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
1 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.
2 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
3 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,
4 or acquired in violation of this subchapter.” 21 U.S.C. § 881(a)(1)
(2018). 1
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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
1 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.
2 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
3 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,
4 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.
5 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.
6 ¶ 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
7 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.