United States v. Green

19-997 (L)
United States v. Green

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2021
(Argued: December 7, 2021 Decided: August 31, 2022)
Docket Nos. 19-997 (Lead), 19-1027 (Con)

UNITED STATES OF AMERICA,
Appellee,

v.

MICHAEL AMALFI, JR., CHRISTOPHER ALVINO, PETER WILK, MICHAEL MARCIANO,
Defendants,

ALEXANDER GREEN, CHARLES GREEN,
Defendants-Appellants.

Before: SACK, BIANCO, Circuit Judges, and UNDERHILL, District Judge. ∗

Defendants-appellants Alexander and Charles Green were charged in the
United States District Court for the Western District of New York with, inter alia,
conspiracy to possess with intent to distribute 100 kilograms or more of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. The Green
Brothers filed a joint motion to dismiss the narcotics conspiracy count on the
grounds that the classification of marijuana under Schedule I of the Controlled
Substances Act violates their Fifth Amendment due process and equal protection
rights. They argued that marijuana's scheduling has no rational basis because it
does not meet the statutory criteria for inclusion on Schedule I. The district court
(Wolford, J.) denied their motion to dismiss, concluding that they incorrectly
sought to tether the rational basis inquiry to the statutory criteria. We agree with

∗
Chief Judge Stefan R. Underhill, United States District Court for the District of
Connecticut, sitting by designation.
19-997 (L)
United States v. Green

the district court that the Act's scheduling criteria are largely irrelevant to our
constitutional review because the rational basis test asks only whether Congress
could have any conceivable basis for including marijuana on the strictest schedule.
Because there are other plausible considerations that could have motivated
Congress's scheduling of marijuana, we conclude that its classification does not
violate the Green Brothers' due process or equal protection rights. We therefore

AFFIRM the order and judgment of the district court.

WILLIAM EASTON, Easton Thompson
Kasperek Shiffrin LLP, Rochester, N.Y., for
Defendant-Appellant Charles Green;

JEFFREY LICHTMAN (Jeffrey Einhorn, on the
brief), Law Offices of Jeffrey Lichtman, New
York, N.Y., for Defendant-Appellant
Alexander Green;

SEAN C. ELDRIDGE, Assistant United States
Attorney, for James P. Kennedy, Jr., United
States Attorney for the Western District of
New York, Rochester, N.Y., for Appellee.

SACK, Circuit Judge:

To decide this appeal, we must determine the proper scope of rational

basis review when analyzing equal protection and due process challenges to the

scheduling of a controlled substance under the Controlled Substances Act

("CSA"), 21 U.S.C. § 801. Defendants-appellants Alexander and Charles Green

(the "Green Brothers") urge us to limit the breadth of our constitutional analysis

to the CSA's scheduling criteria; that is, they argue that the inclusion of

2
19-997 (L)
United States v. Green

marijuana on Schedule I—the CSA schedule with the strictest controls—violates

the equal protection and due process guarantees of the Fifth Amendment

because there is no rational basis on which to conclude that marijuana fulfills the

statutory requirements for placement on that schedule. In particular, the CSA

requires that a substance have no accepted medical use to be listed on Schedule I,

and the Green Brothers argue that marijuana's scheduling is irrational because of

the abundant evidence that marijuana has legitimate medical uses. They ask us

to strike down marijuana's Schedule I classification as unconstitutional and,

upon that basis, dismiss the narcotics conspiracy counts against them.

We decline to do so. The statutory criteria in the CSA are substantially

irrelevant to our review of the Green Brothers' constitutional claims. The rational

basis test requires us to ask whether there is any conceivable basis to support

Congress's decision at issue (here, to include marijuana on the strictest CSA

schedule). Thus, even if there are accepted medical uses of marijuana such that it

would not satisfy the listing criteria for a Schedule I substance under the CSA,

that fact would not be sufficient to render marijuana's scheduling

unconstitutional. Because there are plausible considerations that could have

motivated Congress to place marijuana on Schedule I, we conclude that

3
19-997 (L)
United States v. Green

marijuana's scheduling does not violate the Green Brothers' due process or equal

protection rights. Accordingly, we affirm the decision of the United States

District Court for the Western District of New York (Wolford, J.) denying their

motion to dismiss the charges against them for conspiracy to possess with intent

to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B) and 846.

