United States v. Canori In the 1

12-4837-cr
United States v. Canori
In the 1
United States Court of Appeals 2
For the Second Circuit 3
________ 4
AUGUST TERM 2013 5
No. 12-4837-cr 6
7
UNITED STATES OF AMERICA, 8
Appellee, 9
10
v. 11
12
ERIC CANORI, 13
Defendant-Appellant, 14
15
MELISSA GIOVE AND ROBERT REINFURT, 16
Defendants.* 17
________ 18
19
Appeal from the United States District Court 20
for the Northern District of New York. 21
No. 09 CR 406 (GLS) ― Gary L. Sharpe, Chief Judge. 22
________ 23
24
SUBMITTED: OCTOBER 28, 2013 25
DECIDED: DECEMBER 4, 2013 26
________ 27
28
* The Clerk of Court is directed to amend the official caption in this case to conform to the
listing of the parties above.

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2 No. 12-4837-cr
1
Before: WALKER, CABRANES, and PARKER, Circuit Judges. 2
________ 3
4
Defendant Eric Canori appeals from the judgment of the 5
District Court for the Northern District of New York (Gary L. 6
Sharpe, Chief Judge) sentencing him principally to thirty months’ 7
imprisonment after he pleaded guilty to conspiracy to distribute and 8
to possess with intent to distribute 100 or more kilograms of 9
marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). Canori 10
contends that a recent memorandum issued by the U.S. Department 11
of Justice created a de facto “rescheduling” of marijuana under the 12
Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801 et seq., such that 13
he cannot validly be charged with conspiracy to distribute 14
marijuana. 15
16
We hold that there has been no such “rescheduling” of 17
marijuana. The Attorney General has not rescheduled it pursuant to 18
the procedures of the CSA, nor has Congress amended the statute. 19
Marijuana remains classified as a Schedule I substance. 20
21
Accordingly, we AFFIRM the judgment of the District Court. 22
________ 23
24
DAVID CLIFFORD HOLLAND, New York, NY 25
for Appellant Eric Canori. 26
27
RICHARD D. BELLISS and BRENDA K. 28
SANNES, Assistant United States Attorneys, for 29
Richard S. Hartunian, United States Attorney for 30
the Northern District of New York, Syracuse, NY, 31
for Appellee United States of America. 32

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3 No. 12-4837-cr
________ 1
2
JOSÉ A. CABRANES, Circuit Judge: 3
Defendant Eric Canori appeals from the judgment of the 4
District Court for the Northern District of New York (Gary L. 5
Sharpe, Chief Judge), entered November 27, 2012, sentencing him 6
principally to thirty months’ imprisonment after he pleaded guilty 7
to conspiracy to distribute and to possess with intent to distribute 8
100 or more kilograms of marijuana in violation of 21 U.S.C. §§ 846 9
and 841(a)(1).1 As part of his plea agreement, Canori reserved his 10
right to appeal the District Court’s denial of his motion to dismiss 11
the indictment. In that motion, and now on appeal, Canori contends 12
that an October 2009 memorandum issued by Deputy Attorney 13
General David W. Ogden of the U.S. Department of Justice (the 14
1 The criminal statutes to which Canori pleaded guilty read, in relevant part:
Except as authorized by this subchapter, it shall be unlawful for any
person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance . . . .
21 U.S.C. § 841(a). Section 846, in turn, criminalizes a conspiracy to commit such an
offense:
Any person who attempts or conspires to commit any offense defined in
this subchapter shall be subject to the same penalties as those prescribed
for the offense, the commission of which was the object of the attempt or
conspiracy.
Id. § 846.

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4 No. 12-4837-cr
“Ogden Memo”) created a de facto “rescheduling”2 of marijuana 1
under the Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801 et 2
seq., such that he cannot validly be charged with conspiracy to 3
distribute marijuana. Canori further argues that, because marijuana 4
has been de facto rescheduled, his conviction violated his rights 5
under the Due Process and Equal Protection Clauses of the United 6
States Constitution, and his constitutional right to the effective 7
assistance of counsel. 8
DISCUSSION 9
Canori moved to dismiss his indictment on the basis that the 10
Ogden Memo led to a de facto rescheduling of marijuana, such that it 11
was no longer a Schedule I drug under the CSA. In its 12
Memorandum-Decision and Order dated January 25, 2011, the 13
District Court rejected this argument as “wholly without merit.” We 14
review a district court’s denial of a motion to dismiss an indictment 15
de novo. See, e.g., United States v. Daley, 702 F.3d 96, 99–100 (2d Cir. 16
2012); United States v. Yannotti, 541 F.3d 112, 121 (2d Cir. 2008). For 17
the reasons stated below, we agree with the District Court. 18
2 By “rescheduling,” we refer to the transfer of a substance from one schedule of
the CSA to another, with the result of lessening the statutory restrictions on its use and
distribution. Canori does not say to which schedule he thinks marijuana has been
transferred, but he argues that it has been removed from Schedule I, with the
concomitant reduction in criminal penalties.

