                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0075n.06

                                       Case No. 16-1188

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                 FILED
                                                                               Jan 26, 2017
                                                                           DEBORAH S. HUNT, Clerk
                                                       )
UNITED STATES OF AMERICA                               )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
BRANDEN BARNES,                                        )      COURT FOR THE WESTERN
                                                       )      DISTRICT OF MICHIGAN
       Defendant-Appellant                             )
                                                       )              OPINION
                                                       )
                                                       )
                                                       )
                                                       )
                                                       )

BEFORE: NORRIS, GIBBONS, and ROGERS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant Branden Barnes was charged

with manufacturing more than fifty marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(C) (Count I). He was also charged with maintaining a drug-involved premises, in

violation of 21 U.S.C. §§ 856(1) and 856(b) (Count II). Barnes moved to dismiss the indictment,

arguing that he had the right to manufacture marijuana under the First Amendment and the

Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb et seq, due to his

membership in the Oklevueha Native American Church, which he joined in 2014. The district

court denied Barnes’s motion, and he entered a conditional plea on Count I, preserving his right
No. 16-1188, United States v. Barnes


to appeal his RFRA arguments. Count II was dismissed. He was sentenced to 18 months’

imprisonment.

       Barnes appeals the denial of his motion to dismiss the indictment, as well as the district

court’s rejection of his motion to present a RFRA defense at trial. He also appeals his sentence,

arguing that marijuana should be rescheduled from a Schedule I to a Schedule III drug and that

he should be resentenced accordingly.       For the reasons that follow, we affirm Barnes’s

conviction and sentence.

                                               I.

       Branden Barnes, 33, has a long relationship with marijuana use, beginning as far back as

age 14. He is an advocate of medical marijuana use and has frequently used marijuana for

medical, as well as recreational, purposes. Barnes is currently a member of the Oklevueha

Native American Church (“ONAC”). Barnes is not Native American but cites as his epiphany an

encounter with the ONAC when he was visiting a friend in the hospital in December 2013.

Barnes recounts that his friend was inexplicably cured after ONAC members performed a

healing ritual on her. Barnes then researched the ONAC on the internet, and in April 2014, he

reached out to become a member of the Church of Anyana-Kai, a Toledo, Ohio-based branch of

the national ONAC.

       Becoming a member of the ONAC was quite simple: Barnes smoked marijuana, paid

$25 to get his membership card for the Toledo church, and made a $200 donation to the national

church in order to possess “sacraments.” This April 2014 encounter was the first interaction he

had with any member of the Church of Anyana-Kai since the hospital visit. Barnes walked away

with a card certifying that he was an “Authorized Participant Member of the Oklevueha Native

American Church of Anyana-Kai” and authorized to have “in his possession . . . Native



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No. 16-1188, United States v. Barnes


American sacrament.” The process to join the church and convince it of his sincerity took

15 minutes.

       Barnes was impressed with ONAC’s concept of “Grandmother Earth and Grandfather

Sky and their descendants,” but admitted that this philosophy was never mentioned on the

website for the Church of Anyana-Kai. Because he did not have a driver’s license due to

substance abuse issues, he was unable to visit the Toledo church often. In fact, he made only

two visits to the Church of Anyana-Kai between April and November 2014.

       Instead, within two months of receiving his general membership card, Barnes and two

other members of the “Mother Church” decided to start a local church in Michigan, where there

were no existing ONAC branches. This process involved a $7,000 donation to the “Mother

Church” to cover “legal expenses . . . [and] outreach programs” and in exchange Barnes received

a special blessing and a starter kit. Barnes testified that this was the beginning of a “three and a

half year process of becoming a naturopathic doctor . . . so that [he could] . . . conduct the

ceremonies.” He was not certified to be a medicine man of the ONAC at any time. Barnes

testified that he did not establish a physical place of worship for the local Michigan branch

because “[w]ith [ONAC] spirituality, the place of worship is all of Mother Earth . . . . [O]ur

church [is] everywhere we go.”

