has accepted medical use and a lower abuse potential than Schedule I and II substances, yet the sentencing guidelines continue to treat marijuana trafficking with the same severity as before. If the government’s own scientific evaluation concluded that marijuana does not belong in Schedule I, should the sentencing guidelines still punish it at Schedule I levels?
This is the debate currently unfolding. The U.S. Sentencing Commission which is the independent agency that promulgates the USSG has the authority to amend the guidelines independent of Congress. The Commission could:
- Reduce the marijuana-specific offense levels in the Drug Quantity Table at §2D1.1 to align with the lower abuse potential recognized by rescheduling
- Adjust the Drug Conversion Tables that convert marijuana to other drug equivalencies, potentially lowering the “converted drug weight” used when marijuana is part of a multi-drug offense
- Modify criminal history treatment of prior marijuana convictions — the Commission already took a step in this direction in 2023 by introducing language to consider prior marijuana possession sentences as a potential basis for less severe criminal history calculations
- Make any reductions retroactive, which would allow currently incarcerated individuals to petition for resentencing under the reduced guidelines
However, the Commission currently has a problem: as of early 2026, the USSC has only four of seven commissioners seated. The Commission needs a quorum of at least four voting members to promulgate guideline amendments. If any commissioner is unable to participate, the Commission cannot act. This is the same quorum problem that prevented the Commission from issuing any amendments between 2019 and 2023. There is a real risk that even if the Commission wants to address the marijuana sentencing gap, it may lack the quorum to do so in the near term.
Congress could also act by amending the CSA to change the statutory penalties for marijuana, which would in turn force the Commission to adjust the guidelines. Several bills have been introduced in prior sessions including the MORE Act, the STATES Act, and the Cannabis Administration and Opportunity Act but none have passed both chambers. Whether the current Congress will take up marijuana sentencing reform remains to be seen.
What This Means If You Are Facing Federal Marijuana Charges in Texas
If you are currently charged with a federal marijuana offense in the Northern District of Texas (Dallas or Fort Worth Division) or the Eastern District of Texas (Sherman Division), the rescheduling has no immediate impact on your case. The statutory penalties under §841(b) remain the same. The sentencing guidelines under §2D1.1 remain the same. The mandatory minimums, if applicable, remain the same.
However, a skilled federal defense attorney can use the rescheduling in several ways:
- Sentencing advocacy: Under 18 U.S.C. §3553(a), the court must consider “the nature and circumstances of the offense” when imposing sentence. The fact that the federal government itself has determined that marijuana has accepted medical use and a lower abuse potential than Schedule I substances is a powerful sentencing argument for a downward variance from the guideline range.
- Policy disagreement departures: Under Kimbrough v. United States (2007) and Spears v. United States (2009), federal judges may vary from the guidelines based on a policy disagreement with the Commission’s approach to a particular offense. If the Commission fails to update the marijuana guidelines to reflect rescheduling, defense attorneys can argue that the current guidelines are based on an outdated policy — the very policy the government has now repudiated by rescheduling.
- Variance based on sentencing disparity: Under §3553(a)(6), courts must consider “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” As marijuana sentencing continues to decline nationally (ex. federal marijuana trafficking sentences dropped 58% between FY2020 and FY2024) defense attorneys can argue that imposing a guideline-range sentence today creates an unwarranted disparity with the direction of sentencing nationally.
- Retroactivity arguments for currently incarcerated defendants: If and when the Commission does amend the marijuana guidelines, the question of retroactivity will be critical. Under 18 U.S.C. §3582(c)(2), a court may reduce a previously imposed sentence if the sentencing range has been lowered by a retroactive guideline amendment. Defense attorneys should begin building the record now for future retroactivity motions.
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The Bottom Line
The rescheduling of marijuana to Schedule III is a significant policy shift. But it is not the sentencing reform many people assume it to be. The federal penalties for marijuana offenses are written specifically for marijuana, not for Schedule I substances generally. Unless the U.S. Sentencing Commission independently amends the guidelines, or Congress changes the statutory penalties, the punishment ranges remain exactly where they have been.
For anyone facing federal marijuana charges in Texas, the most important thing you can do right now is hire a federal defense attorney who understands the guidelines, the variance arguments, and how to leverage the rescheduling in your sentencing advocacy. The law is evolving rapidly, and the gap between the government’s rescheduling position and its sentencing guidelines creates opportunities that did not exist before December 2025.
Contact Our Federal Defense Team
If you or someone you love is facing federal marijuana charges in Texas, contact Deandra Grant Law for a free, confidential consultation. Attorney James Lee Bright handles federal cases in the Northern District of Texas (Dallas and Fort Worth Divisions), the Eastern District of Texas (Sherman Division), and the Western District of Texas (Waco Division). Our firm brings the forensic science credentials necessary to understand the pharmacology behind marijuana at a level most defense firms cannot match.
Call (214) 225-7117 or schedule an appointment online at texasdwisite.com.
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