§253 Drug Offenses: Marijuana and Hashish
8th Circuit finds remand unnecessary for sentence over statutory maximum. (253) Defendant participated in a conspiracy to distribute marijuana. He was convicted under 21 U.S.C. § 846 and sentenced to 150 months. On appeal, the parties agreed that his sentence exceeded the 60-month sentence applicable to marijuana offenses under 21 U.S.C. § 841(b)(1)(D). Reviewing for plain error, the Eighth Circuit found that a remand for resentencing on all counts was unnecessary because defendant also received a concurrent 150-month sentence for Hobbs Act robbery, and the district court’s reasons for imposing a specific sentence “hold true.” U.S. v. Williams, __ F.3d __ (8th Cir. Dec. 17, 2018) No. 17-3040.
1st Circuit approves marijuana estimate based on amount of fertilizer purchased. (253)(254) Defendants were convicted of charges arising out of a large-scale marijuana-farming operation. The government discovered the number of plants growing in 2009, but had no evidence of the number of plants from the other three relevant years. To calculate the total numbers of plants grown, it relied on a supplier’s business records that showed how much Pro-Mix fertilizer the conspirators purchased over a four-year period. Government witnesses testified as to how much Pro-Mix was used on each basket of marijuana (1/2 to 1-1/2 bags) and how many plants were in each basket (three to six plants). The court then assumed, favorably to defendant, that 1-1/2 bags were used for each basket and each basket contained only three plants. The district court also put to one side the number of plants discovered in 2009, which greatly exceeded the number of plants one would expect using those conservative assumptions. The First Circuit found this “doubly conservative approach” was not clearly erroneous. U.S. v. French, __ F.3d __ (1st Cir. Sept. 17, 2018) No. 16-2386.
7th Circuit upholds finding that THC was the most closely related controlled substance to analogs. (253) Defendants pled guilty to distributing a controlled substance analog. Under Note 6 to §2D1.1, where a substance is not listed in the guidelines, the court should apply the marijuana equivalent of the most closely related controlled substance. The Seventh Circuit upheld the district court’s finding that THC was the most closely related controlled substance to the analogs involved here. None of the analogs had a chemical structure similar to any controlled substance referenced in the guidelines, however, there was evidence of other factors listed in Note 6. An expert and lay witnesses testified that the substances had similar or stronger physiological effects to those of THC. The expert opined that less of the substances was needed to produce an effect compared to a given amount of THC. The expert also elaborated on why the substances were like THC, and not like marijuana. The district court was entitled to credit that testimony. U.S. v. Novak, 841 F.3d 721 (7th Cir. 2016).
1st Circuit upholds 10-year mandatory minimum for manufacturing marijuana. (145)(245)(253) Defendant was convicted of manufacturing over 100 marijuana plants. The district court sentenced him under 21 U.S.C. §841(b)(1)(B)(vii) to the mandatory minimum sentence of 120 months applicable to defendants with a prior felony drug conviction. Defendant argued that the ten-year mandatory-minimum sentence violated the Eighth Amendment. He pointed to the public’s evolving views on marijuana, including state-law decriminalization and legalization measures. He also cited the federal government’s general policy of not prosecuting cultivation and distribution activities that were in compliance with “strong and effective [state marijuana] regulatory and enforcement systems.” The First Circuit held that the 120-month mandatory minimum sentence did not violate the Eighth Amendment. Despite the evolving consensus on marijuana policy, manufacturing marijuana remained a serious crime under federal law. Defendant’s arguments were more appropriately directed at Executive and Legislative branches. U.S. v. Ford, 839 F.3d 94 (1st Cir. 2016).
5th Circuit upholds equating ingredient in synthetic marijuana to THC. (253) Defendant was involved in a conspiracy to produce and sell synthetic marijuana, a lab-created product designed to mimic organic marijuana. He challenged the court’s decision to equate AM-2201—an ingredient in the synthetic marijuana that activated the cannabinoid receptors in the human body—to synthetic tetrahydrocannabinol (THC). JWH–018, the controlled substance for which AM–2201 was an analogue, does not appear in the guidelines’ drug tables. Under note 6 to §2D1.1, if a controlled substance is not listed in either the Drug Equivalency Table or the Drug Quantity Table, the court is to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline.” The Fifth Circuit upheld the court’s finding that the controlled substance listed in the tables closest to JWH–018 was THC. In U.S. v. Malone, 809 F.3d 251 (5th Cir. 2015), the court held that THC was the closest controlled substance to JWH-018, and thus to AM-2201. The panel also upheld the district court’s decision to apply a 1:167 ratio to JWH-018 and by extension, to AM-2201. That ratio was a direct result of finding that THC was the closest controlled substance to JWH-018. The Drug Equivalency Tables list 1 gram of THC as equal to 167 grams of marijuana. U.S. v. Stanford, __ F.3d __ (5th Cir. May 18, 2016) No. 15-40127.
5th Circuit upholds use of 1:167 conversion ratio for marijuana butter and brown chunks containing THC. (253) Defendant pled guilty to two marijuana offenses, and was sentenced to 70 months. The district court found that two substances involved in the offenses—homemade “marijuana butter” and a “brown chunky substance”—were substances containing detectable amounts of Tetrahydrocannabinol (THC) for purposes of calculating their marijuana equivalency using the 1:167 gram conversion ratio in the Drug Equivalency Table. The Fifth Circuit ruled that the court did not err in using the 1:167 conversion ratio. Defendant pointed to no infirmity in the guidelines’ careful directions for how to calculate the marijuana equivalency of substances that contain detectable amounts of THC. The court’s finding was not clearly erroneous. There was no ambiguity in the guidelines that would warrant application of the rule of lenity. U.S. v. Koss, __ F.3d __ (5th Cir. Feb. 5, 2016) No. 14-51173.
8th Circuit upholds use of 1:167 conversion ratio for synthetic cannabinoids. (253) Defendant managed a store through which he sold synthetic cannabinoids and synthetic cathinones. Synthetic cannabinoids are Schedule I substances, but they are not listed in the guidelines drug-equivalency tables. The district court found that the synthetic cannabinoids were more closely related to pure tetrahydrocannabinol (THC) than to marijuana, which dictated the use of a 1:167 marijuana-equivalency ratio for THC. See Note 8(D) to §2D1.1. The Eighth Circuit agreed. The court relied on testimony from Dr. Trecki, a DEA pharmacologist, who explained that each of the synthetic cannabinoids had an effect on the central nervous system that was substantially similar to THC. He testified that all but two of the synthetic cannabinoids sold by the defendants were at least as potent as, if not more potent than, THC. Dr. Trecki also noted that synthetic cannabinoids were distinguishable from marijuana in several ways, including (1) the lack of a chemical moderating the effects of THC that is present in marijuana, and (2) the synthetic drugs’ increased likelihood of producing seizures, coma, and death. Judge Bright dissented. U.S. v. Ramos, __ F.3d __ (8th Cir. Feb. 9, 2016) No. 15-1592.
9th Circuit applies pilot enhancement to “panga” boat operator. (240)(253) Defendant was convicted of possessing more than 100 kilograms of marijuana on a vessel, in violation of 46 U.S.C. §§70503 & 70506, after he was arrested on a “panga” boat transporting marijuana. The guideline for that offense, §2D1.1(b)(3)(C), provides for a two-level enhancement if the defendant acted “as a pilot, copilot, captain, navigator, flight officer, or any other operations officer above any craft or vessel.” The district court imposed the enhancement, and the Ninth Circuit affirmed. The court of appeals rejected defendant’s contention that the enhancement applies only to individuals who occupy a position of authority on the vessel or who possess special skills aboard the ship. Instead, the court held that a defendant need not have any formal training in piloting a boat and that the enhancement can be applied to any operator of a boat. U.S. v. Cruz-Mendez, __ F.3d __ (9th Cir. Jan. 27, 2016) No. 14-50154.
1st Circuit rejects argument that single marijuana plant can have more than one stem. (253) The district court held defendants responsible for 9295 marijuana plants based on evidence that agents had seized from defendant’s warehouse 56 developed plants, 3616 seedlings, and 5623 stems or stumps of dead or harvested plants. Defendants argued that the court improperly counted each of the 5000 stems or stumps as a single plant when “as a matter of physics, a single stump or a single root formation could have several stems.” The First Circuit rejected this argument, since defendants presented no evidence to support their position that a single marijuana plant will often have more than one stem. The only circuit court that has addressed the issue, U.S. v. Robinson, 35 F.3d 442 (9th Cir. 1994), has concluded on the basis of a far more complete evidentiary record that “[e]ach stalk protruding from the ground and supported by its own root system should be considered one plant, no matter how close to other plants it is and no matter how intertwined are their root systems.” U.S. v. Balthazard, 360 F.3d 309 (1st Cir. 2004).
1st Circuit holds that pre-trial destruction of marijuana plants did not violate due process. (253) Defendant argued that the government’s pre-trial destruction of marijuana plants seized from his trailer violated due process, since it precluded him from effectively challenging both the plant count and police testimony that all seized plants had developed root systems. The 1st Circuit held that the pre-trial destruction of the marijuana did not violate due process since police acted in good faith. A state’s failure to preserve potentially exculpatory evidence does not violate due process unless a defendant can show bad faith by the police. There was no bad faith, since at the time the plants were destroyed, this was only a state court matter, where the presence of root formations is irrelevant. U.S. v. Gallant, 25 F.3d 36 (1st Cir. 1994).
1st Circuit counts small marijuana plants not yet sexually differentiated. (253) Defendant argued that 155 small plants that had not yet been sexually differentiated because of their growth should not be considered a “mixture or substance” that could be considered at sentencing. The 1st Circuit upheld consideration of the plants. First, 21 U.S.C. § 841 distinguishes between “a mixture or substance containing a detectable amount” of marijuana, and marijuana plants. The statute does not use the term “mixture or substance” in relation to marijuana plants. Second, previous cases have upheld the consideration of plants that are to be weeded out before distribution. Finally, cases in other circuits have rejected a nearly identical gender-distinction challenge. U.S. v. Gallant, 25 F.3d 36 (1st Cir. 1994).
1st Circuit says that growth from cutting need not function as a root for cutting to be a plant. (253) Under 1st Circuit caselaw, the presence of roots determines whether a marijuana cutting constitutes a plant for sentencing purposes. Defendant argued that new growth on a cutting could only be termed “roots” when the growth physiologically functions as a root. The 1st Circuit rejected this requirement. Plant status is sufficiently established when there is “some readily observable evidence of root formation.” The district court had ample evidence that the 16 cuttings here were sufficiently developed to be classified as plants. The court summarily rejected the claim that the equivalency of one plant to one kilogram of marijuana lacks a rational basis. Senior Judge Oakes of the 2nd Circuit concurred, noting that if he were free to decide the issue, he would conclude that equating three-inch marijuana plants with “at best” marginal root structures to kilograms of marijuana was arbitrary and violated due process. U.S. v. Burke, 999 F.2d 596 (1st Cir. 1993).
1st Circuit affirms visual exam and random sampling to determine number of marijuana plants. (253) The 1st Circuit affirmed that 100 or more marijuana plants were involved in defendant’s offense. The finding was based on (a) an expert’s trained visual identification of all 112 plants seized at the search scene as marijuana, (b) the fact that all the plants were seized contemporaneously from the same location, (c) the positive chemical analysis on 15 plants tested at random, and (d) the absence of evidence that defendant was growing anything but marijuana. Although the expert testified that two marijuana “look-alikes” grew locally, he never stated that he was incapable of distinguishing them from marijuana. Moreover, the other factors relied on by the district court strongly supported its drug quantity determination. U.S. v. Scalia, 993 F.2d 984 (1st Cir. 1993).
2nd Circuit upholds consideration of male marijuana plants. (253) Defendant argued that the court must interpret 21 U.S.C. section 841(b)(1)(B)(vii) and section 2D1.1 to exclude male marijuana plants from sentencing calculations in order for those provisions to be constitutional. The 2nd Circuit affirmed that section 841(b)(1)(B)(vii) and section 2D1.1 clearly did not exclude male marijuana plants and that a gender distinction was not necessary to make the statute constitutional. There was a rational basis for Congress’s use of a graduated series of penalties for drug-trafficking offenses, based either upon the quantity of harvested plants that defendants may introduce into the market, or the number of live plants that a defendant may grow with unknown production potential. U.S. v. Proyect, 989 F.2d 84 (2nd Cir. 1993).
