United States v. Trevino

• Decision Date: 30 July 2021
• Docket Number: No. 20-1104,20-1104
• Citation: 7 F.4th 414
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Dario TREVINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

7 F.4th 414

UNITED STATES of America, Plaintiff-Appellee,

v.Daniel Dario TREVINO, Defendant-Appellant.

No. 20-1104

United States Court of Appeals, Sixth Circuit.

Argued: January 28, 2021

Decided and Filed: July 30, 2021

Rehearing En Banc Denied September 21, 2021

ARGUED: Stuart G. Friedman, Southfield, Michigan, for Appellant. Joel S. Fauson, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Stuart G. Friedman, Southfield, Michigan, for Appellant. Joel S. Fauson, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: COOK, GRIFFIN, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge.

Daniel Trevino was the sole owner of a chain of marijuana dispensaries throughout Michigan. A federal jury convicted him of conspiracy and nine substantive marijuana offenses. He challenges those convictions and his sentence.

But first, Trevino argues that he never should have been charged. He invokes a congressional appropriations rider, known as the Rohrabacher-Farr Amendment, or "Section 538," that bars the Department of Justice from spending funds to "prevent" states from "implementing their own State laws" permitting medical marijuana. See Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014). The parties dispute the rider's effect; but even if we construe Section 538 as broadly as Trevino asks us to, he is not entitled to the relief he seeks.

Next, to counter the conspiracy charge, Trevino invokes a published opinion from nearly a century ago, Landen v. United States , 299 F. 75 (6th Cir. 1924). Landen created a limited exception to the general rule that ignorance or mistake of law is no excuse. We have applied that exception exactly once—in Landen itself; yet, we have never overruled it. Whatever life remains in the decision, it cannot help Trevino here because his conduct falls far outside of Landen ’s narrow scope.

Finally, Trevino challenges the denial of his counsel's motion to withdraw—filed less than two weeks before trial—the government's use of summary charts at trial, and the procedural and substantive reasonableness of his sentence. These challenges, too, are unavailing.

Finding all of Trevino's claims without merit, we AFFIRM.

I.

Daniel Trevino was the founder and sole owner of Hydro World, LLC (Hydroworld), a Michigan entity. Originally, Hydroworld sold fertilizer and indoor growing equipment, such as lights and hydroponics systems. But after the state passed the Michigan Medical Marihuana Act (MMMA), Trevino turned Hydroworld into a marijuana dispensary.

A.

1.

Passed by state ballot initiative in 2008, the MMMA allows state-licensed "qualifying patient[s]" and "primary caregiver[s]" to possess limited quantities of marijuana for medical purposes if they meet certain conditions.¹ Mich. Comp. Laws § 333.26424(a) – (b) ; People v. Hartwick , 498 Mich. 192, 870 N.W.2d 37, 41 (2015). Relevant here, individuals who have been convicted of a drug-related felony cannot become caregivers. Mich. Comp. Laws § 333.26423(k).

Each patient may have only one caregiver. Id. § 333.26426(d). Each caregiver may have up to five patients, who must be connected to the caregiver via the state registration process. Id. ; see State v. McQueen , 493 Mich. 135, 828 N.W.2d 644, 655 (2013). Caregivers may possess up to 2.5 ounces of usable marijuana and up to 12 marijuana plants per patient. Mich. Comp. Laws § 333.26424(b)(1)–(2). Patients, likewise, may possess up to 2.5 ounces of marijuana and may cultivate up to 12 plants for personal use if they have not already specified that their caregiver is growing the plants for them. Id. § 333.26424(a). Michigan law does not protect the sale of medical marijuana between patients.² See McQueen , 828 N.W.2d at 654–57.

2.

State law aside, marijuana remains illegal under federal law. Under the Controlled Substances Act (CSA) of 1970, 21 U.S.C. § 801 et seq. , it is a crime "to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA." Gonzales v. Raich , 545 U.S. 1, 13, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (citing 21 U.S.C. § 841(a)(1) ). Marijuana is one such controlled substance. 21 U.S.C § 812(c).

Adding a wrinkle to the federal landscape is an appropriations rider known as the "Rohrabacher-Farr Amendment" or "Section 538." Congress has included this rider in every annual appropriations bill passed since December 2014. In relevant part, it reads:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the State[ ] of ... Michigan ... [and other named states and the District of Columbia,] to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.³

Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014). Despite this rider, Congress has left the relevant parts of the CSA unchanged.

