On Oсtober 17, 2016, Michael Guess (“Defendant”) appeared before the Court concerning a number of supervised release violations. For the reasons set forth herein and explained at the hearing, the Court REVOKED the supervision previously imposed. This Order serves to elaborate on some of the findings the Court made at the October 17, 2016 hearing.
I. FACTUAL AND PROCEDURAL HISTORY
On November 19, 2007, Defendant pled guilty to: Conspiracy to Possess with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), a Class A Felony (Count One); and (2) Use of a Firearm During Drug Trafficking, in violation of 18 U.S.C. § 924(c), also a Class A Felony (Count Eleven). ECF No. 104.
On March 17, 2008, this Court sentenced Defendant to 168 months of imprisonment for Count One and sixty months of imprisonment for Count Elеven, with these terms of imprisonment to run consecutively for a total of 228 months. ECF No. 150. Supervised release was set at five years. Id. On October 31, 2014, this Court reduced Defendant’s sentence, upon the Government’s Motion for Substantial Assistance, to a total term of 114 months. ECF No. 267. On December 9, 2014, upon the Government’s Motion for Reduction of Sentence based on the Crack Cocaine Amendment, 18 U.S.C. § 3582(c)(2), this Court further reduced Defendant’s sentence to 112 months total (56 months on Count One and 56 months on Count Eleven, to run consecutively). ECF No. 268.
Defendant began his five years of supervised release on November 27, 2015. See Pet., June 30, 2016, ECF No. 282. The Court ordered a Summons on June 30, 2016. ECF No. 284. Since the Summons was issued, five аddenda to the Petition have been filed, Both the Petition and Addenda allege a variety of supervised release violations, which are as follows: (1) commission of a crime, driving while intoxicated; (2) failure to follow the instructions of the probation officer; (3) failure to submit monthly supervision reporters; and (4) possession of marijuana. See Pet., June 30, 2016, ECF No. 282; Addendum to Pet., July 13, 2016, ECF No. 285; Second Addendum to Pet., August 11, 2016, ECF No. 291; Third Addendum to Pet., Sept. 21, 2016, ECF No. 292; Fourth Addendum to Pet., Sept. 30, 2016, ECF No. 293; and Fifth Addendum to Pet., Oct. 17, 2016, ECF No. 295.
All of the alleged violations constituted Grade C violations with the exception of possession of marijuana, which the probation officer determined constituted a Grade B violation. Defendаnt had a criminal history category of III. Accordingly, pursuant to the Revocation Table set forth in § 7B1.4 of the Sentencing Guidelines Manual, Defendant’s recommended range of imprisonment for a Grade B violation was eight to fourteen months. U.S. Sentencing Commission, Guidelines Manual, § 7B 1.4(c) (Nov. 2015) (hereinafter “Guidelines Manual”). Defendant’s recommended range for a Grade C violation was five to eleven months. Id.
On October 17, 2016, the Court held a hearing on the alleged violations. ECF No. 294. At the hearing, Defendant stipulated to the violations set forth in the Petition. However, Defendant argued that the Court should continue the matter for sixty to ninety days to permit Defendant to continue participаting in drug treatment programs; or, in the alternative, impose home confinement to permit Defendant to continue substance abuse treatment; or, in the alternative, consider Defendant’s mari
II. LEGAL STANDARD
A. Revocation of Supervised Release
18 U.S.C. § 3583(e)(8) permits the court to revoke a criminal defendant’s supervised release if it “finds by a preponderance of the evidence that the defendant violated a condition of supervised release[.]” However, in certain circumstances, revocation is mandatory. Under 18 U.S.C. § 3583(g), if the defendant:
(1) possesses a controlled substance in violation of the condition set forth in subsection (d); ... or
(4) as a part of drug testing, tests positive for illegal controlled substances more than three times over the course of one year;
the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).
