Ultimately, Bartkowicz agreed to plead to three counts, two of which carried a five year mandatory minimum sentence, in exchange for an agreed upon five year sentence. (The Government agreed to withdraw its notice seeking a sentence enhancement because of Bartkowicz's prior felony convictions and the plea agreement stated that if the judge didn't agree with the five year sentence, Bartkowicz could withdraw his plea.)
The Judge agreed to the five year sentence today, and said Bartkowicz "miserably failed" to comply with state law. In explaining why Bartkowicz wasn't in compliance with state law, the Judge today cited two reasons: the number of plants and his failure to provide caregiver services other than providing the pot.
He said Bartkowicz "miserably failed" to follow Colorado law because of the number of plants he had and because he never met many of the patients who used his marijuana. That, Brimmer said, means the case is not an example of the federal government oppressively interfering with state law but rather fits with Bartkowicz's prior marijuana convictions.
The number of plants and licenses wasn't in dispute. Bartkowicz admitted in the plea agreement he could only show 12 licenses for his 224 plants. (Colorado law allows 6 plants per patient.) The caregiver issue is murkier.
According to the plea agreement, Bartkowicz told the DEA he made money by selling to dispensaries and to patients of other caregivers whom he had never met. He also told the DEA he didn't charge those for whom he had caregiver status, and that he usually only met with them when they needed pot.
The requirements for being a caregiver under Colorado law keep changing. In 2009, one court held it requires more than just supplying pot. (Opinion here.) But state regulations, implemented after the date of the offense in that case held otherwise.
(ii)“Primary care-giver” means a person other than the patient and the patient’s physician, who is eighteen years of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition.
iii) “Significant responsibility for managing the well-being of a patient” means assisting a patient with daily activities, including but not limited to transportation or housekeeping or meal preparation or shopping or making any necessary arrangement for access to medical care or services or provision of medical marijuana.
Then, in 2010, the state legislature swung the pendulum back the other way and enacted a law providing "the act of supplying medical marijuana or marijuana paraphernalia, by itself, is insufficient to constitute "significant responsibility for managing the well-being of a patient." (C.R.S. 25-1.5-106, 2010) And already, a bill has been introduced for 2011 with further modifications. (2011 Bill Text CO H.B. 1043).
On a related note, what's really unfair is the mandatory minimum. According to the plea agreement, Bartkowicz' sentencing guideline range, even with his prior convictions, and the enhancement for his grow being within 1,000 feet of a school, was 30 to 37 months. But due to the mandatory minimum sentencing law, the lowest sentence he could get was 5 years.
Bartkowicz' sentence is harsh. He made mistakes, beginning with offering up his grow to a news station while growing more plants than he had licenses for. He also should not have waived his right to remain silent and tried to justify his grow to the
DEA agents at the time of the raid. As we say repeatedly around here, the jails are filled with people who thought if they could only tell their side of the story, the cops would see it their way. It rarely happens.
But while Bartkowicz is a poor poster child for the lawful production of medical marijuana under state law, he serves as an important reminder that the feds' position is ambiguous and arbitrarily enforced.
What is necessary, and long overdue, is a federal law disallowing prosecution of marijuana users and providers who are in compliance with state law -- or at least at a law that expressly allows users and providers to raise compliance with state law as an affirmative defense to prosecution.
Until then, risks remain. As Bartkowicz' attorney said today in court, "This all seems like a script written by Lewis Carroll."
