USA v. Charles Lafley

Filing

FILED OPINION (DOROTHY W. NELSON, SIDNEY R. THOMAS and SUSAN P. GRABER) AFFIRMED. Judge: SRT Authoring, FILED AND ENTERED JUDGMENT. [7878852]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES WADE LAFLEY, a/k/a
Wade Lafley,
Defendant-Appellant.





No. 10-30132
D.C. No.
6:00-cr-00019DWM-2
OPINION

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
March 9, 2011—Portland, Oregon
Filed September 1, 2011
Before: Dorothy W. Nelson, Sidney R. Thomas, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Thomas

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COUNSEL
John Rhodes, Assistant Federal Defender, and Briana Schwandt, Legal Intern, Federal Defenders of Montana, Missoula, Montana, for the defendant-appellant.
Leif Johnson and Timothy J. Racicot, Assistant U.S. Attorneys, and C. Casey Forbes, Law Intern. Missoula, Montana,
for the plaintiff-appellee.

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OPINION
THOMAS, Circuit Judge:
This appeal presents the question whether a convicted
methamphetamine dealer is entitled, under the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.
§§ 2000bb-2000bb-4, to use marijuana during his period of
supervised release. In the circumstances presented by this
case, the district court declined to suspend the mandatory
supervised release condition prohibiting such use. We affirm.
I
Lafley pleaded guilty to conspiracy to manufacture and
possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and § 846. He was sentenced to
110 months of imprisonment to be followed by 60 months of
supervised release. The court imposed conditions of supervised release prohibiting Lafley from committing “another
federal, state, or local crime,” from “possess[ing] a controlled
substance without a valid prescription,” and from “consuming, possessing or ingesting alcoholic beverages.” Lafley
served his term of imprisonment and began serving his term
of supervised release.
While on supervised release, Lafley tested positive for marijuana. According to his probation officer’s report, when he
was confronted with the positive test he “readily admitted his
use and advised he had been feeling very stressed, nearly suicidal, and thought about returning to prison.” Lafley rejected
inpatient treatment through the Veterans Administration, but
he did adjust his prescription medication and continued outpatient treatment. Accordingly, and because Lafley tested negative for marijuana, the probation officer’s subsequent report
recommended that the court take no further action. The court
accepted the officer’s recommendation.

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Subsequently, the probation officer filed a petition for a
warrant for Lafley’s arrest. The petition alleged two violations
of the terms of Lafley’s supervised release: that he consumed
alcohol and that he refused to participate in substance abuse
testing. The court issued an arrest warrant. An amended petition additionally alleged that when the warrant was executed,
Lafley was driving on a suspended license and possessed marijuana. Lafley pleaded guilty to violations of state law and
was sentenced to ten days in jail and a $530 fine.
At his revocation hearing, Lafley admitted the allegations
in the amended petition. Relying on his admissions, the court
found him in violation of the conditions of supervised release.
However, Lafley and witnesses who spoke on his behalf
argued that he was a changed man.1 The court offered Lafley
“one more chance” and delayed the imposition of sentence for
four months.2
At the subsequent disposition hearing, Lafley and his lawyer testified that, over the prior four months, Lafley had procured a driver’s license and auto insurance, bought a car,
found a place to live, and attended treatment. Lafley’s lawyer
stated that Lafley was no longer “drinking alcohol, he’s not
getting into fights, he’s not making drugs, he’s not dealing
drugs, he’s not robbing places. He’s working hard to be a
respectful citizen as well as a respected citizen.” Lafley’s lawyer concluded: “And he’s worked hard to comply with the
conditions of his release, although there is this marijuana
issue.”
Apparently, Lafley had joined the Montana Cannabis Ministries and procured a medical marijuana card.3 Lafley admit1

At the hearing, neither Lafley nor any witnesses referenced Lafley’s
using marijuana for religious purposes. In fact, Lafley represented that he
no longer used the drug.
2
The court made only slight amendments to the conditions of release—
specifically, authorizing daily breathalyzer and/or urinalysis tests.
3
As of this writing, the use of medical marijuana is legal under Montana
law, see Mont. Code Ann. § 50-46-101 et seq., but illegal under federal