BACKGROUND

Over a four-year period, the Green Brothers were engaged in a marijuana

distribution scheme. Alexander Green obtained hundreds of kilograms of

marijuana from California which he shipped to his brother, Charles Green, in

New York State. The Green Brothers set prices for sale and, with the aid of co-

conspirators, distributed and sold the marijuana in the Rochester, New York

area. On March 27, 2014, a Western District of New York grand jury returned a

two-count indictment against the Green Brothers charging them with conspiracy

to possess with intent to distribute 100 kilograms or more of marijuana, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846, and conspiracy to commit

money laundering, in violation of 18 U.S.C. § 1956(h).

The Green Brothers filed a joint motion to dismiss the narcotics conspiracy

4
19-997 (L)
United States v. Green

count based on their argument that the CSA's classification of marijuana as a

Schedule I controlled substance violates their due process and equal protection

rights. They argued that marijuana's scheduling has no rational basis because it

does not meet the statutory criteria for Schedule I classification; that is, the CSA

requires that a substance have no currently accepted medical use in treatment in

the United States to fall under Schedule I, see 21 U.S.C. § 812(b)(1), and marijuana

does have accepted medical uses. 1 The Green Brothers made clear that they "do

not request" a reclassification of marijuana under a different Schedule; they

"simply request the Court strike the offending statutory classification as

unconstitutional" and leave the issue of reclassification "to the legislative branch."

Factual Allegations and Legal Authorities in Supp. of Def.'s Mots., App'x 40, ¶ 17

(Apr. 10, 2015). In their motion to dismiss, the Green Brothers requested an

evidentiary hearing to present evidence of marijuana's medical uses and build

upon expert declarations submitted by two professors.

On June 27, 2016, after briefing and oral argument, Magistrate Judge

1The Green Brothers also argued that marijuana failed to meet the two other
statutory requirements for Schedule I classification because, they assert, it does
not have a "high potential for abuse" and there is not "a lack of accepted safety
for use of the drug . . . under medical supervision." 21 U.S.C. § 812(b)(1).
5
19-997 (L)
United States v. Green

Jonathan Feldman issued a Report and Recommendation recommending that no

evidentiary hearing be conducted and that the Green Brothers' motion to dismiss

Count 1 be denied. United States v. Green, No. 14-CR-6038, 2016 WL 11483508

(W.D.N.Y. June 27, 2016) (Report and Recommendation). On December 7, 2016,

the United States District Court for the Western District of New York issued a

decision and order adopting the Magistrate Judge's Report and Recommendation

and denying the Green Brothers' motion to dismiss. United States v. Green, 222 F.

Supp. 3d 267, 269 (W.D.N.Y. 2016).

As an initial matter, the district court tentatively rejected the government's

argument that the court lacked jurisdiction over the Green Brothers' challenge to

marijuana's scheduling because CSA scheduling is an administrative

determination that is only subject to review in a circuit court. Id. at 272-73. The

district court concluded that it had jurisdiction to hear a "proper constitutional

challenge" to marijuana's scheduling. Id. at 272. However, it was "not convinced

that Defendants' argument constitutes a proper constitutional challenge" because

"[w]hen Defendants' argument is dissected, it essentially becomes an attack on

the scheduling of marijuana based on the criteria set forth in the statute," which

is "an argument that really should be asserted in a petition filed with the

6
19-997 (L)
United States v. Green

Attorney General." Id. at 273. Nevertheless, the court identified binding

precedent that “stands for the proposition that a defendant may challenge the

scheduling of marijuana through a constitutional attack brought in the district

court," even though the court “question[ed] the soundness of [that] decision[] as

applied to the circumstances present here.” Id. at 274 (citing United States v.

Kiffer, 477 F.2d 349 (2d Cir. 1973)).

The district court also questioned whether the Green Brothers properly

raised an equal protection claim. The court "ha[d] trouble reconciling how the

classification of a drug, in and of itself, could implicate an individual's equal

protection rights" because "[d]rugs do not have constitutional rights—people

do." Id. Even so, the court continued its inquiry because (1) the Green Brothers

also asserted a due process claim, which is more inclusive yet leads to a similar

analysis, and (2) other courts have allowed defendants to launch equal protection

challenges based on classifications of things (rather than people). Id. at 274-75.

