Wednesday, February 14, 2018
In this post earlier this week, I noted today's scheduled hearing in federal court concerning a lawsuit challenging marijuana's placement on Schedule 1 under the Controlled Substances Act and asked "Could a high-profile lawsuit help end federal marijuana prohibition?". This Bloomberg article, headlined "Trump Administration Battles Sick Kids on Access to Legal Pot," suggests that the judge hearing the case is sympathetic to the plaintiffs' complaints but still seemingly unlikely to run in their favor:
In a New York courtroom packed with cannabis supporters, the Trump administration urged a federal judge to throw out a lawsuit that aims to pave the way for legal marijuana across the country.
The case was brought on behalf of two sick children, a former National Football League player who says athletes deserve a better way to treat head trauma than addictive opioids and the Cannabis Cultural Association. The suit, filed in July 2017, seeks a ruling that marijuana was unconstitutionally labeled alongside heroin and LSD as a so-called Schedule I drug -- the harshest of five government ratings -- when Congress passed the Controlled Substance Act in 1970.
In court on Wednesday, Justice Department attorney Samuel Hilliard Dolinger said the plaintiffs didn’t follow legal requirements before suing, beginning with a petition to the Drug Enforcement Agency. "The right thing is to defer to the agency," said U.S. District Judge Alvin Hellerstein, an 84-year-old who was nominated by former President Bill Clinton, who famously admitted to experimenting with pot while claiming he "didn’t inhale."...
Hellerstein said he would issue a ruling later, and it was far from clear which way he was leaning. The judge, who had the courtroom erupting in laughter on more than a few occasions during the hearing, was skeptical of the government’s claim that there’s no medical benefit to marijuana. "Your clients are living proof of the medical effectiveness of marijuana," Hellerstein said to the plaintiffs’ lawyer, Michael Hiller....
Cannabis was criminalized "not to control the spread of a dangerous drug, but rather to suppress the rights and interests of those whom the Nixon Administration wrongly regarded as hostile to the interests of the U.S. -- African Americans and protesters of the Vietnam War," the suit says.
At the hearing, Hellerstein said that argument wasn’t going to work with him. The decision "will not depend on what may have been in the mind of Richard Nixon at the time," Hellerstein said.
Prior related posts:
- Latest effort to take down federal marijuana prohibition via constitutional litigation filed in SDNY
- "Colorado girl suing U.S. attorney general to legalize medical marijuana nationwide"
- Could a high-profile lawsuit help end federal marijuana prohibition?
Saturday, November 11, 2017
The title of this post is the headline of this local report on a notable new lawsuit seeking to ensure legal access to medical marijuana. (This lawsuit, filed in federal district court in New York, was first discussed in this post in July 2017.) Here are excerpts from the press piece:
Alexis Bortell is hardly the first child whose family moved to Colorado for access to medical marijuana. But the 12-year-old is the first Colorado kid to sue U.S. Attorney Jeff Sessions over the nation's official marijuana policy.
"As the seizures got worse, we had to move to Colorado to get cannabis because it's illegal in Texas," said Bortell, who was diagnosed with epilepsy as a young child.
The sixth-grader said traditional medicine wasn't helping her seizures and doctors in her home state were recommending invasive brain surgery. But a pediatrician did mention an out-of-state option: Medical marijuana.
Shortly after moving to Larkspur, Bortell's family began using a strain of cannabis oil called Haleigh's Hope. A drop of liquid THC in the morning and at night has kept her seizure-free for 2 1/2 years. "I'd say it`s a lot better than brain surgery," Bortell said.
But Bortell said the federal prohibition on marijuana prevents her from returning to Texas. "I would like to be able to visit my grandparents without risking being taken to a foster home," Bortell said on why she's joined a lawsuit that seeks to legalize medical marijuana on the federal level....
Alexis' dad Dean Bortell ... showed his backyard fields, where he grows five acres of marijuana plants used to derive the medicine that helps his daughter and patients he's never met. "When you look at it from a distance and you see it saving their lives, me as a father and an American, I go, what are we doing? How could you possibly look at someone who`s benefiting from this as a medicine and threaten to take it away?" Bortell said....
Alexis' New York attorney Michael Hiller argues it should be legal nationwide. "As it pertains to cannabis, the (Controlled Substances Act) is irrational and thus unconstitutional," said Heller, who added the U.S. government "made a representation that cannabis has medical application for the treatments of Parkinson`s Disease, HIV-induced dementia and Alzheimer's disease and yet at the same time the United States government maintains that there is absolutely no medical benefit for the use of cannabis. That is of course absurd."
Denver attorney Adam Foster represents marijuana businesses. He said he thought the lawsuit was clever but admitted its success might be a long shot. "Whenever you sue the government, the deck is really stacked against you," Foster said.
But he added the federal government might have a hard time arguing medical marijuana has no known medical benefits. "We now live in an era where 62 percent of Americans live in a state where the medical use of cannabis is legal at the state level," he said.
Alexis Bortell said she hopes her lawsuit will normalize medical marijuana but also legalize it. "We'll be able to be treated like what you call 'normal' families," she said.
Bortell is joined in the lawsuit by another child, a military veteran, a marijuana advocacy group and former Broncos player Marvin Washington, who played on the 1998 Super Bowl-winning team. The federal government has already lost its first motion to have the case dismissed.
Prior related post:
November 11, 2017 in Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)
Monday, August 22, 2016
A darker view of a recent medical marijuana court victory: "10 things to hate about the McIntosh decision"
In this post over at my other blog, I flagged last week's Ninth Circuit panel ruling in US v. McIntosh, No. No. 15-10117 (9th Cir. Aug. 16, 2016) (available here), on a series of appeals concerning "whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws." That ruling was hailed by many marijuana reform advocates as a victory because the court concluded that "at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws."
But astute followers of the law and policies surrounding marijuana reform know that there is rarely simple story around any aspect of federal marijuana laws and policy, and John Hudak has this recent posting at a Brookings blog explaining reasons why "medical marijuana advocates should [still] worry" after the McIntosh decision. Here are excerpts from the start and the headings of his commentary:
[M]arijuana reform advocates applauded a federal appeals court decision limiting the power of the Department of Justice to prosecute certain marijuana growers. In United States v. McIntosh, the three judge panel (two Republican and one Democratic appointee) dealt explicitly with the Rohrabacher amendment — a rider to a congressional spending bill that barred the DOJ from spending funds on enforcing the Controlled Substances Act in states with medical marijuana reform laws.