2nd Circuit upholds treating one marijuana plant as equivalent to 1000 grams. (253) Under 21 U.S.C §841(b)(1)(B)(vii) and guideline section 2D1.1(c), for offenses involving more than 100 marijuana plants, one plant is treated as equivalent to 1000 grams of marijuana. For offenses involving a lesser number of plants, one plant is treated as equivalent to 100 grams of marijuana. The district court held that both the statute and the guideline were unconstitutional because there was no rational basis for equating one unharvested marijuana plant with one kilogram of dried marijuana. The 2nd Circuit reversed, agreeing with U.S. v. Osburn, 955 F.2d 1500 (11th Cir. 1992), that there was a rational basis for penalizing large scale growers more harshly than small time offenders. The 60-month mandatory minimum sentence in section 841(b)(1)(B)(vii) was rationally related to Congress’s objective of imposing severe punishment on large scale drug offenders. U.S. v. Murphy, 979 F.2d 287 (2nd Cir. 1992).
2nd Circuit reverses estimate of past growing activity based on number of plants rather than weight produced. (253) Police seized approximately 3700 mature marijuana plants from two highly sophisticated marijuana farms operated by defendant and his co-conspirators. To determine defendant’s sentence, the judge began with the number of marijuana plants seized during the police searches, estimated the number of plants grown previously, and applied the guidelines to treat each plant as the equivalent of one kilogram of marijuana. Defendant contended that the estimates of past growing activity should have been based on evidence of weight produced, not plants grown. The 2nd Circuit agreed, since the uncontroverted evidence indicated that defendant’s farms produced an amount of marijuana substantially less than that used for sentencing. The total dry weight of marijuana produced over the life of the operations, when added to the 3700 plants actually seized, supported a sentence for 4000 kilograms, rather than the 11,000 kilograms used for sentencing. U.S. v. Blume, 967 F.2d 45 (2nd Cir. 1992).
2nd Circuit rules government need not individually test each marijuana plant for presence of THC. (253) Defendant contended that the district court’s findings on the number of marijuana plants involved in his offense was clearly erroneous because the government tested only a small number of the plants for the presence of THC. The 2nd Circuit rejected this argument. In addition to the lab results of the tests for THC in a random sample, an experienced government agent also testified that a visual inspection of the plants led him to conclude that they were marijuana. This was sufficient for the district court to conclude that all of the plants were marijuana. U.S. v. Madkour, 930 F.2d 234 (2nd Cir. 1991).
3rd Circuit holds that age and sex of marijuana plants are not grounds for downward departure. (253) Defendant argued that the district court erroneously believed that it lacked discretion to depart downward based upon the age and sex of the marijuana plants. The 3rd Circuit found no error. Departure is appropriate only in atypical cases. There was nothing atypical or unusual in the fact that the particular plants here were male, old and possibly weak. It was apparent that the sentencing commission gave serious consideration to how to assign the equivalency figures to marijuana. The exclusive focus on the number of marijuana plants led to the conclusion that the commission considered and rejected any other factors. Thus, a sentencing court could not conclude that the age or sex of particular marijuana plants were factors not adequately considered by the Commission. U.S. v. Benish, 5 F.3d 20 (3rd Cir. 1993).
3rd Circuit says destruction of marijuana did not violate due process. (253) Defendant contended that the district court should have sentenced him for his marijuana offense without considering its weight, since the government denied him an opportunity to inspect or weigh the marijuana plants by destroying them despite his discovery request. The 3rd Circuit held that evidence concerning the marijuana’s weight was reliable. The government presented a certificate from the state Bureau of Standards, Weights and Measures stating that the scale was accurate, and the director of the Bureau certified that the marijuana weighed 23.9 kilograms. Although the government did not retain a representative sample, the DEA complied substantially with the procedure set forth in 28 C.F.R. §50.21 (1992) for the destruction of contraband evidence. The government was cautioned, however, against the routine destruction of evidence material to sentencing. U.S. v. Deaner, 1 F.3d 192 (3rd Cir. 1993).
4th Circuit applies equivalency for growing marijuana even if no plants are seized. (253) Defendant pled guilty to conspiring to manufacture and distribute marijuana. He argued that the 100 gram per plant equivalency ratio in § 2D1.1(c) should not have been applied because the plants had been harvested and the resulting marijuana distributed before the investigation began. The Fourth Circuit, agreeing with the majority of circuits, held that the equivalency ratio applies to all offenses involving growing marijuana, regardless of whether plants are seized. U.S. v. Layman, 116 F.3d 105 (4th Cir. 1997).
4th Circuit includes cut plants in counting marijuana plants. (253) Defendant was convicted of cultivating marijuana. He argued that the district court erred by including 273 marijuana plants that had been cut and were no longer being cultivated. The Fourth Circuit held that the court properly counted the cut plants in its calculation of relevant conduct. Many circuits have held that a cutting with roots is a plant under the guidelines. The Sentencing Commission has added a new application note stating that a plant is an organism having leaves and a readily observable root formation. U.S. v. Fletcher, 74 F.3d 49 (4th Cir. 1996).
4th Circuit directs court to apply amended marijuana guideline retroactively. (253) The district court found defendant accountable for 722 marijuana plants. Using the drug quantity table in § 2D1.1 in effect at sentencing, the court treated each plant as equivalent to one kilogram of marijuana and calculated a base offense level of 30. The Fourth Circuit remanded for sentencing under the November 1, 1995, amendment to § 2D1.1(c) that makes each marijuana plant equal to 100 grams of dry marijuana regardless of its sex or number. The amendment is retroactive and therefore a sentence reduction is authorized under 18 U.S.C. § 3582(c)(2) and guideline § 1B1.10(a) and (b). Defendant was responsible for 72.2 kilograms carrying a base offense level of 22. U.S. v. Fletcher, 74 F.3d 49 (4th Cir. 1996).
4th Circuit says number of marijuana plants need only be proved by preponderance of the evidence. (253) Defendant was convicted of a number of drug-related charges, including manufacturing marijuana. He argued that the government must prove the number of marijuana plants beyond a reasonable doubt. The Fourth Circuit held that the government need only prove drug quantity by a preponderance of the evidence. The quantity of plants is a statutory sentencing factor rather than a substantive element of the offense. The court declined to determine whether the one plant/one kilogram ratio in § 2D1.1(c) should be applied to harvested plants, since over 3000 live plants were seized from the fields. Thus, even if the harvested plants were excluded, defendant would be responsible for over 3000 kilograms. U.S. v. Heater, 63 F.3d 311 (4th Cir. 1995).
4th Circuit upholds provision equating one marijuana plant to one kilogram of marijuana. (253) Defendant argued that the requirement in section 2D1.1(c) that each marijuana plant be treated for sentencing purposes as the equivalent of one kilogram of marijuana violated due process because the average marijuana plant yields much less. The 4th Circuit, in accord with six other courts of appeals, upheld the one plant/one kilogram equivalence. In order to further the objective that growers be punished more severely than distributors, Congress could rationally create an irrebuttable presumption that each marijuana plant be treated as the equivalent of one kilograms of marijuana, even though the average plant might produce less than that amount. U.S. v. Underwood, 970 F.2d 1336 (4th Cir. 1992).
4th Circuit strikes down guideline equating one marijuana plant to 100 grams of marijuana. (253) Guideline section 2D1.1(c) provides that for offenses involving possession of fewer than 50 marijuana plants, each plant is to be treated as equivalent to 100 grams of marijuana. The 4th Circuit held that this provision is inconsistent with Congressional intent, as expressed in 21 U.S.C. section 841(b)(1)(D), to consider actual weight as the sentencing measure for offenses involving fewer than 50 plants. In 21 U.S.C. section 841, Congress directed that except in certain specific instances, the actual weight of the illegal substance is used to assess the penalty. One exception is found in section 841(b)(1)(D), which states that “in the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight . . . such person shall . . . be sentenced to a term of imprisonment of not more than five years.” Congress intended with this language to refer only to cases involving possession of 50 or more plants. For cases involving less than 50 plants, Congress intended to follow the general rule of section 841, which makes actual weight determinative for sentencing purposes. U.S. v. Hash, 956 F.2d 63 (4th Cir. 1992).
5th Circuit holds that harvested marijuana stalks were plants under statute. (253) The district court found defendant responsible for 1187 marijuana plants, 288 of which were in post-harvest form, i.e. they were not live plants but dry, dead husks. The Fifth Circuit held that harvested marijuana stalks constitute marijuana plants under 21 U.S.C. § 841(b). The court rejected defendant’s claim that the word “plants,” as used in § 841(b), only means plants alive at the time of the seizure. Under the plain language of the statute, the only requirement is that the offense involve 1000 or more marijuana plants. Congress did not distinguish between harvested and unharvested, live or dead plants, and no authority exists within the plain language of the statute for creating such classifications. For purposes of applying the mandatory sentences in § 841(b), it is irrelevant whether the plants involved in the offense were alive, cut, harvested or processed when seized, provided that there were alive sometime during the commission of the offense. U.S. v. Fitch, 137 F.3d 277 (5th Cir. 1998).
5th Circuit upholds consideration of stalks, fibers and seeds from marijuana plants. (253) The 5th Circuit held that the district court correctly calculated defendant’s offense level by including the entire weight of the marijuana plants he imported, including stalks, fibers and seeds. The court agreed that under 21 U.S.C. section 960(b)(4), the weight of the stalks, fibers and seeds could not be included for purposes of conviction. However, the sentencing guidelines calculate the sentencing range based upon the total weight of the marijuana. U.S. v. Vasquez, 951 F.2d 636 (5th Cir. 1992).
6th Circuit holds that in possession case, court erred in applying marijuana equivalency to harvested plants. (253) Police found 168 live marijuana plants and 137 recently harvested plants in defendant’s home. He pled guilty to possession with intent to distribute marijuana. The district court used the equivalency ratio in §2D1.1(c) so that the 168 live plants and the 137 harvested plants were multiplied by 100 grams each for a total of 30.5 kilograms of marijuana. The equivalency ratio directs that “in the case of an offense involving marijuana plants, treat each plant, regardless of sex, as equivalent to 100g of marijuana…” The Sixth Circuit held that the district court erred in applying the ratio to the harvested plants. The equivalency ratio is inapplicable to harvested plants in the context of marijuana possession crimes and applicable to such plants in the context of sentencing for marijuana manufacturing convictions. Since the police found the harvested amount of consumable marijuana, there was no need to speculate regarding the amount of marijuana that could have been produced by the plant, so the 100-1 ratio was unnecessary. Moreover, defendant was not convicted of marijuana manufacturing but possession of marijuana with intent to distribute. U.S. v. Olsen, 537 F.3d 660 (6th Cir. 2008).
6th Circuit holds that hearsay testimony supported drug quantity finding by a preponderance of the evidence. (253) Defendant challenged the court’s finding by a preponderance of the evidence that he was responsible for 236 kilograms of marijuana over the life of the conspiracy. He argued that the court improperly combined both bagged and sold marijuana to reach an inflated quantity. However, the Sixth Circuit found that evidence of the bagging operation alone resulted in an easy finding of at least 100 kilograms, which was sufficient to support a base offense level of 26. A conservative estimate of Easterling’s testimony resulted in a finding that she bagged 31.5 kilograms of marijuana. In addition, the less stringent evidentiary standard applicable to sentencing allowed the court to consider hearsay testimony. Dodge testified that Pace told the grand jury that he bagged one pound of marijuana each night during the fall of 1997, which yielded another 41.2 kilograms. Finally, Rush testified that his nephews bagged a pound each night for the length of the two-year conspiracy. The district court did not clearly err in determining that the conspiracy involved at least 100 kilograms of marijuana. U.S. v. Darwich, 337 F.3d 645 (6th Cir. 2003).
