               FOR PUBLICATION

 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 16-50097
                 Plaintiff-Appellee,
                                            D.C. No.
                 v.                      8:12-cr-00240-
                                             JVS-10
ALAN DAVID NIXON,
             Defendant-Appellant.          OPINION



     Appeal from the United States District Court
        for the Central District of California
      James V. Selna, District Judge, Presiding

        Argued and Submitted October 7, 2016
                Pasadena, California

                Filed October 17, 2016

      Before: Stephen S. Trott, John B. Owens,
      and Michelle T. Friedland, Circuit Judges.

                 Per Curiam Opinion
2                   UNITED STATES V. NIXON

                          SUMMARY *


                          Criminal Law

    Affirming the district court’s denial of a motion for
modification of the conditions of probation, the panel held
that a congressional appropriations rider that prohibits the
Department of Justice from using certain funds to prosecute
individuals for engaging in conduct permitted by state
medical marijuana laws does not impact the ability of a
federal district court to restrict the use of medical marijuana
as a condition of probation.


                           COUNSEL

Marri Derby (argued), Newport Beach, California, for
Defendant-Appellant.

Kevin M. Lally (argued), Chief, Organized Crime Drug
Enforcement Task Force Section; Lawrence S. Middleton,
Chief, Criminal Division; Eileen M. Decker, United States
Attorney; United States Attorney’s Office, Los Angeles,
California; for Plaintiff-Appellee.




    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. NIXON                     3

                         OPINION

PER CURIAM:

    We must decide whether a congressional appropriations
rider that prohibits the Department of Justice from using
certain funds to prosecute individuals for engaging in
conduct permitted by state medical marijuana laws impacts
the ability of a federal district court to restrict the use of
medical marijuana as a condition of probation. We hold that
it does not.

                              I.

    Defendant-Appellant Alan David Nixon pled guilty to
aiding and abetting the maintenance of a drug-involved
premise in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C.
§ 2(a). The district court sentenced Nixon to a three-year
term of probation. As a condition of probation, the district
court required that Nixon refrain from unlawful use of a
controlled substance and submit to periodic drug testing.

   After Nixon had served approximately one year of his
probationary term, Congress enacted an omnibus
appropriations bill that included the following rider:

       None of the funds made available in this Act
       to the Department of Justice may be used,
       with respect to the States of Alabama,
       Alaska, Arizona, California, Colorado,
       Connecticut, Delaware, District of Columbia,
       Florida, Hawaii, Illinois, Iowa, Kentucky,
       Maine, Maryland, Massachusetts, Michigan,
       Minnesota, Mississippi, Missouri, Montana,
       Nevada, New Hampshire, New Jersey, New
       Mexico, Oregon, Rhode Island, South
4                UNITED STATES V. NIXON

       Carolina, Tennessee, Utah, Vermont,
       Washington, and Wisconsin, to prevent such
       States from implementing their own State
       laws that authorize the use, distribution,
       possession, or cultivation of medical
       marijuana.

Consolidated and Further Continuing Appropriations Act,
2015, Pub. L. No. 113-235 § 538, 128 Stat. 2130, 2217
(2014). Congress has since enacted a new appropriations bill
for the fiscal year ending September 30, 2016, which
includes essentially the same rider.          Consolidated
Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129
Stat. 2242, 2332–33 (2015) (“Section 542” or the
“appropriations rider”).

    As relevant to this appeal, Nixon moved the district court
to modify his conditions of probation on the ground that the
appropriations rider required that he be permitted to use
marijuana for medical purposes in compliance with
California’s Compassionate Use Act, Cal. Health & Safety
Code § 11362.5, during his probationary term. The district
court denied that motion, concluding that whatever its
impact on the Department of Justice (“DOJ”), the
appropriations rider had “no effect on the Court or the
Probation Office, which is an arm of the Court.” To the
contrary, the district court reasoned that it was statutorily
required to prohibit use of federally controlled substances,
including marijuana, as a condition of probation:

       [P]ossession and use of marijuana are illegal
       under federal law. 21 U.S.C. § 844(a). There
       is no medical necessity defense to violation
       of the statute. United States v. Oakland
       Cannabis Buyers’ Co-op, 532 U.S. 483, 494–
       95 n.7 (2001). By statute, the Court must
                    UNITED STATES V. NIXON                             5

         impose as a condition of probation that a
         defendant not violate any law. 18 U.S.C.
         § 3563(a)(1).