Despite the rider being signed into law—by President Obama—the Obama administration continued to bust growers in medical marijuana states. The defendants in the 10 cases grouped together in this appeal hail from California and Washington and were indicted on a variety of federal charges. They fought the charges in lower courts on the basis of the rider without success, and brought their case to the 9th Circuit Court of Appeals.
After the usual judicial hoops of establishing jurisdiction and the appropriateness of the court stepping in at this time to intervene in an ongoing prosecution, the court ruled on the merits of the case. The 9th circuit decision explains that even though “the rider is not a model or clarity” (24) it “prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws” (27).
If you’re a marijuana reform advocate, a grower, a cannabis enterprise executive, a patient, or otherwise related to the medical marijuana industry, this is great news, right?
Well, yes and no. The cork popping over the ruling in McIntosh may have been a bit premature. While the central holding of the case is a tremendous victory for the movement and offers a real barrier against executive enforcement power in the context of marijuana, the details of the decision are a bit more mixed. Namely, for the medical marijuana community, there are 10 things to hate about the McIntosh decision.
- The ruling has limited scope...
- McIntosh is about medical marijuana only...
- The Cole Memos are not the Great Savior many believe...
- State-level marijuana reforms do not legalize marijuana...
- State-level marijuana reforms do not legalize marijuana...
- This ruling may not always help current defendants or marijuana law violators...
- This ruling may not always help future defendants...
- This ruling may not always help future defendants...
- This ruling may not always help future defendants...
- This ruling may not always help future defendants
August 22, 2016 in Business laws and regulatory issues, Court Rulings, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)
Monday, March 21, 2016
SCOTUS rejects original lawsuit brought by Nebraska and Oklahoma against Colorado over marijuana reform
Legal gurus closely following state-level marijuana reforms have been also closely following the lawsuit brought directly to the Supreme Court way back in December 2014 by Nebraska and Oklahoma complaining about how Colorado reformed its state marijuana laws. Today, via this order list, the Supreme Court finally officially denied the "motion for leave to file a bill of complaint" by Nebraska and Oklahoma against Colorado. This is huge news for state marijuana reform efforts, but not really all that surprising. (It would have been bigger news and surprising if the motion was granted.)
Notably, Justice Thomas authored an extended dissent to this denial, which was joined by Justice Alito. Here is how this dissent stats and ends:
Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint....
Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana. See Controlled Substances Act (CSA), 84 Stat. 1242, as amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846 (2012 ed. and Supp. II). Emphasizing the breadth of the CSA, this Court has stated that the statute establishes “a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Gonzales v. Raich, 545 U.S. 1, 12 (2005). Despite the CSA’s broad prohibitions, in 2012 the State of Colorado adopted Amendment 64, which amends the State Constitution to legalize, regulate, and facilitate the recreational use of marijuana. See Colo. Const., Art. XVIII, §16. Amendment 64 exempts from Colorado’s criminal prohibitions certain uses of marijuana. §§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015). Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana establishments. Art. XVIII, §16(5)(a). And the amendment requires the Colorado General Assembly to enact an excise tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores. §16(5)(d).
In December 2014, Nebraska and Oklahoma filed in this Court a motion seeking leave to file a complaint against Colorado. The plaintiff States — which share borders with Colorado — allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws. See Complaint ¶¶54–65. They claim that Amendment 64 has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the increased trafficking and transportation of marijuana. Id., ¶58; Brief [for Nebraska and Oklahoma] in Support of Motion for Leave to File Complaint 11–16. The plaintiff States seek a declaratory judgment that the CSA pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation. Complaint 28–29.
The complaint, on its face, presents a “controvers[y] between two or more States” that this Court alone has authority to adjudicate. 28 U. S. C. §1251(a). The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.
Cross-posted at Marijuana Law, Policy & Reform.
March 21, 2016 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)
Friday, March 18, 2016
"One Toke Too Far: The Demise of the Dormant Commerce Clause's Extraterritoriality Doctrine Threatens the Marijuana-Legalization Experiment"
The title of this post is the title of this notable new and timely piece of legal scholarship authored by Chad DeVeaux now available via SSRN. Here is the abstract:
This Article argues that the pending feuds between neighboring states over marijuana decriminalization demonstrate the need for a strict doctrine limiting a state’s regulatory authority to its own borders. Precedent recognizes that the dormant Commerce Clause (DCC) “precludes the application of a state statute to commerce that takes place wholly outside the State’s borders, whether or not the commerce has effects within the state.” This prohibition protects “the autonomy of the individual States within their respective spheres” by dictating that “[n]o state has the authority to tell other polities what laws they must enact or how affairs must be conducted.” But this principle was called into doubt last summer by the Tenth Circuit, which concluded that this “most dormant doctrine in [DCC] jurisprudence” had withered and died from nonuse.
The Tenth Circuit’s conclusion, which approved Colorado’s purported direct regulation of coal-fired power generation in Nebraska, ironically coincided Nebraska’s (and Oklahoma’s) attempt to enjoin Colorado’s pot-friendly laws. Nebraska contends that Colorado’s commercial pot market allows marijuana to “flow . . . into [Nebraska], undermining [its] own marijuana ban, draining [its] treasur[y], and placing stress on [its] criminal justice system.” While Colorado celebrated its new-found power to impose its legislative judgments on Nebraskans, the festivities might be short lived. Colorado failed to recognize the impact the extraterritorial doctrine’s apparent demise will have on its own marijuana-legalization experiment. If Colorado is empowered to regulate coal burning in Nebraska because of its effects in Colorado, what prevents Nebraska from projecting its own laws across the border to regulate Colorado marijuana transactions that affect a substantial number of Nebraskans?
Thursday, November 19, 2015
Menominee Indian Tribe files suit seeking declaration it has right under federal Farm Bill to cultivate industrial hemp
This press release reports on a interesting new lawsuit filed in federal district court this week. Here are the details:
The Menominee Indian Tribe of Wisconsin filed a lawsuit for declaratory judgment today against the United States Department of Justice (“DOJ”) and Drug Enforcement Agency (“DEA”) seeking a judicial determination that Menominee has the right to cultivate industrial hemp pursuant to the Agricultural Act of 2014 (“Farm Bill”). Menominee filed its lawsuit in the United States District Court for the Eastern District of Wisconsin – Green Bay Division.
