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 power to make rules enforceable by a cdmina[ sanction was valid not
 only because the rule-making was ancillary to an otherwise permissible
 regulatory function, but also because the Congress, rather than the
 agency, fixed the pena[tyo Where as here, the executive agency may also
 choose the punishment by the simple expedient of rec[assifying-aor
 refusing to reclassify--a substance from one Schedule to another, the
 restrictions which sustained the delegation in Gdmaud do not apply. As
 a result, where the agency head has not followed the statutory rules
 for consideration of reclassification and has abused his discretion in
 failing to adopt criteria to guide and direct recaassification of
 controlled substances, and where, particularly, that refusal has
 resulted in an improper failure to reclassify marijuana to Schedules
 _J, IH, IV or V, the defendant is in exactly the same position as were
 the defendants in United States Vo Evans. Congress has clearly
 indicated its intention to criminatize the conduct of possessing, or
 distributing, or manufacturing of marijuana, but the uncertainty of the
 proper penalty renders application of the criminal sanction improper.
 The principles of Hudson & Goodwin and of Fvans are particularly
 appropriate in the instant situation because the range of penalties
 possible under the statutes with "which the defendants are charged is so
 great. Title 21, Section 841 provides that the person convicted of
 criminally possessing or distributing a Schedute I substance or a
 Schedule Jl substance which is defined as a narcotic drug, is subject
 to imprisonment for 1 5 years, and a fine of $25,000.O0. For a violation
 invoMng a Schedule I or Schedule _! substance which is not a
 narcotic, or any Schedule [l{ substance, the maximum penalty is only 5
 years or $15,000.00o For a Schedule _V controlled substance,
 imprisonment may not be more than 3 years, nor may the convicted
 defendant be fined more than $i0,00Oo00. Finally, for a violation
 involving a Schedule substance, a penalty of no more than 1 year, or a
 fine of not more than $5,000.00 may be imposed. Increased penalties are
 prescribed for amounts in excess of 1,000 pounds. Section 960 provides
 degrees of penalties for importation°
 It is obvious, given such a broad range in possible penalties,
 that once it is estabmished that the DEA Administrator has abused the
 discretion to reclassify which is granted, without condition, by the
 terms of 21 U.&C. 811, the principle established in Hudson &
 Goodwin, and followed without question since 1811, compels the
 conclusion that application of the criminal sanction is improper.
 Nor, does the fact that the within indictment incff_des two conspiracy

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