       The ONAC’s national website states that: “If you desire to be blessed by having access to

Native American Ceremonies and Medicines (such as Peyote, San Pedro, Ayahuasca and

Cannabis) without legal interference, you will want to consider joining Oklevueha NAC and

connecting with our medicine people.” Another page of the ONAC website states:




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No. 16-1188, United States v. Barnes


             WHY BEING A MEMBER OF OKLEVUEHA NATIVE AMERICAN
                          CHURCH WILL BENEFIT YOU

          An “Oklevueha Native American Church Membership Card” serves to
          protect the sacred use and transportation of ONAC sacraments, which the
          federal government and a majority of state governments still declare are
          illegal under any other situation.

          An Oklevueha Native American Church Membership Card is documented
          evidence that ONAC Membership Card holder has a proven sincerity
          standard (level) that qualifies he or she for all exceptions to the controlled
          substance laws of the United States, providing they are not in violation of
          any aspect of Oklevueha Native American Church – Code of Ethics.

Barnes described several ceremonies of the ONAC, most of which do not use marijuana.

Likewise, nowhere is marijuana listed as a “sacrament” of the Church of Anyana-Kai. Barnes

gained familiarity with the ONAC ceremonies through his three in-person visits to the Church of

Anyana-Kai and Anyana-Kai’s website. Many of the ceremonies described on the website track

medical procedures, such as the “Ceremonial Colonic,” described as “[s]imilar to a liquid

enema.” Other ceremonies include the “Great Breath Ceremony,” which involves breathing

techniques, the “Blanket Ceremony,” which is similar to a marriage ceremony; and the “Peyote

Ceremony,” about which Barnes admittedly knew little.            The only ceremony to include

marijuana is the “Pipe Ceremony,” which is a ceremony that Barnes participated so that he could

join the Church of Anyana-Kai. But ONAC does not include marijuana as a “sacrament” on its

website; instead, it expressly states that “[p]eyote is the only Great Spirit gifted plant that

Oklevueha Native American Church utilizes for its Sacrament and/or Eucharist Ceremony.”

       Much of Barnes’s religion was left up to his own personal belief system. After joining,

Barnes decided that, as part of his faith, he would perform charitable acts by growing marijuana

in large quantities to donate to the Toledo church. Yet, Barnes testified that his religion did not

require that he grow and donate marijuana. This was his personal choice, and he could have



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No. 16-1188, United States v. Barnes


made a charitable donation that did not involve marijuana. Barnes testified that there was no

special ceremony involved in planting, growing, and harvesting marijuana, but that he “[said] a

prayer every time [he planted it].” He did not attempt to have either property on which he grew

marijuana legally recognized as church property.

       Barnes began the process of growing sizable quantities of marijuana in his home around

June 2014. On November 6, 2014, the Lansing, Michigan Fire Department (“LFD”) responded

to a gas leak and electrical fire at 712 Johnson Avenue. At the scene, LFD discovered more than

two pounds of processed marijuana and 321 marijuana plants within the house. There was little

to no personal property in the house, and the windows were blacked out to assist grow lamps.

Barnes admitted that he was growing the marijuana in his house in order to donate it to the

ONAC. Barnes insisted that, because he had an ONAC membership card, he was able to grow as

many plants as he wanted, without any restrictions.

       Troopers also were dispatched on April 28, 2015, to another of Barnes’s homes at

20770 21½ Mile Road in Marshall, Michigan. There, law enforcement officers found butane

hash oil, 71 marijuana plants, 30.3 grams of loose marijuana, and 140.8 grams of processed

marijuana. Again, Barnes told law enforcement that he was growing marijuana in his home

under a religious exemption from the ONAC.