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5 No. 12-4837-cr
A. Statutory Scheme 1
The CSA “creates a comprehensive, closed regulatory regime 2
criminalizing the unauthorized manufacture, distribution, 3
dispensing, and possession of substances classified in any of the 4
Act’s five schedules.” Gonzales v. Oregon, 546 U.S. 243, 250 (2006) 5
(citations omitted). The CSA organizes substances into fives 6
schedules based on (1) their potential for abuse, (2) their accepted 7
medical uses, and (3) their accepted safety for use under medical 8
supervision and potential for psychological or physical dependence. 9
See 21 U.S.C. § 812. Schedule I,3 in which marijuana is expressly 10
classified, see id. Schedule I(c)(10), contains the most severe 11
restrictions on use, the violation of which may result in criminal 12
penalties, see id. § 841(b). We have previously upheld the 13
constitutionality of Congress’s classification of marijuana as a 14
Schedule I drug. See United States v. Kiffer, 477 F.2d 349, 355–57 (2d 15
Cir. 1973). 16
The scheduling of controlled substances under the CSA is not 17
static. Not only can Congress amend it, but the statute itself 18
includes a provision permitting the Attorney General to add or 19
transfer a drug to a particular schedule if he “(A) finds that such 20
3 The findings required for a drug to be listed as a Schedule I substance are:
(A) The drug or other substance has a high potential for abuse[;] (B) The
drug or other substance has no currently accepted medical use in
treatment in the United States[; and] (C) There is a lack of accepted safety
for use of the drug or other substance under medical supervision.
21 U.S.C. § 812(b)(1).

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6 No. 12-4837-cr
drug or other substance has a potential for abuse, and (B) makes 1
with respect to such drug or other substance the [requisite findings, 2
see note 3, ante] for the schedule in which such drug is to be placed.” 3
Id. § 811(a)(1).4 The CSA mandates that such a reclassification by the 4
Attorney General be made “on the record after opportunity for a 5
hearing pursuant to the rulemaking procedures prescribed by [the 6
Administrative Procedure Act (‘APA’) at 5 U.S.C. § 553].” Id. 7
§ 811(a). In assessing the scientific and medical factors relevant to 8
this rulemaking process, the Attorney General is required to request 9
an evaluation from the Secretary of Health and Human Services, and 10
accept the findings contained in the evaluation as binding. Id. 11
§ 811(b); see also Gonzales, 546 U.S. at 250. 12
B. Ogden Memo 13
On October 19, 2009, Deputy Attorney General Ogden issued 14
a “Memorandum for Selected United States Attorneys.” The Ogden 15
Memo acknowledges that some States have enacted laws 16
authorizing the medical use of marijuana, and it provides guidance 17
to U.S. Attorneys within those States as to how to exercise their 18
prosecutorial discretion consistent with Department of Justice 19
priorities. Specifically, the Memo states that, while “[t]he 20
prosecution of significant traffickers of illegal drugs, including 21
marijuana, . . . continues to be a core priority,” U.S. Attorneys “[a]s a 22
general matter . . . should not focus federal resources in [their] States 23
4 The Attorney General also has the authority to remove the drug from the
schedules entirely “if he finds that the [drug] does not meet the requirements for
inclusion in any schedule.” Id. § 811(a)(2).

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7 No. 12-4837-cr
on individuals whose actions are in clear and unambiguous 1
compliance with existing state laws providing for the medical use of 2
marijuana.” Accordingly, the Memo advises that prosecutors focus 3
their resources on illegal drug trafficking activity (including 4
marijuana) involving factors such as firearms, violence, sales to 5
minors, and significant amounts of marijuana, i.e., factors that are 6
inconsistent with compliance with applicable state law. Notably, 7
however, the Memo does not purport to legalize or reclassify 8
marijuana: 9
[T]his memorandum does not alter in any way the 10
Department’s authority to enforce federal law, 11
including laws prohibiting the manufacture, 12
production, distribution, possession, or use of 13
marijuana on federal property. This guidance regarding 14
resource allocation does not “legalize” marijuana or provide a 15
legal defense to a violation of federal law, nor is it intended to 16
create any privileges, benefits, or rights, substantive or 17
procedural, enforceable by any individual, party or witness in 18
any administrative, civil, or criminal matter. Nor does 19
clear and unambiguous compliance with state law or 20
the absence of one or all of the above factors create a 21
legal defense to a violation of the Controlled Substances 22
Act. Rather, this memorandum is intended solely as a 23
guide to the exercise of investigative and prosecutorial 24
discretion. 25
Ogden Memo 2 (emphasis supplied). 26
On June 29, 2011, the Department of Justice issued a follow-on 27
memorandum from Deputy Attorney General James M. Cole (the 28