Applying rational basis review, 2 the court held that the Schedule I

2The district court agreed with the Magistrate Judge's decision to apply rational
basis review. Id. at 275. The Magistrate Judge applied the lowest tier of scrutiny
because (1) there is no fundamental right to use, sell, or possess marijuana
without facing incarceration and (2) the Green Brothers' racial classification
arguments—that marijuana's scheduling was racially motivated and imposes an

7
19-997 (L)
United States v. Green

classification of marijuana did not violate the Green Brothers' due process and

equal protection rights. Although the court agreed with the defendants that

"marijuana is . . . currently being used for medical purposes," it concluded that

the Green Brothers misidentified the key question in the case. Id. at 275. They

"focus their argument on the claim that it is not rational for Congress or the DEA

to continue to conclude that there is no acceptable medical use for marijuana,"

but "[r]ational basis review asks not whether it is reasonable to conclude that the

specific criteria in the statute have been met, but, rather, whether there is any

conceivable basis that might support the classification." Id. at 277. Because

"there are numerous conceivable public health and safety grounds" for placing

marijuana on Schedule I, the court concluded that there is a rational basis and

declined to dismiss the count. Id. at 279. 3

outsized burden on people of color—failed because they could not establish that
Congress acted with invidious discriminatory purpose. Green, 2016 WL
11483508, at *3-*4, report and recommendation adopted, 222 F. Supp. 3d 267
(W.D.N.Y. 2016).
3 In the alternative, the district court concluded that the Green Brothers' claims

would fail even if it were to adopt their formulation of rational basis review, and
it decided that "[a]ny hearing on this issue is unnecessary." Id. at 280. "Whether
the medical purposes for which marijuana is being used is 'accepted' continues to
be debated. . . . Since the question is at least debatable, a court would err if it
were to substitute its judgment for that of the legislature." Id. (internal quotation

8
19-997 (L)
United States v. Green

On October 3, 2018, the Green Brothers pled guilty to a two-count

Superseding Information that charged them with a marijuana distribution

conspiracy and conspiracy to commit money laundering. The district court

sentenced Alexander Green to 48 months' imprisonment on each count, to be

served concurrently, and Charles Green to 27 months' imprisonment on each

count, also to be served concurrently. The Green Brothers reserved the right to

appeal the denial of their motion to dismiss the marijuana conspiracy count,

which they now do.

DISCUSSION

I. Standard of Review

We review de novo the denial of a motion to dismiss an indictment. United

States v. Smilowitz, 974 F.3d 155, 158 (2d Cir. 2020), cert. denied, 141 S. Ct. 2570

(2021).

II. Controlled Substances Act and Marijuana's Scheduling

The CSA—which Congress enacted as part of the broader Comprehensive

Drug Abuse Prevention and Control Act of 1970—places controlled substances

marks omitted). We take no position regarding this conclusion because it is not
necessary to resolve this appeal.
9
19-997 (L)
United States v. Green

into five schedules based on three factors: "[1] their accepted medical uses, [2] the

potential for abuse, and [3] their psychological and physical effects on the body."

Gonzales v. Raich, 545 U.S. 1, 13 (2005). The schedule on which a drug is placed

determines the strictness of manufacturing, distribution, and use controls. Id. at

14. To fall under Schedule I—the strictest schedule—a controlled substance must

have (1) "a high potential for abuse," (2) "no currently accepted medical use in

treatment in the United States,” and (3) "a lack of accepted safety for use of the

drug or other substance under medical supervision.” 21 U.S.C. § 812(b)(1).

When Congress first enacted the CSA, it placed marijuana on Schedule I,

relying on the recommendation of the Assistant Secretary of the Department of

Health, Education, and Welfare that marijuana be strictly controlled until

pending studies were completed. Raich, 545 U.S. at 14. Yet Congress's initial

scheduling of marijuana has never changed. As a result of Congress's

determination, "the manufacture, distribution, or possession of marijuana

became a criminal offense, with the sole exception being use of the drug as part

of a Food and Drug Administration preapproved research study." Id. If

marijuana were demoted to a lower schedule, individuals would be able to

obtain it for personal medical use with a valid prescription. See 21 U.S.C.

10
19-997 (L)
United States v. Green

§ 829(a)-(c).

