The People of the State of Colorado, Petitioner-Appellee, In the Interest of D.M., Juvenile-Appellant.
Boulder County District Court No. 15JD385 Honorable Patrick
D. Butler, Judge
J. Weiser, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Petitioner-Appellee
Law Office of Thomas W. Martin, LLC, Thomas W. Martin, Fort
Collins, Colorado, for Juvenile-Appellant
Terry and Grove, JJ, concur
1 Section 18-1.3-603(1), C.R.S. 2018, says that every order
of conviction for a criminal offense (with certain
exceptions) must "include consideration of
restitution." And, unless the sentencing court finds
that no victim suffered a pecuniary loss, the court must
order the defendant to pay restitution to the victim.
2 Likewise, a juvenile whom the court has adjudicated
delinquent must pay restitution for a victim's loss of
personal property as required by section 18-1.3-603. §
19-2-918(1), C.R.S. 2018. But what if the victim's
pecuniary loss is the value of marijuana stolen from the
victim's marijuana store? Can a defendant be required to
pay restitution for such loss?
3 D.M., a juvenile who stole marijuana from a marijuana
store, says "no," contending that because the
Federal Controlled Substances Act (CSA), 21 U.S.C.
§§ 801-971 (2018), makes it a federal offense to
distribute marijuana and provides that no one has a property
interest in marijuana, Colorado's restitution statutes
can't be applied to his conduct. In short, he contends
that the CSA preempts the restitution statutes in these
circumstances. But because we don't see any positive
conflict between the CSA and the restitution statutes, we
reject D.M.'s preemption argument and affirm the order of
4 D.M. and two of his friends broke into a licensed marijuana
dispensary in the middle of the night and stole marijuana
plants and products worth $178, 000. The People filed a
petition for delinquency, charging D.M. with theft and second
degree burglary, both class 3 felonies. D.M. agreed to plead
guilty to burglary of a nondwelling, a class 4 felony, in
exchange for dismissal of the original charges. The district
court accepted the plea agreement, adjudicated D.M.
delinquent, and sentenced him to nine months of probation.
5 The prosecution filed a motion for an order requiring D.M.
to pay $178, 000 in restitution for the value of the stolen
marijuana. D.M. didn't dispute the amount of the loss but
argued that the court couldn't order such restitution
because the CSA preempts the restitution statutes. The
district court rejected that argument and ordered D.M. to pay
the store owner $178, 000 in restitution.
CSA Doesn't Preempt Colorado's Restitution Statutes
Standard of Review
6 We review de novo whether federal law preempts state law.