Submitted: Oct. 28, 2013.
David Clifford Holland, New York, NY, for Appellant Eric Canori.
Richard D. Belliss and Brenda K. Sannes, Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee United States of America.
Before: WALKER, CABRANES, and PARKER, Circuit Judges.
JOSÉ A. CABRANES, Circuit Judge.
Defendant Eric Canori appeals from the judgment of the District Court for the Northern District of New York (Gary L. Sharpe, Chief Judge ), entered November 27, 2012, sentencing him principally to thirty months' imprisonment after he pleaded guilty to conspiracy to distribute and to possess with intent to distribute 100 or more kilograms of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). As part of his plea agreement, Canori reserved his right to appeal the District Court's denial of his motion to dismiss the indictment. In that motion, and now on appeal, Canori contends that an October 2009 memorandum issued by Deputy Attorney General David W. Ogden of the U.S. Department of Justice (the " Ogden Memo" ) created a de facto " rescheduling"  of marijuana under the Controlled Substances Act (" CSA" ), 21 U.S.C. §§ 801 et seq., such that he cannot validly be charged with conspiracy to distribute marijuana. Canori further argues that, because marijuana has been de facto rescheduled, his conviction violated his rights under the Due Process and Equal Protection Clauses of the United States Constitution, and his constitutional right to the effective assistance of counsel.
Canori moved to dismiss his indictment on the basis that the Ogden Memo led to a de facto rescheduling of marijuana, such that it was no longer a Schedule I drug under the CSA. In its Memorandum-Decision and Order dated January 25, 2011, the District Court rejected this argument as " wholly without merit." We review a district court's denial of a motion to dismiss an indictment de novo. See, e.g., United States v. Daley, 702 F.3d 96, 99-100 (2d Cir.2012); United States v. Yannotti, 541 F.3d 112, 121 (2d Cir.2008). For the reasons stated below, we agree with the District Court.
A. Statutory Scheme
The CSA " creates a comprehensive, closed regulatory regime criminalizing the unauthorized manufacture, distribution, dispensing, and possession of substances classified in any of the Act's five schedules." Gonzales v. Oregon, 546 U.S. 243, 250, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (citations omitted). The CSA organizes substances into fives schedules based on (1) their potential for abuse, (2) their accepted medical uses, and (3) their accepted safety for use under medical supervision and potential for psychological or physical dependence. See
21 U.S.C. § 812.
Schedule I, in which marijuana is expressly classified, see id. Schedule I(c)(10), contains the most severe restrictions on use, the violation of which may result in criminal penalties, see id. § 841(b). We have previously upheld the constitutionality of Congress's classification of marijuana as a Schedule I drug. See United States v. Kiffer, 477 F.2d 349, 355-57 (2d Cir.1973).
The scheduling of controlled substances under the CSA is not static. Not only can Congress amend it, but the statute itself includes a provision permitting the Attorney General to add or transfer a drug to a particular schedule if he " (A) finds that such drug or other substance has a potential for abuse, and (B) makes with respect to such drug or other substance the [requisite findings, see note 3, ante ] for the schedule in which such drug is to be placed." Id. § 811(a)(1). The CSA mandates that such a reclassification by the Attorney General be made " on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed by [the Administrative Procedure Act (‘ APA’ ) at 5 U.S.C. § 553]." Id. § 811(a). In assessing the scientific and medical factors relevant to this rulemaking process, the Attorney ...