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9th Circuit Wins: Clash of state and federal marijuana laws; Florida manslaughter not a “crime of violence” under Sentencing Guidelines

United States v. McIntosh et al., — F.3d — (9th Cir. Aug. 16, 2016): Appropriations rider bars Department of Justice from spending funds to prosecute marijuana distributors who comply with state laws (for now)

Ever wonder how it’s supposed to work when state laws permit something that federal law prohibits? Ever worry that such a situation could give rise to a mess of eleven consolidated cases raising complex issues of supremacy, standing, separation of powers, and legislative interpretation? Your worries were unfounded: There were only ten.

The Department of Justice prosecuted these ten marijuana distributors, all of whom claimed to be in compliance with their respective states’ marijuana laws, under the federal Controlled Substances Act. The defendants moved to enjoin their prosecutions, pointing to a rider to an omnibus appropriations bill specifying that none of the funds appropriated for DOJ could be used to prevent states that have legalized marijuana from “implementing” their marijuana laws. Their motions were denied, and they took interlocutory appeals. The Ninth Circuit first addressed jurisdictional matters. Interlocutory appeals are seldom permitted in criminal cases, but here the court found that they were authorized by 28 U.S.C. 1292(a), which vests circuit courts with jurisdiction over orders refusing injunctions. (The court was careful to note that this trick will not work most of the time: district court orders “relating solely to requests to stay ongoing federal prosecutions” are not appealable, but here what the defendants actually sought was not to stay their prosecutions but to enjoin DOJ from spending funds in violation of the rider.) The defendants had standing, because they faced the imminent concrete injury of incarceration, and they were appropriate parties to vindicate separation of powers concerns — which are, after all, ultimately intended to protect individual liberty.

Turning to the merits, the court noted that the Appropriations Clause “plays a critical role in the Constitution’s separation of powers.” Executive agencies like DOJ cannot take money from the Treasury and spend it any way they like; they can spend it only as Congress directs. Not to worry, argued DOJ, we have no intention of preventing these states from “implementing” their marijuana laws — we simply reserve the right to throw people who comply with those laws in prison from time to time. The Ninth Circuit was not persuaded: “If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.” Thus, the court concluded, “at a minimum” the rider “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.” Some of the defendants urged the court to go a step further, barring the use of funds to prosecute state-licensed distributors regardless of whether they are in full compliance with state law. The court balked, reasoning that distributors who do not “strictly comply” with state law “have engaged in conduct that is unauthorized,” and thus the rider does not bar their federal prosecution. In light of these holdings, the court remanded the cases for an evidentiary hearing to determine whether the defendants were in compliance with their respective states’ marijuana laws. The court was careful to warn against construing its opinion as establishing that the appropriations rider creates an “immunity from prosecution” for federal marijuana offenses: The current appropriations bill bars the expenditure of federal funds on such prosecutions, but “Congress could restore funding tomorrow,” and the next President could “shift enforcement priorities.”

In short, notwithstanding the unusual relief given to these ten defendants, and the sea change in state-level marijuana laws in recent years, there remains only one safe way to stay on the sunny side of the Controlled Substances Act: Just Say No.

(Congratulations to Marc J. Zilversmit (San Francisco, CA); Robert R. Fischer (AFPD Spokane, WA); Richard D. Wall (Spokane, WA); Douglas Hiatt & Douglas Dwight Phelps, Seattle, WA); David Matthew Miller (Spokane, WA); Nicholas V. Vieth (Spokane, WA); Andras Farkas (AFPD Fresno, CA); Daniel L. Harralson (Fresno, CA); Harry M. Drandell (Fresno, CA); and Peter M. Jones (Fresno, CA))

United States v. Mendoza-Padilla, — F.3d — (9th Cir. Aug. 16, 2016): Florida manslaughter is not a “crime of violence” under U.S.S.G. 2L1.2(b)(1)(A)

Is Florida manslaughter a “crime of violence” pursuant to U.S.S.G. 2L1.2(b)(1)(A)? Nope. The Guideline’s reference to “manslaughter” is deemed to describe federal “generic” manslaughter, which requires a mens rea of recklessness – i.e., an awareness that one’s conduct creates a high degree of risk of death or serious bodily injury. Florida manslaughter, by contrast, requires “something less than recklessness,” and has been applied even to defendants who caused “unanticipated death after a single, sudden punch.” The court accordingly vacated the illegal-reentry defendant’s enhanced sentence and remanded the case for resentencing.

(Congratulations to Hariette P. Levitt, of Tucson, Arizona)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)