     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                April 18, 2019

                                2019COA56

No. 17CA0159, People in Interest of D.M. — Criminal Law —
Sentencing — Restitution — Assessment of Restitution —
Federal Controlled Substances Act; Constitutional Law — Sixth
Amendment — Federal Supremacy — Preemption

     A division of the court of appeals holds that the Federal

Controlled Substances Act, 21 U.S.C. §§ 801-971 (2018), does not

preempt Colorado’s restitution statutes, and therefore the juvenile

court did not err in ordering a juvenile adjudicated delinquent to

pay restitution equaling the value of marijuana he stole from a

licensed marijuana store. In so deciding, the division distinguishes

the Colorado Supreme Court’s decision in People v. Crouse, 2017

CO 5, holding that the Controlled Substances Act preempts that

part of article XVIII, section 14(2)(e) of the Colorado Constitution

requiring law enforcement officers to return seized marijuana to a
medical marijuana patient who has been acquitted of unlawful

possession.
COLORADO COURT OF APPEALS                                      2019COA55


Court of Appeals No. 17CA0159
Boulder County District Court No. 15JD385
Honorable Patrick D. Butler, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of D.M.,

Juvenile-Appellant.


                               ORDER AFFIRMED

                                    Division V
                           Opinion by JUDGE J. JONES
                           Terry and Grove, JJ., concur

                            Announced April 18, 2019


Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

The Law Office of Thomas W. Martin, LLC, Thomas W. Martin, Fort Collins,
Colorado, for Juvenile-Appellant
¶1    Section 18-1.3-603(1), C.R.S. 2018, says that every order of

 conviction for a criminal offense (with certain exceptions) must

 “include consideration of restitution.” And, unless the sentencing

 court finds that no victim suffered a pecuniary loss, the court must

 order the defendant to pay restitution to the victim. Id.

¶2    Likewise, a juvenile whom the court has adjudicated

 delinquent must pay restitution for a victim’s loss of personal

 property as required by section 18-1.3-603. § 19-2-918(1), C.R.S.

 2018. But what if the victim’s pecuniary loss is the value of

 marijuana stolen from the victim’s marijuana store? Can a

 defendant be required to pay restitution for such loss?

¶3    D.M., a juvenile who stole marijuana from a marijuana store,

 says “no,” contending that because the Federal Controlled

 Substances Act (CSA), 21 U.S.C. §§ 801-971 (2018), makes it a

 federal offense to distribute marijuana and provides that no one has

 a property interest in marijuana, Colorado’s restitution statutes

 can’t be applied to his conduct. In short, he contends that the CSA

 preempts the restitution statutes in these circumstances. But

 because we don’t see any positive conflict between the CSA and the




                                   1
 restitution statutes, we reject D.M.’s preemption argument and

 affirm the order of restitution.

                            I.      Background

¶4    D.M. and two of his friends broke into a licensed marijuana

 dispensary in the middle of the night and stole marijuana plants

 and products worth $178,000. The People filed a petition for

 delinquency, charging D.M. with theft and second degree burglary,

 both class 3 felonies. D.M. agreed to plead guilty to burglary of a

 nondwelling, a class 4 felony, in exchange for dismissal of the

 original charges. The district court accepted the plea agreement,

 adjudicated D.M. delinquent, and sentenced him to nine months of

 probation.

¶5    The prosecution filed a motion for an order requiring D.M. to

 pay $178,000 in restitution for the value of the stolen marijuana.

 D.M. didn’t dispute the amount of the loss but argued that the

 court couldn’t order such restitution because the CSA preempts the

 restitution statutes. The district court rejected that argument and

 ordered D.M. to pay the store owner $178,000 in restitution.




                                      2
     II.     The CSA Doesn’t Preempt Colorado’s Restitution Statutes

                           A.        Standard of Review

¶6         We review de novo whether federal law preempts state law.

 People v. Crouse, 2017 CO 5, ¶ 9.

                                B.    Applicable Law

¶7         The principle that federal law may preempt state law is

 anchored in the Supremacy Clause (Article VI, Clause 2) of the

 United States Constitution. Id. at ¶ 13 (citing Arizona v. United

 States, 567 U.S. 387, 399 (2012)). The Supreme Court has

 recognized three forms of federal preemption: (1) field preemption —

 meaning that Congress’s intent to displace state law altogether can

 be inferred by its creation of a pervasive framework of regulation; (2)

 express preemption — meaning that Congress has enacted a statute

 expressly preempting state law; and (3) conflict preemption —

 meaning that complying with both federal and state law is

 physically impossible so that “the challenged state law ‘stands as an

 obstacle to the accomplishment and execution of the full purposes

 and objectives of Congress.’” Arizona, 567 U.S. at 399 (quoting

 Hines v. Davidowitz, 312 U.S. 52, 67 (1941)); see Fuentes-Espinoza

 v. People, 2017 CO 98, ¶¶ 23-26. But the Court has also told us


                                           3
 that “courts should assume that ‘the historic police powers of the

 States’ are not superseded ‘unless that was the clear and manifest

 purpose of Congress.’” Arizona, 567 U.S. at 400 (quoting Rice v.

 Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see

 Fuentes-Espinoza, ¶ 22.

¶8    Just as Congress may say that its law preempts state law, it

 may say that the federal law does not preempt state law, or that it

 does only if certain conditions are present. And Congress expressly

 placed such a limit on preemption in the text of the CSA.

¶9    As relevant to this case, the CSA prohibits the possession and

 distribution of marijuana for nearly all uses. See 21 U.S.C. § 802(6)

 (2018) (definition of a controlled substance); 21 U.S.C. § 841 (2018)

 (prohibiting manufacturing, distributing, dispensing, or possessing

 with intent to manufacture, distribute, or dispense); 21 U.S.C.

 § 844 (2018) (prohibiting possession). And, as D.M. points out, the

 CSA says “[n]o property right shall exist in . . . [a]ll controlled

 substances which have been manufactured, distributed, dispensed,




                                     4
  or acquired in violation of this subchapter.” 21 U.S.C. § 881(a)(1)

  (2018). 1

¶ 10    Nonetheless, Congress expressly limited the preemptive effect

  of the CSA:

              No provision of this subchapter shall be
              construed as indicating an intent on the part
              of the Congress to occupy the field in which
              that provision operates, including criminal
              penalties, to the exclusion of any State law on
              the same subject matter which would
              otherwise be within the authority of the State,
              unless there is a positive conflict between that
              provision of this subchapter and that State law
              so that the two cannot consistently stand
              together.

  21 U.S.C. § 903 (2018) (emphasis added). So Congress has taken

  field preemption and express preemption off the table; the only

  question before us is whether the CSA and the restitution statutes

  positively conflict when the restitution sought is for the value of

  stolen marijuana.

                               C.   Analysis

¶ 11    D.M. relies on People v. Crouse, in which the Colorado

  Supreme Court held that the return provision of article XVIII,



  1This provision deals with the federal government’s right to obtain
  controlled substances and other things by forfeiture.

                                     5
  section 14(2)(e) of the Colorado Constitution creates a positive

  conflict with the CSA by requiring law enforcement officers to return

  seized marijuana to a medical marijuana patient who has been

  acquitted of unlawful possession. Crouse, ¶ 14. The court

  reasoned that because “the CSA . . . prohibits the distribution of

  marijuana without regard to whether state law permits it,” requiring

  police officers to deliver — that is, to distribute — seized marijuana

  to marijuana patients effectively causes officers to violate federal

  law. Id. Put differently, there is a positive conflict “[b]ecause

  compliance with one law necessarily requires noncompliance with

  the other.” Id.

¶ 12   But this case is a horse of a different color. The district

  court’s order only requires D.M. to make the victim whole for value

  lost because of his conduct. It doesn’t require him to violate any

  provision of the CSA: it doesn’t require him to possess marijuana,

  see 21 U.S.C. § 844, and it doesn’t require him to manufacture,

  distribute, dispense, or possess marijuana with the intent to

  manufacture, distribute, or dispense marijuana, see 21 U.S.C.

  § 841. And while the CSA contains other prohibitions, D.M. doesn’t

  argue that the restitution order requires him to violate any of them.


                                     6
¶ 13   We aren’t persuaded by D.M.’s alternative argument that the

  order conflicts with the CSA because it effectively recognizes a

  property interest in marijuana. Though D.M. insists that, “[w]here

  federal statute provides that a property right cannot exist, a state

  cannot create a property right,” he doesn’t cite any authority for

  that proposition. And there is contrary authority. See, e.g., Allen v.

  Cty. of Lake, No. 14-CV-03934-TEH, 2017 WL 363209, at *6 (N.D.

  Cal. Jan. 25, 2017) (“[W]hile the Fourteenth Amendment of the

  federal Constitution may not recognize a property interest in

  medical marijuana, this does not preclude California from

  recognizing the property right under its own constitution.”); City of

  Garden Grove v. Superior Court, 68 Cal. Rptr. 3d 656, 672-73 (Cal.

  Ct. App. 2007) (appearing to recognize a property interest in

  marijuana lawfully possessed under California law).

¶ 14   In any event, recognizing a state property interest in

  marijuana under Colorado law doesn’t positively conflict with the

  CSA. The CSA’s positive conflict preemption requires a showing

  that the two laws “cannot consistently stand together.” 21 U.S.C.

  § 903. 21 U.S.C. § 881 allows the federal government to obtain and

  retain controlled substances, and other things, by forfeiture. To


                                    7
  that end, it makes clear that no one may avoid forfeiture by

  asserting a property interest in a controlled substance. Requiring

  D.M. to pay restitution doesn’t hinder in any way the federal

  government’s ability to proceed under the federal forfeiture statute,

  nor does it somehow provide the store owner a defense to any

  potential federal forfeiture action.

¶ 15   In sum, mindful that we shouldn’t assume Congress intended

  to supersede the restitution statutes and seeing no positive conflict

  between the CSA and Colorado’s restitution statutes as applied in

  this case, we hold that the CSA doesn’t preempt those statutes.

                             III.   Conclusion

¶ 16   We affirm the district court’s order.

       JUDGE TERRY and JUDGE GROVE concur.




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