6th Circuit holds return of search warrant was more reliable than police report for marijuana plants. (253) Defendant pled guilty to manufacturing marijuana. The district court held him accountable for 104 plants, relying on an incident report that said 96 plants were seized from the main portion of the rear bedroom, and an additional eight plants were recovered from the closet. However, the return of the search warrant only listed 96 plants as having been found. The district court found the incident report more reliable because it was more lengthy and detailed. On appeal, the Sixth Circuit reversed, holding that the return of the search warrant was more reliable. Police incident reports are prepared with an eye towards prosecution. They are generally considered unreliable and are excluded as inadmissible hearsay. Unlike the return of the search warrant, the incident report was not sworn and presented to a judicial official. No officer with personal knowledge of the seizure testified to its veracity. In contrast, two police officers swore to a magistrate that the material contained in the return of the search warrant was a true and correct tabulation of the items seized at defendant’s residence. U.S. v. Russell, 156 F.3d 687 (6th Cir. 1998).
6th Circuit remands to consider applying marijuana amendment retroactively. (253) Defendant was originally convicted of manufacturing marijuana. In 1995, an appellate court reversed the conviction on double jeopardy grounds, but in 1996 the Supreme Court reversed this ruling. While the case was pending before the Supreme Court, the Sentencing Commission amended § 2D1.1(c) to treat each marijuana plant as weighing 100 grams, regardless of the total number of plants involved. On rehearing to consider defendant’s remaining claims, the Sixth Circuit remanded for the district court to consider whether to apply the marijuana amendment retroactively. A defendant is entitled to file a motion under 18 U.S.C. § 3582(c)(2) seeking a reduction in his sentence. A district court has the discretion to apply the amendment retroactively. The court can also deny the § 3582(c)(2) motion, even if the retroactive amendment has lowered the guideline range. U.S. v. Ursery, 109 F.3d 1129 (6th Cir. 1997).
6th Circuit applies plant ratio to growers even if plants are harvested. (253) Defendant pled guilty to manufacturing marijuana. The district court based his offense level based on the number of marijuana plants he had grown, even though at the time of his arrest the plants had already been harvested. In a § 2255 petition, defendant sought retroactive application of U.S. v. Stevens, 25 F.3d 318 (6th Cir. 1994), which held—in a marijuana distribution case—that the enhancement for marijuana plants should not be used if the plants were harvested before arrest. The Sixth Circuit held that Stevens did not apply because defendant was convicted of growing marijuana, not simply distributing it. One reason for the equivalency ratio is to punish growers more harshly. That goal would be frustrated if the equivalency were not applied to growers who are arrested after harvesting. If the government can prove that a particular grower charged with manufacturing grew a particular plant, sentencing should be based on the equivalency ratio. Oliver v. U.S., 90 F.3d 177 (6th Cir. 1996).
6th Circuit reaffirms validity of marijuana plant conversion ratio. (253) Defendant argued that § 2D1.1(c) was unconstitutional. That § provides that for 50 or more marijuana plants, each plant is treated as equal to one kilogram of marijuana, but for less than 50 plants, each plant is treated as equivalent to 100 grams of marijuana. The 6th Circuit noted that this precise argument was rejected in U.S. v. Holmes, 961 F.2d 599 (6th Cir. 1992). U.S. v. Sonagere, 30 F.3d 51 (6th Cir. 1994).
6th Circuit applies enhancement for marijuana plants only to live, not harvested, plants. (253) Defendant was convicted of drug conspiracy charges after undercover agents made nine controlled buys of marijuana from him. The district court found defendant liable for the total number of marijuana plants his supplier grew. Because there were more than 50 plants, the court treated each plant as equivalent to 1 kilogram of marijuana, following the equivalency provision in § 2D1.1(c). The 6th Circuit reversed, holding that the equivalency provision is applicable only to live, and not harvested, plants. Defendant should have been sentenced based on the weight of the marijuana he conspired to sell. The enhanced punishment of one kilogram per plant should not have been applied. U.S. v. Stevens, 25 F.3d 318 (6th Cir. 1994).
6th Circuit refuses to exclude weight of marijuana stalks and seeds. (253) Relying on a November 1993 amendment to note 1 to § 2D1.1, defendant argued that the district court erroneously failed to exclude the weight of marijuana stalks and seeds from the weight of his marijuana. The note provides that a mixture or substance “does not include materials that must be separated from the controlled substance before the controlled substance can be used.” The 6th Circuit held that even if this amendment were applied retroactively to defendant, it would not require the exclusion of the weight of the marijuana stalks and seeds. Testimony at trial revealed that the stalks and seeds of a marijuana plant contain a detectable amount of the controlled substance. Thus, in contrast with the examples cited in the commentary note, the stalks and seeds need not be separated before the controlled substance can be used. U.S. v. Vincent, 20 F.3d 229 (6th Cir. 1994).
6th Circuit says marijuana cutting must have evidence of root formation to constitute a plant. (253) Defendant’s offense involved 1010 marijuana cuttings. Based on a government expert’s broad definition of plant, defendant was sentenced on the basis of 1010 marijuana plants. The 6th Circuit rejected this broad definition, holding that a marijuana cutting must have some readily observable evidence of root formation to constitute a marijuana plant for sentencing purposes. Congress intended “plant” to be construed by its plain and ordinary dictionary meaning. No experts need testify and no experiments with instruments to monitor gaseous exchange need to be conducted. Callus tissue formed after a cutting is taken from a mature plant is not a root. U.S. v. Edge, 989 F.2d 871 (6th Cir. 1993).
6th Circuit rejects due process challenge to government’s destruction of marijuana plants. (253) The 6th Circuit upheld the district court’s determination that there were more than 100 marijuana plants in defendants’ marijuana patch. Two police officers testified that they counted 122 plants. The only contrary evidence was a co-defendant’s testimony that although he planted 140 plants, after a heavy rain he counted only 82 plants. Defendant’s due process rights were not violated by the government’s destruction of the plants, which prevented defendant from independently counting the plants. Defendant did not contend that the government acted in bad faith in destroying the plants. According to the proof, the plants were counted and recounted. Given this and no evidence of bad faith, there was no due process violation. U.S. v. Allen, 954 F.2d 1160 (6th Cir. 1992).
7th Circuit upholds career offender sentence for marijuana defendant. (253) Defendant was convicted of conspiracy to possess with intent to distribute 100 kilograms of marijuana. The district court found that he was a career offender with a guideline range of 262-327 months, and imposed a sentence of 276 months. He argued that the sentence was unreasonably long because his previous offenses were nonviolent and involved only marijuana, rather than a more dangerous drug, because he provided substantial assistance to the government, because he would be in his late sixties when he would be released from prison, and because he claimed he was coerced into committing the offense by his partners from a previous drug enterprise, to whom he owed $500,000. The Seventh Circuit found that these were “exceedingly poor reasons for questioning the reasonableness” of defendant’s sentence. Defendant was quarreling with Congress’s judgment that nonviolent offenses involving marijuana are serious crimes. Defendant committed the offense less than two months after being released from prison for a major drug offense in which he received a substantial assistance reduction. It was predictable that if he received a similar discount here he would be back in the drug business as soon as he completed his sentence. His debt to his previous partners was based on the disruption of the drug dealings by his arrest. U.S. v. Gonzalez, 462 F.3d 754 (7th Cir. 2006).
7th Circuit upholds consideration of 2000 empty pots to be used in marijuana growing operation. (253) In order to obtain high-qualify marijuana for his distribution conspiracy, defendant decided to establish his own growing operation. He first established a growing operation in an attic, but he later located a warehouse that he leased to grow a larger crop. The conspirators purchased 2000 pots for cultivating plants, and began construction of growing lights and other requirements of a successful operation. The government raided the site before the actual plants were introduced. The district court included the 2000 empty pots in its drug weight calculations (2000 pots equaled 2000 plants, which converted to 200 kilograms of marijuana). The Seventh Circuit upheld the court’s consideration of the empty pots since defendant clearly had the intent to provide the plants and was reasonable capable of providing them. Defendant intended to grow a significant amount of marijuana at the warehouse, and had taken substantial steps towards realizing that intention. Moreover, defendant had demonstrated his ability to coordinate a successful grow operation with the success of the attic grow operation. The panel did not decide whether the court properly included all 2000 pots as representing 2000 plants. Given the marijuana attributable to other sources, the court only was required to attribute 30 kilograms to the growing operation to justify defendant’s sentence. U.S. v. Payne, 226 F.3d 792 (7th Cir. 2000).
7th Circuit holds that a marijuana cutting with roots is a plant. (253) Defendant was found with 411 marijuana plants in his possession. Of these, 195 were cuttings, although all had roots. Defendant argued that cuttings are not plants unless they are viable, which should be determined by waiting to see whether they mature into plants that have leaves. The Seventh Circuit held that a cutting constitutes a plant if has sprouted roots, even if those roots are only rudimentary. Here, the roots were comprised of “visible white growth and fiber hairs growing from the edge of the clipping.” This was sufficient. U.S. v. Delaporte, 42 F.3d 1118 (7th Cir. 1994).
7th Circuit says marijuana broker was accountable only for number of plants he could foresee. (253) Defendant brokered the sale of 700 pounds of marijuana that were grown and harvested from 12,500 plants. In its earlier opinion in this case, U.S. v. Young, 997 F.2d 1204 (7th Cir. 1993), the 7th Circuit held that to impose a mandatory minimum sentence under 21 U.S.C § 841(b), the court must determine the quantity of drugs defendant could reasonably foresee. At resentencing, a conspirator testified that one marijuana plant yielded .25 pounds of marijuana, and the court imputed knowledge of this ratio to defendant. The 7th Circuit again reversed. Defendant had no reason to know that the conspiracy involved more marijuana than the 700 pounds he brokered. Thus, he could only be held responsible for the number of marijuana plants he could reasonably foresee. Because the government failed to establish how many plants defendant could have reasonably foreseen, the district court should have sentenced defendant based on the 700 pounds he brokered. U.S. v. Young, 34 F.3d 500 (7th Cir. 1994), superseded on other grounds by guideline as stated in U.S. v. Fones, 51 F.3d 663 (7th Cir. 1995).
7th Circuit agrees that defendant was responsible for all nine marijuana patches. (253) Police discovered nine marijuana patches on a piece of public land. Defendant was found tending the plants in one of the patches, and some supplies were found in another patch. The 7th Circuit found that defendant was properly held responsible for all 175 plants in all nine patches. The district court found that defendant was involved in the cultivation of all nine patches based on the pathways between the patches, and the similarity of the auger holes and rows of plants in each patch. The court also rejected defendant’s constitutional challenge to the sentencing scheme that equates each plant with one kilogram of marijuana where more than 50 plants are involved. U.S. v. Huels, 31 F.3d 476 (7th Cir. 1994).
7th Circuit holds that 35 balloons of marijuana smuggled into prison is not a “small amount.” (253) Under 21 U.S.C. § 841(b)(4), any person who violates subsection (a) by distributing a small amount of marijuana for no remuneration shall be sentenced under § 844, a misdemeanor provision. Defendant conspired to smuggle 35 balloons of marijuana weighing 17.2 grams into a federal prison. The 7th Circuit held that this was not a “small amount” of marijuana. Congress left “small amount” for the courts to decide, indicating that weight was not the only consideration. Although that same quantity might be considered “small” when distributed in the general community, 35 balloons of marijuana, intended for use by three people, relative to the availability of drugs in a prison was not, for penalty purposes, “small.” U.S. v. Damerville, 27 F.3d 254 (7th Cir. 1994).
7th Circuit upholds consideration of weight of water that evaporated from cocaine base sample. (253) Defendant sold 5.2 grams of cocaine base to an undercover officer. At a reweighing several months later, the cocaine base weighed only 4.04 grams. Most of the weight loss was due to evaporation of water from the original sample. Defendant argued that since water is not a controlled substance, its weight should be excluded from the weight of the cocaine base. The 7th Circuit upheld the consideration of the weight of the evaporated water. Cocaine base is made by mixing cocaine and baking soda and boiling it in water, and in so doing, the water becomes mixed in with the cocaine base. Users of cocaine base need not wait until the water evaporates before using the drug. All three ingredients are part of a whole, blended together, and comport with the common understanding of “mixture” recognized in Chapman v. U.S., 111 S.Ct. 1919 (1991). U.S. v. Tucker, 20 F.3d 242 (7th Cir. 1994).
