United States v. Shields , 49 F.3d 707 ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
No. 93-9270.
UNITED STATES of America, Plaintiff-Appellee,
v.
Maurie Wade SHIELDS, a/k/a Chip, Defendant-Appellant.
June 19, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-248-01-RCF), Richard C. Freeman,
Judge.
Before TJOFLAT, Chief Judge, and KRAVITCH, HATCHETT, ANDERSON,
EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit
Judges.
COX, Circuit Judge:
The primary issue in this appeal is whether, under 21 U.S.C.
§ 841 and U.S.S.G. § 2D1.1, a marijuana grower who is apprehended
after his marijuana crop has been harvested should be sentenced
according to the number of plants involved in the offense or
according to the weight of the marijuana. A panel of this court
held that, under our precedents, a grower who is apprehended after
harvest may not be sentenced according to the number of plants
involved. United States v. Shields, 49 F.3d 707, 712-13 (11th
Cir.1995). We vacated the panel opinion and granted rehearing en
banc. United States v. Shields, 65 F.3d 900 (11th Cir.1995). We
hold that a defendant who has grown and harvested marijuana plants
should be sentenced according to the number of plants involved, and
affirm the district court.
I. Background
Maurie Shields and Joseph O'Reilly rented a house in Marietta,
Georgia, where they grew marijuana in the basement. When law
enforcement officers searched the house, they discovered 27 live
marijuana plants in a hydroponic garden. During the search, the
officers also discovered a trash can which contained the remains of
marijuana plants that Shields previously had harvested. The
officers identified the dead plant matter as the remains of 26
separate marijuana plants. The search of the residence, including
the officers' count of the harvested marijuana plants, was
videotaped.
Shields was convicted on his plea of guilty to one count of
conspiracy to manufacture marijuana, in violation of 21 U.S.C. §
846 (1994). In the presentence investigation report ("PSI"), a
probation officer described Shields's offense conduct as involving
53 marijuana plants, and concluded that the appropriate guidelines
sentencing range was 33 to 41 months imprisonment. This
recommended sentence was calculated using the "equivalency
provision" of U.S.S.G. § 2D1.1 n. *, which at that time required
significantly greater sentences for offenses involving 50 or more
marijuana plants than for offenses involving less than 50 plants.
Shields objected to the PSI on the ground that his offense involved
only 34 plants.
Shields was sentenced in October 1993. At the sentencing
hearing, Shields again objected to the calculation of his offense
level, arguing that his offense conduct only involved 33 to 35
marijuana plants. The court heard testimony from Shields that the
root systems found in his basement were the remains of six to eight
marijuana plants with multiple stems that he had broken apart when
he harvested them. The government offered the testimony of two law
enforcement officers who had participated in the search of
Shields's residence. The officers testified that the dead plant
matter found in Shields's basement was the remains of 26 marijuana
plants, each of which consisted of a complete root system attached
to the stem of a plant. The officers testified that if the root
systems and stems had been the remains of fewer than 26 plants,
they would have seen tears down the side of the plant stems, which
were not present. During the hearing, the district court judge
viewed the portion of the videotape of the search of Shields's home
in which the officers counted the root systems.
The district court credited the testimony of the law
enforcement officers over Shields's testimony, finding that the
root systems were the remains of 26 marijuana plants, and that
Shields was responsible for a total of 53 marijuana plants. The
court concluded that Shields's guidelines range was 33 to 41 months
imprisonment, and sentenced him to 33 months imprisonment. Shields
appeals his sentence.
II. Discussion
Shields's primary argument on this appeal is that the
district court misapplied 21 U.S.C. § 841 and U.S.S.G. § 2D1.1 when
it calculated his sentence using the number of the harvested plants
rather than the weight of the marijuana derived from those plants.1
1
Shields repeats the argument he made at the sentencing
hearing that the dead plant matter represents six to eight plants
rather than 26 plants. We find this argument meritless. The
district court's finding that the dead plant matter was the
remains of 26 plants is supported by the testimony of the law
enforcement officers and thus is not clearly erroneous. See
United States v. Robinson, 935 F.2d 201, 205 (11th Cir.1991),
Shields failed to object to his sentence on this ground at his
sentencing hearing. But the district court failed to elicit
objections from the parties at the conclusion of the sentencing
hearing, as required by United States v. Jones, 899 F.2d 1097,
1102-03 (11th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112
L.Ed.2d 230 (1990), overruled on other grounds, United States v.