B.

Trevino's marijuana dispensaries operated openly at several storefronts across Michigan. Hydroworld retail locations would sell marijuana to customers with a state-issued patient card. Hydroworld stocked its inventory via bulk purchases from various outside growers. And Trevino and his employees also grew some of the marijuana for Hydroworld.

Trevino was a registered patient under the MMMA, but he was not a registered caregiver. As his own counsel admitted, Trevino "could never have been licensed" as a caregiver because he had a prior felony conviction involving cocaine. See Mich. Comp. Laws § 333.26423(k).

Trevino's dispensaries quickly attracted attention from state law enforcement. State authorities conducted controlled purchases at Hydroworld's stores and executed search warrants at Hydroworld retail and storage locations, at Trevino's home, and at the homes of some of his employees. Then federal investigators got involved. In 2016, the Drug Enforcement Agency executed search warrants at two Hydroworld stores, at one of Trevino's residences, and at the home of one of Trevino's employees.

The state and federal searches recovered marijuana plants, processed marijuana, sales logs, cash, and other marijuana-related items. The converted drug weight for the marijuana seized and admitted at trial was 111 kilograms. The purchase logs indicated that Hydroworld had sold at least an additional 315 kilograms. Hydroworld continued to operate as a marijuana dispensary during and after these searches. It closed in December 2017.

A federal grand jury charged Trevino with nine substantive marijuana offenses and one count of conspiracy to manufacture, distribute, and possess marijuana with intent to distribute. 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), (b)(1)(D), and 846. The indictment alleged that the conspiracy lasted "[f]rom in or about 2010 until in or about December 2017." The substantive offenses consisted of five counts of maintaining a drug-involved premises, id. § 856(a)(1), (b), three counts of manufacturing marijuana, id. § 841(a)(1), (b)(1)(B)(vii), (b)(1)(D), and one count of possessing marijuana with intent to distribute, id. § 841(a)(1), (b)(1)(D). A jury convicted Trevino on all ten counts. The district court sentenced him to 188 months’ imprisonment, which was the bottom of his Sentencing Guidelines range. He timely appealed.

II.

Trevino begins by arguing that he should not have been prosecuted at all. In the district court, Trevino moved to quash the indictment, arguing that, in light of Section 538, the Department of Justice was violating the Appropriations Clause of the Constitution by spending money to prosecute him.⁴ The Appropriations Clause dictates that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." U.S. Const. art. I, § 9, cl. 7. Trevino requested "that the Indictment be quashed unless and until the government establishes the authority of the Drug Enforcement Administration and the Department of Justice to expend federal funds on [his case]."⁵ The district court and both parties on appeal characterize the motion as a request for injunctive relief.

The district court analyzed Trevino's motion using an approach outlined by the Ninth Circuit, the only circuit so far to address the significance of Section 538. See United States v. McIntosh , 833 F.3d 1163 (9th Cir. 2016). In McIntosh , the Ninth Circuit held that, when private individuals have "strictly compl[ied]" with state laws concerning medical marijuana, prosecuting them for federal marijuana offenses would "prevent" states from "implementing" their medical marijuana laws. 833 F.3d at 1176–78. Therefore, the court concluded that such individuals should receive the protection of the rider. Id.

The Ninth Circuit then remanded the cases before it for evidentiary hearings to determine whether the defendants’ conduct had been "completely authorized by state law." Id. at 1179. But it declined to decide "exactly how the district courts should resolve claims that DOJ is spending money ... in violation of an appropriations rider." Id. at 1172 n.2. And, although it suggested that defendants who had "strictly complied" with state medical marijuana laws might be entitled to an order enjoining the Department of Justice from spending funds on their prosecutions,⁶ id. at 1173, 1179, it also declined to take a "view on the precise relief required ... leav[ing] that issue to the district courts in the first instance," id. at 1172 n.2. See also id. at 1179.

In the present case, the district court followed the Ninth Circuit's approach and determined that Trevino should be afforded a hearing at which he would bear the burden of showing his "strict compliance" with the MMMA. Accord United States v. Evans , 929 F.3d 1073, 1076–77 (9th Cir. 2019) (placing the burden of proof on the defendant to show strict compliance). Trevino then requested use immunity for his testimony at this...