7th Circuit upholds use of number of marijuana plants rather than weight of harvested marijuana. (253) Defendant pled guilty to conspiring to manufacture more than 1000 marijuana plants. He argued that his offense level should not have been based on the number of marijuana plants, but on the anticipated weight of the harvested marijuana, since former section 2D1.4 makes it clear than an offense level should be based on the object of the conspiracy. The 7th Circuit upheld the use of the number of marijuana plants. The object of defendant’s conspiracy was the production of marijuana plants, not possession with intent to distribute. The evidence supported the court’s finding that there were more than 10,000 plants. Although the DEA agent who testified that 10,200 were involved admitted that the figure was an approximate one, the court was entitled to rely upon it. Defendant did not even argue that the count was wrong, and submitted no evidence. U.S. v. Atkinson, 15 F.3d 715 (7th Cir. 1994).
7th Circuit bases sentence on number of plants rather than actual weight of harvested marijuana. (253) Defendant was convicted of charges relating to a conspiracy to grow and distribute marijuana. The 7th Circuit found that defendant’s sentence was properly based on the number of plants involved as opposed to the actual weight of the marijuana, even though the marijuana had been harvested, processed, sold and possibly smoked by the time the government discovered the conspiracy. Defendant helped cultivate, harvest, and process the plants, and it was therefore appropriate to base his sentence on the number of plants, rather than the ultimate weight. U.S. v. Montgomery, 990 F.2d 266 (7th Cir. 1993).
7th Circuit upholds sentence of marijuana farm worker based on number of plants, rather than actual weight. (253) Defendant worked on a marijuana farm which harvested 12,500 plants, processed the plants into 400 kilograms of consumable marijuana, and distributed it to the wholesale market. Section 2D1.1(c) provides that for offenses involving 50 or more marijuana plants, each plant shall be treated as equivalent to one kilogram of marijuana, except that if the actual weight is greater, the actual weight should be used. The 7th Circuit rejected defendant’s claim that the one plant/one kilogram ratio should be used only where the government has raided a marijuana growing operation prior to harvesting or processing and there is no actual weight to be used. The language clearly directs a court to use the conversion ratio except where the actual weight of the marijuana plants is greater. Thus, defendant was properly sentenced on the basis of 12,500 kilograms of marijuana, rather than the 400 actually produced by the farm. The conversion ratio is used only for defendants who are involved in the cultivation, harvesting or processing of plants, and does not cover the activities of one who enters the distribution chain after processing. U.S. v. Haynes, 969 F.2d 569 (7th Cir. 1992).
7th Circuit upholds Drug Quantity Table’s treatment of marijuana plants. (253) The Drug Quantity Table in section 2D1.1 provides that in an offense involving marijuana plants, if the offense involved 50 or more plants, each plant is to be treated as equivalent to one kilogram of marijuana, and if the offense involved less than 50 plants, each plant is to be treated as equivalent to 100 grams of marijuana. Defendant contended that this violated due process because (a) the decision to set 50 plants as the cut-off mark was unconstitutionally arbitrary, and (b) the equivalencies were nonsensical since the average yields of each plant was far less than the weight assigned to each plant. The 7th Circuit upheld the Drug Quantity Table against these constitutional challenges. The arguments were based on the assumption that the weights assigned to each plant must represent a scientifically correct yield. Defendant was challenging Congress’ decision to determine a defendant’s sentence based upon the number of plants involved, rather than their weights or actual yields. The Drug Quantity Table reflected Congress’ decision to use the 50th plant as the indicator of culpability and participation in the drug marketplace. U.S. v. Webb, 945 F.2d 967 (7th Cir. 1991).
7th Circuit rejects argument that marijuana should have been dried prior to weighing. (253) Defendant contended that the district court erred when it calculated his offense level based upon weight of damp marijuana. The 7th Circuit found that the guidelines do not require that the marijuana be dried prior to weighing. The weight to be considered includes the entire weight of any mixture or substance, including water or mildew, containing a detectable amount of the marijuana. This approach minimizes “judicial concerns about when the marijuana was harvested, how (or if) it was dried, and how it was processed and stored.” U.S. v. Garcia, 925 F.2d 170 (7th Cir. 1991).
8th Circuit upholds pill estimate based on math calculation rather than direct evidence. (252) Defendant led a large-scale drug operation that distributed prescription drugs. The district court found that defendant was responsible for 15.354 kilograms of marijuana equivalent, based on a total of 16,725 pills: 7,172 pills were classified as Oxycontin pills, and 9,553 as Opana pills, based on the trend in sales of each drug that police observed during the dates of the conspiracy. Defendant argued that the district court erred by not limiting the drug quantity to the pills recovered by confidential informants during the controlled buys. The Eighth Circuit disagreed. A district court may consider “all transactions known or reasonably foreseeable to the defendant that were made in furtherance of the conspiracy.” Defendant did not allege a lack of knowledge or foreseeability with respect to any portion of the drug quantity attributed to him. The methodology used by the court was proper. It was of no consequence that the district court’s drug quantity determination was based on a mathematical calculation as opposed to direct evidence. U.S. v. Colton, 742 F.3d 345 (8th Cir. 2014).
8th Circuit upholds marijuana sentence at bottom of guideline range as reasonable. (253) Defendant pled guilty to marijuana conspiracy charges. The district court attributed at least 80 kilograms of marijuana to defendant, and sentenced him to 33 months. The Eighth Circuit held that the 33-month sentence was reasonable. The sentence fell within defendant’s guidelines range, and thus could be presumed reasonable. The district court explicitly considered the § 3553(a) factors such as defendant’s involvement with the conspiracy and his personal background. The court considered his parental involvement with his five children, but it also noted that defendant had repeatedly been prosecuted for drug-related offenses over the past 15 years, receiving six convictions. Given defendant’s work in transporting the drugs, he could have reasonably foreseen the transport of the entire 180 pounds of marijuana. The district court properly calculated the guideline range, considered all relevant sentencing factors, and chose a sentence at the low end of the appropriate advisory guidelines range. Defendant did not show this sentence to be substantively unreasonable. U.S. v. Standafer, 703 F.3d 424 (8th Cir. 2013).
8th Circuit upholds rejection of government’s sampling technique to count marijuana plants. (253) Police found numerous cuttings of marijuana plants at defendant’s house. At sentencing, a deputy testified that he sampled one out of every ten plants of similar size and tallied only those plants with an identifiable root system. Based on this sampling technique, the deputy estimated that defendant’s operation produced 1051 plants. In finding the operation yielded less than 1000 plants, the district court found that the officer’s technique of using a representative sample of plants, instead of an actual count, was problematic. The court concluded that the government did not meet its burden of proving by a preponderance of the evidence that defendant produced more than 1000 separate plants with identifiable root hairs. A cutting must have developed root hairs before it can be considered a plant under the guidelines. U.S. v. Bechtol, 939 F.3d 603 (8th Cir. 1991). Given the circumstances of this case, the Eighth Circuit ruled that the court’s rejection of the government’s sampling technique was not clearly erroneous. U.S. v. Raines, 243 F.3d 419 (8th Cir. 2001).
8th Circuit upholds number of marijuana plants in offense. (253) Defendant was convicted of manufacturing marijuana. The Eighth Circuit upheld the district court’s finding that he was responsible for cultivating 104 marijuana plants. An officer testified at trial and at sentencing about his methods for identifying and locating the cultivated marijuana plants. He testified that when he pulled the cultivated plants he and another officer counted 104 plants and recounted 104 plants five days later at the sheriff’s office. In addition, a police department technician with training and experience in identifying marijuana plants testified at trial that before she analyzed the plants she counted 104 plants by their root systems. U.S. v. Wieling, 153 F.3d 860 (8th Cir. 1998).
8th Circuit holds that § 2255 motion adequately raised retroactive marijuana amendment. (253) In 1992, a jury convicted defendant of drug and firearms charges. The court later granted his § 2255 motion to vacate the firearm conviction. At resentencing on the remaining drug counts, the district court did not apply a 1995 retroactive amendment reducing the weight of the marijuana for offenses involving 50 or more marijuana plants. The government claimed that because defendant did not call attention to the amendment at resentencing, he could not raise it on appeal. The Eighth Circuit remanded for the court to consider the amendment. Defendant had raised the issue in a separate filing four months after the date of the amendment, which was about seven months after his § 2255 motion, about seven months before the district court vacated the firearm conviction and nine months before resentencing. The court merely overlooked that filing and its failure to consider it was inadvertent. U.S. v. Jacobs, 136 F.3d 1187 (8th Cir. 1998).
8th Circuit holds court was bound by previous finding of number of marijuana plants. (253) DEA agents found 110 marijuana plants on defendant’s property, but the PSR attributed only 73 plants to him. This resulted in a 30 month sentence, although the court made no explicit finding as to the number of plants. Later, defendant moved under 18 U.S.C. § 3582(c)(2) to reduce his sentence in light an amendment to § 2D1.1(c) changing the weight equivalence of a marijuana plant from one kilogram to 100 grams. The district court denied the motion, pointing out that if defendant had been held accountable for 110 marijuana plants, his statutory minimum sentence would have been five years. On appeal, the Eighth Circuit reversed, noting that the court had already determined that defendant was only responsible for 73 plants. Under § 1B1.10(b), a court must consider the sentence that it would have imposed if the amendment had been in effect at the time of the original sentencing. A court must leave all of its previous factual decisions intact in deciding whether to apply a guideline retroactively. U.S. v. Adams, 104 F.3d 1028 (8th Cir. 1997).
8th Circuit says marijuana guideline amendment cannot lower sentence below mandatory minimum. (253) Defendant was sentenced to 87 months for manufacturing and possessing with intent to manufacture more than 100 marijuana plants. He later filed a motion for reconsideration based on a November, 1995, retroactive amendment to § 2D1.1, which set a presumptive weight of 100 grams of marijuana per marijuana plant. The district court granted defendant’s motion, and imposed the minimum 60-month sentence required by 21 U.S.C. § 841(b)(1)(B). Defendant argued that the amendment made the statutory minimum sentence arbitrary and capricious. The Eighth Circuit held that the guideline amendment could not be applied to lower defendant’s sentence below the statutory minimum. and its mandatory minimum sentence provisions in 21 U.S.C. § 841(b)(1)(B) are constitutional, and the amendment did not make them unconstitutional. U.S. v. Marshall, 95 F.3d 700 (8th Cir. 1996).
8th Circuit remands to consider whether to apply marijuana amendment retroactively. (253) Defendant argued, and the government conceded, that his case should be remanded to the district court for consideration of whether his sentence should be reduced based on Amendment 516, which replaced the one kilogram per marijuana plant ratio with an instruction to treat each plant as equivalent to 100 grams of marijuana. The Eighth Circuit remanded. The Sentencing Commission expressly designated Amendment 516 for retroactive application, but under § 1B1.10, the district court has discretion not to lower the sentence. The district court must determine, after considering the factors set forth in 18 U.S.C. § 3553(a), whether a reduction is consistent with the applicable policy statements. U.S. v. Risch, 87 F.3d 240 (8th Cir. 1996).
8th Circuit counts plants rather than harvested weight even though marijuana was sold months earlier. (253) Defendant was involved in a large scale marijuana growing and distribution scheme. He challenged the district court’s decision to determine his base offense level using plant count estimates rather than the harvested weight of the marijuana, since the marijuana attributed to him was harvested, shucked, packaged and sold many months before police intervened. The Eighth Circuit held that the application of the plant count to weight conversion in § 2D1.1(c) is proper where the offender was involved in the planting, cultivation and harvesting of marijuana plants. A legitimate goal of § 2D1.1(c) is to punish those involved with marijuana plants more severely than those involved with the finished product. Here, there was considerable evidence that defendant participated in the planting and cultivation of marijuana plants. U.S. v. Wilson, 41 F.3d 399 (8th Cir. 1994).
