The State of Construction Possession Law Reviewed

U.S. v Bagby , 2012 WL 4902919 (10/17/12) (Okl.) (Published) - Mr. Bagby was allowed to represent himself with his 3rd lawyer as standby counsel. Mr. Bagby made incriminating statements to the police which sealed his fate. Under 851 he received a mandatory life sentence. This case provides a succinct review of 10th circuit law regarding constructive possession. There must be evidence of an ability to guide the destiny of the drug, provable with circumstantial evidence, showing control through another tied to defendant, with some connection of the place where found to the defendant. This final nexus can be shown with plausible inferences the defendant had knowledge or access to the drugs location. Here there was sufficient evidence of knowing possession, including the defendant’s response to the question: “have you thought about the food you’ve taken from the mouths of children because their parents are addicted to cocaine?”; and “Would you know about all the food I’ve provided because I sell cocaine?” An effective rejoinder in a debate. Not so helpful at trial.

The 10th finds the admission of a penitentiary pack, which contained evidence of Mr. Bagby’s prior drug-related convictions, to prove Mr. Bagby’s felon status [the pro se defendant refused to stipulate] did not affect his substantial rights under the plain error standard, given the strong evidence and that the government didn’t argue the nature of the priors. But helpfully the 10th does say that, even if a defendant refuses to stipulate to his felon status, evidence concerning the nature of a predicate crime in a felon in possession case is irrelevant and prejudicial and should be excluded if possible by redaction.

It was not error to join the drug and felon-in-possession counts, even though the police found the ammo three months after the discovery of the drugs. The 10th points out officers found the ammo in the same safe as they found lots of money 3 months before, which could have been drug money. The judge’s failure to follow § 851 and tell Mr. Bagby he had to challenge any prior conviction before sentence was imposed was harmless because the defendant did not claim any of those convictions was invalid.

Tenth Orders Evidentiary Hearing for 2254 Petitioner

Green v. Addison, 2012 WL 5077178 (10/19/12) (Okl.) (unpub’d) - A rare 10th grant of an evidentiary hearing in a § 2254 case. The petitioner acted diligently in state court to get an evidentiary hearing. He asked for a hearing and submitted a transcript of an interview of an alleged victim, J.C., who said the prosecutor threatened to pursue juvenile charges against her if she did not testify against the petitioner the way the prosecutor wanted. J.C. admitted she had lied at trial about the defendant raping her and that another alleged victim claimed rape because the petitioner would not go out with her and the prosecutor threatened her as well. The state court’s decision was not entitled to any deference because it used the wrong standard. The petitioner alleged the state knowingly presented perjured testimony, while the state court reviewed the claim as though the defendant asserted he had found new evidence proving his innocence. Because of all this, the petitioner’s claim is reviewed under pre-AEDPA de novo standards. The alleged victim’s testimony and affidavits of prosecutors do not necessarily contravene the alleged victim’s later allegations. The state court’s conclusion that: “J.C. did not recant her original claims” was clearly wrong. The petitioner’s allegations were sufficient to justify relief, if true. J.C.’s interview called into question the petitioner’s convictions and sentence. Even if he had consensual sex with J.C., which is still first-degree rape, the testimony that he forced her to have sex would have affected the sentence the jury imposed.

Civil Rights Plaintiffs Obtain Relief

Martinez v. Carson, 2012 WL 4902688 (10/17/12) (N.M.) (Published) - A § 1983 victory involving officers of the Rio Rancho Department of Public Safety (DPS) [a code enforcement branch of the Rio Rancho Police Department]. The officers forced plaintiffs to the ground, handcuffed them and turned them over to the police because the plaintiffs were hanging around outside an apartment building in a high-crime neighborhood. The district court did not allow the plaintiffs to obtain damages for the police officers’ subsequent arrest and detention of the plaintiffs for several hours. The jury found liability and awarded damages for the tackling and handcuffing. The 10th rules the DPS officers were responsible for the natural consequences of their actions, which could include what the police did. A rational jury could find the initial illegal detention was the but-for cause of the further detention, [at least some of it], which was reasonably foreseeable.