The CSA prescribes a process for reclassifying controlled substances. The

Attorney General has the power—now delegated to the Drug Enforcement

Administration ("DEA")—to reclassify a drug, subject to certain limitations. 21

U.S.C. § 811(a); 28 C.F.R. § 0.100(b). Those seeking to challenge the government's

scheduling of a controlled substance can file an administrative petition and, if

necessary, obtain review of an adverse determination in a federal circuit court.

See 21 U.S.C. § 877. As we have explained, "[t]he question [of] whether a

substance belongs in one schedule rather than another clearly calls for fine

distinctions, but the statutory procedure at least offers the means for producing a

thorough factual record upon which to base an informed judgment." Kiffer, 477

F.2d at 357. "[T]he very existence of the statutory scheme indicates that, in

dealing with this aspect of the 'drug' problem, Congress intended flexibility and

receptivity to the latest scientific information to be the hallmarks of its approach."

Id.

There have been several attempts to reclassify marijuana through the

CSA's administrative process. See Green, 222 F. Supp. 3d at 272 (identifying at

least six instances). But "[d]espite considerable efforts to reschedule marijuana, it

11
19-997 (L)
United States v. Green

remains a Schedule I drug." Raich, 545 U.S. at 15.

III. Analysis

A. Threshold Issues

Before deciding the merits of the Green Brothers' motion to dismiss, we

address three threshold issues: (1) whether they bring a proper constitutional

challenge, which can be adjudicated by the district court, or a statutory claim,

which must be brought as an administrative petition; (2) whether, despite raising

constitutional defenses, they were nevertheless required to exhaust

administrative avenues for relief; and (3) whether they failed to show that their

injury could be redressed by the relief they seek.

1. The district court had jurisdiction to hear the Green Brothers'
constitutional defense.

First, we conclude that the district court had jurisdiction over the Green

Brothers' constitutional defenses irrespective of whether their proposed analysis

mirrors that of an administrative petition. The district court expressed doubt

that it had such jurisdiction because it "question[ed] whether Defendants have

attempted to disguise as a constitutional claim an argument that really should be

asserted in a petition filed with the [DEA]." Green, 222 F. Supp. 3d at 273. The

CSA establishes a process for seeking reconsideration of a controlled substance's

12
19-997 (L)
United States v. Green

scheduling based on the CSA's statutory factors, and that process requires

individuals to file an administrative petition, the denial of which is directly

reviewable in the courts of appeals. See 21 U.S.C. §§ 811(a), 877. The district

court expressed concern that, "[a]lthough Defendants attempt to avoid that

statutory scheme by couching their challenge in constitutional language, it seems

as though they are really challenging the administrative determination not to

reclassify." Green, 222 F. Supp. 3d at 273.

We appreciate the district court's concerns, but we think that there is a

meaningful difference between seeking review of the denial of an administrative

petition (over which the district court does not have jurisdiction) and an asserted

constitutional defense, however mistaken (over which it does). Although, as

discussed below, the Green Brothers misconstrued the proper constitutional

question by urging us to restrict our rational basis review to statutory criteria,

they nonetheless raised a constitutional defense. 4 We need not accept the

4In concluding that the Green Brothers raised a constitutional defense, we
consider it worth noting that the Green Brothers did not ask the court to
reschedule marijuana outside of Schedule I, which would have "call[ed] for fine
distinctions" that are best left to administrative agencies. Kiffer, 477 F.2d at 357.
Rather, they appropriately "request[ed] the Court strike the offending statutory
classification as unconstitutional"—i.e., deschedule marijuana—and leave any re-
classification efforts "to the legislative branch" or DEA. App'x 40.

13
19-997 (L)
United States v. Green

defendants' formulation of the constitutional analysis to exercise jurisdiction over

their claims.

2. The Green Brothers were not required to exhaust administrative
avenues for relief prior to mounting a constitutional defense.

The government expressed skepticism as to whether the Green Brothers

can raise their constitutional defense without first exhausting available

administrative remedies. Administrative exhaustion is a doctrine that "holds

that federal courts should refrain from adjudicating a controversy if the party

bringing suit might obtain adequate relief through a proceeding before an

administrative agency." Washington v. Barr, 925 F.3d 109, 116 (2d Cir. 2019).

Although the district court ultimately concluded that it was bound to excuse the

Green Brothers' failure to exhaust based on our decision in United States v. Kiffer,

supra, it "question[ed] the soundness" of that precedent. Green, 222 F. Supp. 3d at

274. We see no issue with the rule identified in Kiffer, and we reaffirm that no

such exhaustion is required.

