                             NOT FOR PUBLICATION                        FILED
                      UNITED STATES COURT OF APPEALS                    OCT 17 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No.   17-10472

               Plaintiff-Appellee,             D.C. No.
                                               2:15-cr-00234-JAM-1
 v.

NATHAN HOFFMAN,                                MEMORANDUM *

               Defendant-Appellant.



                      Appeal from the United States District Court
                          for the Eastern District of California
                       John A. Mendez, District Judge, Presiding

                             Submitted October 15, 2018**
                               San Francisco, California

Before: HAWKINS and HURWITZ, Circuit Judges, and ROSENTHAL, *** District
Judge.

      Nathan Hoffman was charged with conspiring to manufacture and

manufacturing marijuana. After he was charged, the Ninth Circuit decided United

      *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
          The Honorable Lee H. Rosenthal, Chief United States District Judge for
the Southern District of Texas, sitting by designation.

                                           1
States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), which held that a congressional

appropriations rider prohibits use of federal funds to prosecute defendants in

compliance with state medical marijuana laws. Hoffman initially indicated that he

would file a McIntosh motion, but he never did so. Instead, pursuant to a plea

agreement, he pleaded guilty to manufacturing marijuana. The plea agreement

stipulated that Hoffman had manufactured and sold marijuana for profit, and

included a waiver of the right to appeal or to “bring a collateral attack . . .

challenging any aspect of the guilty plea, conviction, or sentence.” Before he was

sentenced, Hoffman sought an evidentiary hearing; his motion was denied. He

then filed, inter alia, a motion to withdraw his plea. The court denied the motion

and sentenced Hoffman to a 48-month sentence, which was consistent with his

Rule 11(C)(1)(c) agreement. This appeal followed. We have jurisdiction over his

appeal under 28 U.S.C. § 1291 and affirm.

      1.    An appeal and collateral attack waiver “is generally enforced if ‘(1)

the language of the waiver encompasses [the] right to appeal on the grounds raised,

and (2) the waiver is knowingly and voluntarily made.’” Davies v. Benov, 856

F.3d 1243, 1246 (9th Cir. 2017) (citation omitted). Hoffman claims that his waiver

does not encompass his present claims, because they are based on the district

court’s 2017 denial of an evidentiary hearing, which occurred after he entered into

the plea agreement. This argument fails. This Court decided McIntosh in 2016,


                                            2
well prior to Hoffman’s plea agreement, and he offers no credible argument that

his plea implicitly allowed him to appeal the denial of a McIntosh defense raised

only after the guilty plea.

      Hoffman also argues that the district court failed to conduct a “count-by-

count” analysis, which he claims is required by United States v. Kleinman, 880

F.3d 1020, 1028 (9th Cir. 2017), to determine which charges were restricted by the

congressional appropriations rider. Hoffman is mistaken; as Kleinman explains, a

count-by-count analysis is necessary to ensure that the prosecution does not “use a

prosecutable charge (for conduct that violates state medical marijuana law) to

bootstrap other charges that rely solely upon conduct that would fully comply with

state law.” Id. That is not a risk here. Hoffman was charged with conspiracy to

manufacture marijuana, and the same offense conduct is alleged in both counts.

      2.     Even if Hoffman had not waived his right to appeal, the district court

correctly denied his request for a McIntosh hearing as “futile.” Hoffman’s plea

agreement specifically admitted that he “was involved in a conspiracy to grow

marijuana for profit,” precluding any basis for finding that he was in compliance

with state law.     California’s Medical Marijuana Program expressly excludes

cultivation and sale for profit. See Cal. Health & Safety Code § 11362.765. By his

own admission, Hoffman was not in compliance with California law, and a

McIntosh hearing was unwarranted.


                                            3
   AFFIRMED. Appellee’s unopposed Motion for Judicial Notice, Dkt. 15, is

GRANTED.




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