Unpublished Decisions

Green v. Addison, 2012 WL 5077178 (10/19/12) (Okl.) (unpub’d) - A rare 10th grant of an evidentiary hearing in a § 2254 case. The petitioner acted diligently in state court to get an evidentiary hearing. He asked for a hearing and submitted a transcript of an interview of an alleged victim, J.C., who said the prosecutor threatened to pursue juvenile charges against her if she did not testify against the petitioner the way the prosecutor wanted. J.C. admitted she had lied at trial about the defendant raping her and that another alleged victim claimed rape because the petitioner would not go out with her and the prosecutor threatened her as well. The state court’s decision was not entitled to any deference because it used the wrong standard. The petitioner alleged the state knowingly presented perjured testimony, while the state court reviewed the claim as though the defendant asserted he had found new evidence proving his innocence. Because of all this, the petitioner’s claim is reviewed under pre-AEDPA de novo standards. The alleged victim’s testimony and affidavits of prosecutors do not necessarily contravene the alleged victim’s later allegations. The state court’s conclusion that: “J.C. did not recant her original claims” was clearly wrong. The petitioner’s allegations were sufficient to justify relief, if true. J.C.’s interview called into question the petitioner’s convictions and sentence. Even if he had consensual sex with J.C., which is still first-degree rape, the testimony that he forced her to have sex would have affected the sentence the jury imposed.

Allen v. Workman, 2012 WL 4947821 (10/18/12) Okl.) (unpub’d) - The 10th gives the go-ahead to yet another Oklahoma execution. It was not unreasonable for the state courts to find sufficient due process where the warden’s decision not to initiate proceedings to determine the competency of the petitioner to be executed was reviewed by state trial and appellate courts. Previously the warden had initiated such a procedure and a jury had found the petitioner competent. The petitioner submitted a new evaluation indicating he had become incompetent due to a seizure disorder. The petitioner was not incompetent for execution because the warden promised not to execute the petitioner during a seizure or while in a post-seizure state of confusion.

U.S. v Friedman , 2012 WL 4902867 (10/17/12) (Ut.) (unpub’d) - The most interesting part of this case is that Mr. Friedman originally received a below guidelines sentence of 57 months based on the judge’s “feeling.” The government appealed, the judge was reversed, and at resentencing the same judge, independent of the 10th circuit reversal, (or so he said) sentenced Mr. Friedman to the guideline minimum of 151 months as a career offender. With a record of the district court considering all current case law and sentencing factors at the resentencing, the 10th upheld this sentence. The case does provide a review of important sentencing factors which will be considered and evaluated on appeal. And an updated PSR on resentencing is not required.

U.S. v Lopez , 2012 WL 4902998 (10/17/12) (N.M.) (unpub’d) - Another case involving the credibility of the infamous Sgt. Ramos of the NMSP. While the appeal was in process, counsel received disciplinary and credibility records of Sgt. Ramos. Appointed appellate counsel withdrew the appeal in favor of filing a 2255 motion to pursue the Giglio issue. Judge Armijo denied the 2255 motion on two grounds. First, the defendant did not make a showing of cause for failing to raise Giglio on appeal. [It’s not clear how one can do that on appeal when the material was not first before the district court and if one could do so, then ineffective assistance of counsel would excuse the failure]. Second, the new material wouldn’t have made a difference. The new information suggested Ramos “may appear to be somewhat overzealous in his traffic stops and inconsistent in his court testimony in prior cases.” But he was truthful here in light of the video of the stop. The 10th dismisses the appeal because the defendant never addressed the procedural-bar issue.

Musau v. Carlson, 2012 WL 4903251 (10/17/12) (Kan.) (unpub’d) - The alien might be eligible for habeas relief under the Convention Against Transnational Organized Crime where, after he was ordered removed, he learned of threats from people in his home country of Kenya because he helped the prosecution of fellow Kenyans. The 10th remanded to d. ct. to decide whether the alien could have petitioned to a circuit court for review, instead of seeking habeas relief in a d. ct. Judge O’Brien vigorously dissented, contending the alien should have, and could have, petitioned a circuit court.