       Barnes was charged in a two-count indictment on April 16, 2015. Count I charged

Barnes with violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) by manufacturing more than fifty

marijuana plants. Count II charged him with maintaining a drug-involved premises, in violation

of 21 U.S.C. §§ 856(a)(1) and 856(b). Barnes moved to dismiss the indictment, arguing that,

under the Religious Freedom Restoration Act of 1993 (“RFRA”), he had the right to manufacture

these marijuana plants as part of his First Amendment right to free exercise of religion.



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No. 16-1188, United States v. Barnes


       The district court held a hearing on Barnes’s motion to dismiss, at which Barnes was the

sole witness. At the conclusion of the hearing, the court denied Barnes’s motion because he

failed to establish his RFRA claim. In its ruling, the district court noted that Barnes’s testimony

acknowledged that growing large quantities of marijuana was not required by his religion, nor

was it central to the faith. It further found that little evidence supported a conclusion that

Barnes’s ability to practice his religion under the RFRA is burdened, let alone substantially

burdened. The court emphasized the government’s interest in the regulation of marijuana, and

that—while “changing attitudes about marijuana use in this country . . . are really all over the

map right now”—there was not significant evidence to undermine this government interest.

       On October 20, 2015, Barnes pled guilty to Count I of the indictment, but preserved the

right to appeal the denial of his motion to dismiss the indictment. Count II was dismissed.

Barnes was sentenced on January 28, 2016, to 18 months’ imprisonment. Barnes now appeals

his conviction and sentence.

                                                II.

       We review the district court’s denial of a motion to dismiss the indictment de novo.

United States v. Johnson, 765 F.3d 644, 646 (6th Cir. 2014) (noting that this court engages in

clear error review for findings of fact, but reviews conclusions of law de novo); United States v.

Ali, 557 F.3d 715, 720 (6th Cir. 2009). “Whether a defendant has established a prima facie case

[establishing a valid defense] is a question of law” we also review de novo. United States v.

Johnson, 416 F.3d 464, 468 (6th Cir. 2005).

                                                A.

       Barnes’s first claim is based on the Religious Freedom Restoration Act of 1993

(“RFRA”), 42 U.S.C. § 2000bb et seq. RFRA explicitly stated that it was re-establishing the



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No. 16-1188, United States v. Barnes


Wisconsin v. Yoder framework for analyzing religious exemptions. Analysis of a RFRA claim

under the Yoder “compelling interest” test seeks to prevent defendants from being “brand[ed] . . .

as criminal for following their religious beliefs.” See Wisconsin v. Yoder, 406 U.S. 205, 237

(1972) (Stewart, J., concurring) (overruled in Emp’t Div. v. Smith, 494 U.S. 872 (1990)). See

42 U.S.C. § 2000bb et seq.      Barnes argues that the Controlled Substances Act (“CSA”)

substantially burdens his ability to practice his religion as a member of the ONAC. In order to

prevail under RFRA, a defendant must demonstrate that the “governmental action . . .

(1) substantially burden[s], (2) a religious belief rather than a philosophy or way of life, (3)

which belief is sincerely held.” Gen. Conf. Corp. of Seventh-Day Adventists v. McGill, 617 F.3d

402, 410 (6th Cir. 2010) (internal quotation omitted). Once a defendant makes a successful

showing under RFRA, the burden shifts to the government to demonstrate that the substantial

burden on a defendant’s exercise of religion (1) furthers a compelling governmental interest, and

(2) is the least restrictive means of doing so. See 42 U.S.C. § 2000bb–1(b)(1)–(2). Should the

government be unable to meet this burden, the defendant is entitled to a religious exemption

under RFRA. Id. Based on the evidence put forth, Barnes has not successfully made out a

RFRA defense and therefore is not entitled to a religious exemption for manufacturing

marijuana.

       First, and most critical to disposing of his RFRA claim, Barnes did not make an adequate

showing that the CSA substantially burdened his practice of religion. Barnes admitted that

growing marijuana and donating it to the church is not required by his religion. Marijuana is

described as a medicine within the Church of Anyana-Kai, not as a “sacrament” of the ONAC

faith. Thus, while marijuana is considered a medicine of the church, it is not an essential

sacrament of the faith, nor does it play a role in any of the ceremonies of the church, save one.



