People in Interest of D.M

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 18, 2019

2019COA56

No. 17CA0159, People in Interest of D.M. — Criminal Law —
Sentencing — Restitution — Assessment of Restitution —
Federal Controlled Substances Act; Constitutional Law — Sixth
Amendment — Federal Supremacy — Preemption

A division of the court of appeals holds that the Federal

Controlled Substances Act, 21 U.S.C. §§ 801-971 (2018), does not

preempt Colorado’s restitution statutes, and therefore the juvenile

court did not err in ordering a juvenile adjudicated delinquent to

pay restitution equaling the value of marijuana he stole from a

licensed marijuana store. In so deciding, the division distinguishes

the Colorado Supreme Court’s decision in People v. Crouse, 2017

CO 5, holding that the Controlled Substances Act preempts that

part of article XVIII, section 14(2)(e) of the Colorado Constitution

requiring law enforcement officers to return seized marijuana to a
medical marijuana patient who has been acquitted of unlawful

possession.
COLORADO COURT OF APPEALS 2019COA55

Court of Appeals No. 17CA0159
Boulder County District Court No. 15JD385
Honorable Patrick D. Butler, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of D.M.,

Juvenile-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE J. JONES
Terry and Grove, JJ., concur

Announced April 18, 2019

Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

The Law Office of Thomas W. Martin, LLC, Thomas W. Martin, Fort Collins,
Colorado, for Juvenile-Appellant
¶1 Section 18-1.3-603(1), C.R.S. 2018, says that every order of

conviction for a criminal offense (with certain exceptions) must

“include consideration of restitution.” And, unless the sentencing

court finds that no victim suffered a pecuniary loss, the court must

order the defendant to pay restitution to the victim. Id.

¶2 Likewise, a juvenile whom the court has adjudicated

delinquent must pay restitution for a victim’s loss of personal

property as required by section 18-1.3-603. § 19-2-918(1), C.R.S.

2018. But what if the victim’s pecuniary loss is the value of

marijuana stolen from the victim’s marijuana store? Can a

defendant be required to pay restitution for such loss?

¶3 D.M., a juvenile who stole marijuana from a marijuana store,

says “no,” contending that because the Federal Controlled

Substances Act (CSA), 21 U.S.C. §§ 801-971 (2018), makes it a

federal offense to distribute marijuana and provides that no one has

a property interest in marijuana, Colorado’s restitution statutes

can’t be applied to his conduct. In short, he contends that the CSA

preempts the restitution statutes in these circumstances. But

because we don’t see any positive conflict between the CSA and the

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restitution statutes, we reject D.M.’s preemption argument and

affirm the order of restitution.

I. Background

¶4 D.M. and two of his friends broke into a licensed marijuana

dispensary in the middle of the night and stole marijuana plants

and products worth $178,000. The People filed a petition for

delinquency, charging D.M. with theft and second degree burglary,

both class 3 felonies. D.M. agreed to plead guilty to burglary of a

nondwelling, a class 4 felony, in exchange for dismissal of the

original charges. The district court accepted the plea agreement,

adjudicated D.M. delinquent, and sentenced him to nine months of

probation.

¶5 The prosecution filed a motion for an order requiring D.M. to

pay $178,000 in restitution for the value of the stolen marijuana.

D.M. didn’t dispute the amount of the loss but argued that the

court couldn’t order such restitution because the CSA preempts the

restitution statutes. The district court rejected that argument and

ordered D.M. to pay the store owner $178,000 in restitution.

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II. The CSA Doesn’t Preempt Colorado’s Restitution Statutes

A. Standard of Review

¶6 We review de novo whether federal law preempts state law.

People v. Crouse, 2017 CO 5, ¶ 9.

B. Applicable Law

¶7 The principle that federal law may preempt state law is

anchored in the Supremacy Clause (Article VI, Clause 2) of the

United States Constitution. Id. at ¶ 13 (citing Arizona v. United

States, 567 U.S. 387, 399 (2012)). The Supreme Court has

recognized three forms of federal preemption: (1) field preemption —

meaning that Congress’s intent to displace state law altogether can

be inferred by its creation of a pervasive framework of regulation; (2)

express preemption — meaning that Congress has enacted a statute

expressly preempting state law; and (3) conflict preemption —

meaning that complying with both federal and state law is

physically impossible so that “the challenged state law ‘stands as an

obstacle to the accomplishment and execution of the full purposes

and objectives of Congress.’” Arizona, 567 U.S. at 399 (quoting

Hines v. Davidowitz, 312 U.S. 52, 67 (1941)); see Fuentes-Espinoza

v. People, 2017 CO 98, ¶¶ 23-26. But the Court has also told us

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that “courts should assume that ‘the historic police powers of the

States’ are not superseded ‘unless that was the clear and manifest

purpose of Congress.’” Arizona, 567 U.S. at 400 (quoting Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see

Fuentes-Espinoza, ¶ 22.