B. The United States Sentencing Guidelines
Under the Sentencing Guidelines, supervised release violations are divided into three grades: Grade A, Grade B, and Grade C. Guidelines Manual, § 7Bl.l(a). Grade C violations are the lowest classification and include “conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision.” Id. Grade B violations are those offenses not in the specific categories of more serious crimes delineated in Grade A, but “punishable by a term of imprisonment exceeding one year.” Id, At issue was whether Defendant’s possession of marijuana qualified as a Grade B or a Grade C violation.
Simple possession of a controlled substance is criminalized by 21 U.S.C. § 844. Possession in violation of § 844 is a normally a misdemeanor, punishable by one year or less. Thus, most supervised release violations based on simple possession would constitute Grade C violations. However, if a defendant has prеviously been convicted of Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 841, the defendant may be eligible for a sentencing enhancement under § 844 that would prescribe a maximum term of imprisonment of two years. 21 U.S.C. § 844(a). Any such enhanced § 844 violation would therefore constitute a Grade B violation.
Since Defendant was previously convicted of Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 841, Defendant’s Possession of Marijuana rendered him eligible for a § 844 sentencing enhancement, and thus a maximum term of imprisonment of two years. The probation officer therefore considered Defendant’s marijuana possession a Grade B viоlation.
III. ANALYSIS
A. Federal Regulation of Marijuana
What troubled the Court at the hearing, however, was not the classification of possession of marijuana as a Grade B or a Grade C violation, but whether—given the evolving state of the laws criminalizing possession of marijuana—the Court could punish Defendant for possession of marijuana. In light of this, the Court feels it would be appropriate to review such an evolution and its impact on cases such as the one at hand.
1. The Controlled Substances Act
In 1970, the passage of the Controlled Substances Act (“CSA”) classified marijuana—along with LSD, heroin, and other serious narcotics—as a Schedule I drug. Schedule I drugs are those with (1) a high
2. The Evolution of the Legal Landscape
However, since the passage of the CSA and the Guidelines for marijuana, state-level marijuana laws have evolved signifiсantly. Currently, simple possession of marijuana is legal under state law in Arizona, Colorado, Oregon, and Washington, as well as in Washington, D.C.
In response, the federal government has changed its stance on prosecuting possession, cultivation, and distribution cases. Although the Department of Justice (“DOJ”) did not explicitly state that it would not prosecute such cases in states where state laws have legalized, to varying extents, marijuana possession, cultivation, and distribution, DOJ has set forth a series of enforcement priorities that have made it clear that the focus of federal prosecution is on large scale distribution.
An October 19, 2009 memorandum from Deputy Attorney General David Ogden set forth “uniform guidance” regarding “core federal enforcement priorities” to federal prosecutors in states that had enacted laws authorizing the medical use of marijuana. The memo clarified that Assistant United States Attorneys (“AUSAs”) “should not focus federal resources in [their states] on individuals”—namely, patients and their caregivers—“whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” The memorandum then listed seven types of activities that would belie such clear and unambiguous compliance:
On August 29, 2013, DOJ further clarified its prosecution priorities in light of state ballot initiatives legalizing the possession of small amounts of marijuana under state law. Noting that “Congress has determined that marijuana is a dangerous drug and that illegal distribution and the sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels,” DOJ nonetheless reiterated and expanded the prosecution priorities originally sketched out in the Ogden Memo to encompass eight prosecution priorities for AUSAs:
• Preventing the distribution of marijuana to minors;
• Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
• Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
• Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
• Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
• Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
• Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
• Prevеnting marijuana possession or use on federal property.
Memorandum from James M. Cole, Deputy Att’y Gen. of the United States, to United States Attorneys regarding Guidance Regarding Marijuana Enforcement (August 13, 2013) (hereinafter “Cole Memo”).
