DENVER – A Colorado pot grower trying a first-in-the-nation drug defense based on Obama administration memos about marijuana saw his case take a setback Wednesday.

Christopher Bartkowicz wanted to argue he shouldn’t face federal marijuana cultivation charges because he started his pot-growing business after seeing memos the Department of Justice wrote saying they wouldn’t pursue cases in states that allow medical marijuana.

But U.S. District Judge Philip A. Brimmer sided with prosecutors who said the memos aren’t the same as making marijuana legal under federal law. “Anyone reading (the memos) would quite clearly understand that cultivating marijuana is a violation of federal law,” Brimmer said.