In Kiffer, we entertained a similar constitutional challenge to marijuana's

scheduling. The government argued that the criminal defendants should "be

estopped from attacking . . . the constitutionality" of marijuana's scheduling until

14
19-997 (L)
United States v. Green

they had fully exhausted the CSA's administrative remedies. Kiffer, 477 F.2d at

351. “We put to one side the obvious rejoinder that the administrative agency. . .

does not have the power to declare the Act unconstitutional," because the

"administrative remedy would have obtained for appellants the very relief they

s[ought]" through their constitutional claim. Id. We nevertheless identified an

additional "two reasons" for not requiring administrative exhaustion. Id. First,

we explained that there was "some doubt" whether an administrative remedy

even existed in 1973 because, at that time, the relevant official had taken the

position that he could not consider petitions to reclassify marijuana. See id. The

Green district court correctly noted that this reason is largely irrelevant today,

because that official's position was ultimately rejected by the courts. See Green,

222 F. Supp. 3d at 274.

However, the second reason we identified for excusing non-exhaustion in

Kiffer remains valid: "[E]ven assuming the existence of a viable administrative

remedy, application of the exhaustion doctrine to criminal cases is generally not

favored because of 'the severe burden' it imposes on defendants." Kiffer, 477 F.2d

at 352 (quoting McKart v. United States, 395 U.S. 185, 197 (1969)); see also Moore v.

City of E. Cleveland, 431 U.S. 494, 497 n.5 (1977) ("[R]equiring exhaustion of

15
19-997 (L)
United States v. Green

administrative remedies . . . is wholly inappropriate where the party is a criminal

defendant . . . asserting constitutional invalidity of the statute under which she is

being prosecuted."); Washington, 925 F.3d at 119-20 (requiring exhaustion in civil

suit challenging marijuana's scheduling but distinguishing Kiffer's waiver of

exhaustion because it involved a constitutional defense raised by criminal

defendants). As we recently observed, "[t]he exhaustion requirement under the

CSA is . . . prudential, not jurisdictional. It is not mandated by the statute.

Rather, it is a judicially-created administrative rule, applied by courts in their

discretion." Washington, 925 F.3d at 119. "[J]udge-made exhaustion doctrines,

even if flatly stated at first, remain amenable to judge-made exceptions." Ross v.

Blake, 578 U.S. 632, 639 (2016).

We see no reason to disturb the exception we recognized in Kiffer for

criminal defendants disputing the constitutional validity of a controlled

substance's scheduling. We therefore conclude that criminal defendants need

not exhaust the CSA's administrative process for reclassifying a controlled

substance prior to raising a constitutional defense seeking to deschedule that

substance.

3. The Green Brothers would benefit from the relief they seek.

The government argues that "the classification of marijuana as a Schedule I
16
19-997 (L)
United States v. Green

drug . . . had no effect on the Green Brothers' actual or potential punishment"

because the penalty ranges for marijuana offenses are now tied to "the amount of

marijuana involved, not its classification as a Schedule I controlled substance."

Appellee's Br. at 13. Therefore, the government argues, the Green Brothers

would have faced the same penalties whether marijuana was on Schedule I or

reclassified to another schedule. 5 We disagree that the Green Brothers would not

benefit from the relief they seek.

Although the government correctly notes that sentencing for marijuana

offenses is currently based on weight,6 the remedy for the unconstitutional

scheduling of marijuana, if the Green Brothers' defense were to prevail, would

likely be the removal of marijuana entirely from any schedule. Unless and until

the government rescheduled marijuana, it would cease to be a "controlled

substance." Thus, the distribution of marijuana would no longer be the

5 The government frames this as an argument that the "Green Brothers cannot
make the threshold showing that the classification of marijuana as a Schedule I
drug deprives them of a constitutionally protected liberty interest," but
recognizes that other courts have treated this as an argument that a defendant
lacks "standing" to challenge marijuana's classification. Appellee's Br. at 13-15.