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No. 16-1188, United States v. Barnes


Peyote, by contrast, is the only “sacrament” of the church. Barnes did not provide any historical

evidence that the manufacturing of marijuana is central to the ONAC religion specifically, or to

Native American religion in general.

        All of the evidence presented by Barnes points to a conclusion that manufacturing

marijuana and intending to donate it to the Toledo church was a “personal belief” and a choice

that he made, not one that was critical to practicing the ONAC faith. While Barnes is correct that

it is not the place of the court to decide the “centrality of . . . beliefs to canonical texts,” that does

not prevent this court from determining whether a particular practice is required by a religion as

a part of the substantial-burden analysis, which asks whether precluding a practice through the

application of a law would place a substantial burden on practicing the religion. See Haight v.

Thompson, 763 F.3d 554, 567 (6th Cir. 2014) (internal citations omitted). Barnes offered no

evidence that being unable to manufacture marijuana would make him unable to practice his

religion, or that he would be forced to choose between obeying the law and practicing his

religion.

        A recent Ninth Circuit case supports the conclusion that ONAC members are not exempt

under RFRA to manufacture marijuana. See Oklevueha Native Am. Church of Haw., Inc. v.

Lynch, 828 F.3d 1012, 1017 (9th Cir. 2016). In that case, the Ninth Circuit was “skeptical” that

the ONAC’s marijuana use amounted to an exercise of religion. Id. at 1015–16. Even assuming

that it qualified, there was insufficient evidence to conclude that prohibiting marijuana imposed a

“substantial burden” under RFRA. Id.

            Oklevueha state[s] in no uncertain terms that “Peyote is the significant
            sacrament,” and that they consume cannabis only “in addition to and in . . .
            substitute for their primary entheogenic sacrament, Peyote.” They make no
            claim that peyote is unavailable or that cannabis serves a unique religious
            function. What is more, their certified complaint states that Oklevueha
            “honors and embraces all entheogenic naturally occurring substances,

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No. 16-1188, United States v. Barnes


          including Ayahuasca, Cannabis . . . and many others.” Put simply, nothing
          the record demonstrates that a prohibition on cannabis forces [Oklevueha
          members] to choose between obedience to their religion and criminal
          sanction, such that they are being “coerced to act contrary to their religious
          beliefs.”

Id. at 1016 (quoting Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 1070 (9th Cir. 2008)).

Likewise, Barnes does not present evidence that preventing his manufacture of marijuana

presents him with a choice between following his religion and following the law.

       Likewise, Oklevueha’s admission that marijuana is merely a substitute for peyote also

distinguishes Barnes’s case from Holt v. Hobbs, ___ U.S. ___, 135 S. Ct. 853 (2015). In Holt,

the Supreme Court found that the Religious Land Use and Institutionalized Persons Act

(“PLUIPA”), 42 U.S.C. § 2000cc et seq., the “sister statute” to RFRA, required a prison to grant

a Muslim inmate a religious exemption to grow a half-inch beard. Id. at 859. The district court

had held that the inmate’s religion was not substantially burdened by the prison’s grooming

policy because the inmate was able to engage in “other forms of religious exercise,” such as use

of a prayer rug, distribution of Islamic material, and observation of religious holidays. Id. at 862.

The Court rejected that conclusion, reasoning that the prison’s refusal to allow the inmate to

grow a beard still forced him to choose between “engag[ing] in conduct that seriously violates

[his] religious beliefs” or “fac[ing] serious disciplinary action.” Id. at 862 (quoting Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S. Ct. 2751, 2775 (2014)). By contrast, Barnes has

produced no evidence that denying him marijuana forces him to choose between religious

obedience and government sanction, since his religion states in no uncertain terms that many

other substances, including peyote, are capable of serving the exact same religious function as

marijuana.




