Here is another case where we will be looking to the Supreme Court to supply what will hopefully be a decision based on common sense.
The statute at issue is 21 U.S.C. section 843(b) which makes it a felony to use “communication facilities” to facilitate the commission of a drug felony. The question creating the conflict in the Courts of Appeals that may be heard by the Supreme Court is whether the purchase of misdemeanor quantities of drugs for personal use is a felony under 843(b) when the person uses a cell phone, but still a misdemeanor if you knock on your dealer’s door and speak face to face.
Congress chose to diffentiate between a person possessing relatively small quantities of drugs for his or her personal use and the supplier who markets the product for monetary gain. The aim was to punish the dealer more harshly and to focus on rehabilitating the addicted user. Using this statute to up the ante for misdemeanor level quantities may satisfy the instinct to be tough on crime, but it eliminates any distinction between possession and distribution and blurs the relative difference in societal harm that Congress chose to recognize and account for. Therefore, if the difference between felony and misdemeanor is whether you knock on the door or dial a phone then the intent of Congress is irrelevant.