8th Circuit upholds marijuana conversion ratio. (253) In U.S. v. Marshall, 998 F.2d 634 (8th Cir. 1993), the 8th Circuit remanded for further consideration of the constitutional validity of the guideline provision that sets a conversion ratio of one kilogram of marijuana per plant for 50 or more plants, as compared to a ratio of 100 grams per plant for 49 or less plants. Previous caselaw established that it was not irrational to equate one plant to a kilogram of marijuana. However, the court invited defendant to explore the issue of the surprising degree of disparity present in the conversion ratio. On defendant’s second appeal, the 8th Circuit upheld the ratio since defendant did not provide any new facts or legal analysis. His arguments were a mere repetition of the arguments rejected in previous cases. The court also rejected defendant’s claim that 100 of the 414 plants seized from his home had no root hairs and should not be counted. The district court was entitled to discredit defendant’s testimony that he “cloned” over 100 plants on the night before he was arrested. U.S. v. Marshall, 28 F.3d 801 (8th Cir. 1994).
8th Circuit finds court erred in not applying marijuana weight equivalency in section 2D1.1(c). (253) The government argued that the district court erred in applying a one-plant one-pound equation to the marijuana plants seized at a drug growing site, rather than the one-plant one-kilogram equation established by section 2D1.1(c) of the guidelines. The 8th Circuit agreed that the court erred in not employing the weight equivalency provision of section 2D1.1(c). Section 2D1.1(c) does not violate equal protection or due process guarantees, and the ratio is not irrational. Because of this, expert testimony about a plant’s yield of marketable marijuana was irrelevant. U.S. v. Angell, 11 F.3d 806 (8th Cir. 1993), abrogation on other grounds recognized by U.S. v. McKinney, 120 F.3d 132 (8th Cir. 1997).
8th Circuit reaffirms that for less than 50 marijuana plants, sentence must be based on actual weight involved. (253) In U.S. v. Prine, 909 F.2d 1109 (8th Cir. 1990) and U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), the 8th Circuit held that in cases involving less than 50 plants, the district court may not use the one plant/100 gram conversion, but must calculate the sentence based on the actual weight of the marijuana involved. Here, following Streeter and Prine, the 8th Circuit reversed the district court’s use of the one plant/100 grams ratio. The court acknowledged that effective November 1, 1991, the sentencing commission amended the commentary to section 2D1.1 to state that the ratio was premised on the fact that the average yield from a mature marijuana plant equals 100 grams of marijuana. However, this amendment was not in effect at the time of defendant’s sentencing, and the court declined to apply it retroactively. The court refused to express an opinion regarding the effect of the amended commentary. U.S. v. Evans, 966 F.2d 398 (8th Cir. 1992).
8th Circuit rejects claim that only viable, female marijuana plants can be counted for sentencing purposes. (253) The 8th Circuit rejected defendant’s claim that the district court should only have counted viable, female marijuana plants for purposes of determining her offense level under section 2D1.1(c). Previous caselaw established that a cutting with developed root hairs is a plant under the guidelines, regardless of viability. In addition, even though only female plants produce the controlled substance, THC, it was proper to include both male and female plants in the calculation of defendant’s base offense level. The guidelines do not distinguish between male and female marijuana plants. U.S. v. Curtis, 965 F.2d 610 (8th Cir. 1992).
8th Circuit upholds determination of plant number based upon testimony of two Forest Service agents. (253) The 8th Circuit rejected defendant’s contention that it was error to base his sentence on 110 marijuana plants instead of 71. The district court’s finding that there were 110 plants was supported by the trial testimony of two Forest Service agents. U.S. v. Ulrich, 953 F.2d 1082 (8th Cir. 1991).
8th Circuit holds that marijuana cutting which has developed root hairs is a marijuana plant. (253) Defendant was arrested growing 43 mature marijuana plants and 188 marijuana cuttings. The district court determined that 18 of the cuttings had roots and therefore were “plants.” Thus, defendant was sentenced on the basis of 61 marijuana plants. The 8th Circuit affirmed, holding that a cutting which has developed root hairs is a plant under the guidelines. The fact that such roots were rudimentary and that the cutting might not yet be viable did not affect the analysis. As in earlier cases, the court declined to develop a viability test to determine when a cutting becomes a plant. U.S. v. Bechtol, 939 F.2d 603 (8th Cir. 1991).
8th Circuit upholds determination of number of marijuana plants involved in offense. (253) The government argued that the district court’s finding that defendant manufactured 75 marijuana plants was clearly erroneous. The 8th Circuit upheld the calculation. Although the government claimed there was reliable evidence establishing that defendant manufactured more than 100 plants, there was also evidence that the government agents failed to distinguish tomato and marijuana plants and included cuttings from both in determining the total number of plants. U.S. v. Malbrough, 922 F.2d 458 (8th Cir. 1990).
8th Circuit sets marijuana offense level according to weight, not number of plants. (253) Defendants argued that the trial court erred in determining that the defendants should be sentenced according to the number of plants seized, rather than the actual weight of the plants. The 8th Circuit agreed, relying on its earlier decision in U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990). When less than 50 marijuana plants are involved the actual weight of the plants must be used to determine the offense level rather than the number of plants. Relying upon the Drug Equivalency Tables automatic assignment of a weight of 100 grams per marijuana plant was arbitrary and thus invalid when less than 50 plants were involved. U.S. v. Prine, 909 F.2d 1109 (8th Cir. 1990).
8th Circuit holds that guidelines’ equating one marijuana plant with 100 grams in cases involving fewer than 50 plants violated statute. (253) 21 U.S.C. § 841(b)(1)(D) provides for a sentence of up to 5 years for “less than 50 kilograms of marijuana, except in the case of 50 or more marijuana plants regardless of weight.” The 8th Circuit agreed with the defendant that this language “indicates the desire of Congress that the actual weight of marijuana be the determining factor in sentencing, except when 50 or more plants are involved.” The Drug Quantity Table incorporated at § 2D1.1(a)(3), however, presumes an equivalency of 100 grams per plant in almost every instance. Accordingly, the 8th Circuit found the guideline was in conflict with the statute, and “the statute must prevail.” The sentence was reversed and remanded to consider the actual weight of the plants. The court suggested, but did not decide, that the court should use the weight of the plants after processing. U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).
9th Circuit says sentencing entrapment requires active government involvement in illegal activity. (253) Local police officers visited defendants’ marijuana growing operation on multiple occasions, and defendants claimed that the officers told defendants that the operation complied with the law. When defendants were convicted of manufacturing marijuana, in violation of federal law, they argued that the local officials’ acquiescence in their ongoing marijuana operation constituted sentencing entrapment and that they should receive a sentence below the sentence required by the jury’s verdict. The Ninth Circuit held that defendants could not show sentencing entrapment because there was no evidence that law enforcement officials affirmatively directed defendants to grow marijuana or offered defendants something in exchange for the production of a greater number of plants. U.S. v. Schafer, 625 F.3d 629 (9th Cir. 2010).
9th Circuit finds no error in adopting marijuana quantity found by jury. (253) Defendant stole one of thirty bales of marijuana from a truck transporting marijuana into the U.S. that had been intercepted by law enforcement officers. The bale that defendant stole was never recovered, but the average weight of the remaining bales was 10.5 kilograms. At trial, the jury found beyond a reasonable doubt that the bale weighed 10 kilograms, and the district court adopted that weight in calculating defendant’s offense level under the Guidelines. On appeal, defendant argued that the court should have used the weight of the lightest bale. The Ninth Circuit held that the district court had not clearly erred in adopting the jury’s finding. U.S. v. Gonzalez, 528 F.3d 1207 (9th Cir. 2008).
9th Circuit finds no plain error in district court presumption that Guidelines sentence was reasonable. (253) Defendant and two other men attempted to smuggle about 140 pounds of marijuana into the U.S., and he was convicted of importing marijuana and other offenses. The district court found that defendant played a minor role in the conspiracy and denied him a reduction in offense level for acceptance of responsibility. The court then calculated defendant’s sentencing range as 33 to 41 months and sentenced defendant to 33 months. In imposing sentence, the court noted that sentences within the Guidelines would be considered reasonable. The Ninth Circuit found that the district court had improperly presumed that a sentence within the Guidelines range was reasonable. Although the court held that the district court had erred in presuming that a sentence within the Guidelines was reasonable, defendant had not shown a reasonable probability that he would have received a different sentence absent that presumption. U.S. v. Dallman, 533 F.3d 755 (9th Cir. 2008).
9th Circuit holds defendant responsible for marijuana imported by accomplices. (253) Defendant and three other men were arrested together when police officers caught them carrying 142 pounds of marijuana just south of the Canadian border. At defendant’s sentencing for importation of marijuana and other offenses, he argued that his Guideline range should be set using the amount that he was personally carrying, not the total amount carried by all three men. The district court found that defendant was responsible for the entire quantity carried by the three men. The Ninth Circuit affirmed, finding that the smuggling operation was jointly undertaken criminal activity, not separate activity. U.S. v. Dallman, 533 F.3d 755 (9th Cir. 2008).
9th Circuit says maximum penalty for giving small amount of marijuana to child is two years. (253) The penalty provision for drug offenses, 21 U.S.C. § 841(d)(4), provides for a maximum sentence of one year for a first offender convicted of distributing a controlled substance whose offense involved the distribution of a small amount of marijuana for no remuneration. Under 21 U.S.C. § 859, a person who distributes drugs to a person under the age of 18 is subject to double the penalty that would be imposed under § 841. Defendant was convicted of distributing a small amount of marijuana to a child and sentenced to five years’ imprisonment. The Ninth Circuit held that the maximum sentence for defendant’s offense was double the penalty for distributing a small amount of marijuana for no remuneration, or two years. U.S. v. Durham, 464 F.3d 976 (9th Cir. 2006).
9th Circuit rules that mandatory minimum for 1000 marijuana plants does not violate Eighth Amendment. (253) Under 21 U.S.C. § 841(b)(1) (A)(vii), 1,000 or more marijuana plants, regardless of weight, is classified as equal to 1,000 or more kilograms of marijuana. A defendant whose offense involves 1,000 or more plants therefore is subject to a 10-year mandatory minimum. The Ninth Circuit rejected the argument that imposing a mandatory 10-year minimum for a offense involving more than 1,000 plants violated the Eighth Amendment ban on cruel and unusual punishments. U.S. v. Albino, 432 F.3d 937 (9th Cir. 2005).
9th Circuit endorses “multiplier” method to calculate drug quantity but finds evidence insufficient. (253) At defendant’s sentencing for marijuana offenses, the district court calculated the quantity of marijuana by taking the quantity bought during the nine undercover purchases charged in the indictment (one quarter ounce) and multiplying it by the estimated number of sales defendant made each day over the three-and-a-half-year period that the government was investigating him. It determined the number of sales per day based on defendant’s neighbors’ estimate of the number of cars that came up to defendant’s rural home each day. The court then cut the resulting total in half to account for the lack of precision in its method of determining quantity. The Ninth Circuit held that the district court properly used the “multiplier” method to determine marijuana quantity, and found that the number of cars visiting defendant’s house was a proper method of determining the number of sales. But it found that the quantity sold to the government on nine occasions was an insufficient basis on which to determine the quantity sold in the remaining 62,000 transactions. Moreover, there was insufficient evidence as to the number of days on which defendant sold marijuana. U.S. v. Culps, 300 F.3d 1069 (9th Cir. 2002).
9th Circuit reverses exclusion of marijuana plants to punish government misconduct. (253) In a 2-1 opinion, the Ninth Circuit reversed the district court’s exclusion of 2,200 marijuana plants, which reduced the mandatory minimum sentence from ten years to five years. Relying on a leading sentencing treatise, the majority held that the court lacked the authority to refuse to impose the ten-year mandatory minimum. In pleading guilty, the defendants acknowledged responsibility for 1,000-4,000 plants. The majority found no case sanctioning the suppression of lawfully seized evidence at sentencing as a remedy for government misconduct. And it found no authority for applying the exclusionary rule to sentencing proceedings. Finally, “the Koon rationale for departure from a guideline range, see Koon v. U.S., 518 U.S. 81 (1996), has no application in a statutory minimum case.” Judge Reinhardt dissented, arguing that the district court had discretion to exclude the 2,200 marijuana plants at sentencing as a sanction for government misconduct. U.S. v. Haynes, 216 F.3d 789 (9th Cir. 2000).