Morrill, 984 F.2d 1136 (1993) (en banc), and the panel concluded
that this was a proper case for the exercise of the court's
discretion to address on the merits an argument raised for the
first time on appeal. Shields, 49 F.3d at 709. Both parties ask
us to address the merits of this issue. We elect to do so, and
therefore need not decide whether the panel correctly concluded
that the court must either address this issue on its merits or
vacate the sentence and remand for resentencing. Id. at 709 & n.
5.
The base offense level for certain drug offenses is
calculated using the Drug Quantity Table at § 2D1.1 of the
sentencing guidelines. See United States Sentencing Commission,
Guidelines Manual, § 2D1.1(c) (Nov. 1992). In the version of the
guidelines which applied at the time of Shields's sentencing,2 the
Drug Quantity Table assigns offense levels for marijuana offenses
according to the weight of marijuana measured in grams or
kilograms. For offenses involving marijuana plants, the number of
cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 789(1992) (holding that a district court's factual findings
regarding drug quantity are reviewed for clear error).
2
As a general rule, we apply the guidelines in effect at the
time of a defendant's sentencing hearing. United States v.
Wilson, 993 F.2d 214, 216 (11th Cir.1993).
plants is converted to weight using an "equivalency provision,"
which reads:
In the case of an offense involving marihuana plants, if
the offense involved (A) 50 or more marihuana plants, treat
each plant as equivalent to 1 KG of marihuana; (B) fewer than
50 marihuana plants, treat each plant as equivalent to 100 G
of marihuana. Provided, however, that if the actual weight of
the marihuana is greater, use the actual weight of the
marihuana.
3
U.S.S.G. § 2D1.1(c) n. *. The equivalency ratio for offenses
involving more than 50 plants (one plant equals one kilogram
marijuana) was derived from the statute that sets mandatory minimum
penalties for offenses involving marijuana and marijuana plants.
U.S.S.G. § 2D1.1 comment. (backg'd); see 21 U.S.C. § 841(b)(1)(A),
(B), (D) (1994) (setting, for example, a ten-year mandatory minimum
for offenses involving at least 1000 kilograms of marijuana or 1000
marijuana plants). The equivalency ratio for offenses involving
less than 50 plants (one plant equals 100 grams marijuana) was
intended to approximate the average actual yield of a marijuana
plant. U.S.S.G. § 2D1.1 comment. (backg'd). We have held that
there is a reasonable basis for penalizing offenses involving 50 or
more plants more harshly than offenses involving less than 50
3
Section 2D1.1 has been amended, and the current version
establishes a uniform 100-gram-per-plant equivalency ratio.
U.S.S.G.App.C. (amend. 516) (effective Nov. 1, 1995). The
Sentencing Commission has listed this amendment as one subject to
retroactive application. U.S.S.G. § 1B1.10 (Nov. 1995). Under
18 U.S.C. § 3582(c)(2) (1994), Shields may petition the district
court to modify his sentence. Shields has not filed such a
petition or raised the issue of the retroactivity of the
amendment on appeal, so a remand on this issue would be
inappropriate. Cf. United States v. Vasquez, 53 F.3d 1216, 1227-
28 (11th Cir.1995) (remanding to the district court the issue of
whether a defendant was entitled to a modification of his
sentence where the defendant raised the issue of retroactivity
for the first time on appeal).
plants. United States v. Osburn, 955 F.2d 1500, 1507-09 (11th
Cir.), cert. denied, 506 U.S. 878, 113 S.Ct. 223, 121 L.Ed.2d 160(1992).
Shields argues that the district court erred in applying the
equivalency provision of § 2D1.1 to his case because the dead
plants found in his basement were not "marijuana plants" within the
meaning of the guideline. As authority for the proposition that
the term "marijuana plants" as used in the guideline includes only
living plants, he cites United States v. Foree, 43 F.3d 1572, 1581
(11th Cir.1995) (holding that marijuana cuttings and seedlings are
not "marijuana plants" for purposes of § 2D1.1 unless they have
"some readily observable evidence of root formation") (quoting
United States v. Edge, 989 F.2d 871, 877 (6th Cir.1993)).4 Under
Shields's reading, the equivalency provision of § 2D1.1 applies
only to marijuana growers who are apprehended prior to harvest.
See United States v. Stevens, 25 F.3d 318, 322-23 (6th Cir.1994)
(holding that the equivalency provision only applies when live
marijuana plants are found); United States v. Blume, 967 F.2d 45,
49 (2d Cir.1992) (same).
