                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 28 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-30392

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00140-TOR-3
 v.

BOUALONG SILKEUTSABAY,                           MEMORANDUM*

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   15-30393

              Plaintiff-Appellee,                D.C. Nos.
                                                 2:13-cr-00140-TOR-1
 v.                                              2:13-cr-00140-TOR-2
                                                 2:13-cr-00140-TOR-4
SINYO SILKEUTSABAY; LA LY
YANG; KHAMLAY SILKEUTSABAY,

              Defendants-Appellants.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Thomas O. Rice, Chief Judge, Presiding



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                       Argued and Submitted February 8, 2017
                                Seattle, Washington

Before: FISHER, PAEZ, and CALLAHAN, Circuit Judges.

      Boualong Silkeutsabay, Khamlay Silkeutsabay, Sinyo Silkeutsabay , and La

Ly Yang (“the defendants”) appeal their convictions. Boualong Silkeutsabay,

Sinyo Silkeutsabay, and La Ly Yang pled guilty to conspiracy to manufacture 100

or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846.

Khamlay Silkeutsabay pled guilty to misprision of felony in violation of 18 U.S.C.

§ 4. The defendants argue that § 538 of the 2015 Consolidated and Further

Continuing Appropriations Act, which prohibits the use of funds in a manner that

impedes a state’s ability to implement its own medical marijuana laws, prohibited

prosecution of their case. Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217

(2014).1

      We have jurisdiction under 28 U.S.C. § 1291, and we vacate the defendants’

sentences and judgments and remand for further proceedings.

1.    We review de novo a district court’s decision to deny a motion to dismiss,

including on the basis of its interpretation of a federal statute. United States v.

Olander, 572 F.3d 764, 766 (9th Cir. 2009).


      1
        The defendants moved to dismiss their indictments on the basis § 538 and
reserved their right to appeal the district court’s denial of that motion.
                                            2
2.    Under United States v. McIntosh, § 538 prohibits the federal government

from prosecuting individuals who comply with state medical marijuana laws. 833

F.3d 1163, 1177 (9th Cir. 2016).2 McIntosh held that individuals seeking to avoid

prosecution under § 538 “are entitled to evidentiary hearings to determine whether

their conduct was completely authorized by state law.” Id. at 1179.

3.    Washington law provides that a designated provider can grow fifteen plants

for a medical marijuana patient. Wash. Rev. Code § 69.51A.0210. State court of

appeal decisions have interpreted these statutes to allow individuals to serve as

designated providers for multiple patients at a time. State v. Markwart, 329 P.3d

108, 119 (Wash. Ct. App. 2014); see also State v. Shupe, 289 P.3d 741, 748 (Wash.

Ct. App. 2012). Citing Markwart and Shupe, the defendants contend that

designated providers may legally grow fifteen plants for each qualified patient.

The defendants argue that because they had 300 such qualified patients, they could

grow up to 4,500 marijuana plants.

4.    The district court found that the defendants did not comply with state

medical marijuana laws because they pled guilty to possessing over 1,000


      2
       McIntosh dealt with § 542, the nearly identical provision from the 2016
Consolidated and Further Continuing Appropriations Act. Pub. L. No. 114–113, §
542, 129 Stat. 2242, 2332-33 (2015). In United States v. Nixon, we applied
McIntosh to § 538, reasoning that the riders were “essentially the same.” 839 F.3d
885, 887 (9th Cir. 2016).
                                          3
marijuana plants. The district court did not hold an evidentiary hearing to make

this determination and did not appear to consider Markwart and Shupe, which

indicate some ambiguity as to whether designated providers may grow larger

quantities of marijuana when they serve multiple patients. 329 P.3d at 119; 289

P.3d at 748. Under McIntosh, the defendants are entitled to an evidentiary hearing

in the district court on whether the amount of marijuana they were growing

complied with Washington’s medical marijuana laws. 833 F.3d at 1179. Had the

district court held an evidentiary hearing, it might have found that under a

reasonable reading of Markwart and Shupe, the defendants were not limited to

fifteen marijuana plants.

5.    Defendants entered conditional pleas of guilty that expressly reserved their

rights to appeal the district court’s denial of the motion to dismiss the indictment.

Because we vacate the order denying the motion to dismiss the indictment, we also

conditionally vacate defendants’ convictions. The district court shall reinstate the

convictions if, after conducting the evidentiary hearing, it determines defendants

were not in compliance with Washington’s medical marijuana laws. See United

States v. Cordoba, 104 F.3d 225, 229 (9th Cir. 1997).




                                           4
6.     In light of this disposition, upon remand the defendants shall be released

from prison, subject to reasonable terms and conditions as determined by the

district court.

7.     The mandate shall issue forthwith.3

       VACATED AND REMANDED.




       3
        In light of our disposition, the defendants’ motion for release on appeal is
denied as moot.
                                          5