9th Circuit includes weight of sterilized marijuana seeds in drug quantity. (253) Defense counsel asked that the marijuana be weighed only after removing any sterilized marijuana seeds. The district court denied the request, ruling that guideline § 2D1.1 requires that sterilized seeds be weighed together with pure marijuana for sentencing purposes. On appeal, the Ninth Circuit affirmed. The court held that “[a]lthough perhaps insufficiently ‘homogeneous’ to be classified as a ‘substance,’ a package consisting of the pure drug marijuana and sterilized seeds falls comfortably within the definition of ‘mixture.’“ Accordingly, the district court properly found that sterilized marijuana seeds came within the definition of ‘mixture or substance’ in guideline § 2D1.1 and 21 U.S.C. § 841. The seeds did not have to be removed before the marijuana was used, so they did not come within the exception in commentary note 1 to § 2D1.1. U.S. v. Garcia, 149 F.3d 1008 (9th Cir. 1998).
9th Circuit says mandatory minimum prevents resentencing on retroactive amendment even though “safety valve” might apply. (253) Defendant was sentenced to a mandatory minimum term of 60 months for growing more than 100 marijuana plants. Thereafter, on Sept. 23, 1994, the “safety valve” provision in 18 U.S.C. § 3553(f) became effective. Then on November 1, 1995, the Commission reduced the marijuana plant equivalency from 1 kilogram to 100 grams of marijuana, retroactively. Defendant moved for resentencing under the retroactive amendment, but the court denied the motion on the ground that the amendment did not affect defendant’s statutory 60-month mandatory minimum sentence. On appeal, the Ninth Circuit affirmed, ruling that the change in the marijuana equivalency tables in the guidelines did not affect defendant’s’ sentence and therefore the district court had no authority to reduce the sentence under 18 U.S.C. § 3582(c)(2). The “safety valve” provision did not provide an independent basis for reducing his sentence because that provision is not retroactive and defendant was not eligible for resentencing. U.S. v. Mullanix, 99 F.3d 323 (9th Cir. 1996).
9th Circuit uses “one kilogram per plant” ratio, even after marijuana is sold and consumed. (253) When a marijuana offense involves more than fifty marijuana plants, each plant is deemed equivalent to one kilogram of marijuana under 21 U.S.C. § 841(b)(1) and footnote * to the Drug Quantity Table in guideline § 2D1.1(c). The Second, Sixth, and Eleventh Circuits have held that the one kilogram ratio does not apply once the marijuana is actually harvested, because there is then evidence of the actual weight of the marijuana. U.S. v. Blume, 967 F.2d 45 (2d Cir. 1992); U.S. v. Osburn, 955 F.2d 1500 (11th Cir.) cert. denied 113 S.Ct. 290 (1992); U.S. v. Stevens, 25 F.3d 318 (6th Cir. 1994). The Ninth Circuit rejected these decisions, agreeing with the Seventh Circuit’s ruling in U.S. v. Haynes, 969 F.2d 569 (7th Cir. 1992), that the one kilogram conversion ratio applies whenever there is sufficient evidence that defendant actually grew and was in possession of live plants, even if those plants were eventually harvested, processed, sold and consumed. The court reasoned that Congress intended to punish producers of marijuana plants more severely than mere possessors, regardless of how much marijuana was actually produced from each plant. U.S. v. Wegner, 46 F.3d 924 (9th Cir. 1995).
9th Circuit decides question of marijuana plants even though it did not affect sentence. (253) The government argued that the court need not reach the issue of whether the marijuana cuttings were “plants” because even if they weren’t, defendant’s sentence would be unaffected. Nevertheless, the 9th Circuit decided the question because defendant “might face other negative consequences in the future if his sentence is left unchanged,” and in any event “he has a right to have his record correctly reflect the number of plants for which he was sentenced.” U.S. v. Robinson, 35 F.3d 442 (9th Cir. 1994).
9th Circuit says marijuana cuttings are not “plants” unless there is “readily observable evidence of root formation.” (253) Joining all other circuits that have ruled on the issue, the 9th Circuit held that marijuana cuttings are not “plants” unless there is “readily observable evidence of root formation.” Accord, U.S. v. Burke, 999 F.2d 596, 601 (1st Cir. 1993); U.S. v. Edge, 989 F.2d 871, 877 (6th Cir. 1993); U.S. v. Curtis, 965 F.2d 610, 616 (8th Cir. 1992); U.S. v. Eves, 932 F.2d 856, 860 (10th Cir.), cert. denied, 112 S.Ct. 236 (1991). The court added that “[e]ach stalk protruding from the ground and supported by its own root system should be considered one plant, no matter how close to other plants it is and no matter how intertwined are their root systems.” U.S. v. Robinson, 35 F.3d 442 (9th Cir. 1994).
9th Circuit declines to create “Alaska exception” to the Guidelines. (253) Until recently, it was legal under Alaska law for persons over age 18 to possess up to 4 ounces of marijuana for personal use. Consequently, defendant argued that federal courts should impose a moratorium on applying the sentencing guidelines for marijuana possession and cultivation “in order to give Alaskans time to learn that those activities are now illegal and can result in substantial prison sentences.” The 9th Circuit rejected this novel argument, adding that it was inapplicable here in any event, because defendant was convicted of conspiracy to possess, with intent to distribute 840 kilograms of marijuana—”roughly seven thousand times more than it ever was legal to possess for personal use.” U.S. v. Emery, 34 F.3d 911 (9th Cir. 1994).
9th Circuit upholds finding that defendant manufactured more than 50 marijuana plants. (253) The police found only 48 marijuana plants in the crawl space of defendant’s home. Two of these plants were dead, and 20 were immature, starter plants. Defendant argued that this evidence was insufficient to support his conviction of manufacturing in excess of 50 plants. The 9th Circuit rejected the argument, noting that there was evidence that defendant had possessed marijuana from other plants on other occasions dating back to a year before his arrest. Circumstantial evidence, including his electric bill and the materials which were found in the crawl space supported the government’s argument that defendant had been growing and harvesting marijuana for some time. The jury could have properly concluded in its special verdict that defendant had grown at least 50 plants over the past year. U.S. v. Lennick, 18 F.3d 814 (9th Cir. 1994).
9th Circuit reverses finding that defendant’s 751 marijuana plants were for personal use. (253) Defendant told the probation officer that he smoked approximately seven grams of marijuana a day, or less than six pounds a year. Assuming that half of his marijuana crop died, that he threw away all of the male plants, and that the yield per plant was half of the stipulated quantity, he would still have produced over 60 pounds of marijuana, more than five times what he could personally consume in two years. Accordingly, the district court’s ruling that defendant’s 751 marijuana plants were for personal use and not for distribution was clearly erroneous, and was reversed. U.S. v. Crook, 9 F.3d 1422 (9th Cir. 1993).
9th Circuit reiterates that both male and female marijuana plants count. (253) The district court considered both male and female marijuana plants that were seized from defendant’s home in calculating his sentence under the guidelines. Defendant argued that male marijuana plants do not contain tetrahydrocannabinol (THC) and thus have no drug abuse potential. He argued the male marijuana plants should not be considered in the sentencing calculation. The Ninth Circuit rejected the argument relying on its recent precedent in U.S. v. Traynor, 990 F.2d 1153 (9th Cir. 1993), which held that the failure to distinguish between male and female marijuana plants did not violate the Constitution despite evidence suggesting that male marijuana plants contain little or no THC. U.S. v. Barton, 995 F.2d 931 (9th Cir. 1993), appeal after remand, 16 F.3d 1228 (8th Cir. 1994).
9th Circuit counts both male and female marijuana plants. (253) Defendant argued that the district court should have excluded male marijuana plants from the total number of plants used to calculate his sentence. This issue had been settled by U.S. v. DeLeon, 955 F.2d 1346, 1350 (9th Cir. 1992). However, that opinion was withdrawn, and the new opinion did not reach the sentencing questions. U.S. v. DeLeon, 979 F.2d 761 (9th Cir. 1992). Nevertheless, in this case, the 9th Circuit adhered to the reasoning of the original majority opinion in DeLeon. The language of the statute is plain, and as the district court pointed out, “[a] marijuana plant is a marijuana plant.” Although the psychoactive ingredient in marijuana (THC), is more concentrated in the female plant’s flower buds, it is “not obviously irrational for Congress not to distinguish between male and female marijuana plants, regardless of THC level, anymore than it is irrational for Congress not to consider the weight or size of the plants.” U.S. v. Traynor, 990 F.2d 1153 (9th Cir. 1993), overruled on other grounds by U.S. v. Johnson, 256 F.3d 895 (9th Cir. 2001).
9th Circuit finds marijuana plant-to-weight conversion table consistent with drug statute. (253) Defendant was convicted of conspiracy to manufacture marijuana after agents raided his growing site and seized over 300 plants in the garden and 370 in the seedling bed. Interpreting all of the subsections of 21 U.S.C. section 841 as a whole, the court found that the statute clearly expresses congressional intent that marijuana plants be measured according to their potential yield only if the defendant possessed fewer than 50 plants. The statute is not ambiguous and there is no indication that Congress meant to impose the plant-kilogram equivalency only with respect to exact quantities of 100 and 1,000 plants while examining the actual yield of the plants falling in between these numbers. U.S. v. Beaver, 984 F.2d 989 (9th Cir. 1993).
9th Circuit finds guidelines properly require consideration of immature marijuana plants. (253) Rejecting defendant’s challenge to consideration of immature plants, the 9th Circuit held that 21 U.S.C. section 841(b)(1) expressly disregards the weight of individual marijuana plants if the defendant is found in possession of more than 50 plants. The Sentencing Commission did not violate the mandate of 28 U.S.C. section 994(c) which requires it to consider whether certain factors are relevant to the calculation of a sentence by also disregarding the weight of individual marijuana plants in cases involving more than 50 plants. The Commission could not have promulgated a sentencing scheme which would lessen the penalty for defendants whose 50 or more plants included immature plants with no potential yield. Because the guidelines mandate consideration of all plants in a grower’s possession regardless of maturity, the district court did not need to address the defendant’s argument that some of the seedlings would not have reached maturity by the end of the growing season. U.S. v. Beaver, 984 F.2d 989 (9th Cir. 1993).
9th Circuit holds that marijuana growers’ punishment is rationally related to culpability. (253) Defendants claimed that when there are 50 or more plants, treating each as the equivalent of 1000 kilograms of marijuana is unconstitutional in that it (1) creates an irrebuttable presumption, which (2) does not permit consideration of the actual facts, and (3) creates a non-reciprocal irrebuttable presumption because the actual weight of the plants may be used to increase but not reduce the sentence. Relying on U.S. v. Belden, 957 F.2d 671 (9th Cir. 1992) the 9th Circuit held that the penalties for marijuana growers are rationally related to Congress’ view that large volume marijuana growers are more culpable than small volume growers, and all growers are more culpable than possessors of marijuana. The panel said the statute does not create a non-reciprocal irrebuttable presumption. U.S. v. Jordan, 964 F.2d 944 (9th Cir. 1992).
9th Circuit upholds equating one marijuana plant to one kilogram of marijuana. (253) Defendant argued that U.S.S.G. section 2D1.1, which equates one marijuana plant to one kilogram of marijuana had no rational basis and thus violated the due process clause. Specifically, defendant argued that the plant-kilogram equation is irrational because mature plants in his grow operation produced about 56 grams of marijuana, nowhere near one kilogram. Relying on the 7th Circuit’s opinion in U.S. v. Webb, 945 F.2d 967 (7th Cir. 1991), the 9th Circuit found no due process violation. The court said that “the section’s rationality lies in recognition of a higher level of culpability for marijuana growers compared to those who merely possess the harvested product.” U.S. v. Belden, 957 F.2d 671 (9th Cir. 1992).