Nixon timely appealed.

                                   II.

    Nixon argues that the appropriations rider suspended the
Controlled Substances Act, 21 U.S.C. § 821 et seq. (“CSA”),
with respect to individuals possessing and using marijuana
in compliance with the Compassionate Use Act (and similar
laws in the states identified in the appropriations rider). 1
Accordingly, Nixon contends that both the DOJ and the
federal courts are prohibited from enforcing the CSA against
him. 2

  We review a district court’s decision regarding
modification of probation conditions for abuse of discretion.



    1
      We address Nixon’s other challenges to the district court’s denial
of his modification motion in a concurrently filed memorandum
disposition.

    2
      Nixon does not contend that the appropriations rider prohibited the
DOJ from opposing the motion for modification of his probation
conditions or otherwise participating in post-sentencing proceedings.
We therefore need not decide whether the appropriations rider affects the
DOJ’s ability to participate in post-sentencing proceedings. Indeed,
Nixon waived any such claim in the district court by successfully arguing
that the district court could not hold a probation revocation hearing
without participation by the DOJ. Because the DOJ ultimately
participated in his probation revocation hearing, there is no basis for
Nixon’s claim that the district court violated the separation of powers
doctrine by “proceeding in a probation violation hearing without the
presence of the DOJ.”
6                 UNITED STATES V. NIXON

See United States v. Bainbridge, 746 F.3d 943, 946, 951 (9th
Cir. 2014). We now affirm.

    Nixon’s reading is not supported by the plain language
of the appropriations rider and is foreclosed by our
precedent. On its face, the appropriations rider restricts only
the DOJ’s ability to use certain funds on particular
prosecutions during a specific fiscal year. See United States
v. McIntosh, — F.3d —, 2016 WL 4363168, at *11 (9th Cir.
Aug. 16, 2016) (observing that the restriction on DOJ’s use
of the appropriated funds is “temporal” in nature).
Accordingly, we have warned that individuals still face the
possibility of prosecution under the CSA:

       To be clear, § 542 does not provide immunity
       from prosecution for federal marijuana
       offenses.       The CSA prohibits the
       manufacture, distribution, and possession of
       marijuana.     Anyone in any state who
       possesses, distributes, or manufactures
       marijuana for medical or recreational
       purposes (or attempts or conspires to do so)
       is committing a federal crime. The federal
       government can prosecute such offenses for
       up to five years after they occur. See
       18 U.S.C. § 3282.        Congress currently
       restricts the government from spending
       certain funds to prosecute certain individuals.
       But Congress could restore funding
       tomorrow, a year from now, or four years
       from now, and the government could then
       prosecute individuals who committed
       offenses while the government lacked
       funding. . . . Nor does any state law
       “legalize” possession, distribution, or
                  UNITED STATES V. NIXON                     7

        manufacture of marijuana.        Under the
        Supremacy Clause of the Constitution, state
        laws cannot permit what federal law
        prohibits. U.S. Const. art. VI, cl. 2. Thus,
        while the CSA remains in effect, states
        cannot actually authorize the manufacture,
        distribution, or possession of marijuana.
        Such activity remains prohibited by federal
        law.

Id. at *11 n.5.

    As this discussion in McIntosh makes clear, the CSA
continues to apply in all 50 states, although the DOJ’s ability
to use certain funds to pursue individual prosecutions under
that statute remains circumscribed to the extent we explained
in McIntosh as long as the appropriations rider is in effect.
Accordingly, the district court did not abuse its discretion by
refusing to modify the conditions of Nixon’s probation to
allow him to possess and use marijuana for medical purposes
in violation of federal law.

                             III.

   For the foregoing reasons, we AFFIRM the district
court’s denial of Nixon’s motion for modification of his
conditions of probation.