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ted to using marijuana once, a month before his hearing,
stating that he was “spiritually moved at the time to do so.”
On the basis of his beliefs as a member of the Ministries, he
argued that his free exercise rights under the First Amendment entitled him to a religious exemption to Standard Condition Number 7 that would allow his continued use of
marijuana for religious purposes.4
Lafley called two witnesses to testify as to his religious
beliefs. Randy Leibenguth, a leader of the Montana Cannabis
Ministries, is “a Cannabis Sacrament Minister, a dispensary
owner, and a D.J., who has lived between the cities of Bozeman and Belgrade, Montana[,] for the past seven years.”5
Lucas Mulvaugh “is a minister at the Montana Cannabis Ministries and acts as the spiritual advisor.” In his allocution, Lafley testified to his rehabilitation, aided by his association with
the Ministries, and his desire to continue that association—
and to continue partaking in its “religious sacrament,” marijuana.6
law, see 21 U.S.C. § 812(c), Schedule I(c)(10); see also State v. Nelson,
195 P.3d 826, 834 (Mont. 2008). Because Lafley represents that he never
used his medical marijuana card, and because he does not challenge the
conditions of his supervised release as they relate to medical marijuana,
that question is not relevant to our consideration.
4
Standard Condition Number 7, or “the Condition,” reads:
[T]he defendant shall refrain from excessive use of alcohol and
shall not purchase, possess, use, distribute, or administer any controlled substance, or any paraphernalia related to any controlled
substances, except as prescribed by a physician[.]
5
Leibenguth testified that the Montana Cannabis Ministries “is a brother
branch of Hawaiian Cannabis Ministry, located in Hilo, Hawaii, which has
been in operation for over nine years and is led by Roger Christie. . . .
[Christie] provided training to . . . Leibenguth through phone and e-mail
conversations over the past two years.” At oral argument, counsel for Lafley conceded that Christie and thirteen others were indicted on federal
drug charges in June 2010.
6
Leibenguth consistently defined the Montana Cannabis Ministries’
beliefs in terms of its “religious sacrament,” marijuana. He testified that

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At the conclusion of the hearing, the district court sentenced Lafley to three months of incarceration followed by 57
months of supervised release. The court expressed doubt as to
whether the Ministries is a religion, stating, “with . . . all due
respect . . . it doesn’t sound like a religion to me, it sounds
like a way to smoke marijuana,” The court rejected Lafley’s
First Amendment challenge. Although Lafley had not specifically asserted a claim under RFRA, the district court rejected
the applicability of the Act, citing United States v. Israel, 317
F.3d 768 (7th Cir. 2003). In Israel, the Seventh Circuit
rejected a Rastafarian’s claim that he did not violate a condition of his supervised release because his sacramental use of
marijuana was protected by RFRA.
When the court inquired of counsel whether Lafley had any
final objections to his sentence, Lafley’s lawyer responded:
“Not beyond the religious freedom argument the [c]ourt has
addressed.” Over that objection, the court imposed conditions
of supervised release that prohibit Lafley from “commit[ting]
any federal, state or local crime” and from “possess[ing] any
controlled substance.” The court specified that Lafley could
not “use . . . medical marijuana” or use marijuana as a member of the Ministries. The court’s written judgment included
Standard Condition Number 7, providing that during the term
of Lafley’s supervised release he “shall not unlawfully possess a controlled substance” and “shall not purchase, possess,
use, distribute, or administer any controlled substance . . .
except as prescribed by a physician.”
the Ministries’ key “belief is that Cannabis brings us closer to God, it provides us with a spiritual unity, spiritual unifier.” He further testified that
the Ministries’ key religious practice is “baptism by fire,” which entails
“lighting a lighter or any sort of match or anything else on the religious
sacrament, inhaling that and exhaling.” He stated on two occasions that
the Montana Cannabis Ministries’ “religion” is about “the sacrament of
Cannabis” although he stated on three occasions that the Ministries is not,
in fact, a religion. As discussed, we need not decide whether the Ministries
qualifies as a religion for purposes of RFRA.

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The district court later issued a written order explaining its
reasoning for denying Lafley’s objection to the Condition.
The court focused on Lafley’s First Amendment claim but
also held that, even if Lafley had raised a RFRA claim—and,
further, even if he qualified for the Act’s protections because
the Condition would substantially burden his sincere religious
belief—“the Act would not provide the relief he seeks . . .
because [the Condition] serves ‘a compelling government
interest in the least restrictive manner possible’ ” (quoting
Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2002)). Lafley timely appealed.
II
On appeal, Lafley does not challenge the Condition on First
Amendment grounds. Rather, he argues that insofar as the
Condition prohibits his religious use of marijuana during his
term of supervised release, it violates RFRA.
[1] RFRA provides, in relevant part:
(a) In general
Government shall not substantially burden a person’s
exercise of religion even if the burden results from
a rule of general applicability, except as provided in
subsection (b) of this section.
(b) Exception
Government may substantially burden a person’s
exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

