U.S. v. Lee

• Decision Date: 24 February 1992
• Docket Number: No. 91-3194,91-3194
• Citation: 957 F.2d 778
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Rodney K. LEE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 778

957 F.2d 778

UNITED STATES of America, Plaintiff-Appellant, v. Rodney K. LEE, Defendant-Appellee.

No. 91-3194.

United States Court of Appeals Tenth Circuit.

Feb. 24, 1992.

Nina Goodman (Lee Thompson, U.S. Atty., Kim M. Fowler, Asst. U.S. Atty., D. Kansas with her on the briefs), Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Cyd Gilman, Asst. Federal Public Defender, Wichita, Kan., for defendant-appellee.

Before BALDOCK and BARRETT, Circuit Judges, and DAUGHERTY ^*, District Judge.

BARRETT, Senior Circuit Judge.

In this appeal by the United States, we must decide whether the district court erred in concluding that defendant-appellee Rodney K. Lee (Lee), indicted and convicted under 21 U.S.C. § 846 (attempt to possess with intent to distribute marijuana), was not subject to the mandatory minimum five year sentencing provision of 21 U.S.C. § 841(b)(1)(B)(vii) on constitutional equal protection grounds.

That statute provides that a defendant convicted of an offense involving "100 kilograms or more of a mixture or substance containing a detectable amount of marijuana, or 100 or more marijuana plants regardless of weight ... shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years...."

The district court concluded that, in this case, the mandatory minimum sentencing provision was unconstitutional. On appeal, the United States contends that Lee's sentence should be vacated and the case remanded for resentencing under 21 U.S.C. § 841(b)(1)(B)(vii).

Facts

Lee entered a guilty plea to a one-count superseding indictment charging that on or about October 26, 1990, he knowingly and intentionally attempted to possess 294 marijuana plants with intent to distribute marijuana. The marijuana was grown entirely indoors at Lee's rural residence near Savery, Kansas. The plants were located in an upstairs bedroom, equipped with paraphernalia commonly associated with the indoor cultivation of marijuana, including grow lights, transformers, a sun circle, irrigation tubing, fertilizer, electric fans, scales and other items.

At an evidentiary hearing, Mr. Doug McVay, offered by Lee as an expert witness, testified, over the objection of the United States, that: of the 294 plants being grown by Lee, some 64 were on their way to maturity; of the 230 smaller plants, only one-half would have likely made it to maturity; had the plants grown by Lee been allowed to grow to full maturity, they would have produced one or two ounces of usable material; under ideal conditions, a marijuana plant could not be expected to produce one kilogram of marijuana material; and, at the time of seizure, the 294 plants would have produced eight to eight and one-half kilos of marijuana.

At the conclusion of Mr. McVay's testimony, the district court observed that it calculated that the "[U]nited States seized approximately nine kilos of marijuana for which he's to have five years in prison." (R., Vol. II, Tab 50, p. 45).

In argument to the court at the hearing, defense counsel stated that the evidence would make it clear that the "ratio that Congress has used in setting those mandatory minimums (in 21 U.S.C. § 841), namely that one plant, one marijuana plant, is considered to be equal to one thousand grams or one kilo of other marijuana material, such as processed marijuana that has already been harvested," id. at 5, is unconstitutional on equal protection grounds. Counsel for the United States argued that Mr. McVay's testimony was irrelevant because the statute does not deal in "ratio" but rather "[I]t says a hundred kilograms of marijuana or a hundred plants, regardless of weight. The statute does not say that one plant equals one kilo, just says that if you have a hundred plants your [sic] sentenced to the mandatory minimum of five years in prison, regardless of how much they weigh, regardless of how much marijuana it would ultimately produce." Id. at p. 9. Counsel for the United States further argued that "If he was a good marijuana grower, those same plants would have produced twice that much or three times that much. That's what Mr. McVay was saying. He was saying he wasn't a very good cultivator, and that's not the point. The point is he was growing marijuana in an amount and in a potential and scale that Congress has deemed deserves a five-year mandatory minimum. And there is a rational basis for that. The rational basis is that you punish the people on the scale of their operation, and he had 294 plants, and each of those 294 plants could conceivable produce another 294 plants.... He's got the potential to grow a huge amount of marijuana ... a hundred marijuana plants is a large-scale operation." Id. at pp. 45-46.