U.S. v Phillips, 2012 WL 5077180 (10/19/12) (unpub’d) - Mr. Phillips received a sentence for firearms possession, completed his time and went on supervised release and promptly violated, twice. With the last violation the court sentenced Mr. Phillips to the maximum of 24 months on each of the 2 counts to be served consecutively without any further supervised release. This case reminds lawyers to be diligent in objecting at the time of sentencing. At the final sentencing no objections to the sentence were made. Since the defendant had a history of recidivism and consecutive sentences are allowed, the sentence was not substantively unreasonable. Phillips also argued the district court did not sufficiently explain its reasons pursuant to 3553(a) to justify the sentence imposed. Since Phillips did not object to the adequacy of the reasons given at sentencing, the appellate review must be for plain error. If there was error there was no reasonable probability that, but for the error, the sentence would have been different. Without objection or argument at the sentencing there is no way Phillips’ appellate claim could begin to satisfy this plain error standard.

U.S. v Lichfield, 2012 WL 490300 (10/17/12) (unpub’d) - This case is a routine denial of a certificate of appealability alleging various types of ineffective assistance of counsel in the plea bargaining process. It merits consideration only because under Missouri v Fry,132 S. Ct 1399 (2012) and Lafler v Cooper, 132 S. Ct. 1376 (2012) these types of cases can now be viewed in a new light. New challenges can be attempted using the law of these new cases while employing different approaches on appeal.

Denials of Motions to Suppress, Withdraw Plea Upheld

US v. Salas-Garcia, -- F.3d --, 2012 WL 5192768 (10th Cir. 10/22/12) (NM) - the district court properly denied the motion to suppress. Officers knew from ci that one of two vehicles arriving at a hospital parking lot in Albuquerque was carrying a large quantity of cocaine. They did not exceed the scope of an investigatory detention by handcuffing Salas-Garcia, the driver of one vehicle, for four to ten minutes in order to ensure officer and public safety. Salas-Garcia was released from handcuffs after he proved to be unarmed and cooperative.

The COA also dismisses Salas-Garcia's appeal from the district court's denial of his motion to withdraw his guilty plea. Because the magistrate judge had accepted Salas-Garcia's plea and there was no indication it was accepted on a conditional or provisional basis, Salas-Garcia was not entitled to withdraw his plea as of right. His conditional guilty plea reserved only the right to appeal the district court's denial of his motion to suppress. And because the immigration consequences of the guilty plea were clear from the plea agreement and the plea hearing, the court finds Salas-Garcia knowingly and voluntarily entered into the plea agreement.

"Roughly Similar" is Close Enough to Make California First-Degree Burglary Offense an ACCA Predicate

US v. Maldonado, -- F.3d --, 2012 WL 5192749 (10th Cir. 10/22/12) (NM) - The court holds that California's first-degree burglary offense should be considered an ACCA violent felony under the ACCA residual clause even though it can be committed without an unlawful or unprivileged entry into a building or structure and by one who enters a home by invitation. Despite acknowledging that the offense can be committed by acts that do not necessarily involve serious risk of violence, such as repair workers who engage in "home shoplifting" while providing services in their customers' homes, the Tenth has "no trouble concluding that the elements of California's first-degree burglary statute involve conduct that presents a serious potential risk of physical injury," relying on a Ninth Circuit decision to that effect. And the CA offense is "roughly similar" to the ACCA enumerated offense of generic burglary because it involves conduct that is "purposeful, violent, and aggressive."

Texas Aggravated Assault Conviction Held to Not Qualify for ACCA Enhancement

US v. Duran, No. 11-1208 (Colo), 10/18/12 (Published) - Defendant pled guilty to felon in possession of a firearm and appealed his sentence. In a win for the defense, the defendant’s sentence was vacated and the case remanded for resentencing. Defendant had been convicted in Texas of aggravated assault. The elements instruction given at trial established that he had intentionally, knowingly or recklessly caused bodily injury to another when using or exhibiting a deadly weapon, in violation of VTCA §§ 222.01(a)(1) and 22.02(a). At sentencing, the court found that this was a crime of violence under USSG § 4B1.2(a), even though it could have been committed recklessly rather than intentionally, because it generally involves serious potential risk of physical injury and was sufficiently similar to typical crimes of violence such as burglary and arson. After the defendant had been sentenced, the Tenth Circuit “unequivocally held that the test of § 4B1.2 only reaches purposeful or intentional behavior” in US v. Armijo, 651 F.3d 1226 (10th Cir. 2011). Applying that principle, defendant’s conviction was not categorically a crime of violence, since it did not require a mens rea of purposeful or intentional conduct. The fact that the defendant used a deadly weapon did not matter, since, under Texas case law, one can recklessly use a deadly weapon to commit a crime and still not commit a crime of violence as defined by federal law.

