USA v. Roshaja Harvey

Filing

FILED OPINION (FERDINAND F. FERNANDEZ, CONSUELO M. CALLAHAN and ROBERT J. TIMLIN) AFFIRMED. Judge: FFF Authoring, FILED AND ENTERED JUDGMENT. [7952600]

Case: 11-50268

11/03/2011

ID: 7952600

DktEntry: 23-1

Page: 1 of 3

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROSHAJA LAMONT HARVEY,
Defendant-Appellant.





No. 11-50268
D.C. No.
3:95-cr-02095IEG-1
OPINION

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted October 11, 2011*
Pasadena, California
Filed November 3, 2011
Before: Ferdinand F. Fernandez and Consuelo M. Callahan,
Circuit Judges, and Robert J. Timlin,** District Judge.
Opinion by Judge Fernandez

*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
**The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.

19893

Case: 11-50268

19894

11/03/2011

ID: 7952600

DktEntry: 23-1

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UNITED STATES v. HARVEY

COUNSEL
Jason I. Ser, Federal Defenders of San Diego, Inc., San Diego,
California, for the defendant-appellant.
Sara J. O’Connell, Assistant U.S. Attorney, Office of the
United States Attorney, San Diego, California, for the
plaintiff-appellee.

Case: 11-50268

11/03/2011

ID: 7952600

DktEntry: 23-1

UNITED STATES v. HARVEY

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19895

OPINION
FERNANDEZ, Circuit Judge:
Roshaja Harvey appeals from the district court’s order finding him in violation of his conditions of supervised release
based upon his use of marijuana. He asserts that because he
had a recommendation from a physician to use marijuana in
California pursuant to the California Compassionate Use Act
of 1996,1 he did not violate the possession prohibition2 of the
Federal Controlled Substances Act.3
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742. We review the district court’s decision to
revoke a term of supervised release for abuse of discretion.
United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008).
However, we review questions of statutory interpretation de
novo. See United States v. Cade, 236 F.3d 463, 465 (9th Cir.
2000).
[1] We affirm the district court for the reasons stated in its
precise and accurate decision dated June 23, 2011,4 which we
adopt as our own, with one addition. The addition is: Whatever else “order” might mean under § 844(a) of the Controlled
Substances Act, it does not include a mere recommendation
from a physician pursuant to the Compassionate Use Act.
AFFIRMED.

1

Cal. Health & Safety Code § 11362.5.
21 U.S.C. § 844(a).
3
21 U.S.C. §§ 801-904.
4
United States v. Harvey, ___ F. Supp. 2d ___, 2011 WL 2493744 (S.D.
Cal. June 23, 2011).
2