Sandusky v. Goetz

• Decision Date: 16 December 2019
• Docket Number: No. 18-1483,18-1483
• Citation: 944 F.3d 1240
• Parties: Aaron SANDUSKY, Plaintiff - Appellant, v. GOETZ, Warden, Defendant - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

944 F.3d 1240

Aaron SANDUSKY, Plaintiff - Appellant,

v.GOETZ, Warden, Defendant - Appellee.

No. 18-1483

United States Court of Appeals, Tenth Circuit.

FILED December 16, 2019

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.

BRISCOE, Circuit Judge.

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.

I

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 F. App'x 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, 125 S.Ct. 2195, 162 L.Ed.2d 1 (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 from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014). "Various short-term measures extended the appropriations and the rider through December 22, 2015." United States v. McIntosh , 833 F.3d 1163, 1169 (9th Cir. 2016). "On December 18, 2015, Congress enacted a new appropriations act, which appropriate[d] funds through the fiscal year ending September 30, 2016, and include[d] essentially the same rider in § 542." Id. (citing Consolidated Appropriations Act, 2016, Pub. L. No. 114–113, § 542, 129 Stat. 2242, 2332–33 (2015)). The only change in this rider was that it added Guam and Puerto Rico to the list of states and changed the phrase "prevent such States from implementing their own State laws" to "prevent any of them from implementing their own laws."

Since 2015, Congress has continued to include this same rider (hereinafter appropriations rider) in each of its appropriations acts. E.g. , Further Continuing Appropriations Act, 2020, and Further Health Extenders Act of 2019, H.R. 3055, 116th Cong. § 101 (2019); Commerce, Justice, Science, Agriculture, Rural Development, Food and Drug Administration, Interior, Environment, Military Construction, Veterans Affairs, Transportation, and Housing and Urban Development Appropriations Act, 2020, H.R. 3055, 116th Cong. § 531 (2019); Consolidated Appropriations Act, 2019, H.R. 21 § 537 (2019).

d) Sandusky’s § 2255 motion

On June 9, 2015, Sandusky filed in the United States District Court for the Central District of California (his sentencing court) a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion asserted eleven separate claims of ineffective assistance of counsel (Grounds 1–8, 10–12), as well as a claim of unlawful imprisonment (Ground 9). The claim of unlawful imprisonment alleged that the BOP, an agency of the Department of Justice, was "using funds to incarcerate [Sandusky] in violation of Section 538 of the Consolidated and Further Continuing Appropriations Act, 2015." Mot. 6, ECF No. 1 ( Sandusky v. United States , No. CV15-04352, 2015 WL 12724077 (C.D. Cal. 2015) ). Sandusky alleged that his "continued incarceration violate[d] the spirit of the Act which prevent[ed] the [Department of Justice] from using funds to prevent the implementation of state medical laws." Id.

On November 2, 2015, the district court issued a written order denying Sandusky’s § 2255 motion on the merits. The district court concluded, in pertinent part, that Sandusky’s claim that his continued incarceration violated § 538 of the Consolidated and Further Continuing Appropriations Act was "outside the scope of a cognizable § 2255 Motion." Order at 10, ECF No. 14 ( Sandusky v. United States , No. CV15-04352, 2015 WL 12724077 (C.D. Cal. 2015) ). The court noted in support that " § 2255 is limited to prisoners ‘claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack ....’ " Id. (quoting 28 U.S.C. § 2255 ). "Nothing about [Sandusky’s] § 538 challenge," the district court concluded, "implicate[d] the Court’s jurisdiction to impose the sentence or plausibly support[ed] an inference that the sentence was imposed in violation of the Constitution or laws of the United States, or exceeded the maximum authorized by law." Id. The court also concluded, in an apparent alternative holding, that Sandusky’s "continued incarceration simply d[id] not violate § 538 because it [wa]s not an expenditure of funds by the Department of Justice that prevent[ed] California from implementing laws authorizing the use, distribution, possession, or cultivation of medical marijuana." Id. Thus, the court concluded, Sandusky’s "§ 538 claim therefore fail[ed] on the merits." Id. Sandusky did not attempt to appeal that order.

e) The Ninth Circuit’s interpretation of the appropriations rider

In August 2016, the Ninth Circuit issued an opinion in United States v. McIntosh , 833 F.3d 1163 (9th Cir. 2016). At issue in that case was "whether criminal defendants may avoid prosecution for various federal marijuana...