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No. 16-1188, United States v. Barnes


       If Barnes provided no evidence that growing and donating marijuana is part of the ONAC

religion, then it logically follows that precluding Barnes from doing so cannot substantially

burden the practice of that religion.     He made no argument that, without manufacturing

marijuana in large quantities to donate to the Toledo church, he would be unable to practice his

religion. He was not faced with a choice between the law and his religion. He did not even truly

argue that this regulation was a substantial burden—his argument hinged almost exclusively on

the idea that because the ONAC deemed marijuana to be a medicine and issued him a

membership card, he was able to grow as much marijuana as he wanted without any restriction.

       Moreover, Barnes cannot meet the second prong of a RFRA-based exemption: that the

belief is a religious one, and not a personal belief or philosophy. By Barnes’s own admission,

his religion did not require him to produce marijuana in large quantities or to donate that

marijuana to the church. There is ample evidence in the record to support a conclusion that

Barnes’s belief in marijuana was primarily a personal one, and to suggest that he was using the

ONAC as a means of protection from criminal sanctions. His long history of marijuana use, his

quick epiphany and conversion to the Church of Anyana-Kai, the absence of marijuana from the

list of sacraments of the ONAC religion, and Barnes’s admission that marijuana was not a

necessary part of his religion and that he was not required to make a donation of marijuana to the

church all support a finding that Barnes’s actions were, in fact, based on his own personal belief

or philosophy regarding marijuana.

                                               B.

       Barnes also challenges the district court’s denial of his motion, in the alternative, to

present a RFRA-based defense at trial. The district court concluded that the defense was

irrelevant because RFRA did not authorize Barnes to manufacture marijuana.



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No. 16-1188, United States v. Barnes


        Barnes is charged with a general-intent crime, the manufacture of marijuana. See, e.g.,

United States v. Manns, 277 F. App’x 551, 556–57 (6th Cir. 2008) (manufacture of marijuana is

a general-intent crime); United States v. Miller, 870 F.2d 1067, 1071–72 (6th Cir. 1989).

General-intent crimes require that a defendant “knowingly” committed the criminal act. This

intent requirement goes to whether the defendant knew he was engaging in the act, not whether

the defendant knew that his actions were illegal. Ignorance of the law is no defense to a general-

intent crime. Ratzlaf v. United States, 510 U.S. 135, 149 (1994); United States v. Kimes,

246 F.3d 800, 806–07 (6th Cir. 2001). The defendant’s good-faith belief in the legality of his

conduct cannot negate an element of the charges. See Bryan v. United States, 524 U.S. 184, 193

(1998) (“knowingly” merely requires proof of knowledge of the facts that constitute the offense,

not knowledge that they were illegal).

        Under the Federal Rules of Evidence, a party is not entitled to present evidence at trial

that is not relevant. Fed. R. Evid. 402. Relevancy determinations are within the district court’s

discretion, and evidence that neither negates an element of the crime charged nor establishes a

defense is not relevant. See id. Because the manufacture of marijuana is a general-intent crime,

and ignorance of the law is not a defense, evidence that Barnes believed he could manufacture

large quantities of marijuana in his home for the ONAC, pursuant to a RFRA exemption, is

irrelevant.

        Barnes argues that he had an “innocent reason” that allows him to present a RFRA

defense at trial. He bases his argument on language that “[a]n act is done knowingly if done

voluntarily and intentionally and not because of mistake or accident or other innocent reason.”

United States v. Ausmus, 774 F.2d 722, 726 (6th Cir. 1985). While Barnes does not misquote

this language, he does miss the point of that language in this circuit. Barnes argues that he



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No. 16-1188, United States v. Barnes


should be able to present his “innocent reason” that he believed he could grow marijuana based

on a RFRA exemption. However, all that this language does is ensure that an individual cannot

be convicted of a general-intent crime when he did not know that he committed the underlying

act itself. For example, Barnes does not argue that he thought he was growing large amounts of

basil. Had he thought he was growing basil, but mistakenly grew marijuana, he could potentially

mount a defense to this crime. But he knew he was growing marijuana—and that knowledge is

the only knowledge required to convict him under the statute.