In 2014, DOJ also explained to AUSAs that, with respect to marijuana-related financial crimes, “in determining whether to charge individuals or institutions with any [ ] offenses based on marijuana-related violations of the CSA, prosecutors should apply the eight enforcement priorities described in [the Cole Memo] and reiterated [in the 2014 memo].” Thus, “if a financial institution or individual offers services to a marijuana-related business whose activities do not implicаte any of the eight priority factors, prosecution for these offenses may not be appropriate.” Memorandum from James M. Cole, Deputy Att’y Gen. of
Executive branch officials have continuously and publicly reiterated such an enforcement policy. In 2009, Attorney General Eric Holder explained that DOJ’s enforcement policy with respect to medical marijuana offenses was to prioritize prosecution of “serious drug traffickers” rather than patients. Press Release, U.S. Dep’t of Justice, Office of Public Affairs, Attorney General Announces Formal Medical Marijuana Guidelines (Oct. 19, 2009). In 2013 testimony before the Senate Committee on the Judiciary, Deputy Attorney General Cole noted that DOJ was cooperating with banking regulators to permit marijuana trafficking operations that are in compliance with state laws and regulations to deposit their proceeds in, and otherwise transact business with, banks. Conflicts Between State and Federal Marijuana Laws: Hearing Before the Sen. Comm, on the Judiciary, 113 Cong. 588 (2013) (oral testimony of James M. Cole, Deputy Att’y Gen. of the United States).
To be sure, such policy statements are precisely that—policy statements. These guidelines are strictly internal and unenforceable at law. The memoranda continue to emphasize that marijuana possession remains illegal under federal law and that neither such guidance from DOJ nor state or local law provides a legal defense to a violation of federal law. See Cole Memo, at 4 (“This memorandum is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.”) See also United States v. Hicks,
Nonetheless, this interaction between state law and federal policy creates three related issues that collectively trouble this Court: (1) it is apрarent that AUSAs in states in which possession of marijuana has been legalized or decriminalized will refrain from prosecuting possession, cultivation, and distribution cases, so long as potential defendants are (a) in compliance with state law and regulations and (b) do not run afoul of the eight federal enforcement priorities; (2) this, in turn, creates uncertainty as to the CSA’s application and the federal prosecution of marijuana offenses; and (3) consequently, such uncertainty impacts district courts’ consideration of the 18 U.S.C. § 3553(a) factors when sentencing defendants for marijuana possession, cultivation, or distribution.
United State v. Dayi,
The seriousness of violations of federal marijuana laws has been undercut by (1) recent state enactments decriminalizing, legalizing, and regulating not only the possession of marijuana but also its cultivation, distribution and sale, and (2) the federal government’s expanding policy of non-enforcement_Further, the Justice Department’s enforcement policysuggests that the executive branch of the federal government condones this new approach. The result is an undeniable signal that -violating federal marijuаna laws is not as serious an offense as it once was .... Ultimately, the Court finds that, in 2013, strict Guidelines sentences would overstate the seriousness of the underlying offenses and therefore fail ‘to reflect the seriousness of the offense .... ’
The Court also finds that Guidelines sentences in these cases would fail to address the [need to avoid unwarranted sentencing disparities]. The Court construes this factor broadly, interpreting it as a command to ensure that sentences comport with the notion of equal justice under law. The Justice Department has decided it will not prosecute certain marijuana traffickers, including large-scale commercial distributors who, in compliаnce with state laws and regulations, establish retail outlets that cater to recreational marijuana users in Colorado and Washington .... [Although there are some differences between the defendants and retailers in Colorado and Washington,] [t]he Court ... finds it should use its sentencing discretion to dampen the disparate effects of prosecu-torial priorities.
Like the Dayi court, this Court is troubled by the unequal application of law that results from the current state of marijuana laws, which leaves criminal defendants facing imprisonment under federal law for activities that their counterparts in states that have legalized marijuana possession will not face prosecution for. Furthermore, the CSA and the accompanying uniform federal enforcement of the CSA are arguably intended to give certainty and notice to the public as to what activities are and are not legal under the CSA. However, the current state of the law—in which state law either legalizes or criminalizes marijuana; federal law criminalizes marijuana; and federal policy does not enforce the federal criminalization of marijuana. depending on a defendant’s geographic location—creates an untenable grey area in which such certainty and notice have effectively, if not formally, been eradicated. See Chemerinsky et al., 62 UCLA L. Rev. 74 at 90-101.