9th Circuit upholds constitutionality of “1 plant = 100 gm.” equivalency. (253) Defendants were sentenced under the 1988 guidelines for growing 1838 marijuana plants, each treated as the equivalent of 100 grams of marijuana. They challenged the constitutionality of the “1 plant = 100 gram” equivalency on the basis that there was no evidence that it was accurate. The 9th Circuit rejected the argument, stating that the defendants “misunderstand the significance of the conversion table.” The table does not state that the yield of a plant is 100 grams but rather that the “offense level for a crime involving one marijuana plant is the level that would apply in a case involving 100 grams of dried marijuana.” There is no constitutional requirement that the penalty for an offense involving one marijuana plant be equal to the penalty for an offense involving the quantity of dried marijuana the plant would yield. U.S. v. Motz, 936 F.2d 1021 (9th Cir. 1991).
9th Circuit upholds counting marijuana cuttings as “plants.” (253) In determining the quantity of drugs involved in defendant’s conviction for manufacturing marijuana by propagation, the sentencing judge counted each of 384 separate marijuana “cuttings” — a portion of the stem of a plant ÄÄ as a separate plant. Combined with the 182 mature plants found in defendant’s possession, this figure was used to determine sentence under the 1988 guidelines, which calculated sentenced based on the number of plants involved. The 9th Circuit, in a per curiam opinion, saw no clear error in the sentencing judge’s determination that the cuttings constituted plants. Though some of the cuttings were small, a DEA agent had testified that each individual cutting was in its own propagating unit, had varying degrees of root formation, and could possibly survive outside the propagating unit. U.S. v. Carlisle, 907 F.2d 94 (9th Cir. 1990).
10th Circuit includes stalks of marijuana in weight of mixture containing marijuana. (253) Defendant contended that his counsel was ineffective in stipulating to the total weight of the marijuana seized from him. He claimed that the actual weight of the marijuana, less stalks and moisture, was less than the stipulated weight. The Tenth Circuit found that this argument failed as a matter of law since he could not show prejudice. The weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. The stalks of the marijuana plant, although excluded from the guideline definition of marijuana, can still constitute part of a mixture or substance containing a detectable amount of marijuana for the calculation of weight of the controlled substance seized. U.S. v. Moreno, 94 F.3d 1453 (10th Cir. 1996).
10th Circuit says government need not seize live plants to use one plant/one kilogram equivalency. (253) Defendant argued that to use the one plant/one kilogram equivalency, the government must prove it actually seized “plants” from the defendant’s possession, and that plants are not “plants” for sentencing purposes unless they are live. The Tenth Circuit held that the marijuana need not be in plant form at the time of the seizure. To use the one plant/one kilogram equivalency, the government is only required to prove that defendant possessed marijuana plants with intent to distribute at some point in time. U.S. v. Silvers, 84 F.3d 1317 (10th Cir. 1996).
10th Circuit holds that one kilogram/one plant ratio does not just apply to growers. (253) Defendant pled guilty to possession with intent to distribute marijuana. The district court attributed 1000 marijuana plants to defendant at sentencing, which it converted to 1000 kilograms of marijuana. This triggered a mandatory minimum sentence of ten years under 21 U.S.C. § 841(b)(1)(A)(vii). Defendant argued that the one plant/one kilogram equivalency only applies to growers of marijuana, and he discovered the plants growing wild. The Tenth Circuit held that the one kilogram/one plant ratio did not just apply to marijuana growers, even though an important reason Congress enacted the equivalency was to punish growers more severely than others. The statute only requires the government to prove that either 1000 marijuana plants or 1000 kilograms of marijuana are attributable to the defendant. The court refused to rewrite the statute. Senior Judge Barrett dissented. U.S. v. Silvers, 84 F.3d 1317 (10th Cir. 1996).
10th Circuit refuses to require reweighing where cellophane packaging would have to weigh 34 pounds to make difference. (253) Defendant claimed the weight of the marijuana used to calculate his sentence included the weight of the cellophane packaging material, contrary to note 1 to § 2D1.1. He pointed out that various reports generated by authorities listed the marijuana weight as 202.1 pounds, 208 pounds, and 221 pounds. The Tenth Circuit refused to require the district court to reweigh the marijuana, since the packaging would have had to weigh 34 pounds to affect defendant’s sentence. Defendant’s sentence was based on a weight of 202.1 pounds, or 91.9 kilograms. To bring the weight of the marijuana below 80 kilograms, the amount necessary to affect defendant’s sentence, the cellophane packaging must have weighed an additional 11.9 kilograms. Adding that to six pounds previously subtracted by the court for packaging resulted in a total of 34 pounds. There was no reason to believe the weight of the wrapping materials was enough to set the weight of the marijuana below 80 kilograms. U.S. v. Orozco-Rodriguez, 60 F.3d 705 (10th Cir. 1995).
10th Circuit includes moisture in weight of marijuana. (253) On the date of defendant’s arrest, the marijuana seized from defendant weighed 82.55 kilograms. One month later, a DEA chemist weighed the marijuana at 80.3 kilograms. Seven months later, the chemist weighed the marijuana at 76.72 kilograms. The chemist explained to the court that with the passage of time, the marijuana lost moisture. He offered an expert opinion that on the date of defendant’s arrest, the marijuana weighed more than 80 kilograms. The 10th Circuit found that defendant was properly held accountable for more than 80 kilograms of marijuana. The marijuana’s weight, including moisture content, on the date of defendant’s arrest was the important factor. U.S. v. Klinginsmith, 25 F.3d 1507 (10th Cir. 1994).
10th Circuit upholds marijuana conversion scheme. (253) In U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.3d 393 (8th Cir. 1992), the 8th Circuit held that the requirement in guideline section 2D1.1 to consider each marijuana plant as the equivalent of 100 grams in cases involving less than 50 plants was inconsistent with 21 U.S.C. § 841(b)(1)(D)’s mandate that weight alone be determinative in cases involving less than 50 plants. The 10th Circuit rejected the 8th Circuit’s interpretation, relying on amendments to the commentary to section 2D1.1. Congressional acceptance of the amendment to the section requires that the section be applied. Moreover, the comment now sets forth an adequate explanation for section 2D1.1’s treatment of cases involving less than 50 plants and dispels any assertion that the treatment is arbitrary or capricious. U.S. v. Dahlman, 13 F.3d 1391 (10th Cir. 1993).
10th Circuit refuses to require written record of government’s marijuana plant count. (253) Defendants argued that government agents did not use a “sufficient process” to ensure an accurate count of the marijuana plants involved in their offense, complaining that no written record of the count was introduced into evidence. The 10th Circuit affirmed, refusing to require the government to introduce a written record of its marijuana plant count. There was sufficient reliable evidence in the record supporting the court’s findings. The agent responsible for the court and who personally attended the plant gathering and counting testified that 991 growing plants and 37 drying plants were found, for a total of 1028. Photographs and a videotape were also admitted into evidence. U.S. v. Cody, 7 F.3d 1523 (10th Cir. 1993).
10th Circuit denies request to weigh marijuana where defendant stipulated to quantity. (253) The 10th Circuit upheld the denial of defendant’s motion to independently weigh the marijuana prior to sentencing. Defendant stipulated at trial that the gross weight of the seized marijuana was 27 pounds. A stipulation made for trial purposes is binding at sentencing. U.S. v. Gonzalez-Acosta, 989 F.2d 384 (10th Cir. 1993).
10th Circuit says that THC tests need not be performed on each marijuana plant. (253) The 10th Circuit affirmed that 100 or more marijuana plants were involved in defendant’s offense, even though not every plant seized from defendant was tested for THC. The agents who raided defendant’s marijuana field testified that they identified and seized 140 marijuana plants. THC tests need not be performed on each plant where sufficiently reliable testimony identifies the plants as marijuana. The presence of THC is not required for a plant to be considered marijuana under 21 U.S.C. section 841. An expert need not testify as to the botanical identify and biological viability of plants identified as marijuana. The government need only bring forth sufficiently reliable evidence to satisfy the court by a preponderance of the evidence of the quantity of marijuana. U.S. v. Coslet, 987 F.2d 1493 (10th Cir. 1993).
10th Circuit affirms sentence based upon weight of damp marijuana. (253) At the time of defendant’s arrest, DEA scales weighed the marijuana seized from defendant at 96 pounds. Several months later, prior to sentencing, defendant reweighed the marijuana at 79.9 pounds. The difference in weight was attributed to moisture. According to government experts, the marijuana had to be moist in order for defendant to transport it in the manner he did, and dehydration in storage was common. Agreeing with the 7th Circuit’s opinion in U.S. v. Garcia, 925 F.2d 170 (7th Cir. 1991), the 10th Circuit affirmed the sentence based on the weight of the damp marijuana. Unless otherwise specified, the weight to be considered is the “entire weight of any mixture or substance containing a detectable amount of [marijuana.]” Because marijuana was not otherwise specified, the entire weight, including any existing moisture content, is relevant for sentencing. The omission of the phrase “mixture or substance” in 21 U.S.C. section 841(b)(1)(D) did not signify a congressional intent to require the sentence to be based on the dry weight of the marijuana. U.S. v. Pinedo-Montoya, 966 F.2d 591 (10th Cir. 1992).
10th Circuit upholds mandatory minimum sentence for more than 100 marijuana plants against equal protection challenge. (253) Title 21 U.S.C. section 841(b)(1)(B)(vii) provides for a mandatory five year sentence for 100 kilograms or more of a mixture or substance containing marijuana, or 100 or more marijuana plants, regardless of weight. Defendant was growing 249 marijuana plants. The district court ruled that applying the mandatory minimum sentence to defendant would violate the equal protection clause because there was no rational relationship between 100 marijuana plants and 100 kilograms of marijuana. The 10th Circuit reversed, holding that even if a single marijuana plant cannot produce a kilogram of marijuana substance, and the statute punishes marijuana growers more severely than those who possess harvested marijuana, the sentencing scheme does not violate the equal protection clause. Congress intended to punish growers of marijuana by the scale of potential of their operation and not just the weight of the plants seized at a given moment. U.S. v. Lee, 957 F.2d 770 (10th Cir. 1992).
10th Circuit affirms reliance on original weight of marijuana despite subsequent weighing showing smaller quantity. (253) After the government seized 38 bundles of marijuana in plastic wrap from defendant, both the Border Patrol and the DEA weighed the gross weight of the bundles at 43.55 kilograms. The presentence report listed the gross weight at 43.55 kilograms, and a net weight of 41.45 kilograms. The net weight was determined by reducing the gross weight by five percent to account for packaging. Before sentencing, defendant reweighed the marijuana at 37.01 kilograms. Nevertheless, the 10th Circuit affirmed the use of the original weight. Two identical weights were calculated at the time of the seizure using two different scales which were calibrated. The five percent reduction to account for the wrapping was reasonable. There was also evidence that defendant’s reweighing was unreliable: only 36 bundles were weighed and the custodian testified that he had observed marijuana lose weight when stored over the summer. U.S. v. Molina-Cuartas, 952 F.2d 345 (10th Cir. 1991).
10th Circuit permits drug quantity estimate based on variety of methods. (253) The district court accepted the government’s estimate of defendant’s marijuana crop at 74,000 plants, giving him a base offense level of 34. The 10th Circuit upheld the finding. While quantification by physical seizure is desirable, it is not required. The government’s methods of estimation were permissible. For part of defendant’s crop, the government counted the number of plants in a row of corn, then multiplied by the total number of rows in the field; for another part, it sampled the density of plants in a given area and extrapolated to a larger area; and for another part, used an aerial surveillance photograph because all the plants in that part had already been harvested. Though it would have been “better” for the government to employ a single method of estimation, the determination was upheld given the difficulties the government encountered in estimating the crop. U.S. v. Shewmaker, 936 F.2d 1124 (10th Cir. 1991).
10th Circuit finds cuttings with root balls are marijuana plants under guidelines. (253) Defendant urged the court to adopt a scientific or botanical definition of the term marijuana “plant.” Under this definition a cutting does not become a plant until it develops its own means of obtaining energy through a gas exchange. Reviewing the matter de novo, the 10th Circuit rejected this definition, and found that the word “plant” under the sentencing guidelines should be given its ordinary and everyday meaning. Therefore, a marijuana plant includes cuttings with root balls. Congress intended to simplify, not complicate, the method of determining mandatory sentences. U.S. v. Eves, 932 F.2d 856 (10th Cir. 1991).
