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Sandusky v. Goetz

United States Court of Appeals, Tenth Circuit

December 16, 2019

AARON SANDUSKY, Plaintiff - Appellant,
GOETZ, Warden, Defendant-Appellee.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-01436-LTB)

          Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, Colorado, appearing for Appellant.

          Paul Farley, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with him on the briefs), Office of the United States Attorney for the District of Colorado, Denver, Colorado, appearing for Appellee.

          Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.


         Petitioner Aaron Sandusky, a federal prisoner serving a 120-month sentence in connection with two marijuana-trafficking convictions, filed a 28 U.S.C. § 2241 habeas petition asserting that a congressional appropriations rider prevented the Bureau of Prisons (BOP) from expending any funds to incarcerate him during the applicable time period of the appropriations rider. The district court dismissed the petition without prejudice for lack of subject matter jurisdiction, concluding that the proper vehicle for Sandusky's claim was a motion filed in the sentencing court pursuant to 28 U.S.C. § 2255. Sandusky now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that a motion filed pursuant to § 2241 is the proper vehicle for the relief that Sandusky seeks. Consequently, we reverse the judgment of the district court and remand for further proceedings.


         a) Sandusky's background

         According to the record, Sandusky was, prior to his 2012 federal convictions, employed "as President of G3 Holistic Inc. (G3), which was a California based Medical Marijuana Cooperative." ROA, Vol. I at 12. G3 allegedly grew marijuana plants at a warehouse located in Ontario, California. Id. G3 also allegedly maintained retail stores in Upland, Colton, and Moreno Valley, California. Id. at 12-13. At those retail stores, G3 allegedly sold harvested marijuana, live marijuana plants and clones, and products containing tetrahydrocannabinol (the principal psychoactive constituent of marijuana). Id. at 12.

         b) Sandusky's convictions and sentence

         In 2012, a federal grand jury in the United States District Court for the Central District of California indicted Sandusky and five codefendants on six criminal counts. The case proceeded to trial that same year. Sandusky was convicted by a jury on two of the six counts alleged in the indictment: (1) conspiracy to manufacture and possess with the intent to distribute more than 1, 000 marijuana plants; and (2) possession with intent to distribute at least 50 kilograms of a mixture or substance containing a detectable amount of marijuana. The trial court granted the government's motion for mistrial on three of the counts alleged in the indictment. In January 2013, Sandusky was sentenced to a term of imprisonment of 120 months on each of the two counts of conviction, with the sentences ordered to run concurrently.

         Sandusky filed a direct appeal. On March 17, 2014, the Ninth Circuit issued an unpublished memorandum decision affirming Sandusky's convictions and sentence. United States v. Sandusky, 564 Fed.Appx. 282, 284 (9th Cir. 2014). In doing so, the Ninth Circuit rejected Sandusky's claims of vindictive and selective prosecution. Id. Further, the Ninth Circuit rejected Sandusky's argument "that the government lacked power under the Commerce Clause to prosecute him and that the Tenth Amendment forbade such prosecution." Id. (citing Gonzales v. Raich, 545 U.S. 1, 22, 29-33 (2005); Raich v. Gonzales, 500 F.3d 850, 867 (9th Cir. 2007)). In addition, the Ninth Circuit concluded that "[t]he [trial] court properly excluded an entrapment by estoppel defense" because, in part, "[n]o authorized government official ever affirmatively told Sandusky that his marijuana operations were permissible," and because "the record demonstrated that Sandusky was never actually misled" regarding the legality of his marijuana operations. Id.

          c) The appropriations riders

         "Despite its legalization in" numerous states and Washington, D.C. "for medical use" and in a number of states "for recreational use, marijuana is still classified as a federal 'controlled substance' under schedule I of the" Controlled Substances Act. Green Sol. Retail, Inc. v. United States, 855 F.3d 1111, 1113 (10th Cir. 2017). The United States Department of Justice, however, "has declined to enforce [21 U.S.C.] § 841 when a person or company buys or sells marijuana in accordance with state law." Id. at 1114.

         Beginning in late 2014, Congress has "reinforced this arrangement by defunding the" Department of Justice's "prosecution of the exchange of medical marijuana where it is legal under state law." Id. Specifically, in December 2014, Congress enacted the following rider in an omnibus appropriations bill funding the government through September 30, 2015:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States ...

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