United States v. Bryan Schweder

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10272

Plaintiff-Appellee, D.C. No. 2:11-cr-00449-KJM-1 v.

BRYAN R. SCHWEDER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted December 4, 2017 San Francisco, California

Before: PAEZ, IKUTA, and HURWITZ, Circuit Judges.**

Bryan Schweder pleaded guilty to one count of conspiracy to manufacture at

least 100 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) & 846 and one

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** This case was originally submitted to a panel that included Judge Irene Keeley of the Northern District of West Virginia, sitting by designation, and former Judge Kozinski. Judges Paez and Ikuta have been drawn to replace them. See Ninth Circuit General Order 3.2.h. Judges Paez and Ikuta have read the briefs, reviewed the record, and listened to the oral argument. count of being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). He received concurrent sentences of 162 months imprisonment on the

conspiracy count and 120 months on the felon in possession count. On appeal, he

challenges only the conspiracy conviction.

After Schweder appealed, we decided United States v. McIntosh, which held

that the Department of Justice was prohibited by an appropriations rider “from

spending funds from relevant appropriations acts for the prosecution of individuals

who engaged in conduct permitted by the State Medical Marijuana Laws and who

fully complied with such laws.” 833 F.3d 1163, 1177 (9th Cir. 2016). We therefore

remanded this case to the district court for the sole purpose of conducting an

evidentiary hearing to determine whether Schweder had fully complied with

California medical marijuana law, retaining jurisdiction over the appeal.

The district court then conducted a four-day evidentiary hearing and

concluded that Schweder had not complied with California Health & Safety Code

§ 11362.775. In light of the district court’s findings, which Schweder does not

contest in his supplemental brief, we affirm the conspiracy conviction.

California law requires all members of a medical marijuana collective to be

qualified patients or designated primary caregivers. See Cal. Health & Safety Code

§ 11362.775(a); People v. Anderson, 182 Cal. Rptr. 3d 276, 277, 289–90 (Cal. Ct.

App. 2015) (noting that members include both those who grow the marijuana and

2 the collective’s customers). The district court did not clearly err in concluding that

some hired workers and at least one customer of Schweder’s cooperative were

neither qualified patients nor designated primary caregivers. See United States v.

Evans, 929 F.3d 1073, 1078 (9th Cir. 2019) (stating standard of review).1

AFFIRMED.

1 Because we affirm on the merits, we decline to address the appeal waiver in Schweder’s plea agreement. See United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc).