McCormick

MEMORANDUM **

McCormick pleaded guilty to conspiracy to manufacture and distribute marijuana in violation of 18 U.S.C. § 371 , reserving, however, his right to appeal the district court’s decision that a “medical necessity” defense was unavailable to him. The district court so determined both because there was no such defense as a matter of law, and because McCormick “failed to meet the threshold requirements for asserting the defense” if it existed.

McCormick’s initial argument rests on our decision in United States v. Oakland Cannabis Buyers’ Cooperative, 190 F.3d 1109 (9th Cir.1999) (per curiam). Our judgment in that case was reversed, however, in United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 , 121 S.Ct. 1711 , 149 L.Ed.2d 722 (2001). That case holds that “medical necessity is not a defense to manufacturing and distributing marijuana.” Id. at 494 , 121 S.Ct. 1711 .

We invited supplemental briefs after the Supreme Court decision came down. McCormick had submitted evidence of severe illness for which marijuana provided him with relief. He argues that the Court’s holding does not preclude him from asserting a medical necessity defense because the decision…