United States v. Canori
737 F.3d 181
2d Cir.2013Background
- Eric Canori pleaded guilty to conspiracy to distribute and possess with intent to distribute 100+ kg of marijuana under 21 U.S.C. §§ 846, 841(a)(1) and reserved the right to appeal denial of his motion to dismiss.
- Canori argued the October 2009 Ogden Memo (and related DOJ guidance) created a de facto "rescheduling" of marijuana under the Controlled Substances Act (CSA), so federal charges were invalid.
- The Ogden Memo advised U.S. Attorneys to deprioritize prosecutions of conduct clearly complying with state medical-marijuana laws, while expressly stating it did not legalize or reclassify marijuana under federal law.
- The CSA authorizes the Attorney General to reschedule substances only through an APA rulemaking process and by accepting an HHS evaluation as binding.
- The district court denied Canori’s motion to dismiss; the Second Circuit reviewed that denial de novo and affirmed.
Issues
| Issue | Canori's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the Ogden Memo effected a de facto rescheduling of marijuana under the CSA | Ogden Memo implicitly reclassified marijuana out of Schedule I, so federal prosecution is invalid | Ogden Memo is guidance on prosecutorial discretion and does not change statutory scheduling; no APA rulemaking occurred | Rejected — no de facto rescheduling; marijuana remains Schedule I |
| Whether the Attorney General can reschedule a drug implicitly or without APA rulemaking | Rescheduling can be effectuated by executive guidance or implied change in enforcement priorities | Rescheduling requires statutorily mandated APA rulemaking and HHS evaluation; cannot be done implicitly | Rejected — statutory rulemaking is exclusive method; AG did not follow it |
| Whether DOJ deprioritization conflicts with Supremacy, preemption, or federalism principles | If Ogden Memo didn’t reschedule, state medical-marijuana laws create a constitutional conflict | Prosecutorial discretion does not legalize conduct or create a Supremacy Clause/preemption conflict | Rejected — prioritization does not override federal law or create a constitutional crisis |
| Whether related constitutional claims (due process, equal protection, ineffective assistance) succeed absent rescheduling | Claims hinge on premise that marijuana no longer Schedule I; thus constitutional violations occurred | Without rescheduling, statutory prohibition stands and supporting constitutional claims fail | Rejected — claims depend on rescheduling, so they fail |
Key Cases Cited
- Gonzales v. Oregon, 546 U.S. 243 (describing limits on Attorney General's CSA powers and rulemaking requirements)
- United States v. Daley, 702 F.3d 96 (2d Cir.) (standard of review for motion to dismiss an indictment)
- United States v. Yannotti, 541 F.3d 112 (2d Cir.) (standard of review for indictments)
- United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973) (upholding marijuana classification as Schedule I)
- United States v. Gonzalez, 682 F.3d 201 (2d Cir.) (prosecutorial discretion in charging decisions)
- United States v. Nixon, 418 U.S. 683 (Executive Branch discretion to prosecute)