Colorado 2d Degree Assault Held to Be ACCA Predicate Offense

U.S. v. Sandoval, 2012 WL 4784466 (10/9/12) (Col.) (Published) - The 10th finds yet another offense is a "violent felony" under the ACCA's residual clause. This time it's Colorado's 2d degree assault committed in the heat of passion. The Begay "purposeful, violent and aggressive" test does not apply because the offense required the specific intent to cause bodily injury. The heat of passion stuff doesn't matter at all. Even if Begay applied, the offense was not less violent and intentional just because it was impulsive. In a footnote, the 10th goes on to question whether Begay is good law any more even when the crime is not intentional, given Sykes' disparaging comments about Begay's test, including that it did not have a textual link. This in turn, the 10th strongly hints, calls into question its precedent that finds offenses not be violent felonies when they are committed recklessly. On the bright side, the 10th expresses its impatience with the "legion" of cases involving the interpretation of the ACCA and favorably footnotes Justice Scalia's dissent in Derby v. U.S. 131 S. Ct. 2858 (2011), opining that the ACCA's residual clause is unconstitutionally vague.

Revocation Sentence Improperly Enhanced For Rehabilitation Purposes

U.S. v. Mendiola, 2012 WL 4841278 (10/12/12) (N.M.) (Published) - This case holds that Tapia applies to sentencing following revocation of supervised release, overturning U.S. v. Tsosie, 376 F.3d 1210 (10th Cir. 2004). The 10th held the logic of Tapia---in particular the reliance on the fact that Congress did not give d. ct.s the power to order rehabilitation in prison---applied equally in the revocation context. Interestingly, the 10th found support in Judge Holloway's dissent in U.S. v. Collins, 461 Fed. App'x 807 (10th Cir. 2012), and in Judge O'Brien's dissent in Tsosie. The error was plain, given Judge Brack's repeated references to the defendant's need for a 24-month sentence for rehabilitation purposes and the fact that 3 other circuits have held Tapia applies to revocations. In light of the 6-12-month guideline range, there was a reasonable probability the judge would have given a lower sentence had he known of Tapia's application and the error seriously affected the fairness, integrity and public reputation of the proceedings. Judge Gorsuch concurred, emphasizing the language of § 3582(a) clearly prohibits what the judge did, concluding by saying: "Few things should give us more pause than the possibility of mistakenly sending to prison a man Congress has said should not be there."

Unpublished Decisions October 17, 2012

U.S. v. Maschino, 2012 WL 4801247 (10/10/12) (Okl.) (unpub'd) - The d. ct. reversibly erred in its sentencing in 2 respects. First, the d.c t. added incorrectly. It said it was upwardly departing 12 to 14 months because the defendant had as many criminal history points as someone in an imaginary criminal history category VIII, 2 categories up from category VI,and it figured each extra category was worth 6 or 7 extra months of prison time. But the d. ct. imposed a 60-month term when the top of the guideline range was 41 months, You do the math. [It's much harder when you do it with Roman numerals]. Second, § 4A1.3(a)(4)(A) calls for increasing the offense level, not the criminal history category, when the defendant deserves to be in a criminal history category higher than VI.

U.S. v. Harrington, 2012 WL 4786764 (10/9/12) (Col.) (unpub'd) - In the course of upholding the imposition of a sentence consecutive to a state sentence, the 10th says something possibly helpful in the relevant conduct context. It opines that the defendant's attempted murder with a firearm that he burglarized from a pawn shop was not relevant conduct with respect to the federal charge of possession of the many firearms that he burglarized from the pawn shop. The 10th also observes that § 3553(a)(6)'s anti-unwarranted-disparity provision does not refer to disparities between the sentence the defendant received and a hypothetical sentence he might have received had he been charged differently. [What about comparison to a hypothetical person in similar circumstances who was not the defendant?]

