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.
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.
BRISCOE, KELLY, and BACHARACH, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
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.
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.
Sandusky's convictions and sentence
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
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
The appropriations riders
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.
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 ...