United States v. Boualong Silkeutsabay, 678 F. App'x 608

Four defendants pled guilty: three to conspiracy to manufacture 100+ marijuana plants (21 U.S.C. §§ 841, 846) and one to misprision of felony (18 U.S.C. § 4); pleas were conditional reserving § 538 challenge.
Defendants argued 2015 appropriations rider § 538 barred federal prosecution of conduct compliant with Washington’s medical-marijuana law.
Washington law allows a designated provider to grow 15 plants per patient; defendants claimed they were designated providers for ~300 patients and thus authorized to grow up to 4,500 plants.
District court denied the motion to dismiss and did not hold an evidentiary hearing or address state appellate decisions (Markwart, Shupe) suggesting providers may serve multiple patients.
Ninth Circuit held under United States v. McIntosh that § 538 precludes federal prosecution of individuals who fully comply with state medical-marijuana law and entitles them to evidentiary hearings to show compliance.
Court vacated the denial of the dismissal motion, conditionally vacated convictions, ordered remand for an evidentiary hearing to determine Washington-law compliance, and directed defendants’ release pending that hearing under appropriate conditions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 538 prohibits federal prosecution of conduct authorized by state medical-marijuana law	Gov't: prosecution allowed because defendants did not comply with state law	Defs: § 538 bars prosecution if conduct complies with Washington law	§ 538 can bar prosecution; defendants entitled to evidentiary hearing to prove compliance (McIntosh)
Whether district court should have held an evidentiary hearing on state-law compliance	Gov't: no hearing necessary; defendants pled guilty to >1,000 plants	Defs: hearing required to resolve ambiguity about multi-patient provider limits	Hearing required under McIntosh; district court erred by not holding one
Interpretation of Washington law on designated-provider plant limits	Gov't: defendants exceeded limits (implicit single-patient reading)	Defs: Markwart and Shupe allow providers to serve multiple patients (15 plants each)	Circuit found ambiguity in state precedents; reasonable reading might permit larger totals—question for district court factfinding
Effect of conditional guilty pleas and appellate posture after vacating denial	Gov't: convictions should stand	Defs: reserved right to appeal denial; convictions should be vacated if dismissal granted	Conditional pleas preserved defendants’ right; convictions conditionally vacated and will be reinstated only if hearing shows noncompliance (Cordoba)

United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) (§ 538/§ 542 bars federal prosecution of persons who fully comply with state medical-marijuana laws; entitles them to evidentiary hearings)
United States v. Nixon, 839 F.3d 885 (9th Cir. 2016) (applied McIntosh’s reasoning to § 538, treating the appropriations riders as essentially the same)
United States v. Olander, 572 F.3d 764 (9th Cir. 2009) (de novo review of denial of motion to dismiss based on statutory interpretation)
United States v. Cordoba, 104 F.3d 225 (9th Cir. 1997) (conditional pleas preserved right to appeal; convictions may be reinstated if appeal fails)
State v. Markwart, 329 P.3d 108 (Wash. Ct. App. 2014) (interpreting Washington medical-marijuana statutes regarding designated providers and patient counts)
State v. Shupe, 289 P.3d 741 (Wash. Ct. App. 2012) (similar interpretation allowing consideration of providers serving multiple patients)