¶8 Just as Congress may say that its law preempts state law, it

may say that the federal law does not preempt state law, or that it

does only if certain conditions are present. And Congress expressly

placed such a limit on preemption in the text of the CSA.

¶9 As relevant to this case, the CSA prohibits the possession and

distribution of marijuana for nearly all uses. See 21 U.S.C. § 802(6)

(2018) (definition of a controlled substance); 21 U.S.C. § 841 (2018)

(prohibiting manufacturing, distributing, dispensing, or possessing

with intent to manufacture, distribute, or dispense); 21 U.S.C.

§ 844 (2018) (prohibiting possession). And, as D.M. points out, the

CSA says “[n]o property right shall exist in . . . [a]ll controlled

substances which have been manufactured, distributed, dispensed,

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or acquired in violation of this subchapter.” 21 U.S.C. § 881(a)(1)

(2018). 1

¶ 10 Nonetheless, Congress expressly limited the preemptive effect

of the CSA:

No provision of this subchapter shall be
construed as indicating an intent on the part
of the Congress to occupy the field in which
that provision operates, including criminal
penalties, to the exclusion of any State law on
the same subject matter which would
otherwise be within the authority of the State,
unless there is a positive conflict between that
provision of this subchapter and that State law
so that the two cannot consistently stand
together.

21 U.S.C. § 903 (2018) (emphasis added). So Congress has taken

field preemption and express preemption off the table; the only

question before us is whether the CSA and the restitution statutes

positively conflict when the restitution sought is for the value of

stolen marijuana.

C. Analysis

¶ 11 D.M. relies on People v. Crouse, in which the Colorado

Supreme Court held that the return provision of article XVIII,

1This provision deals with the federal government’s right to obtain
controlled substances and other things by forfeiture.

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section 14(2)(e) of the Colorado Constitution creates a positive

conflict with the CSA by requiring law enforcement officers to return

seized marijuana to a medical marijuana patient who has been

acquitted of unlawful possession. Crouse, ¶ 14. The court

reasoned that because “the CSA . . . prohibits the distribution of

marijuana without regard to whether state law permits it,” requiring

police officers to deliver — that is, to distribute — seized marijuana

to marijuana patients effectively causes officers to violate federal

law. Id. Put differently, there is a positive conflict “[b]ecause

compliance with one law necessarily requires noncompliance with

the other.” Id.

¶ 12 But this case is a horse of a different color. The district

court’s order only requires D.M. to make the victim whole for value

lost because of his conduct. It doesn’t require him to violate any

provision of the CSA: it doesn’t require him to possess marijuana,

see 21 U.S.C. § 844, and it doesn’t require him to manufacture,

distribute, dispense, or possess marijuana with the intent to

manufacture, distribute, or dispense marijuana, see 21 U.S.C.

§ 841. And while the CSA contains other prohibitions, D.M. doesn’t

argue that the restitution order requires him to violate any of them.

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¶ 13 We aren’t persuaded by D.M.’s alternative argument that the

order conflicts with the CSA because it effectively recognizes a

property interest in marijuana. Though D.M. insists that, “[w]here

federal statute provides that a property right cannot exist, a state

cannot create a property right,” he doesn’t cite any authority for

that proposition. And there is contrary authority. See, e.g., Allen v.

Cty. of Lake, No. 14-CV-03934-TEH, 2017 WL 363209, at *6 (N.D.

Cal. Jan. 25, 2017) (“[W]hile the Fourteenth Amendment of the

federal Constitution may not recognize a property interest in

medical marijuana, this does not preclude California from

recognizing the property right under its own constitution.”); City of

Garden Grove v. Superior Court, 68 Cal. Rptr. 3d 656, 672-73 (Cal.

Ct. App. 2007) (appearing to recognize a property interest in

marijuana lawfully possessed under California law).

¶ 14 In any event, recognizing a state property interest in

marijuana under Colorado law doesn’t positively conflict with the

CSA. The CSA’s positive conflict preemption requires a showing

that the two laws “cannot consistently stand together.” 21 U.S.C.

§ 903. 21 U.S.C. § 881 allows the federal government to obtain and

retain controlled substances, and other things, by forfeiture. To

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that end, it makes clear that no one may avoid forfeiture by

asserting a property interest in a controlled substance. Requiring

D.M. to pay restitution doesn’t hinder in any way the federal

government’s ability to proceed under the federal forfeiture statute,

nor does it somehow provide the store owner a defense to any

potential federal forfeiture action.

¶ 15 In sum, mindful that we shouldn’t assume Congress intended

to supersede the restitution statutes and seeing no positive conflict

between the CSA and Colorado’s restitution statutes as applied in

this case, we hold that the CSA doesn’t preempt those statutes.

III. Conclusion

¶ 16 We affirm the district court’s order.

JUDGE TERRY and JUDGE GROVE concur.

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