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42 U.S.C. § 2000bb-1.7 “A person whose religious practices
are burdened in violation of RFRA ‘may assert that violation
as a claim or defense in a judicial proceeding and obtain
appropriate relief.’ ” O Centro Espirita, 546 U.S. at 424
(quoting 42 U.S.C. § 2000bb-1(c)).
Thus, RFRA requires a two-step analysis. A claimant under
the Act must first establish a prima facie case by showing that
the government action at issue “works a substantial burden on
his ability to freely practice his religion.” Guerrero, 290 F.3d
at 1222; see Navajo Nation, 535 F.3d at 1068; United States
v. Zimmerman, 514 F.3d 851, 853 (9th Cir. 2007) (per
curiam) (a claimant “may only invoke RFRA if his beliefs are
both sincerely held and rooted in religious belief” (internal
quotation marks omitted)). If a claimant establishes a substantial burden on his exercise of religion, the challenged government action may nonetheless be upheld if the government
“demonstrates” that the action “is in furtherance of a compelling governmental interest” and is implemented by “the least
restrictive means.” 42 U.S.C. § 2000bb-1(b); see also id.
§ 2000bb-2(3) (“the term ‘demonstrates’ means meets the
burdens of going forward with the evidence and of persuasion”); Navajo Nation, 535 F.3d at 1068.
The district court did not reach the question whether Lafley
had established a prima facie case or whether Montana Cannabis Ministries constituted a religion entitled to protection
under RFRA, reasoning that the government satisfied its bur7

The history of RFRA’s enactment as a response to the Supreme
Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990),
and of the Supreme Court’s subsequent decision in City of Boerne v. Flores, 521 U.S. 507 (1997), holding RFRA’s application to the states to be
beyond Congress’ legislative authority under § 5 of the Fourteenth
Amendment, is well-documented. See Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 424 & n. 1 (2006); Navajo
Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067-69 (9th Cir. 2008) (en
banc). RFRA “remains operative as to the federal government.” Id. at
1067 n.10 (citing Guerrero, 290 F.3d at 1220-22).

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den at the second step of the RFRA analysis. Therefore, we
consider the arguments pertaining to that stage of analysis and
decline to reach any other question.8
A
[2] The government has a compelling interest in denying
a convicted drug felon a religious exemption that would permit him to use drugs while serving his term of supervised
release.
[3] In fashioning the conditions of supervised release, Congress has instructed courts to consider the particular defendant’s criminal history and characteristics, and to tailor the
conditions to prevent recidivism and promote rehabilitation.
18 U.S.C. § 3583(c) (incorporating 18 U.S.C. § 3553(a)(1),
(a)(2)(C), and (a)(2)(D) by reference). However, Congress has
required courts to include two prohibitions as “explicit condition[s] of supervised release” for all defendants: “that the
defendant not commit another Federal, State, or local crime
during the term of supervision and that the defendant not
unlawfully possess a controlled substance.” Id. § 3583(d).
This requirement is consistent with the congressional finding
in the Controlled Substances Act that “[t]he illegal importation, manufacture, distribution, and possession and improper
use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American
people.” 21 U.S.C. § 801(2). It also represents Congress’
judgment about the importance of preventing drug abuse
among those who have been convicted of crimes and sentenced to a term that includes a supervised release component.
8

In doing so, we recognize that “the government is not required to prove
a compelling interest for its action or that its action involves the least
restrictive means to achieve its purpose, unless the plaintiff first proves the
government action substantially burdens his exercise of religion.” Navajo
Nation, 535 F.3d at 1068-69.