The District Court's Order

In its "Memorandum and Order" entered April 12, 1991, the district court held that the application of the five-year mandatory minimum sentence provision contained in 21 U.S.C. § 841(b)(1)(B)(vii) would cause an unconstitutional violation of Lee's equal protection guarantees. United States v. Lee, 762 F.Supp. 306 (D.Kan.1991).

The court recognized that while the "[c]reation of mandatory penalties based on the possession of a given number of marijuana plants is rationally related to a legitimate government objective, and hence is constitutionally valid," still:

The present case involves another issue entirely--not whether punishment may be based on the possession of a given number of plants, but whether the number of plants specified in the statute as triggering enhanced punishment bears any rational relationship to the threshold for enhanced punishment calculated on the basis of plant weight. Put another way, is there any rational relationship between 100 marijuana plants (regardless of their status in the growth cycle), which triggers the mandatory sentence requirement of 21 U.S.C. § 841(b), and the 100 kilograms of marijuana "mixture or substance" which also requires the imposition of mandatory sentencing?

The court finds that there is not. Evidence adduced at the hearing ... indicates that the equation of one marijuana plant to one kilogram (1000 grams) of marijuana substance is purely arbitrary.

... The issue is not whether Congress had a rational basis for establishing mandatory minimum punishment based on the possession of a given number of marijuana plants or a given weight of marijuana. The issue is whether there was any rational basis for the number of marijuana plants (100) actually selected by Congress as triggering the minimum sentence, in comparison to the weight (100 kg.) of marijuana material which also triggers the minimum sentencing provision.

Id. at 307.

The district court relied upon United States v. Osburn, 756 F.Supp. 571 (N.D.Ga.1991) as being "directly relevant here" even though the Osburn court approached the 100 marijuana plants issue from a due process standpoint rather than equal protection. Id. at 308.

The Sentencing Statute

The statute at issue, 21 U.S.C. § 841(b)(1)(B)(vii), supra, was enacted as part of a graduated series of penalties adopted by Congress for offenses involving the trafficking of marijuana and marijuana plants. As to the latter, offenses involving less than 50 marijuana plants are punishable by up to five years imprisonment; those involving 50-99 plants, up to twenty years imprisonment; those involving 100 to 999 plants by five to forty years; and those involving 1000 or more plants by ten years to life imprisonment. 21 U.S.C. § 841(b)(1)(A)-(D).

§ 841(b)(1)(B)(vii) was enacted in 1988 as part of the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 6479, 102 Stat. 4181, 4381-4382. Prior thereto, § 841(b) punished marijuana offenses solely on the basis of weight, except that possession of "100 or more marijuana plants regardless of weight" was punishable by up to twenty years imprisonment. There was no mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(C) (1982 and Supp. IV 1986). Other penalty provisions of the Act dealt with, inter alia, cocaine, PCP and LSD.

No House or Senate reports accompanied the legislation. The legislative history of the Anti-Drug Abuse Act submitted by Senator Biden explains the determination made by the Congress to assess the mandatory minimum sentence against one in possession of marijuana plants, to-wit:

Section 6479, Marijuana Plants--

Section 21 U.S.C. § 841(b)(1)(A) provides for a mandatory minimum 10 years penalty for distribution, or possession with intent to distribute, of "1,000 kilograms or more of a mixture or substance containing a detectable amount of marijuana." Defendants charged with possessing large quantities of marijuana plants have argued that the statutory definition of marijuana specifically excludes the seeds and stems of the plant, and that therefore these items may not be counted toward the 1,000 kilogram requirement.

The government has argued in response that the term "mixture or substance" encompasses all parts of the lands as harvested, notwithstanding the statutory definition of "marijuana", but defendants contend that the "mixture or substance" language applies only to marijuana after it has been prepared for illegal distribution. The defendants' position has been adopted by at least one court. United States v. Miller, 680 F.Supp. 1189 (E.D.Tenn.1988). The amendment is intended to curtail this unnecessary debate by providing that the minimum penalty is triggered either by the weight of the "mixture of substance" or by the number of plants regardless of weight. The bill uses 1,000 plants as the equivalent of 1,000 kilograms. 134 Cong.Rec. § 17360 (daily ed. November 10, 1988).

Appellate Contention

The district court, having ruled that the mandatory minimum five-year sentence required under 21 U.S.C. § 841(b)(1)(B)(vii) would violate Lee's equal protection guarantees, sentenced Lee to thirty-three (33) months imprisonment. This was determined under the Sentencing Guidelines, based upon Lee's offense level...