In this Court’s view, this results in two legal problems with respect to either prosecuting an individual or revoking supervised release based on simple possession: (1) unequal prosecution, and (2) unwarranted sentencing disparities.
B. Unequal Application of the Law
1. Unequal Prosecution
First, the Court believes that punishing this Defendant for his use of marijuana creates a problem of unequal prosecution of the law analogous to selective prosecution.
Selective prosecution occurs in violation of the equal protection component of'the Due Process Clause of the Fifth Amendment “when the decision to prosecute a particular criminal case” is “based uрon an ‘unjustifiable’ factor such as race, religion, or another arbitrary classification.” United States v. Hastings,
In addition, Armstrong—in which the Supreme Court considered whether an African American defendant who claimed to have been singled out for prosecution on the basis of his race was entitled to discovery vis-á-vis his claim—held that the defendant was not entitled because he had failed to satisfy a threshold showing “that the Government declined to prosecute similarly situated suspects of other races.”
This Court does not purport to suggest that prosecution of marijuana possession in this District is the result of a discriminatory purpose akin to that outlined in Armstrong, such as race or religion. Furthermore, as noted in Armstrong, the “power to prosecute” is a “core” function of the Executive Branch, and this Court does not second-guess the ability of DOJ to prosecute marijuana offenses pursuant to federal law, under which possession, cultivation, and distribution remain illegal.
But the executive branch has decided to enforce its laws against some individuals and not against others—the essence of selective prosecution—depending on where one resides. For example, the federal government will prosecute an individual in Virginia for the same crime that would not be prosecuted in Washington or Colorado. Thus, the federal prosecutorial policy with respect to marijuana possession produces an effeсt that is, at least to a degree, undoubtedly and strikingly similar to the effect of selective prosecution: it results in the prosecution of certain individuals (marijuana possessors not in contravention of DOJ’s enforcement priorities) for a crime that other, similarly-situated individuals (fellow marijuana possessors also not in contravention of DOJ’s enforcement priorities) are not prosecuted for. This difference is based on what is arguably a relatively arbitrary classification: which state one resides in. And, at the very least— beyond any analogies one may draw to selective prosecution—applying and enforcing federal marijuana laws in some statеs but not others appears inconsistent with the principle of equal application of the law. See Kreit, 65 Case W. L. R. at 696.
This is not the only district court to take note of this effect of prosecutorial priorities: as was discussed, in Dayi,
2. Unwarranted Sentencing Disparities
Second, the Court believes that punishing Defendant for possession of marijuana
Since DOJ has generally decided not to prosecute individuals for simple possession of marijuana in states such as Colorado, this Court believes that there will be no uniformity in sentencing if this Court punishes an individual for the same offense. The Court questions how it can comply with the mandate of 18 U.S.C. § 3553 in sentencing a defendant under federal law in Virginia for activities that will not be prosecuted under federal law in Colorado and thus will receive no sentence. Both individuals have engaged in the same conduct; although under federal law, the acts of both individuals constitute offense conduct, only one will serve a sentence for it. This clearly contravenes the underlying directive of 18 U.S.C. § 3553(a)(6) by sentencing two defendants with “similar records” and guilty of “similar conduct” to starkly disparate terms of imprisonment. In a possession case, a defendant in Virginia would receive under a year of imprisonment, while a defendant in Colorado would receive no term of imprisonment at all.
As discussed above, Dayi also recognized the implications of the changing treatment of marijuana under state law and by federal prosecutors for the § 3553(a) sentencing factors, particularly the requirements that any sentence imposed (1) reflect the seriousness of the offense, § 3553(a)(2)(A)
C. Defendant’s Supervised Release Violation
Nonetheless, what are presently before the Court are petitions on supervised release violations. Ultimately, the question before the Court is not whether possession
In Hicks,
The Hicks court rejected the defendant’s argument and explained, “The Department of Justice’s discretionary decision to direct its resources elsewhere does not mean that the federal government now lacks the power to prosecute those who possess marijuana.” Id. at 833. “Moreover, even if [the Department of Justice’s statements] somehow provide a defense to prosecution for possession of medical marijuana, which they do not, this is nоt a prosecution for possession of marijuana. Instead, it is a prosecution for alleged violations of Defendant’s supervised-release conditions .... ” Id. at 834. The Hicks court reasoned that violations of conditions of supervised release are unique because “a court may restrict the otherwise legal behavior of a defendant on supervised release”—thus, “[a] sentencing court may ... prohibit the possession of marijuana as a condition of supervised release even if such possession is permitted under state law, and even if such possession one day becomes legal under federal law.” Id. at 835.