6See, e.g., 21 U.S.C. § 841(b)(1)(A)(vii) (imposing minimum of 10 years and
maximum of life for offenses involving 1000 kilograms or more of marijuana); id.
§ 841(b)(1)(B)(vii) (imposing minimum of 5 years and maximum of 40 years for
offenses involving 100 kilograms or more of marijuana).
17
19-997 (L)
United States v. Green

"distribut[ion] . . . [of] a controlled substance" in violation of 21 U.S.C. § 841(a)(1),

and, therefore, would not be punishable by the weight-based penalties in Section

841(b). There is, of course, a difference between the 40-year maximum the Green

Brothers faced and the lack of penalty they would face if marijuana were

descheduled. Thus, the Green Brothers have shown that their injury could be

redressed, at least in theory, by the relief they seek.

B. Constitutional Analysis

Moving on to the constitutional questions posed by the Green Brothers, we

conclude, for substantially the reasons proffered by the district court, that that

the Green Brothers' due process and equal protection claims fail.

The Fifth Amendment includes an explicit Due Process Clause and an

implicit equal protection guarantee that is "precisely the same as . . . equal

protection claims under the Fourteenth Amendment." Sessions v. Morales-

Santana, 137 S. Ct. 1678, 1686 n.1 (2017) (quoting Weinberger v. Wiesenfeld, 420 U.S.

636, 638 n.2 (1975)). Since, in the context of this appeal, the due process and

equal protection claims are essentially identical, we analyze them together. See

Chapman v. United States, 500 U.S. 453, 464-65 (1991) (explaining that, in the

context of due process claims based on a "right to be free from deprivations of

18
19-997 (L)
United States v. Green

liberty as a result of arbitrary sentences" caused by arbitrary statutory

classifications, "an argument based on equal protection essentially duplicates an

argument based on due process"). 7 For either type of claim, when a challenged

statute does not implicate suspect or quasi-suspect classifications or burden

fundamental rights, we apply rational basis review, which demands only that the

classification be rationally related to a legitimate governmental interest. See

Heller v. Doe, 509 U.S. 312, 320 (1993); Molinari v. Bloomberg, 564 F.3d 587, 606 (2d

Cir. 2009). The Green Brothers raise no arguments on appeal to support

applying a stricter form of scrutiny, and we conclude that rational basis review

7 The district court questioned whether the defendants had properly articulated
an equal protection claim, noting that "[d]rugs do not have constitutional
rights—people do." Green, 222 F. Supp. 3d at 274. Although the concept of equal
protection claims based on arbitrary classifications of things (rather than unequal
treatment of people) is undoubtedly puzzling, the Supreme Court clearly permits
such claims. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461-63
(1981) (permitting equal protection challenge to legislative classification
differentially treating "plastic and nonplastic nonreturnable milk containers");
United States v. Carolene Prods. Co., 304 U.S. 144, 153-54 (1938) ("[W]e recognize
that the constitutionality of a statute, valid on its face, may be assailed by proof
of facts tending to show that the statute as applied to a particular article is
without support in reason because the article, although within the prohibited
class, is so different from others of the class as to be without the reason for the
prohibition.").

19
19-997 (L)
United States v. Green

applies to their claims. 8

The key question on appeal is how to properly frame our rational basis

analysis. The Green Brothers argue that whether there is a rational basis for

including marijuana on Schedule I requires an inquiry into whether it is rational

for the government to conclude that marijuana meets each of the statutory

criteria for that schedule. In particular, they assert that it is irrational to conclude

that marijuana has no accepted medical uses. We conclude—as the district court

did—that the Green Brothers are asking us to improperly tether the

constitutional question to statutory factors. See Green, 222 F. Supp. 3d at 277

("Rational basis review asks not whether it is reasonable to conclude that the

specific criteria in the statute have been met, but, rather, whether there is any

conceivable basis that might support the classification.").

8Although the Green Brothers include a footnote assuring us that they have not
"abandon[ed] a claim that stricter scrutiny applies," Appellants' Br. at 20 n.8, they
make no effort to rebut the district court's conclusions that (1) the scheduling of
marijuana implicates no fundamental right, see Green, 2016 WL 11483508, at *3
(Magistrate Judge's report and recommendation) (quoting Kiffer, 477 F.2d at 352-
53 ("[T]here is no colorable claim of a fundamental constitutional right to sell
marihuana . . . .")), and (2) they failed to show that marijuana's inclusion on
Schedule I was motivated by discriminatory intent toward a suspect class, see id.
at *4; Green, 222 F. Supp. 3d at 275 (agreeing with "the reasons articulated in the
Report and Recommendation" for applying rational basis review).
20
19-997 (L)
United States v. Green

