Circuit Judge José Cabranes
Canori was sentenced, in 2012, to 30 months in prison after pleading guilty to conspiring to distribute, and to possess with intent to distribute, 100 or more kilograms of marijuana. District court denied the indictment’s dismissal on grounds that memoranda in 2009 and 2011 by Deputy Attorneys General Ogden and Cole, respectively, led to a de facto rescheduling of marijuana, such that marijuana was no longer a Schedule I drug under the Controlled Substances Act (CSA). Canori repeated that argument on appeal, and asserted that because marijuana had been de facto rescheduled, his conviction violated the U.S. Constitution’s Due Process and Equal Protection Clauses, and his right to effective assistance of counsel. Second Circuit affirmed district court, concluding that the Ogden memorandum did not “reschedule” marijuana. Both the Ogden and Cole memoranda expressly stated, and reiterated, that the guidance contained therein did not affect marijuana’s classification as a Schedule I drug under the CSA. Moreover, the Attorney General did not follow the rulemaking procedures outlined in 5 USC §553 required to effectuate a “rescheduling” of marijuana, which thus remains a Schedule I substance.