Ultimately—regardless of this Court’s concerns over disparity of sentencing and unequal prosecution—this Court agrees with the Hicks decision. What are before this Court are violations of conditions of supervised release, which, as the Hicks court noted, are “unique.” Through supervised release, a court may fashion conditions for a defendant that restrict that defendant’s ability to participate in activities that are otherwise legal under state or federal law. Even if possession of marijuana were legal under Virginia law (which it is not) or under federal law (which it also is not but which DOJ prosecutes unequally), the Court could properly order a defendant not to do so. Analogously, though alcоhol consumption is legal under Virginia and federal law, the Court may restrict a defendant’s alcohol consumption as a condition of supervised release; thus, if a defendant were to violate that condition, the defendant’s release may be revoked for what would otherwise be a legal activity under Virginia and federal law. In turn, a court may also fashion terms of supervised release for a defendant that include conditions that do not apply to the general
Thus, there was no question that Defendant violated the terms of his supervised release. However, because of the Court’s concerns about disparity of sentencing and unequal prosecution, the Court took issue with the appropriate sentence. As noted above, for a Grade B violation, Defendant’s recommended range of imprisonment was eight to fourteen months. Por a Grade C violation, Defendant’s recommended range was five to eleven months. The Court did not decide whether possession of marijuana should bе considered a Grade B or a Grade C violation but determined that a sentence of eight months was appropriate to deter Defendant and afford adequate punishment while reducing concerns about disparity of sentencing.
IV. CONCLUSION
Based on Defendant’s stipulation, the Court FOUND that the Defendant violated the terms of his supervised release and REVOKED the supervision previously imposed. Defendant was thereby committed to the custody of the Bureau of Prisons for an EIGHT (8) MONTH TERM OF IMPRISONMENT. Upon release from confinement, Defendant SHALL NOT SERVE ANY FURTHER TERM OF SUPERVISED RELEASE. The Clerk is DIRECTED to deliver a copy of this Order to all Counsel of Record in the case.
IT IS SO ORDERED.
Notes
. Thomas Fuller, Election. May Be a Turning Point for Legal Marijuana, N.Y. Times (Oсt. 24, 2016), at Al.
. Id.
. Currently, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, as well as Washington, D.C., have laws regulating the medical use of marijuana. Both Ohio and Pennsylvania have passed bills regulating the medical use of marijuana, but these bills are not yet operational. National Conference of State Legislatures, State Medical Marijuana Laws: Table 1 (September 29, 2016), http://www.ncsl.org/research/health/ state-medical-marijuana-laws.aspx.
.These states include California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, Rhode Island, and Vermont. National Conference of State Legislatures, Marijuana Overview: Decriminalization (September 2, 2016), http://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx#2.
. Even individuals in possession of marijuana in a state that had legalized its recreational use "could be facing federal drug charges tomorrow” based on a shift in DOJ policy; "because their actions violate existing federal law, there would be no ex post facto bar to prosecuting marijuana [possessors] for conduct they undertook while the nonenforcement prosecutorial guidance was in effect.” Alex Kreit, What Will Federal Marijuana Reform Look Like?, 65 Case W. Res. L, R. 689, 693-94 (2015).
. The Dayi court recognized that, given the federal policy of non-enforcement and the change in state law, a strict Guidelines sentence would overstate the seriousness of the offense.
. The enterprise the defendants engaged in did not comply with any state laws and implicated several of the federal prosecution priorities.