Menominee Chairman Gary Besaw stated: “The Menominee Tribe, in cooperation with the College of Menominee Nation, should have the right under the Farm Bill to cultivate industrial hemp in the same manner as Kentucky, Colorado, and other states. These and other states cultivate industrial hemp without threats or interference from the United States government. In contrast, when our Tribe attempted to cultivate industrial hemp we were subjected to armed federal agents who came to our Reservation and destroyed our crop. The Department of Justice should recognize the equality of Tribes under the Farm Bill, and provide us with the same respect they have demonstrated to states growing industrial hemp for research purposes.”
Industrial hemp — which can be grown as a fiber and a seed crop — is used to produce a range of textiles, foods, papers, body care products, detergents, plastics, and building materials that are available throughout North America, the European Union, and Asia. Unlike marijuana, it has no psychoactive effect. Industrial hemp is currently cultivated by farmers in more than 30 countries around the world—from Australia to Canada to China. Menominee had been in discussions regarding its growth of industrial hemp with federal officials for months prior to October 23, 2015 when DEA and DOJ officials raided the Menominee Reservation and destroyed its industrial hemp crop. Brendan Johnson, Partner at Robins Kaplan LLP, former United States Attorney for South Dakota, former Chair of then-Attorney General Eric Holder’s Native American Issues Subcommittee, and an attorney representing Menominee in the action filed today stated: “This is a straightforward legal issue. The lawsuit focuses on the specific legal question of whether the Farm Bill’s industrial hemp provisions apply to Menominee. We are confident that the provisions do apply to Menominee; that Menominee is authorized under federal law to cultivate industrial hemp consistent with those provisions; and that a federal court will read the Farm Bill provisions as we do and require the federal government to recognize Menominee’s rights under federal law to cultivate industrial hemp.”
Tuesday, July 14, 2015
As reviewed by this recent Forbes article, headlined "Big Court Defeat For Marijuana Despite Record Tax Harvests," the Ninth Circuit late last week in Olive v. CIR, No. 13-70510 (9th Cir. July 10, 2015) (available here), affirmed the basic approach that federal authorities have adopted to determining the tax obligations of state-legal marijuana businesses. The Forbes piece provides this overview of the issues and the ruling:
Should marijuana businesses pay tax on gross profits or net profits? It sounds like a silly question. Virtually every business in every country pays tax only on net profits, after expenses. But the topsy-turvy rules for marijuana seem to defy logic. And taxes are clearly a big topic these days under both federal and burgeoning state law.
Many observers and legislators suggested that legalizing marijuana would mean huge tax revenues. With legalized medical marijuana now giving way to more and more states legalizing recreational use, the cash hauls look ever more alluring. Washington state regulators say the state collected $65 million in first-year taxes from recreational marijuana sales in just 12 months on cannabis sales of over $260 million from June 2014 to June 2015. In Colorado, the governor’s office estimated that it would collect $100 million in taxes from the first year of recreational marijuana....
Now ... the IRS has convinced the influential Ninth Circuit Court of Appeals that marijuana dispensaries cannot deduct business expenses, must pay taxes on 100% of their gross income. The case, Olive v. Commissioner, was an appeal from a U.S. Tax Court decision. Martin Olive sold medical marijuana at the Vapor Room, using vaporizers so patients do not even have to smoke.
But even good records won’t make vaporizers or drug paraphernalia deductible. The Ninth Circuit upheld the Tax Court ruling that § 280E prevents legal medical marijuana dispensaries from deducting ordinary and necessary business expenses. Under federal tax law, the Vapor Room is a trade or business that is trafficking in controlled substances prohibited by federal law....
On the question whether marijuana businesses should pay tax on their net or gross profits, the tax code says the latter. Indeed, Section 280E of the tax code denies even legal dispensaries tax deductions, because marijuana remains a federal controlled substance. The IRS says it has no choice but to enforce the tax code.
One common answer to this dilemma is for dispensaries to deduct expenses from other businesses distinct from dispensing marijuana. If a dispensary sells marijuana and is in the separate business of care-giving, for example, the care-giving expenses are deductible. If only 10% of the premises is used to dispense marijuana, most of the rent is deductible. Good record-keeping is essential, but there is only so far one can go. For example, in the case of the Vapor Room and Martin Olive, with only one business, the courts ruled that Section 280E precluded Mr. Olive’s deductions....
The IRS is clear that you can deduct only what the tax law allows you to deduct. The trouble started in 1982, when Congress enacted § 280E. It prohibits deductions, but not for cost of goods sold. Most businesses don’t want to capitalize costs, since claiming an immediate deduction is easier and faster. In the case of marijuana businesses, the incentive is the reverse. So the IRS says it is policing the line between the costs that are part of selling the drugs and others.
Sure, deduct wages, rents, and repair expenses attributable to production activities. They are part of the cost of goods sold. But don’t deduct wages, rents, or repair expenses attributable to general business activities or marketing activities that are not part of cost of goods sold.
2013′s proposed Marijuana Tax Equity Act would end the federal prohibition on marijuana and allow it to be taxed – at a whopping 50%. The bill would impose a 50% excise tax on cannabis sales, plus an annual occupational tax on workers in the field of legal marijuana. Incredibly, though, with what currently amounts to a tax on gross revenues with deductions being disallowed by Section 280E, perhaps it would be an improvement. More recently, Rep. Jared Polis (D-Co.) and Rep. Earl Blumenauer (D-Or.) have suggested a phased 10% rate here, ramping up to 25% in five years.
Monday, May 4, 2015
SCOTUS asks for views from US Solicitor General on original lawsuit between states over marijuana reform
Via this order list, the US Supreme Court called for the views of the Solicitor General in the original case of Nebraska and Oklahoma v. Colorado. That is the case, as readers may recall from posts here and here back in December, in which two states filed suit directly in the Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."
I am not sure what the usual timelines tend to be for submission of CVSG briefs during this time of year, but I would think this request from the Justices will just now further slow the resolution of a suit that was filled five months ago and will remain in limbo now until the Solicitor General weighs in.
Prior related posts:
- Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization
- Could (and should) Colorado (or others) respond to attack on marijuana legalization by counter-attacking federal prohibition?
May 4, 2015 in Federal court rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Thursday, April 9, 2015
Effective coverage of the legal land mine of the DOJ spending restriction in medical marijuana cases
As previously noted in posts here and elsewhere, a provision buried in H.R. 83, the 1700-page Cromnibus spending bill passed late last year, directed the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes. Today the New York Times has this extended and informative discussion of this provision and its uncertain meaning and impact four months after its passage. The article is headlined "Legal Conflicts on Medical Marijuana Ensnare Hundreds as Courts Debate a New Provision," and here are excerpts:
In December, in a little-publicized amendment to the 2015 appropriations bill that one legal scholar called a “buried land mine,” Congress barred the Justice Department from spending any money to prevent states from “implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”
In the most advanced test of the law yet, Mr. Lynch’s lawyers have asked the Ninth Circuit Court of Appeals to “direct the D.O.J. to cease spending funds on the case.” In a filing last month, they argued that by continuing to work on his prosecution, federal prosecutors “would be committing criminal acts.”