U.S. v. Sullivan, 2012 WL 4801107 (10/10/12) (Okl.) (unpub'd) - The government did not waive its right to enforce the appeal waiver when it acquiesced in a stay of the d. ct.'s sentence pending appeal. The defendant waived his right to appeal the sex-offender probation conditions. The defendant waived the right to appeal "any sentence permitted by statute." Probation conditions are parts of a sentence. The conditions were within the court's statutory power to impose. It didn't matter that the defendant wasn't aware of the possibility of receiving sex offender conditions, since he was convicted of a drug offense. At the plea hearing the defendant was told probation conditions could be imposed. The 10th emphasizes the defendant's waiver did not place him completely at the d. ct.'s mercy. The d.ct. could not have imposed a sentence unauthorized by statute or that constituted cruel and unusual punishment. For example, if the defendant did not have a prior sex offender conviction, the defendant would have an argument. So, there's fodder for arguments against an appeal waiver in the future.

U.S. v. Alvarado, 2012 WL 4801104 (10/10/12) (Ut.) (unpub'd) - The 10th finds no mistrial was warranted, despite the admission of irrelevant evidence of the defendant physically abusing his girlfriend. The defendant was charged with encouraging and inducing his girlfriend to enter the U.S. illegally and causing her bodily injury during and relation to that offense. The d. ct. sua sponte ruled that the abuse the girlfriend testified about was not related to her illegal entry, and so removed the bodily injury issue from the jury. The d.ct. did not abuse its discretion in denying the motion for a mistrial because: (1) the government did not act in bad faith; (2) the d. ct. and the prosecutor told the jury to disregard the abuse evidence ["ignore the elephant in the room"]; and (3) the evidence was strong against the defendant. Troublingly, the 10th suggests Maestas v. U.S.. 341 F.2d 493 (10th Cir. 1965) [reversal, despite curative jury instructions, where a witness mentioned the defendant had been in prison], might not be good law any more in light of the more recently announced reversal standard described in U.S. v. Lamy, 521 F.3d 1257 (10th Cir. 2008). [But older cases are the superior precedent, right?]. There was no plain-error violation of the Double Jeopardy Clause when the court allowed the trial to go on after acquitting the defendant of the charge in the indictment, which included the bodily-injury allegation. There was only one applicable circuit case out there and the 5th Circuit has ruled the "injury factor" is an element of the offense, not a sentencing factor. So the defendant was legitimately convicted of a lesser-included offense.

Morton v. Progressive Northern Insurance Company, 2012 WL 4801110 (10/10/12) (Okl.) (unpub'd) - The d. ct. did not commit a clear abuse of discretion when it granted an extension of time to appeal where the plaintiff's attorney's wife, who was his law firm's sole secretary and paralegal, was the victim of a battery and the injuries and medical treatment distracted the attorney and negatively affected his firm.

U.S. v. Caldwell, 2012 WL 4820730 (10/11/12) (Col.) (unpub'd) - The pro se defendant's notice of appeal was late, warranting dismissal of the appeal. It didn't matter that the government's motion to dismiss for a tardy notice of appeal was also filed late. The pro se defendant didn't raise that issue until his reply brief.

U.S. v. Williams, 2012 WL 4801241 (10/10/12) (Kan.) (unpub'd) - That the petitioner had low cognitive function was not enough to trigger equitable tolling of the habeas statute of limitations. He needed an adjudication of incompetence or institutionalization for mental incapacity for tolling to apply.

Wishneski v. Dona Ana County, 2012 WL 4801338 (10/10/12) (N.M.) (unpub'd) - The plaintiff did not establish the sort of substantial risk of serious harm necessary to establish an 8th Amendment claim where he contended the Dona Ana County Detention Center guards' repeated use of extremely loud buzzers for count caused the plaintiff emotional distress and mental anguish.

Upward Variance for Supervised Release Violation Affirmed

U.S. v. Vigil, 2012 WL 4497354 (10/2/12) (Col.) (Published) - In a Supervised Release violation case, the 10th affirms an upward variance for a series of Grade C violations from a 3-9-month guideline range to 12 months. The d. ct. had twice previously imposed prison time for violations and was frustrated with the defendant's lack of cooperation. The 10th found it irrelevant that the original offense was "merely" a false statement. The sentence was for the breach of trust. No exceptional circumstance was required to justify an upward variance. The 10th says the Chapter 7 policy statements establishing the sentence ranges deserve less respect than guidelines, even though both are now advisory post-Booker. The 10th declares: "All discussions of applicable sentences following a supervised release revocation should be grounded in the common understanding that the d. ct. may impose any sentence within the statutory maximum," (quoting U.S. v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996)).