10th Circuit upholds district court’s calculation of weight of marijuana destroyed by government officers. (253) The government seized marijuana from an airplane which crashed. The marijuana was wet due to fire fighting efforts. Defendant moved to conduct an independent analysis and weighing of the marijuana, which motion was granted, but the marijuana was destroyed by government officers before it could be delivered. At sentencing, the government presented evidence that the marijuana had a wet weight of 1300 pounds and a dry weight of 1155 pounds. Defendant countered with evidence of the amount of water used to extinguish the fire, and an affidavit from a chemist stating that a weight of 1155 pounds was consistent with 800 pounds of marijuana being soaked and then stored. The district court agreed with the government’s determination of the weight and sentenced defendant accordingly. The 10th Circuit upheld the district court’s determination, finding that defendant had not met the burden of proving that the government had destroyed the marijuana in bad faith. The district court’s decision was not clearly erroneous. U.S. v. Donaldson, 915 F.2d 612 (10th Cir. 1990).
11th Circuit says dry weight of marijuana is not impossible to estimate. (253) Defendant’s sentence was based on the gross weight of marijuana that had been soaked with water before transport. The marijuana had to be dried before resale. Amendment 484, effective November 1993, provides that the weight should not include material that must be separated from the substance before it can be used. Amendment 518, effective November 1995, provides that a court should approximate the dry weight of marijuana that is too wet to consume. Defendant moved under 18 U.S.C. § 3582(c)(2) to reduce his sentence based on the amendments. The district court found it would be impossible to estimate the weight of the dried marijuana. The Eleventh Circuit remanded. Amendment 484 is listed in § 1B1.10(c) for retroactive application. Amendment 518 is not listed, but in U.S. v. Smith, 51 F.3d 980 (11th Cir. 1995), the court held that Amendment 484 required the court to approximate the dry weight of marijuana that was too wet to consume. Thus, Smith authorized the relief defendant was seeking. Although the actual marijuana was not available to weigh, there were witnesses, including defendant and his partners in the marijuana business, who could testify. U.S. v. Carter, 110 F.3d 759 (11th Cir. 1997).
11th Circuit, en banc, bases sentence on number of marijuana plants, even though they had been harvested. (253) In U.S. v. Shields, 49 F.3d 707 (11th Cir. 1995), an Eleventh Circuit panel held that a marijuana grower who is apprehended after harvest may not be sentenced according to the number of plants involved, but must be sentenced according to the weight of the marijuana. On rehearing en banc, the Eleventh Circuit held that the defendant should be sentenced for the number of plants. Nothing in § 2D1.1 or 18 U.S.C. § 841(a) suggests that the marijuana plants must still be growing when the grower is arrested. There was more than sufficient evidence that defendant’s relevant conduct included cultivating and harvesting a first crop of marijuana plants in addition to the growing crop found by government agents. Defendant himself testified that the dead root systems were the remains of marijuana plants that he cultivated and harvested. U.S. v. Shields, 87 F.3d 1194 (11th Cir. 1996) (en banc).
11th Circuit finds marijuana seedlings were not plants. (253) Police found at defendant’s apartment 131 marijuana plant seedlings, three to four inches high, and 69 marijuana plants. Defendant argued that the court erred by counting seedlings as marijuana plants for sentencing purposes. The Eleventh Circuit held that the consideration of the seedlings was improper. Under U.S. v. Foree, 43 F.3d 1572 (11th Cir. 1995), a cutting or seedling from a marijuana plant is not considered a plant until the cutting or seedling develops roots of its own. Defendants did not waive this argument since their counsel mentioned it during the sentencing hearing and the district court stated that it would consider it. Moreover, even if they had waived the issue, the consideration of the seedlings would amount to plain error. U.S. v. Antonietti, 86 F.3d 206 (11th Cir. 1996).
11th Circuit upholds finding that offense involved more than 400 marijuana plants. (253) Police conducting an aerial surveillance discovered and seized marijuana plants growing on and adjacent to a 40 acre tract of land. The Eleventh Circuit upheld the district court’s finding that the offense involved more than 400 marijuana plants. At sentencing, one defendant testified that only 91 marijuana plants were growing on the property. However, a law enforcement officer testified that the officers seized 468 plants. The officer testified that he counted the plants both as they were being loaded onto a truck and as they were being unloaded at the county jail. The plants were later cut up, compacted, and placed in a storage box. The district court viewed this compacted marijuana at the end of the sentencing hearing. The court discredited the one defendant’s testimony and found that the offense involved more than 400 plants. The one-kilogram per plant equivalency scheme does not violate due process. U.S. v. Fernandez, 58 F.3d 593 (11th Cir. 1995).
11th Circuit relies on proposed amendment to reject use of weight of damp marijuana. (253) Defendant argued that his sentence should not have been based on 544 kilograms of marijuana, because he and a government agent testified that the marijuana was wet when weighed. Noting that the Sentencing Commission recently sent to Congress a proposed amendment to § 2D1.1 to exclude the weight of excess moisture if the marijuana is unsuitable for consumption without drying. The Eleventh Circuit held that the district court improperly attributed the weight of the damp marijuana to defendant. Although the proposed amendment is not binding, it can be used as subsequent legislative history to interpret the meaning of prior application notes. On remand, the district court must approximate the weight of the marijuana without the excess moisture content. U.S. v. Smith, 51 F.3d 980 (11th Cir. 1995).
11th Circuit holds that cuttings and seedlings without root formation are not marijuana plants. (253) Police seized 73 mature marijuana plants, 56 cuttings and 17 seedlings. The district court ruled that evidence of root formation was not a prerequisite for a cutting or seedling to be a marijuana plant, and found that there were 146 plants because 146 separate containers of planted vegetable matter were seized. The Eleventh Circuit reversed, holding that cuttings and seedlings are not marijuana plants, for sentencing purposes, unless there is “some readily observable evidence of root formation.” On remand the government should be given the opportunity to prove the plant material had root formation, although it was unlikely to be able to do so, since much of the plant material was destroyed or decayed. U.S. v. Foree, 43 F.3d 1572 (11th Cir. 1995).
11th Circuit upholds equating one marijuana plant to 100 grams of marijuana if less than 50 plants. (253) Relying on U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds, U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992), defendant argued that the district court erred in assigning a weight of 100 grams per marijuana plant because 21 U.S.C. section 841(b)(1)(D) indicates that the actual weight of the plants should be used unless 50 or more plants are involved. The 11th Circuit rejected this argument, finding that recent amendments to the commentary to section 2D1.1 rendered Streeter unpersuasive. The amended commentary states that the decision to treat each plant as equal to 100 grams was premised on the fact that the average yield from a mature marijuana plant equals 100 grams of marijuana. This states a rational basis for the commission’s treatment of offenses involving fewer than 50 plants. U.S. v. Thompson, 976 F.2d 666 (11th Cir. 1992).
11th Circuit upholds equating one marijuana plant with 1,000 grams of marijuana. (253) In U.S. v. Osburn, 756 F.Supp. 571 (N.D. Ga. 1991), the Northern District of Georgia held that the Drug Quantity Table in section 2D1.1 was unconstitutional to the extent it treated one marijuana plant as equivalent to 1000 grams of marijuana for plants in groups of 50 or more. The 11th Circuit reversed, upholding the constitutionality of this portion of guideline section 2D1.1 and the statute on which it was based, 21 U.S.C. section 841. Federal legislation mandating length of sentence does not violate the separation of powers doctrine. Section 2D1.1 of the guidelines is consistent with the congressional mandate contained in section 841(b)(1)(D) for offenses involving 50 or more marijuana plants. The classification equating one marijuana plant to 1000 grams of marijuana for offenses involving more than 50 plants, and using actual weight of marijuana for offenses involving fewer than 50 plants, was not arbitrary. There is a rational basis for penalizing those convicted of offenses involving 50 or plants more harshly than those convicted of offenses involving fewer than 50 plants. U.S. v. Osburn, 955 F.2d 1500 (11th Cir. 1992).
11th Circuit upholds offense level based on the number of marijuana plants rather than their weight. (253) Effective November 1, 1989 the guidelines clarify that the number of marijuana plants is the appropriate measure in an offense involving plants. (See amended footnotes to Drug Quantity Table § 2D1.1). Without relying on the new amendment, the 11th Circuit held that the pre-amendment guidelines provided for the same result. According to the preamendment tables, one marijuana plant is the equivalent of 100 grams of marijuana. “Thus the Sentencing Commission must have contemplated that a growing plant ought to be treated as more marijuana than its actual weight.” Accordingly the district court properly based defendant’s sentence on the number of marijuana plants, rather than their weight. U.S. v. Bradley, 905 F.2d 359 (11th Cir. 1990).
California District Court rules that number of live marijuana plants, rather than weight, determines guideline range. (253) The guideline Drug Quantity Table lists two measures for marijuana — weight and number of plants. The Drug Equivalency Table lists one marijuana plant as equal to 100 grams of marijuana. Defendants argued that the marijuana plants here were so small that weight should be used rather than number of plants. The district court disagreed, stating that “[i]f defendants’ argument were adopted, and weight were used as the measure, the guidelines would reward a defendant for being arrested early in the growing cycle before his plants have matured.” The court did agree with the probation officer, however, that some 800 “seedlings” should be excluded from the total number of plants. U.S. v. Graham, 710 F.Supp. 1290 (N.D. Cal. 1989).
Commission adds increase for marijuana cultivation involving trespassing on public or private lands. (253) Responding to concerns about environmental and other harms caused by marijuana cultivation, the Commission amended § 2D1.1 to provide a 2-level increase if (a) the offense involved the cultivation of marijuana on state or federal land or while trespassing on tribal or private land; and (b) the defendant receives an adjustment for aggravating role under § 3B1.1. The proposed amendment also provides a new application note stating that such offenses “interfere with the ability of others to safely access and use the area and also pose or risk a range of other harms, such as harms to the environment.” It clarifies that this new enhancement may be applied cumulatively with the existing environmental increase at subsection (b)(13)(A). Proposed Amendment 4, effective Nov. 1, 2014.
Commission reduces equivalency of marijuana plants from 1 kilo to 100 grams of marijuana, retroactively. (253) Before November 1, 1995, for offenses involving 50 or more marijuana plants, the guidelines made one plant equal to one kilogram of marijuana, reflecting the quantities associated with the 5- and 10-year minimum penalties in 21 U.S.C. §841(b). For offenses involving fewer than fifty marijuana plants, the guidelines made one plant equal to 100 grams of marijuana. In Amendment 516, effective November 1, 1995, the Commission made the equivalency of 100 grams per marijuana plant, regardless of sex, applicable to all guideline determinations, unless the actual weight of the usable marijuana is greater. The Commission also made this amendment retroactive, adding it to the list in §1B1.10(d).
Commission defines marijuana “plant.” (253) In proposed Amendment 10, effective November 1, 1995, the Commission amended the Commentary to §2D1.1 to add application note 22 stating that “for purposes of the guidelines, a ‘plant’ is an organism having leaves and a readily observable root formation (e.g. a marijuana cutting having roots, a root ball, or root hairs is a marijuana plant).” Proposed 1995 Guideline Amendments, 60 Federal Register 25074.
Commission prohibits using weight of wet, unusable marijuana. (253) In proposed Amendment 10, effective November 1, 1995, the Commission amended Application Note 1 to §2D1.1 to add a paragraph stating that “in the case of marijuana having a moisture content that renders the marijuana unsuitable for consumption without drying (this might occur, for example, with a bale of rain soaked marijuana or freshly harvested marijuana that had not been dried), an approximation of the weight of the marijuana without such excess moisture content is to be used.” Proposed 1995 Guideline Amendments, 60 Federal Register 25074.
Commission explains marihuana plant equivalency. (253) The background commentary to section 2D1.1 was amended November 1, 1991, to explain the reasons the Commission adopted the policy that, in the case of fewer than 50 marihuana plants, each plant is to be treated as the equivalent of an attempt to produce 100 grams of marihuana (the average yield of a mature marihuana plant), except where the actual weight of the usable marihuana is greater.