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[4] In this case, it is uncontested that Lafley is a convicted
methamphetamine dealer who has violated his conditions of
supervised release several times. The mandatory condition of
supervised release is rationally related to his conviction, and
the government has a compelling interest in prohibiting him
from using controlled substances during his period of supervised release. The record establishes “that the compelling
interest test is satisfied through application of the challenged
law ‘to the person’—the particular claimant whose sincere
exercise of religion is being substantially burdened.” O Centro Espirita, 546 U.S. at 430-31 (quoting 42 U.S.C. § 2000bb1(b)).
O Centro Espirita does not command a contrary result.
There, the Supreme Court addressed whether, consistent with
RFRA, the government could refuse a small religious sect an
exemption to the Controlled Substances Act, 21 U.S.C.
§§ 801-904, so that the sect could “receiv[e] communion by
drinking a sacramental tea . . . that contains a hallucinogen
regulated under” the Act as a Schedule I substance. 546 U.S.
at 423.9 Before the Court, the government’s “central submission [was] that it ha[d] a compelling interest in the uniform
application of the Controlled Substances Act, such that no
exception to the ban on use of the hallucinogen can be made
to accommodate the sect’s sincere religious practice.” Id.
The Court rejected the government’s argument and held
9
The hallucinogen at issue in O Centro Espirita is, like marijuana, listed
in Schedule I of the Controlled Substances Act. 546 U.S. at 425; see 21
U.S.C. § 812(c), Schedule I(c). “Substances listed in Schedule I of the Act
are subject to the most comprehensive restrictions, including an outright
ban on all importation and use, except pursuant to strictly regulated
research projects.” O Centro Espirita, 546 U.S. at 425 (citing 21 U.S.C.
§§ 823, 960(a)(1)). “The Act authorizes the imposition of a criminal sentence for simple possession of Schedule I substances and mandates the
imposition of a criminal sentence for possession ‘with intent to manufacture, distribute, or dispense’ such substances . . . .” Id. (citations omitted);
see 21 U.S.C. § 844(a); § 841(a), (b)).

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that RFRA prohibited it from interfering with the sect’s free
exercise of religion. Id. The Court determined that “the Government’s mere invocation of the general characteristics of
Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day.” Id. at 432. The Court
acknowledged “that Schedule I substances . . . are exceptionally dangerous,” but found “no indication that Congress, in
classifying” the hallucinogen in the sect’s tea, “considered the
harms posed by the particular use at issue,” namely, the “circumscribed, sacramental use of” the hallucinogenic tea by the
sect. Id. (emphasis added). The Court concluded that “Congress’ determination that [the hallucinogen] should be listed
under Schedule I simply does not provide a categorical
answer that relieves the Government of the obligation to
shoulder its burden under RFRA.” Id. The Court found significant support for rejecting the argument that the Controlled
Substances Act “admits of no exceptions” in the fact that the
Act explicitly provides for exceptions. Id. at 430. The Court
described how “the Act itself contemplates . . . exempting certain people from its requirements,” id. at 432-33 (citing 21
U.S.C. § 822(d)), and offered as a pertinent example the fact
that “an exception has been made to the Schedule I ban for
[the] religious use” of peyote by Indian Tribes, id. at 433 (citing 42 U.S.C. § 1996a(b)(1); 21 C.F.R. § 1307.31) (2005)).
[5] Here, by contrast, the government does not rely on its
general interest in regulating controlled substances. Rather, it
argues that it has a compelling interest in prohibiting Lafley,
a convicted drug dealer, from using marijuana, and therefore
in denying him a religious exemption to the standard conditions of supervised release. Furthermore, unlike the Controlled Substances Act, the statutory regime at issue allows no
exceptions. Indeed, the law prohibits all defendants on supervised release from using controlled substances. 18 U.S.C.
§ 3583(d). When that prohibition is applied to someone with
a criminal history like Lafley’s, the government’s interest is
compelling.

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B
Having determined that the government’s interest in prohibiting a convicted drug felon from using drugs during his
term of supervised release is compelling, we turn to the question whether Standard Condition Number 7 is the least restrictive means of furthering that interest.
[6] The standard condition is no broader than the interest
the government has put forward. It simply states that Lafley
“shall not purchase, possess, use, distribute, or administer any
controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician.” No
less restrictive condition could feasibly and adequately prohibit Lafley from using marijuana.
Lafley argues instead for conditions prohibiting his use of
drugs other than marijuana, prohibiting his recreational use of
marijuana, requiring self-reporting of his alleged sacramental
use of marijuana, and/or mandating urine testing for the use
of other controlled substances, among others. All of these are
as impractical as they are insufficient. A positive drug test
does not indicate whether the use was recreational or sacramental, and restricting testing to other controlled substances
would not accomplish the end of preventing Lafley from
using illegal drugs during his supervised release. Requiring
continuous monitoring of Lafley’s marijuana use to determine
whether the use was recreational or religious would place an
unreasonable burden on a probation office.
[7] In sum, under the circumstances presented here, the
condition is the least restrictive means of advancing the government’s compelling interest.
III
Because the government’s interest in prohibiting a convicted methamphetamine dealer from using controlled sub-

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stances during supervised release is compelling, and because
Standard Condition Number 7 is the least restrictive means of
advancing that interest, the district court correctly imposed
the condition. We need not determine, and do not reach, any
other question presented, including opining under what different circumstances RFRA might require a different result.
AFFIRMED.