But the Justice Department asserts that the amendment does not undercut its power to enforce federal drug law. It says that the amendment only bars federal agencies from interfering with state efforts to carry out medical marijuana laws, and that it does not preclude criminal prosecutions for violations of the Controlled Substances Act.
With the new challenge raised in several cases, federal judges will have to weigh in soon, opening a new arena in a legal field already rife with contradiction....
The California sponsors of the December amendment, including Representatives Sam Farr and Barbara Lee, both Democrats, and Representative Dana Rohrabacher, a Republican, say it was clearly intended to curb individual prosecutions and have accused the Justice Department of violating its spirit and substance. “If federal prosecutors are engaged in legal action against those involved with medical marijuana in a state that has made it legal, then they are the ones who are the lawbreakers,” Mr. Rohrabacher said.
Mr. Farr said, “For the feds to come in and take this hardline approach in a state with years of experience in regulating medical marijuana is disruptive and disrespectful.” The sponsors said they were planning how to renew the spending prohibition next year.
Some prior related posts:
- Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws
- Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?
- Impact of the 2015 federal budget's medical marijuana spending restriction remains unclear
April 9, 2015 in Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Wednesday, March 4, 2015
This AP story reports on the notable mixed verdict in a high-profile federal prosecution of a group of defendants in Washington state who claimed they were growing marijuana only for medical purposes. Here are the details:
Three people were found guilty Tuesday of growing marijuana, but they also were exonerated of more serious charges in a widely-watched federal drug case in a state where medical and recreational marijuana is legal.
The three remaining defendants of the so-called Kettle Falls Five were all found guilty of growing marijuana. But a jury found them not guilty of distributing marijuana, conspiracy to distribute and firearms charges that carried long prison sentences.
U.S. District Court Judge Thomas Rice set sentencing for June 10.
The defendants were Rhonda Firestack-Harvey, her son Rolland Gregg and his wife, Michelle Gregg. Firestack-Harvey wiped away tears as she declared victory in the case. "The truth comes out," she said, noting that the defendants were growing marijuana for medical purposes and had cards permitting that use. "We would have loved to be exonerated of all charges."
However, there was no doubt that federal drug agents found marijuana plants growing on their property near Kettle Falls, she said.
Federal prosecutors did not speak with reporters after the verdict, which followed a full day of deliberations by the jury. Prosecutors asked that the three be taken into custody until sentencing, but Rice declined.
"It's a victory, but it's bittersweet," said Jeff Niesen, an attorney for Firestack-Harvey. "They've been convicted of a federal crime." But while the tougher charges carried sentences of a decade in prison, growing marijuana should bring a much lower sentence, Niesen said.
On Monday, attorneys for the defendants asked jurors to throw out what he described as an overzealous and overreaching case. Attorney Phil Tefleyan criticized the government's prosecution of the three, who contend they were growing medical marijuana for personal use in a case that has drawn wide attention over the government's willingness to prosecute marijuana growers. "They roped in this innocent family," Tefleyan told jurors.
Assistant U.S. Attorney Earl Hicks told jurors Monday that Washington state's stance on marijuana doesn't matter. He says the question for the jury is, "Is it legal under federal law?"
The defendants contend they didn't distribute the marijuana. But they were barred from telling jurors their claim that they grew the marijuana only for personal medical use. That issue can be raised during sentencing. Tefleyan said the government could not point to a single sale of the drug by the family. He said the evidence seized by drug enforcement agents during a raid in August 2012 — 4 pounds of marijuana and about $700 in cash — didn't support the conclusion the family was dealing.
The government has argued the family grew the plants in violation of federal law. "I don't believe there's any question in this case that we're talking about the manufacture of marijuana," Hicks told the jury.
Tefleyan placed blame for those plants on Jason Zucker, a former defendant who cut a plea deal last week, just before the trial started. Zucker, 39, testified Friday that he fronted $10,000 in costs to get the operation up and running. Zucker's plea deal called for a 16-month sentence....
Larry Harvey, 71, was recently dismissed from the case after being diagnosed with terminal pancreatic cancer in December.
I believe that these defendants' acquittal on gun charges means that that they are not subject to any mandatory minimum sentencing terms, and the judge's decision to allow them to be free awaiting sentencing suggests to me that they will likely not receive significant (or perhaps any) prison time for these offenses. In addition, these defendants might have various grounds for appealing to the Ninth Circuit (although they many not want to bother if they get relatively lenient sentencing terms).
Prior related posts:
- Family of medical marijuana patients in Washington turn down plea and set up notable federal trial
- New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution
Friday, February 13, 2015
The questions in the title of this post are prompted by this Reuters report about an on-going federal criminal trial in California. Here is why:
A federal judge hearing the case of nine men accused of illegally growing marijuana in California said Wednesday she was taking very seriously arguments by their attorneys that the federal government has improperly classified the drug as among the most dangerous, and should throw the charges out.
Judge Kimberly J. Mueller said she would rule within 30 days on the request, which comes amid looser enforcement of U.S. marijuana laws, including moves to legalize its recreational use in Washington state, Colorado, Oregon and Alaska.
"If I were persuaded by the defense's argument, if I bought their argument, what would you lose here?" she asked prosecutors during closing arguments on the motion to dismiss the cases against the men.
The men were charged in 2011 with growing marijuana on private and federal land in the Shasta-Trinity National Forest in Northern California near the city of Redding. If convicted, they face up to life imprisonment and a $10 million fine, plus forfeiture of property and weapons.
In their case before Mueller in U.S. District Court in Sacramento, defense lawyers have argued that U.S. law classifying pot as a Schedule One drug, which means it has no medical use and is among the most dangerous, is unconstitutional, given that 23 states have legalized the drug for medical use.
Lawyer Zenia Gilg, who represented defense attorneys for all of the men during closing arguments, pointed to Congress' recent decision to ban the Department of Justice from interfering in states' implementation of their medical marijuana laws as evidence of her contention that the drug's classification as Schedule One should be overturned. "It's impossible to say that there is no accepted medical use," said Gilg, who has argued that her client was growing pot for medical use.
