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Federal Government Given Green Light to Prosecute Medical Marijuana Growers in California

Posted By admin 2018-04-23 01:19:47

As a criminal defense attorney who specializes in drug offences, I am fascinated by the conflicting state and federal laws on the use and cultivation of marijuana in California. My law firm is based on Los Angeles, a city that has long been at the forefront of efforts to reform cannabis laws. In addition, I am among a minority of defense lawyers in California who work on drug cases at both the state and federal levels. The nuances of state and federal law regarding marijuana are critical to my practice, but also the marijuana industry. A significant new decision from the Ninth Circuit provides important guidance on how courts in California will deal with federal prosecutions of marijuana cases in the Golden State.

The US Court of Appeals for the Ninth Circuit ruled in United States v. Gilmore that the federal government can prosecute cases where marijuana is grown on federal land in California. This may come as a surprise to some because marijuana is legal for both medical and recreational use in California. However, marijuana remains a Schedule I prohibited drug under federal law, and the U.S. Constitution provides that the federal government is free to enforce its laws on federal lands.

The Ninth Circuit’s decision was in the case of Russell Gilmore and Richard Hemsley, who were charged with conspiracy and growing marijuana illegally on land under control of a federal agency in El Dorado County, east of Sacramento. The Ninth Circuit in Gilmore affirmed the district court’s denial of a motion to enjoin the federal government’s prosecution.

The defendants in Gilmore tried to stop the prosecution of their case under the Consolidated Appropriations Act, which Congress passed to bar the Department of Justice from using government funds in ways that prevent states from implementing medical marijuana laws. In my view, Congress’ prohibition could reasonably be interpreted as banning or at least discouraging prosecutions of medical marijuana growers in states where marijuana is legally grown and consumed. This reading would allow states to implement local medical marijuana laws without federal interference.

However, the Ninth Circuit found in Gilmore that even if state law tolerated marijuana cultivation on public land, enforcing federal law that prohibits cultivation on federal land does not “prevent” California from otherwise implementing its medical marijuana regime. The result in Gilmore was that the defendants, who did not even know that their medical marijuana plants were on federal land, were subject to prosecution by the federal government.

The decision was an unexpected turn for the defendants, as well as some cannabis attorneys and the marijuana industry in general. The U.S. Justice Department had laid off prosecutions for medical marijuana cultivation in the Obama era, and California marijuana bloomed in the meantime.

However, the ruling was not surprising to me. In an earlier decision, United States v. McIntosh, the Ninth Circuit concluded that Congress’ prohibition applies narrowly to those specific rules of state law that authorize the use, distribution, possession or cultivation of medical marijuana. Accordingly, the Ninth Circuit’s interpretation of Congress’ prohibition is that it does not limit the U.S. government’s ability to enforce federal drug laws on federal land.

In addition, U.S. Attorney General Jeff Sessions recently rescinded Obama-era guidance that generally allowed states to implement their own marijuana laws without federal interference. The Justice Department issued a memo on marijuana enforcement in January 2018 which denounced the Obama administration’s guidance on marijuana laws as “undermining the rule of law”. The memo directed all U.S. Attorneys to use previously established prosecutorial principles to enforce federal drug laws, which, of course, reflected a tough on marijuana mentality.

The federal government’s decision to prosecute in Gilmore seems to reflect a revived interest in Washington to be tough on marijuana. The Ninth Circuit’s ruling shows that it is still important for California’s marijuana industry to closely follow federal law pertaining to cannabis, even though recreational use of cannabis is legal at the state level. Participants in California’s marijuana industry should seek advice from an attorney who specializes in both state and federal drug crimes to better understand the nuances of cannabis law.

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California’s Amended Firearm Use Enhancements Open a Door for Skillful Advocacy

Posted By admin 2018-03-29 20:08:21

Californians are no longer subject to a mandatory sentence enhancement for use of a firearm while committing or attempting to commit a felony under state law. Senate Bill 620, effective as of January 1, 2018, amended section 12022.53(h) of the Penal Code of California to make firearm use enhancement discretionary. A state court judge in California may strike or dismiss a firearm use enhancement if doing so would be in the interest of justice. This stands in contrast to federal law, which still requires a mandatory-minimum prison term for possessing a gun during commission of a drug offense or a violent crime.

In California, it is more important than ever for a person charged with a felony involving a firearm to retain an attorney who has specialized knowledge of firearm use enhancements. Defendants and their attorneys now have an opportunity to persuade state courts against imposing the firearm use enhancement. This even includes some cases where firearms enhancements have been ordered. The California Court of Appeal for the Second District just ruled this month in Almanza that the amendment applies retroactively to benefit defendants whose cases were on appeal when the law changed.

Before the amendment, Penal Code 12022.53 automatically added to a sentence for certain violent felonies 10 years’ jail for “using” a gun, 20 years’ jail for firing a gun, or 25 years’ jail to a life sentence for killing or seriously injuring another person with a gun. For remaining felonies, individuals who personally used a firearm or assault weapon in the commission of a crime were automatically subject to an additional and consecutive prison term of 3, 4, or 10 years for a firearm, or 5, 6 or 10 years for an assault weapon. It is laudable and sensible that firearms enhancements are no longer automatic.

In California, mandatory firearms enhancements resulted in countless unreasonably high sentences, especially in cases where the firearms were not operable or loaded. The social costs of mandatory firearms enhancements outweighed any purported public safety benefit. In debate about Senate Bill 620, Californians for Safety and Justice presented research to the Senate showing that firearms enhancements disproportionately increased racial disparities in California’s prison populations, and greatly increased the population of incarcerated persons, without deterring crime.

As a defense attorney in Los Angeles who specializes in violent crimes, I also saw firsthand how firearms enhancements affect people already serving their sentences. Enhanced sentences served for firearms use are sometimes the only obstacle to early parole for some persons under Proposition 57. For example, an individual convicted of assault with a firearm on a peace officer may be subject to an additional term under Penal Code section 12022.53. Any violation of PC 12022.53 is deemed a violent felony under PC 667.5(c), which makes that individual ineligible for early parole consideration under Proposition 57. However, without the additional term under PC 12022.53, that same offender would be eligible for early parole under Proposition 57 because assault with a firearm on a peace officer is not a violent felony under Penal Code section 667.5(c).

Discretionary firearm enhancements allow courts to tailor sentences to each case and offender. However, it is likely that firearm use enhancements will continue to be imposed in many-if not most-state felonies where firearms are used. One reason is that courts will carefully examine the aggravating features of cases involving firearms to decide what enhancements should apply. For instance, in Almanza, the Court decided not to remand the case to trial court to reconsider imposing a lower sentence without firearm enhancements in part because of the case’s egregious facts.

Defense lawyers must respond by taking a meticulous approach to trial advocacy, which includes putting on the record all mitigating factors in their cases that would weigh in favour of striking firearms enhancements. This includes thinking ahead to how firearms enhancements affect parole eligibility. Such submissions are crucial to persuade a trial judge to strike or dismiss a firearms use enhancement, as well as to protect the record for appeal.

The changes to section 12022.53 create room for defense attorneys to advocate for lower, more reasonable sentences for their clients. Individuals charged with felonies involving firearms should look for a lawyer who has a technical understanding of firearms enhancements, preferably under both state and federal law. Courts will be listening closely to defense attorneys’ submissions against firearms enhancements, and attorneys must be prepared at all stages of litigation to address how firearms enhancements affect several dimensions of a criminal case.

Karen L. Goldstein specializes in state and federal violent crimes as well as felonies where firearms are typically used, such as drug offenses. Please call (888) 445-6313 for more information.

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