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8 No. 12-4837-cr
“Cole Memo”). The Cole Memo reaffirmed the guidance issued in 1
the Ogden Memo, and reiterated that “[p]ersons who are in the 2
business of cultivating, selling or distributing marijuana, and those 3
who knowingly facilitate such activities, are in violation of the 4
Controlled Substances Act, regardless of state law.” Cole Memo 2. 5
It further noted that “[t]he Ogden Memorandum was never 6
intended to shield such activities from federal enforcement action 7
and prosecution, even where those activities purport to comply with 8
state law.” Id.5 9
C. Marijuana Has Not Been “Rescheduled” 10
Canori contends that, by virtue of the Ogden Memo and its 11
progeny, the Attorney General has “implicitly” and unilaterally 12
exercised his powers under § 811 of the CSA to reclassify marijuana 13
from its current status as a Schedule I substance. Yet both the 14
Ogden and Cole Memos expressly state and reiterate that the 15
guidance contained therein does not affect marijuana’s classification 16
as a Schedule I substance under the CSA. 17
Even assuming arguendo that the Attorney General had 18
expressed an intention to reclassify marijuana, which, as stated 19
above, he did not, the CSA mandates a particular procedure under 20
the APA through which the Attorney General may reclassify a drug. 21
See 21 U.S.C. § 811; see also Part A, ante; accord Gonzales, 546 U.S. at 22
5 After the close of briefing in this case, on August 29, 2013, the Department of
Justice issued yet another memorandum from Cole relating to marijuana enforcement
under the CSA. Although the parties have not addressed this memorandum, it does not
in any way alter our conclusions.

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9 No. 12-4837-cr
259–60 (“The CSA gives the Attorney General limited powers, to be 1
exercised in specific ways.”). This procedure is the exclusive means 2
provided by statute for the Attorney General to reclassify a 3
substance; he cannot do so “implicitly” or by fiat. Here, the 4
Attorney General has not followed the required rulemaking 5
procedures outlined in 5 U.S.C. § 553 to effectuate a “rescheduling” 6
of marijuana, and so marijuana remains a Schedule I substance. 7
Canori next argues that we must recognize a de facto 8
reclassification in order to avoid what he characterizes as a 9
“constitutional nullification crisis.” Appellant’s Br. 30. According 10
to Canori, if the Ogden Memo did not de facto reschedule marijuana, 11
those States that have legalized medical marijuana have somehow 12
“undermine[d] the doctrine of Federalism and the Supremacy 13
Clause of the United States Constitution.” Id. at 31. 14
This argument also fails. Marijuana remains illegal under 15
federal law, even in those states in which medical marijuana has 16
been legalized. See 21 U.S.C. § 903 (providing for preemption where 17
“there is a positive conflict between [a provision of the CSA] and 18
that State law such that the two cannot consistently stand together”). 19
That the Department of Justice has chosen to prioritize certain types 20
of prosecutions unequivocally does not mean that some types of 21
marijuana use are now legal under the CSA. Rather, “prosecutors 22
are permitted discretion as to which crimes to charge and which 23
sentences to seek.” United States v. Gonzalez, 682 F.3d 201, 204 (2d 24
Cir. 2012); see also United States v. Nixon, 418 U.S. 683, 693 (1974) 25
(“[T]he Executive Branch has exclusive authority and absolute 26

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10 No. 12-4837-cr
discretion to decide whether to prosecute a case.”). The Attorney 1
General’s exercise of that discretion, in the Ogden Memo, neither 2
legalizes marijuana nor creates a constitutional crisis. 3
Canori’s additional arguments on appeal are all dependent on 4
a finding that marijuana is no longer a Schedule I substance because 5
it has been de facto rescheduled. As such, we find each of them to be 6
without merit. 7
CONCLUSION 8
To summarize, we hold that: 9
(1) Recent memoranda issued by the U.S. Department of Justice 10
did not purport to reclassify marijuana from its current listing 11
as a Schedule I substance under the Controlled Substances 12
Act. 13
14
(2) The Controlled Substances Act mandates a particular 15
rulemaking procedure through which the Attorney General 16
may “reschedule” a substance, with the result of lessening the 17
statutory restrictions on its use and distribution. Because the 18
Attorney General did not follow that procedure here—and 19
indeed, did not purport to follow that procedure here— 20
marijuana remains a Schedule I substance. 21
22
(3) A U.S. Attorney’s decision to exercise prosecutorial discretion 23
by not prosecuting uses of marijuana consistent with state 24
law, in the circumstances presented here, does not conflict 25

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11 No. 12-4837-cr
with the principles of federalism, preemption, or the 1
supremacy of federal law. 2
For the reasons set out above, we AFFIRM the judgment of 3
the District Court, entered November 27, 2012. 4

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