But Assistant U.S. Attorney Gregory Broderick said that it was up to Congress to change the law, not the court. He said that too few doctors believed that marijuana had medical uses for the drug's definition to change under the law. "We're not saying that this is the most dangerous drug in the world," Broderick said. "All we're saying is that the evidence is such that reasonable people could disagree."
Notably, this new Bloomberg article, headlined "Grower’s Case Rivets Investors Seeking Pot of Gold," suggests that those interested in investing in the marijuana industry think that merely "the fact that the judge has agreed to consider the issue is an enormously significant event.” Obviously, this event becomes even more significant if (when?) a federal judge declares unconstitutional the placement of marijuana on Schedule I under the Controlled Substances Act.
February 13, 2015 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (2)
Monday, January 26, 2015
Yes, according to the authors of "Fear and Loathing in Colorado: Invoking the Supreme Court's Jurisdiction to Challenge The Marijuana-Legalization Experiment." Their proposed remedy? Similar to any other polluter, Colorado should pay damages to neighboring states to compensate them for "negative externalities."
Here's the abstract:
In this Article, we assert that States may invoke the Supreme Court’s original jurisdiction to challenge Colorado’s marijuana-legalization experiment; the most appropriate remedy is damages. The Constitution endows the Court with jurisdiction to adjudicate suits between States. Historically, such cases generally fall into three categories: conflicts over boundary lines, water-rights disputes, and cross-border nuisances. Suits challenging the marijuana-legalization experiment would implicate the last category. Such suits once comprised a relatively common part of the Court’s docket. The number of these actions fell dramatically in the late-1970s following Congress’s passage of the Clean Air and Water Acts, rendering the Court’s historic role of establishing and enforcing interstate environmental standards obsolete. Colorado’s introduction of recreational marijuana into the stream of interstate commerce has reawakened this long-dormant body of constitutional law. Like downstream pollution produced by industrial operations, the cross-border externalities resulting from Colorado’s introduction of marijuana into the stream of interstate commerce fall squarely within the ambit of the Court’s original jurisdiction. The exercise of this jurisdiction is most appropriately applied “to questions in which the sovereign and political powers of the respective states [are] in controversy” — and in particular, those involving a quarrel for which a “sovereign State could seek a remedy by negotiation, and, that failing, by force.” The current controversy presents just such a case.
In such a controversy the Court should award damages to a prevailing state, using the Coase Theorem as its guide. The theorem states that if transaction costs are eliminated, “parties will negotiate the efficient solution to private nuisance problems.” Real-world application of the Coase Theorem is attained through the application of legal rules that best approximate the way disputes would be resolved in the absence of transaction costs. Such an outcome is best effectuated by a rule charging the nuisance with the damages it causes. As Coase observed, “when a damaging business has to pay for all damage caused” market forces will determine which of the competing enterprises should prevail, coercing the partisans to allocate their resources in the most economically efficient manner. If compelling a polluter to internalize the cost of his pollution drives him out of business, then his enterprise was not the most economically efficient use of the property and his interests should yield to that of his neighbors. In contrast, if the polluter assumes responsibility for all the costs of his venture and still realizes a sufficient profit to stay in business, then his use of the land is most efficient, and his neighbors should yield to his interest. If this remedy is applied, the market will determine the success or failure of Colorado’s marijuana legalization experiment and will serve as a guide to other states in deciding whether Colorado’s venture is worth emulating. This remedy respects the sovereignty of all States, leaving it to the market, not the Court, to decide which of the competing policies should prevail.
You may not agree with the authors' perspective [I didn't]; but the article provides some good background information on "original jurisdiction."
Wednesday, October 29, 2014
District court evidentiary hearing on the constitutionality of marijuana's Schedule I status is underway
Earlier this year, an Eastern District of California judge granted a very rare evidentiary hearing on the constitutionality of the federal government's treatment of marijuana. That hearing is finally underway this week. I'd recommend the Eastern District of California blog for following all of the news and developments.
The EDCA blog has been linking to relevant news coverage, which so far has been sparse unfortunately.
There have been some posts suggesting things aren't going very well for the federal government, but I'm not so sure how much stock to put in those reports.
For example, the Leaf has this post up on some of the testimony of defense witnesses, reprting that "attempts by US Attorneys to paint [Dr. Carl] Hart – who teaches neuroscience at Columbia University and sits on an advisory board to the National Institute of Drug Abuse (NIDA) – as a researcher blinded by his personal biases blew up, at times embarrassingly, in their faces." The anecdotes cited to support this seem focused more on cross examination drama sorts of points, however.
Though it does sound like Hart had a few snappy and effective replies to questions on cross, I doubt that tells us much at all about how the hearing is actually going ias far as what the likely outcome will be. (Even weirder, the Leaf's post comes with the click-driving headline "Federal Prosecutors Appear to Concede Cannabis' Medical Benefits" but there is absolutely nothing reported in the story that I see to back up that wild claim.)
A rational basis challenge to marijuana's Schedule I status will be a tough claim to make out, as anyone familiar with the law in this area knows. Whatever the result, news about the hearings will be interesting to continue to follow.
Monday, October 20, 2014
A few years ago, an assistant principle at a Georgia middle school strip searched a twelve-year old boy in front of a few of his classmates, hoping to find marijuana. The school official did not find any marijuana and, I'm guessing, he is regretting having performed this sort of disturbing search.
The student now has a partial victory in a civil lawsuit, winning a summary judgment motion on one claim against the assistant principle (but losing on a failure to train claim against the school district.)
In an opinion dated September 30th (but just now appearing on my LEXIS alert), Judge Amy Totenberg (herself, coincidentally, a former school board lawyer) describes the facts in some detail. Unfortunately, the opinion does not appear to be available online yet.
D.H. was in his Language Arts class when Ratcliff came to the classroom and told him to bring his book bag and come with her.
Deputy Redding, McDowell, D.V., T.D., and R.C. were present in Deputy Redding's office when D.H. arrived with Ratcliff. (D.H. Dep. at 88-89.) Deputy Redding informed D.H. that drugs had been found at the school and he and McDowell wanted to know whether he had any drugs on him. (D.H. Dep. at 90.) D.H. denied having any drugs on him. (Id.) Redding asked him "are you sure because you are going to get searched," and D.H. responded that "yes," he was sure that he was not in possession of any drugs. (Id.)
