USA v. Cannon

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States v. Edward Lee Cannon, II
Case No. 3:08-cr-00059-TMB-DMS-1
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter comes before the Court on the Final Report and Recommendation (“R&R”) of Chief
United States Magistrate Judge Smith recommending the Court grant Defendant Edward Lee
Cannon, II’s Motion to Modify Conditions of Release (“Motion to Modify”).1 The United States
filed objections to the R&R.2 For the reasons discussed below, the Court ADOPTS and
ACCEPTS the R&R at Docket 81. Consequently, the Motion at Docket 71 is GRANTED.
A. Motion to Modify
Cannon previously pleaded guilty to Distribution of a Controlled Substance, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A).3 On February 1, 2021, Cannon filed a Motion to Modify the
conditions of his supervised released, requesting permission of the Court to use medical
marijuana.4 In his Motion to Modify, Cannon argues that pursuant to 18 U.S.C. § 3583(d) a court
has discretion to impose special conditions of supervised release that are reasonably related to the
goals of deterrence, protection of the public, or offender rehabilitation, involve no greater
deprivation of liberty than necessary to achieve those goals, and are consistent with any pertinent
policy statements of the Sentencing Commission.5 Cannon contends he “has a documented history
of chronic lower back pain stemming from a motor vehicle accent, accompanied by insomnia and
anorexia” and that his treating physician recommends he use medical marijuana, or cannabis.6
Cannon notes possession of small amounts of marijuana for personal use has been legal in Alaska
for more than 40 years, and that he has been issued a “Medical Marijuana Registration Patient
Card” (“Patient Card”) by the State of Alaska and is legally able to purchase, possess, and use
medical marijuana.7 Further, he argues several defendants in the District of Alaska who possess a
valid Patient Card have recently been granted modifications to their conditions of supervised
release that permit them to use marijuana medicinally in accordance with Alaska law.8
Additionally, Cannon argues that, staring in 2014, Congress included a rider in the annual budget
appropriations bill that bars the Department of Justice (“DOJ”) from enforcing the federal
1 Dkts. 81 (R&R); 71 (Motion to Modify).
2 Dkt. 82 (Objections).
3 Dkts. 23 (Plea Agreement); 29 (Minute Entry); 30 (Judgment).
4 Dkt. 71 at 1–2, 5.
5 Id. at 4 (citing United States v. Riley, 576 F.3d 1046, 1048 (9th Cir. 2009)).
6 Id. at 2.
7 Id. at 2–3.
8 Id. at 4.
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marijuana ban in certain circumstances.9 The Ninth Circuit ruled that this budget rider “‘prohibits
DOJ from spending funds from relevant appropriation acts for the prosecution of individuals who
engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with
such laws.’”10
The U.S. probation officer (“USPO”) assigned to Cannon’s case supports the modification11;
however, the United States opposes the modification (“Opposition”).12 The United States argues
that although the United States “may be prohibited from prosecution certain marijuana-related
offenses, it does not follow that this Court must allow a defendant on supervised release to use
marijuana in violation of federal law.”13 Further, the United States argues that this Court should
deny the modification under the Ninth Circuit’s precedent in United States v. Nixon.14 Finally, “the
Court should inquire as to whether Cannon’s medical issues can be addressed legally.”15
B. Final Report and Recommendation
On March 11, 2021, the Magistrate Judge held a hearing during which a USPO stated that Cannon
has complied with all other conditions of his release and that probation did not oppose Cannon’s
use of medical marijuana.16 The United States maintained the position that “compliance [with]
federal law is a mandatory condition of supervised release” and that “[u]sing marijuana is against
federal law.”17 The United States argued that based on Cannon’s medical conditions, there were
“other things that could treat” his issues.18 However, the United States acknowledged that other
defendants were permitted to use marijuana with a prescription under the care of doctor and were
“doing well on supervision.”19
On March 18, 2021, the Magistrate Judge issued the R&R recommending the District Court grant
Cannon’s Motion to Modify.20 The Magistrate Judge first noted that in the District of Alaska,
“courts have routinely granted similar allowances for use of medical marijuana by defendants on
supervised release.”21 Next, the Magistrate noted that the USPO assigned to Cannon’s case
supports the modifications of his conditions of release.22 Accordingly, the Magistrate Judge
9 Id. at 3.
10 Id. at 3–4 (quoting United States v. McIntosh, 833 F.3d 1163, 1177 (9th Cir. 2016)).
11 Dkt. 80 at 5 (Hearing Tr.).
12 Dkts. 72 (Opposition); 73-1 (Revised Opposition).
13 Dkt. 72 at 2.
14 Id. (citing United States v. Nixon, 839 F.3d 885, 888 (9th Cir. 2016)).
15 Id.
16 See Dkts. 79 (Minute Entry); 80 at 4–5.
17 Dkt. 80 at 5–6.
18 Id. at 9.
19 Id. at 8.
20 Dkt. 81 at 1.
21 Id. (citing United States v. Mutazz Abasi Chenery, 3:07-cr-00128-TMB (closed on June 10,
2008) (Dkt. 210 at 5); United States v. Reginald La Don Davis, 3:12-cr-00085-SLG (closed on
Apr. 4, 2013) (Dkt. 112); Jodi Marie Southern, 3:18-cr-00086-SLG (closed on July 24, 2018) (Dkt.
6)).
22 Id.
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concluded modification of Cannon’s conditions of release to permit use of medical marijuana in
accordance with the laws of the State of Alaska was appropriate.23
C. Objections
The United States then filed objections, reiterating that under 18 U.S.C. § 3583(d), all convicted
defendants, including Cannon “are subject to a mandatory condition of release prohibiting them
from committing federal, state, and local crimes” and “[u]sing marijuana continues to be illegal
under federal law.”24 Second, the United States argues that although courts in this District have
permitted defendants on supervised release to use medical marijuana, “that is far from the national
norm,” and the Ninth Circuit has affirmed other district courts’ decisions denying similar
requests.25 Courts nationwide “have concluded that they do not have the discretion to grant a
defendant’s request to use medical marijuana in violation of federal law, even if the use is
consistent with state law.”26 Finally, the Ninth Circuit has expressly held that the budget rider
Cannon references in his Motion “‘ha[s] no effect on the Court or the Probation Office’ and
therefore does not prohibit this Court from enforcing mandatory supervised release conditions.”27
Having reviewed the record, the Objections do not merit revision or rejection of the R&R, and the
Court therefore ADOPTS and ACCEPTS the R&R and GRANTS Cannon’s Motion to Modify.
In Nixon, the Ninth Circuit concluded it was not an abuse of discretion to deny a defendant’s
request 	for 	medication 	of 	his 	conditions 	of 	probation 	to 	allow 	for 	medical 	marijuana
consumption.28 However, Nixon does not prevent this Court’s exercise of discretion to allow for
such a modification, and, as noted by the parties and USPO, courts in this District have made
identical modifications in other cases.29 Here, the Magistrate Judge’s recommendation is supported
by the record, and the Objections do not alter this conclusion.
D. Conclusion
The Court concludes the United States’ Objections do not merit revision or rejection of the R&R.
Accordingly, the Court ADOPTS and ACCEPTS the R&R at Docket 81. Consequently, the
Motion at Docket 71 is GRANTED.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: May 7, 2021.
23 Id. at 1–2.
24 Dkt. 82 at 2, 4.
25 Id. at 2.
26 Id. at 2–3.
27 Id. at 3 (quoting Nixon, 839 F.3d at 887).
28 Nixon, 839 F.3d at 887–88.
29 See, e.g., supra n. 21.
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