Unpublished Decisions

U.S. Gutierrez, 2012 WL 4748158 (10/5/12) (N.M.) (unpub'd) - The good faith exception applied to a search of a car pursuant to a search warrant. The affidavit for the warrant was not so lacking in indicia of probable cause as to render an officer's belief in its existence entirely unreasonable under the following circumstances: during the traffic stop, the defendant was extremely nervous; the defendant and his passenger gave inconsistent travel descriptions [in Tucson all day vs. a couple of hours]; the defendant hesitated before giving the name of the friend he had stayed with; Lordsburg, where the car was stopped, was on a pipeline of narcotics distribution [this had "minimal" value]; and the passenger was very lethargic and her eyes were droopy and glossy, indicating she was under the influence of narcotics [which could be inferred from the travel route, even though the affidavit didn't expressly state that conclusion]. The 10th declines to decide whether courts may look at incriminating facts that are not in a warrant affidavit to determine the existence of good faith. No need to do so here, the 10th finds.

U.S. v. Wallace, 2012 WL 4748176 (10/5/12) (Col.) (unpub'd) - The 10th upholds a much more drastic upward variance upon revocation of supervised release. The d. ct. varied from a 3-9-month § 7B1.4 range for Grade C violations to 63 months---seven 9-month sentences to be served consecutively for the 7 original fraud counts of conviction. The defendant had repeatedly and "flagrantly" violated his conditions. A d. ct. can stack violation sentences for each and every count, even if the original sentences were concurrent.

Vaquero-Cordero v. Holder, 2012 WL 4478372 (10/1/12) (unpub'd) - The 10th reverses the BIA's determination that the Utah offense of obstruction of justice is a crime of moral turpitude [ CMT ]. The offense involved the use of force by pushing closed a door to prevent a police officer from performing an official duty - arresting the alien - with no intent to injure the officer. The 10th held the BIA had ignored its own precedent which held resisting arrest was not a CMT. The precedent the BIA cited in support of its holding was inapposite. The 10th found significant that the alien's offense did not include an element of danger to other people or property or any other aggravating factor.

U.S. v. Loya-Castillo, 2012 WL 4748173 (10/3/12) (Col.) (unpub'd) - In upholding a 30 month reentry sentence plus a consecutive 7-month sentence for a supervised release violation, the 10th says the "law generally discourages district courts from taking family ties and responsibilities into account" and observes that d. ct.s typically consider them only when they are extraordinary.

U.S. v. Lowe, 2012 WL 4714894 (10/4/12) (Kan.) (unpub'd) - The 10th panel was bound by precedent upholding the constitutionality of the previous 100-1 crack-powder ratio, despite the Fair Sentencing Act's changing of the ratio to 18-1. In response to a petition to revoke his supervised release, the defendant moved to terminate his supervised release because he had over-served his time in prison due to the original sentence he received based on the 100-1 ratio. A sentence reduction pursuant to § 3582(c)(2) still resulted in him serving an extra 21 to 38 months he would not have served under an 18-1 ratio.

Neri-Garcia v. Holder, 2012 WL 4513201 (10/3/12) (Published) - The Mexican alien was not entitled to asylum, even though Mexican officers had beaten, tortured,and imprisoned him because he is gay between 1984 and 1994, at which time he entered the U.S. The 10th upholds the BIA's decision that the 2009 and 2010 State Department Country Reports show Mexico no longer persecutes gay folks, except in isolated instances. An inhospitable attitude, "machista" culture and even discrimination are not sufficient to establish the requisite suffering that would warrant asylum.

Waterhouse v. Hatch, 2012 WL 4748185 (10/5/12) (N.M.) (unpub'd) - Another denial of a habeas petition relying on the latest S. Ct. plea bargain cases. The attorney's deficiencies in failing to discover helpful evidence impeaching the alleged child molestation victim and in telling the petitioner he would have to serve 50% of the sentence in prison, rather than the actual 85% he had to serve, were not prejudicial. The petitioner did not show he would have declined to plead guilty had counsel performed adequately.

Reed v. Michaud, 2012 WL 4497360 (10/2/12) (Col.) (unpub'd) - The 10th rejects the plaintiff's contention that his status as a registered medical marijuana patient under Colorado law created a constitutional right to use medical marijuana and a defense against imposition of a marijuana-use prohibition as a parole restriction.