McDowell informed D.H. that "because of the severity of the situation" he was going to have to search him "just to make sure" he did not have any drugs on him. (Id. at 114-115, 119.) McDowell then told D.H. to empty his book bag. (D.H. Dep. at 91.) McDowell looked through the pencil boxes, zippers, and pouches of D.H.'s book bag. (Id. at 92.)
Dowell then proceeded to search D.H.'s person. (D.H. Dep. at 92.) McDowell first told D.H. to take off his shoes. (Id. at 93; see also McDowell Dep. at 119 (stating that he asked D.H. to remove his shoes and socks).) Then he asked D.H. to empty his pockets. (D.H. Dep. at 94;see also McDowell Dep. at 119.) After D.H. emptied out his pockets, McDowell told him to take off his pants. (D.H. Dep. at 94; see also McDowell Dep. at 119 (stating that he asked D.H. to pull his pants down).) D.H. dropped his pants to the floor, stepped his legs out of them, and pushed them aside with his foot. (Id. at 95.) Underneath his pants, D.H. was wearing red and navy blue Tommy Hilfiger boxers — the kind with an elastic waist but that are loose around the thigh. (Id. at 94-95, 113.)
At some point, McDowell asked D.H. to remove his uniform polo-style shirt, which according to D.H. was the only shirt he was wearing that day. (D.H. Dep. at 99.) D.H. testified that he was not wearing an undershirt. (Id.) McDowell next told D.H. to flip his socks at the top to see if he was hiding anything under the band of the sock. (D.H. Dep. at 100.) McDowell then told D.H. to take off his socks. (D.H. Dep. at 100-101.) Finally, McDowell pointed at D.H.'s boxers and said "take those off." (D.H. Dep. at 102; see also McDowell Dep. at 120 (stating that he asked D.H. to "pull his underwear away from his body and in a down motion just in case if [sic] he had anything in his — on his person, it would fall to — fall to the ground").) D.H. asked McDowell "do I have to do this here," to which McDowell responded yes. (D.H. Dep. at 102.) D.H. complied by turning to the left (with his back to his classmates) and pulling his underwear down to his ankles. (D.H. Dep. at 103, 105, 107.) McDowell paused, bent over and observed D.H.'s genitalia. (D.H. Dep. at 108; McDowell Dep. at 120-121.) After  finding nothing hidden in D.H.'s underwear, McDowell asked him to put his clothes back on. (D.H. Dep. at 108; McDowell Dep. 120.) No marijuana or other illegal contraband was found on D.H. or in his belongings. (McDowell Dep. 124; Def.'s Resp. to PSMF ¶ 10.) Prior to requiring D.H. to strip down to his underwear to search him for marijuana, McDowell did not conduct a search of his locker, gym locker, desk, wastebasket, or classroom. (McDowell Dep. at 126-129.)
As Doug blogged about previously here, last month a Colorado bankrupcty judge dsimissed a Denver marijuana business owner's bankrupcty petition. The court reasonined that allowing the petition to go forward would put the bankrupcty trustee in the untenable position of administering assets that are being used to commit federal crimes.
As the story last month noted, the debtor was appealing the decision. And, late last week, the bankruptcy judge granted the debtor's request to stay enforcement of the court's judgment pending appeal. The decision does not seem to be available yet on the Colorado bankrupcty court's site (or, at least, it is not coming up in response to my searches.) But, it is on Lexis at 2014 Bankr. LEXIS 4409.
This development will essentially put everything on hold in the case until the appeals court has weighed in.
Here are a few excerpts from the court's opinion:
The Debtors' appeal raises important questions. As illustrated by this case, the intersection between the federal marijuana prohibition and state level liberalization of marijuana laws significantly complicates bankruptcy proceedings where those issues arise. For a trustee, taking custody of and administering assets that are used in the commission of a federal crime can involve a trustee in conduct that violates the federal criminal law. Because of those complications in this case, the Court found that bankruptcy relief was impossible to grant to these Debtors.
The policy of The United States Department of Justice, with respect to state citizens who are acting in compliance with liberalized state marijuana laws, is to initiate enforcement actions under the CSA primarily where overriding federal concerns are implicated. The same Department of Justice, through the United States Trustee (the "UST"), moved to dismiss these Debtors' bankruptcy case on account of conduct which does not appear to implicate the type of federal concerns that would typically lead a United States Attorney to initiate a criminal prosecution or other enforcement action under the CSA.
The Court finds that the balance of the harms favors granting the stay. In the Court's Dismissal Order, after hearing evidence at the trial of the UST's motion to dismiss, the Court recognized that the denial of bankruptcy relief would be "devastating" to the Debtors. (Dismissal Order at p. 9). Also, in its response to the Debtors' Motion, the UST has not alleged that the creditors would suffer any harm if the Court's Dismissal Order is stayed and the UST asserted that it does not oppose the stay. Given that the UST is statutorily tasked with supervising "the administration of cases and trustees in cases under chapter 7 . . . ," 28 U.S.C. 586, and is the party that sought dismissal of the Debtors' case in the first instance, his lack of opposition to the Debtors' Motion is significant to the Court. Thus, the balance of the harms strongly favors granting a stay pending appeal.
The Court also believes that the Debtors' appeal presents novel and substantial questions of law that will benefit from appellate review. As a consequence of these factors, the Debtors have raised at least some uncertainty as to the merits of their appeal.
Even though the Court cannot assess the Debtors' likelihood of success as being great, because the balance of the harms supports granting the stay, the UST does not oppose granting such relief, and the Debtors' appeal raises important legal issues, a stay of the Court's Dismissal Order pending appeal is appropriate in this case.
This appeal will certainly be worth watching closely.
Thursday, October 9, 2014
Yesterday, the Second Circuit upheld a Board of Immigration decision finding a woman subject to removal from the US based on a since-vacated 1997 conviction for attempted possession of marijuana for sale. Though the decision does not break new legal ground, it is a reminder of the serious collateral consequences marijuana convictions can carry (and of the fact that under our immigration laws longtime residents can be forced back to countries they may now barely know based on relatively minor convictions.)
The court itself lamented the outcome, writing in its conclusion:
The sad truth of this case is that petitioner’s removability only came to light after she applied for citizenship. For almost seventeen years, she has owned and operated a business and by all accounts was a productive member of our society. Now, she will be returned to Jamaica and her community here will be the poorer for it. The Attorney General may, of course, review this matter in the exercise of his discretion in immigration matters. The petition for review is DISMISSED and any outstanding motions are DENIED as moot.
