U.S. v. Fitch

• Decision Date: 17 March 1998
• Docket Number: No. 97-60063,97-60063
• Citation: 137 F.3d 277
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert G. FITCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 277

137 F.3d 277

UNITED STATES of America, Plaintiff-Appellee, v. Robert G. FITCH, Defendant-Appellant.

No. 97-60063.

United States Court of Appeals Fifth Circuit.

March 17, 1998.

John R. Hailman, Alfred E. Moreton, III, William Chadwick Lamar, Robert Henry Norman, Oxford, MS, for Plaintiff-Appellee.

William Collins Spencer, Michael Dale Chase, Mitchell, McNutt, Treadgill, Smith & Sams, Tupelo, MS, for Fitch.

Appeal from the United States District Court for the Northern District of Mississippi.

Before DAVIS, JONES and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Defendant-appellant, Robert G. Fitch (R.G. Fitch), was charged in a five count superseding indictment with one count of conspiring to manufacture, distribute and possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846 (count 1) and with two counts of knowingly and intentionally manufacturing, distributing and possessing with intent to distribute marijuana in violation of 21 U.S.C. § 841 (counts two and three). ¹ Following a trial by jury, the defendant was found guilty on each count. The district court ordered a pre-sentence investigation report (PSR) which recommended that R.G. Fitch be sentenced for offenses involving 1,187 marijuana plants. According to the equivalency ratio of one plant to 100 grams of United States Sentencing Guideline (U.S.S.G.) § 2D1.1(c)n*(E), the defendant's offense involved a total drug quantity of approximately 118 kilograms of marijuana. Based on the total drug quantity involved, the defendant's total offense level was calculated to be 26, along with a criminal history of I, making for a guideline range of 63 to 78 months. See U.S.S.G. § 2D1.1(c)(7). Because over 1,000 marijuana plants were attributed to the defendant, however, the statutorily required minimum sentence was ten (10) years imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A)(vii). Because the legislated mandatory minimum sentence was greater than the maximum sentence under the defendant's applicable guideline range the statutorily required minimum sentence applied under the guidelines as well. U.S.S.G. § 5G1.1(b).

At the sentencing hearing, R.G. Fitch objected to the PSR and argued, among other things, that he should not be subject to the statutory minimum dictated by § 841(b)(1)(A)(vii) because he should not be held accountable for over 1,000 marijuana plants. The defendant's argument centered upon the fact that 288 of the marijuana plants seized by the government and attributed to him by the PSR were in post-harvest form, i.e. they were not live plants but dry dead husks. Therefore, these dead remains, he contends, should not be counted as "plants" under 21 U.S.C. § 841(b)(1)(A)(vii). The sentencing judge rejected the defendant's assertion and sentenced him to ten years imprisonment. We conclude that the defendant's argument is not supported by the plain language of the statute and affirm. ²

Background

In the latter part of 1992, Robert R. "Bo" Fitch of Holly Springs, Mississippi began selling marijuana to David Carter and Lloyd Thompson, residents of Memphis, Tennessee. Through Thompson, Bo Fitch became acquainted with William Grammer, also of Memphis. By early 1993, Grammer was purchasing from one ounce to a quarter pound of marijuana from Bo on a weekly or twice weekly basis.

Grammer requested marijuana deliveries by telephoning Bo at the Fitch family residence in Holly Springs where Bo lived with his parents. After leaving a message with either of Bo's parents, or upon contacting Bo directly, Grammer would relay to Bo the quantity of drugs needed. Bo would drive to Memphis and deliver marijuana to Grammer and other customers. Bo Fitch was able to supply them with a ready source of the drug from an extensive marijuana growing operation on the Fitch family farm in Mississippi. The Fitch farm itself was owned by Bo's father, the defendant, Robert G. "Bobby" Fitch, who was aware of his son's drug transactions in Memphis and actively participated in the farm's marijuana growing operation.

In August 1993, Bo Fitch and Bill Grammer were arrested in Memphis while attempting to consummate a drug deal with a third person. Their arrest quickly led to a fly-over of the Fitch farm via helicopter by the Mississippi Bureau of Narcotics Eradication Unit, which discovered and destroyed seventy-two marijuana plants. On November 10, 1993, local law enforcement officers obtained and executed a search warrant on the entire Fitch farm. During this search, the authorities found approximately twenty kilograms of processed marijuana in individual zip lock plastic "baggies," or in cans, along with large amounts of marijuana residue throughout the area and considerable evidence of a marijuana growing operation (e.g. a large supply of plant food where no other evidence of gardening or traditional farming existed, several boxes of zip lock bags, scales and two pairs of shears). In addition, 288 marijuana stalks, i.e. the remains of previously harvested marijuana plants, were recovered. The stalks had been fully stripped of all leaves, leaving only dry husks. Eventually, this search resulted in the indictment of R.G. Fitch, Bo Fitch and Daryl Fitch (another of R.G. Fitch's sons) on March 21, 1996 on federal drug charges.

