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United States of America v. Roshaja Harvey

June 23, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
ROSHAJA HARVEY, DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER

BACKGROUND

Defendant Roshaja Harvey served approximately ten years in prison for armed bank robbery. Afterwards, he began a five year term of supervised release. Among the mandatory conditions of his supervised release, Harvey was ordered to "[r]efrain from any unlawful use of a controlled substance." In January 2011, Harvey tested positive for marijuana use and acknowledged having used marijuana. Soon after, U.S. Probation formally alleged Harvey had violated the conditions of his supervised release. [Doc. No. 78.]

Harvey moved to dismiss the allegation. [Doc. No. 87.] The Court held a hearing on June 15, 2011. Harvey made two arguments. First, Harvey argued he lacked adequate notice of the mandatory condition because it was vague. Second, Harvey argued his use of marijuana pursuant to a "doctor's recommendation" was lawful under both California and federal law.

At the conclusion of the hearing, the Court concluded that Harvey violated the above-mentioned mandatory condition.*fn1 This Order explains the Court's rationale for reaching that conclusion.

DISCUSSION

1. Notice

Under federal law, courts must impose certain mandatory conditions when imposing a term of supervised release after imprisonment. See 18 U.S.C. § 3583(d). In addition to other mandatory conditions, "[t]he court shall also order, as an explicit condition of supervised release, that the defendant refrain from any unlawful use of a controlled substance . . . ." Id. (emphasis added). Accordingly, this Court imposed a condition that Harvey "[r]efrain from any unlawful use of a controlled substance." [Doc. No. 53 (emphasis added).]

For the first time at the June 15, 2011 hearing, Harvey's counsel argued that Harvey lacked adequate notice of this condition. Harvey lacked adequate notice, counsel argued, because Harvey was using marijuana for medical purposes in compliance with state law, because Harvey believed he was acting lawfully, and because the phrase "any unlawful use" is vague.

The phrase "any unlawful use" is not vague, and it encompasses unlawful use under federal law. That Harvey believed he was acting in compliance with state law, or any other law, does not deprive him of notice of the condition. Cf. United States v. Stacey, 734 F. Supp. 2d 1074, 1084 (S.D. Cal. 2010) (precluding defendant from presenting a "medical marijuana" defense notwithstanding defendant's "ignorance of federal law"). At any rate, Harvey's argument lacks credibility; he used marijuana despite his own attorney's advisement that "he could not do that" while under federal supervision. [Gov't Resp. in Opp'n, Ex. 4.] The next section evaluates whether the advisement that Harvey "could not do that" was correct.

2. Lawfulness of Harvey's Conduct

The Controlled Substances Act ("CSA") established "a comprehensive framework for regulating the production, distribution, and possession of five classes of 'controlled substances.'" Gonzales v. Raich, 545 U.S. 1, 24 (2005). The CSA places controlled substances into one of five "Schedules" based on whether a given substance presents the potential for abuse, whether abuse of the substance may lead to psychological or physical dependence, and whether the substance has currently accepted medical uses within the United States. See 21 U.S.C. § 812(b).

The provision at issue in this case is 21 U.S.C. § 844(a), which provides in relevant part:

It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while ...


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