Monday, July 14, 2014
Sixth Circuit dissenter highlights state marijuana reforms in case of marijuana defendant sentenced to 20-years
Last week, the Sixth Circuit issued a notable opinion (PDF) on whether the U.S. Supreme Court's 2013 decision in Alleyne v. US means the government must now prove drug defendants knew the type and quantity of drugs involved to trigger an applicable mandatory minimum sentence.
I'll return to the legal issue in a moment, but of particular interest to the topic of this blog is the conclusion of Judge Merritt's dissenting opinion, in which he questions the wisdom of a 20 year marijuana sentence in light of legalization laws:
In addition, I note in passing that the defendant was sentenced to an absurdly long mandatory sentence of 20 years imprisonment for growing marijuana plants. In a legal system that has historically strongly disfavored criminal strict liability and has favored requiring mens rea or knowledge of the crime, we should not hesitate to insist that the prosecutor prove a defendant's knowledge of the scope of the conspiracy. We should take into account that a number of states have now legalized growing marijuana plants for both medicinal and recreational use. This change in attitude toward the crime should lead us to try to avoid such excessive sentences that have now filled the jails of the country with drug offenders, particularly the federal prisons. If the criminal division of the Department of Justice cannot desist from asking for such long sentences, and continues its policy of insisting on excessive drug sentences, the courts should at least follow a consistent policy of requiring knowledge of the elements of the crime.
Though Merritt's discussion of marijuana reforms is noteworthy, those who follow federal sentencing will almost certainlty be more interested in the Alleyne issue in the case.
For the uninitiated, the issue is a tricky one to summarize, but it centers around the fact that federal mandatory minimum drug sentences are based primarily on the type and quantity of drugs involved in the offense. For some time, courts have held that the government only needs to prove a defendant knowingly possessed drugs to get a conviction and to trigger a mandatory minimum sentence. Whether the defendant knew the type or quantity of drugs is immaterial.
To get a sense of how this works, imagine a drug courier who agrees to transport a car across the border. The courtier is told the car has marijuana in an amount that would trigger a 5-year minimum sentence. But the car actually has methamphetamine in an amount that would trigger a 10-year minimum. If the courier is convicted, she'll receive the 10-year mandatory minimum based on the type and quantity of drugs in the car. The fact that she thought she was transporting X amount of marijuana is irrelevant. So long as the government can prove she knew she had a controlled substance of some kind, she'll be sentenced based on what she actually had (Y amount of methamphetamine.)
As summarized by SCOTUS Blog, Alleyne held that "[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an 'element' of the crime that must be submitted to the jury."
Does this holding also mean that the government must now prove drug defendants knew the type and quantity of drugs involved to trigger a relevant minimum sentence? The Sixth Circuit held that it does not. Judge Merritt, in dissent, says it should.
I'll avoid trying to summarize the competiting points and, instead, recommend that anyone who is interested in the Alleyne issue take a look at the opinion and dissent which are both well worth reading.
Thursday, July 3, 2014
The federal government has been taking a hands-off approach in Colorado (at least, so far). If that ever changes, however, Colorado operators are sure to be facing lengthy sentences. A recent case from the Eighth Circuit serves as a good reminder of this fact.
In the case, an Iowa man named Robert Meeks participated in a marijuana growing operation that netted between 300 and 500 marijuana plants annually. He was convicted of conspiracy to manufacture 1,000 or more marijuana plants. To make matters worse for Meeks, in 1987 he was convicted of aiding and abetting the distribution of cocaine. As a result, Meeks was subject to a 20 year mandatory minimum sentence.
On appeal, Meeks argued (among other things) that the sentence amounted to cruel and unusual punishment. Not surprisingly for those familiar with the caselaw in this area, the appeals court rejected that argument:
The district court sentenced Meeks to the mandatory minimum sentence of 240 months’ imprisonment. This sentence was based on the jury’s special finding that the conspiracy involved 1,000 or more marijuana plants and on the fact that Meeks had previously been convicted of a felony drug offense. See 21 U.S.C. §§ 841(b)(1)(A), 851. We repeatedly have held that applying a mandatory minimum penalty for drug offenses does not violate the Eighth Amendment. United States v. Garcia, 521 F.3d 898, 901 (8th Cir. 2008) (collecting cases). Meeks argues, however, that the 20-year mandatory minimum sentence is grossly disproportionate to the underlying crime because (1) the conspiracy involved the manufacture and sale of marijuana rather than “harder-core” substances, such as cocaine; (2) the prior drug conviction which qualified Meeks for the mandatory minimum occurred twenty-six years ago; (3) the sentence results in a near-life sentence given Meeks’s age; and (4) the profit from the growing and sales operation was negligible. None of these arguments demonstrates that Meeks’s case is the extreme case that violates the Eighth Amendment. See United States v. Burton, 894 F.2d 188, 190, 192 (6th Cir. 1990) (holding that marijuana’s Schedule I classification is not irrational, and thus the resulting penalties do not violate the Eighth Amendment); United States v. Fogarty, 692 F.2d 542, 547-48 (8th Cir. 1982) (holding that marijuana’s Schedule I classification is not irrational); United States v. Gallegos, 553 F. App’x 527, 532-33 (6th Cir. 2014) (holding that 20-year mandatory minimum sentence for conspiring to distribute at least 1,000 kilograms of marijuana did not violate the Eighth Amendment); United States v. Hoffman, 710 F.3d 1228, 1232-33 (11th Cir. 2013) (rejecting argument that life sentence based on convictions that occurred approximately twenty-five years earlier when defendant was a juvenile constituted cruel and unusual punishment); United States v. Mathison, 157 F.3d 541, 551 (8th Cir. 1998) (holding that a sentence “although in excess of a defendant’s life expectancy, does not violate the Eighth Amendment”); Ewing, 538 U.S. at 28-30 (holding that the defendant’s sentence of 25 years’ to life imprisonment was not unconstitutionally disproportionate where the defendant stole three golf clubs worth about $1,200 and was a recidivist). Accordingly, we conclude that a term of 240 months’ imprisonment, imposed for Meeks’s offense of felony drug conspiracy under 21 U.S.C. §§ 841(b)(1)(A), is not “grossly disproportionate,” Ewing, 538 U.S. at 30, and we affirm his sentence.
Wednesday, June 11, 2014
Simple possession of marijuana is a federal crime. Only a very very very small fraction of marijuana possession cases end up in federal court (for example, in 2010, there were about 1,000 federal marijuana possession cases disposed of in federal court (PDF) and 750,000 simple marijuana arrests nationwide.) Compared to the number of people who use and smoke marijuana every year, the number of federal marijuana possession prosecutions is ridiculously small. About 25 million Americans use the drug every year. But only an unlucky 1,000 or so end up in federal court for possessing it.