The plain language of the equivalency provision and the
statute on which it was based lead us to reject Shields's
interpretation. See U.S.S.G. § 2D1.1; 18 U.S.C. § 841(a). By its
own terms, the equivalency provision applies to "offense[s]
involving marijuana plants." Similarly, the statute sets mandatory
4
Because we sit en banc, we are not bound by the decisions
of prior panels. See Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981) (establishing the rule that Eleventh Circuit
panel decisions may only be overruled by the en banc court).
minimum sentences for violations of § 841(a) "involving" a
specified number of "marijuana plants." Nothing in the text of §
2D1.1 or § 841(b) suggests that their application depends upon
whether the marijuana plants are harvested before or after
authorities apprehend the grower. United States v. Wilson, 49 F.3d
406, 410 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 384,
133 L.Ed.2d 306 (1995) (relying on the plain language of § 2D1.1 in
rejecting the argument that the equivalency provision only applies
to live plants seized); United States v. Haynes, 969 F.2d 569,
571-72 (7th Cir.1992) (same).
An interpretation of § 2D1.1 that is not supported by the text
of the guideline and depends on a state of affairs discovered by
law enforcement authorities is contrary to the principle that
guideline ranges are based on relevant conduct. See U.S.S.G. §
1B1.3. The guidelines broadly define "relevant conduct," which
includes, among other things, "all acts and omissions committed ...
by the defendant ... that occurred during the commission of the
offense of conviction." Id. (emphasis added). We hold that, where
there is sufficient evidence that the relevant conduct for a
defendant involves growing marijuana plants, the equivalency
provision of § 2D1.1 applies, and the offense level is calculated
using the number of plants. Accord United States v. Wegner, 46
F.3d 924, 928 (9th Cir.1995); Wilson, 49 F.3d at 410; Haynes, 969
F.2d at 572.5
5
Shields's reliance on Foree is misplaced. In that case,
the defendants' offenses involved marijuana cuttings and
seedlings, and we were required to decide whether marijuana
cuttings and seedlings were "marijuana plants" within the meaning
of § 2D1.1. 43 F.3d at 1579. We are not required to further
There is more than sufficient evidence that Shields's relevant
conduct included cultivating and harvesting a first crop of
marijuana plants in addition to the growing crop found by
government agents.6 In fact, there is no real dispute concerning
this issue. Shields himself testified that the dead root systems
were the remains of marijuana plants that he cultivated and
harvested.
AFFIRMED.
KRAVITCH, Circuit Judge, concurring:
Although the three judge panel in this case found itself bound
by United States v. Foree, 43 F.3d 1572 (11th Cir.1995), and United
States v. Osburn, 955 F.2d 1500 (11th Cir.), cert. denied, 506 U.S.
878, 113 S.Ct. 223, 121 L.Ed.2d 160 (1992), having considered the
case en banc I agree with the opinion of the court. I write
separately to alert sentencing courts to a potential problem in
applying the rule established by this opinion.
There could be a double-counting problem with punishing
defendants both for growing marijuana plants based on the number of
plants involved, and for possessing the marijuana derived from
define the term "marijuana plants" in this case, because, as we
discuss below, there is sufficient evidence that Shields's
offense involved a first crop of marijuana plants that were live
and mature.
6
Shields's involvement with the first crop of marijuana
plants was not part of the manufacturing conspiracy for which he
was convicted. The government conceded at sentencing that it
could not show by a preponderance of the evidence that O'Reilly,
Shields's sole co-conspirator, was in any way connected to the
first crop. But Shields's manufacture of the first crop is
conduct that is relevant to the determination of his guideline
range because it was "part of the same course of conduct or
common scheme or plan as the offense of conviction." U.S.S.G. §
1B1.3(a)(2).
those same plants based on the weight of the dry leaf marijuana
possessed. We should be concerned in cases like this one that the
government, upon finding both harvested, rotting plants and a
quantity of dry leaf marijuana derived from those plants, might
count the same marijuana against the defendant twice: once by
using the dead plants as evidence of previously living plants in
sentencing for growing, and again by weighing the dry leaf
marijuana in sentencing for possession. This problem does not
arise if defendants can be sentenced for growing based only on the
number of live plants discovered by the police; thus, the panel
opinion in Shields had the virtue of establishing a prophylactic
rule. I assume, however, that sentencing courts will be able to
monitor and prevent such double-counting on a case-by-case basis
(and that law enforcement officials and prosecutors will not
intentionally overreach).