Subsequently, on July 25, 1996, a random fly-over search of the north Mississippi area conducted by the Mississippi Bureau of Narcotics revealed marijuana again growing on the Fitch farm. State law enforcement agents obtained a search warrant for the Fitch farm and seized 827 marijuana plants in pre-harvest condition, i.e. alive and growing. Additionally, a federal search warrant executed the next day uncovered numerous items used by the Fitch family to facilitate their marijuana growing activities, e.g. empty sacks of potting soil, multiple cans of plant food, and five gallon buckets camouflaged with black paint.

The July 1996 search led to the issuance of a five count superseding indictment naming R.G. Fitch and Bo Fitch. In count one of the superseding indictment, R.G. Fitch was charged with participating in a conspiracy to distribute and possess with intent to distribute marijuana lasting from on or about January 1993 until July 26, 1996. In addition, counts two and three charged R.G. Fitch with actually manufacturing, distributing and possessing marijuana with intent to distribute during certain months of both 1993 and 1996 respectively. R.G. Fitch pleaded not guilty to these charges and denied any knowledge of the alleged illegal activity. At a jury trial, a considerable amount of evidence tended to show that R.G. Fitch had knowingly assisted in the marijuana growing operation. A verdict of guilty was returned as to R.G. Fitch on all three counts.

Analysis

The defendant in this case was found guilty of conspiring to violate 21 U.S.C. § 841 ³ in violation of 21 U.S.C. § 846 ⁴ and, therefore, was sentenced according to § 841(b) which lists the maximum and minimum penalties applicable to such a violation. Since 1984, Congress has established a policy making punishment for a conviction under 21 U.S.C. § 841 dependent upon both the type and quantity or weight of the controlled substance involved in the offense. See Chapman v. United States, 500 U.S. 453, 460-61, 111 S.Ct. 1919, 1924-25, 114 L.Ed.2d 524 (1991). In furtherance of this policy, § 841(b) establishes a number of mandatory minimum and maximum sentences which a defendant may receive upon conviction according to the factors of quantity and drug type. Similarly, the United States Sentencing Guidelines (U.S.S.G.) establish a defendant's base offense level using the same factors which when coupled with a defendant's criminal history produces his overall guideline range. See U.S.S.G. § 2D1.1(c) (setting a defendant's base offense level according to the quantity and type of drugs involved). However, if the guidelines indicate a sentencing range below a mandatory minimum set by the substantive criminal statute, the U.S.S.G. provide that the statutorily prescribed minimum sentence constitutes the appropriate guideline sentence. See U.S.S.G. § 5G1.1(b).

When an offense involves marijuana plants, the Sentencing Guidelines determine the appropriate base offense level according to the type and quantity of drug concerned by an equivalency ratio of one marijuana plant to 100 grams of marijuana, unless the actual weight of the marijuana involved is greater. U.S.S.G. § 2D1.1(c)n*(E). The guidelines' equivalency ratio "is premised on the fact that the average yield from a mature marihuana plant equals 100 grams of marihuana." U.S.S.G. § 2D1.1, comment (backg'd.). In the substantive criminal statute, however, Congress set the mandatory minimum and maximum for offenses involving marijuana plants according to the actual number of plants involved, as opposed to the quantity or weight of the usable marijuana the plants could produce. See 21 U.S.C §§ 841(b)(1)(A)(vii), (B)(vii), & (D). Section § 841(b)(1)(A)(vii) provides that "[i]n the case of a violation of [the substantive provision of this section] involving ... 1,000 or more marihuana plants regardless of weight ... such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life...." (emphasis added).

Prior to sentencing, the PSR indicated that R.G. Fitch's offenses involved 1,187 marijuana plants. This amount represented the total number of marijuana plants found on the Fitch farm during the three seizures, detailed above, which covered the life of the conspiracy charged in count 1 of the superseding indictment: (1) the 72 marijuana plants discovered and destroyed on or about August 23, 1993, (2) the 288 marijuana stalks found November 10, 1993 and (3) the 827 marijuana plants found growing on the Fitch farm on July 25, 1996. Since over 1,000 marijuana plants were found to be involved in this offense, the mandatory minimum sentence of ten years imprisonment,...