Of course, even most of the marijuana simple possession defendants who end up in federal court are not facing very serious penalties--a first offense is a misdemeanor and carries no mandatory prison time.
But the cliffs and bright lines of the federal sentencing guidelines--even in their advisory state--can sometimes change the equation and result in real federal time for possession of small amounts of marijuana. Yesterday, in an unpublished decision (PDF), the Eleventh Circuit upheld a federal gun sentence that included an additional 20 months for possession of less than 2 grams of marijuana.
Here are the relevant details:
Jabriel Fitzgerald Lakes appeals his 58-month sentence, imposed after pleading guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At the sentencing hearing, the district court enhanced Lakes’ base offense level by four points pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because Lakes “used or possessed a firearm . . . in connection with another felony offense.” The district court found that, due to his prior drug convictions, Lakes’s possession of 1.8 grams of marijuana at the same time as his possession of a firearm constituted “another felony offense” under the language of 21 U.S.C. § 844(a). The court then imposed a 58-month sentence, which fell within the applicable guideline range of 57 to 71 months’ imprisonment.
Lakes appeals the application of the four-point enhancement to his base offense level as substantively unreasonable, arguing that the resulting sentence is unduly harsh given the circumstances of this case. Lakes argues that application of the enhancement “resulted in a grossly disproportional sentence in light of the actual amount of marijuana” in his possession at the time of arrest. While Lakes concedes in his brief that his prior drug convictions would render him ineligible to receive misdemeanor treatment on the marijuana charge under 21 U.S.C. §§ 841(b)(4) and 844, he argues that an additional 20 months of imprisonment for possession of less than 2 grams of marijuana is patently unreasonable.
At his sentencing hearing, Lakes pointed out that his applicable guideline range which would have been 37 to 46 months without the enhancement, jumped to 57 to 71 months “for such a small amount of drugs.” As stated by his lawyer at sentencing: “As a practical matter I don’t know that you could cover up my thumbnail with 1.8 grams of marijuana . . . I am certainly not excusing any of this stuff, but it’s just a small amount that—and such a large enhancement, really, for such a small amount of drugs.” Lakes stated that he was holding the marijuana for a friend, and not for himself. Accordingly, he argued, the application of the enhancement does not serve the factors enumerated in § 3553(a).
After three prior drug convictions, Lakes was caught with a loaded firearm while in possession of three separate bags of marijuana, subjecting him to the four- level enhancement under the advisory guidelines. The record demonstrates that the district court considered the parties’ arguments, the presentence investigation report, the Guidelines and the § 3553(a) factors when it pronounced its sentence. The sentence is within, and at the low end of the applicable guideline range. It is also below the statutory maximum, further lending itself to a finding of reasonableness. Thus, Lakes has not met his burden of showing that the district court abused its discretion in applying the enhancement. We affirm the district court’s sentence as reasonable.
Thursday, May 1, 2014
Yesterday, the U.S. Court of Appeals for the Fourth Circuit released an interesting opinion considering the federal "unlawful user" statute. The unlawful user law makes it a crime for anyone who "is an unlawful user of and addicted to a constrolled substance" to possess a firearm--and yes, that includes marijuana.
A while back, the Fourth Circuit sent a case back to the trial court to conduct an evidentiary hearing on whether this law runs afoul of the Supreme Court's recent Second Amendment jurisprudence. The trial court found that making it a crime for a marijuana user to possess a gun did not pose any Second Amendment problem. Yesterday, a unanimous panel of the Fourth Circuit agreed.
Here are a few excerpts from the opinion (PDF), by Judge Niemeyer, that provide an overview of the court's reasoning:
Carter argues that the district court, in concluding that the government carried its burden, erred in two respects: (1) it improperly relied on factors other than empirical evidence in evaluating the soundness of § 922(g)(3); and (2) it failed to recognize that the studies submitted by the government were inadequate because they related to drug use generally rather than marijuana use specifically and they failed to prove a causal link between marijuana use and violence. He maintains that the studies he submitted demonstrate that, in fact, “marijuana users are not prone to violent behavior.”
Focusing on the substance of the studies presented by the government to the district court, Carter contends that the data were inadequate because they related to drug use generally rather than marijuana use specifically and because they failed to prove a causal relationship between marijuana use and violence. He maintains that the studies he submitted, by contrast, demonstrated that “marijuana users are not prone to violent behavior.”
We have little trouble concluding that the studies presented to the district court by both the government and Carter indicate a strong link between drug use and violence. A study by Carrie Oser and colleagues, offered by the government, found that probationers who had perpetrated violence in the past were significantly more likely to have used a host of drugs -- marijuana, hallucinogens, sedatives, and heroin -- than probationers who had never been involved in a violent episode. [The Court went on to cite a few additional studies.)
Carter seeks to marginalize these studies, arguing first that they are too broad and discuss only “general categories of offenders, including those who abuse a range of controlled substances.” He contends that, even if there is a link between “harder” controlled substances and violence, the government’s evidence does not indicate that marijuana users are prone to violence. To the contrary, he claims that the evidence he submitted disproves such a link. Yet, even if such a particularized demonstration is necessary -- an issue we need not reach -- the studies presented by the government amply demonstrate a connection between marijuana use specifically and violence. The Harrison and Gfroerer study, for instance, found that, “[e]ven after controlling for other variables[,] such as age, race, income, education, and marital status, . . . using marijuana in the past year . . . [was] significantly related to criminal behavior.”
Carter also objects to the government’s evidence on the grounds that it demonstrated, at most, a correlation between marijuana use and violence and not a causal relationship. Quoting the Wei study, he argues that “[t]he relationship between marijuana use and violence ‘is due to the selection effects whereby these behaviors tend to co-occur in certain individuals, not because one behavior causes the other.’” (Emphasis added) (quoting Wei et al., Teasing Apart, at 166).
This argument is flawed, however, because it assumes, incorrectly, that Congress may not regulate based on correlational evidence. We conclude that it may and that the government need not prove a causal link between drug use and violence in order to carry its burden of demonstrating that there is a reasonable fit between § 922(g)(3) and an important government objective. . . . We have emphasized that, under intermediate scrutiny, the fit between the regulation and the harm need only be reasonable, not perfect. Carter I, 669 F.3d at 417. The correlational evidence put forward by the parties in the present case easily clears that bar.