                                                  III.

       Barnes’s final argument—that this court should reschedule marijuana from a Schedule I

to a Schedule III controlled substance, reverse his sentence, and remand to resentence him—was

waived by entry of his conditional guilty plea.

       Barnes did not raise this issue in the district court, nor did he preserve the right to raise it

in his conditional plea agreement. Based on Rule 11(a)(2) and the law of this circuit, entry of

Barnes’s guilty plea triggered waiver. United States v. Mendez-Santana, 645 F.3d 822, 828 (6th

Cir. 2011); United States v. Herrera, 265 F.3d 349, 351 (6th Cir. 2001).

       Conditional guilty pleas are authorized by Fed. R. Crim. P. 11(a)(2), which states that,

“[w]ith the approval of the court and the consent of the government, a defendant may enter a

conditional plea of guilty . . . reserving in writing the right, on appeal from the judgment, to

review the adverse determination of any specified pretrial motion.” This court, in following

Rule 11(a)(2), has placed particular emphasis on the language that the “specified pretrial motion”

that the parties agree may be appealed must be “reserved in writing.” Herrera, 265 F.3d at 351.

A defendant has an “affirmative duty . . . to preserve any issues collateral to the determination of

guilt or innocence by specifying them in the plea itself.” Mendez-Santana, 645 F.3d at 828.



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No. 16-1188, United States v. Barnes


“[A] criminal defendant must be diligent in protecting his rights and faithful to the procedure

dictated by Rule 11(a)(2) in order to preserve non-jurisdictional issues for appeal.”             Id.

However, if a defendant is successful on appeal, then he “shall be allowed to withdraw the plea.”

Fed. R. Crim. P. 11(a)(2).

       Barnes entered his conditional guilty plea pursuant to Rule 11(a)(2) on October 20, 2015.

Pursuant to his conditional plea, Barnes preserved the right to appeal the district court’s denial of

his motion to dismiss the indictment. This is the “specified pretrial motion” that the parties

agreed upon under Rule 11(a)(2), and the arguments raised within that motion govern what

Barnes can now raise on appeal before this court. Barnes’s motion to dismiss is the only

“specified pretrial motion” in his case. Thus, if the scheduling argument does not appear there, it

is waived.

       Although Barnes argues that language in his motion to dismiss is sufficient to preserve

this issue for appeal, he is mistaken. He points to language from that motion, such as “[g]iven

the recent changes in position regarding marijuana, both at the state and federal levels, the Court

should not accept the government’s general interest in regulating marijuana as a compelling

interest,” but all of the language he cites is part of his argument for a RFRA defense, and not a

separate argument regarding the scheduling of marijuana. Upon further review of Barnes’s

motion to dismiss, he makes only two arguments: 1) that the indictment should be dismissed

because he was authorized by the ONAC to grow marijuana as part of a RFRA exemption; and

2) that in the alternative, he should be allowed to raise a RFRA defense at trial. Nowhere in his

motion does he ask the district court to reschedule marijuana.

       Barnes may be correct that his motion argues that “recent research shows that marijuana

is not as dangerous as was once believed, and in fact has medicinal properties.” However, this is



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No. 16-1188, United States v. Barnes


not nearly enough to constitute making the argument to the court that marijuana is improperly

scheduled as a Schedule I controlled substance. Nowhere does Barnes mention that it should

instead be Schedule III, nor does he ask the court to do so and sentence him accordingly. In the

conclusion section of his motion to dismiss, he asks the district court for only two things, and he

cannot now attempt to argue on appeal an issue which he did not preserve through his

conditional guilty plea. The entry of his plea waived any right Barnes had to this argument. See

Herrera, 265 F.3d at 351.

                                               IV.

       For the reasons stated above, we affirm the judgment of the district court.




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