We reject their reasoning because, on rational basis review, "it is entirely

irrelevant for constitutional purposes whether the conceived reason for the

challenged distinction actually motivated the legislature." F.C.C. v. Beach

Commc'ns, Inc., 508 U.S. 307, 315 (1993). Indeed, "a legislative choice" to make a

particular classification "may be based on rational speculation unsupported by

evidence or empirical data." Id. Therefore, "[o]n rational-basis review, a

classification in a statute . . . comes to us bearing a strong presumption of

validity." Id. at 314. It is not enough for "those attacking the rationality of the

legislative classification" to argue that Congress's stated reasons do not support

the decision it made; rather, challengers "have the burden to negative every

conceivable basis which might support it." Id. (emphasis added) (internal

quotation marks and citation omitted). The rational basis test is thus an

extremely deferential standard. It precludes second-guessing Congress's

"wisdom, fairness, or logic of legislative choices." Heller, 509 U.S. at 319 (quoting

Beach Commc'ns, Inc., 508 U.S. at 313). Accordingly, if a classification's rationality

is "at least debatable," we must refrain from questioning Congress's judgment.

Clover Leaf Creamery Co., 449 U.S. at 464 (internal quotation marks omitted).

Thus, even if marijuana's classification would not survive an

21
19-997 (L)
United States v. Green

administrative petition for rescheduling because it fails to meet the statute's

enumerated criteria, it is not unconstitutional unless there is no conceivable basis

for placing marijuana on the strictest schedule. The Green Brothers convincingly

argue that it is irrational for the government to maintain that marijuana has no

accepted medical use, and we agree with the district court that—if this were an

appeal from an agency's denial of a petition to reschedule marijuana—it would

therefore be difficult for us to conclude otherwise. See Green, 222 F. Supp. 3d at

275. But that is not enough to establish their equal protection and due process

defenses. As we have explained, they "must do more than show that the

legislature's stated assumptions are irrational—[they] must discredit any

conceivable basis which could be advanced to support the challenged provision,

regardless of whether that basis has a foundation in the record, or actually

motivated the legislature." Beatie v. City of New York, 123 F.3d 707, 713 (2d Cir.

1997) (internal citations omitted and emphasis in original). As the district court

recognized, "there are numerous conceivable public health and safety grounds

that could justify Congress's and the DEA's continued regulation of marijuana as

a Schedule I controlled substance." Green, 222 F. Supp. 3d at 279. More

specifically, as the district court explained:

22
19-997 (L)
United States v. Green

One need only review the DEA's most recent denial of a petition to
reschedule to recognize the continuing public health and safety issues
associated with marijuana use—it "induces various psychoactive
effects that can lead to behavioral impairment"; it can result in a
"decrease in IQ and general neuropsychological performance" for
those who commence using it as adolescents; it may result in adverse
impacts on children who were subjected to prenatal marijuana
exposure; it "is the most commonly used illicit drug among
Americans aged 12 years and older"; and its use can cause recurrent
problems related to family, school, and work, including repeated
absences at work and neglect of family obligations.

Id. (quoting Denial of Petition to Initiate Proceedings to Reschedule Marijuana,

81 Fed. Reg. 53,767, 53,770, 53,774-75, 53,783-74 (Aug. 12, 2016)). And "[w]here

there are plausible reasons for Congress' action, our inquiry is at an end." Beach

Commc'ns, Inc., 508 U.S. 307, 313-14 (internal quotation marks omitted). 9

For these reasons, we conclude that the district court properly rejected the

Green Brothers' equal protection and due process defenses.

9We also reject the Green Brothers' argument that they are entitled to a hearing
to force the government to produce evidence of a rational basis for marijuana's
scheduling. Because the burden is on the Green Brothers "to negative every
conceivable basis" for placing marijuana on the strictest schedule, there is also no
need for the government to produce evidence to support the classification. Beach
Commc'ns, Inc., 508 U.S. at 315 (internal quotation marks omitted); see Heller, 509
U.S. at 320 (explaining that, on rational basis review, the government "has no
obligation to produce evidence to sustain the rationality of a statutory
classification").
23
19-997 (L)
United States v. Green

CONCLUSION

We have considered the Green Brothers' remaining arguments on appeal

and conclude that they are without merit. For the reasons explained above, we

AFFIRM the order and judgment of the district court.

24