U.S. v. Osburn

• Decision Date: 23 March 1992
• Docket Number: No. 91-8091,91-8091
• Citation: 955 F.2d 1500
• Parties: UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. George Nye OSBURN, Robert Allott Osburn, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1500

955 F.2d 1500

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. George Nye OSBURN, Robert Allott Osburn Defendants-Appellees, Cross-Appellants.

No. 91-8091.

United States Court of Appeals Eleventh Circuit.

March 23, 1992.

Michael Abbott, Atlanta, Ga., for George Osburn.

Joseph A. Homans, Gainesville, Ga., for R.A. Osburn.

Carolyn L. Adams, Joe D. Whitley, Asst. U.S. Attys., Atlanta, Ga., for U.S.

Appeals from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, ANDERSON and BIRCH, Circuit Judges.

KRAVITCH, Circuit Judge:

The government appeals the district court's finding that the sentencing scheme embodied in 21 U.S.C. § 841 is unconstitutional. Section 841 outlines a sentencing structure that punishes individuals convicted of possessing marijuana plants in proportion to the number of plants seized, regardless of the actual weight of marijuana obtainable from those plants. The statute attaches an "equivalency" to each plant seized: individuals convicted of possessing fewer than 50 plants are convicted on a 100 gram per plant basis, individuals convicted of possessing 50 or more plants are convicted on a 1000 gram per plant basis. Defendants claim that this scheme is unconstitutional because it violates their due process rights in three ways: a) by treating offenders differently depending upon the number of plants seized, b) by treating growers differently from other marijuana offenders, and c) by treating those arrested prior to harvest more harshly than those convicted after harvest. We hold that section 841 is constitutional and therefore remand for sentencing consistent with the statute and the corresponding Federal Sentencing Guidelines.

I. STATEMENT OF THE FACTS AND COURSE OF PROCEEDINGS

The defendants, George Nye Osburn and Robert Allott Osburn, were arrested after having been observed tending a marijuana field in a federal recreational area. They were charged with two counts of drug offenses: conspiracy to manufacture in excess of 100 marijuana plants in violation of 21 U.S.C. § 846, and manufacture in excess of 100 marijuana plants in violation of 21 U.S.C. § 841. Each waived his right to a jury trial. George Osburn received a thirty-three month sentence and a $6,000 fine. Robert Osburn, his son, received an eighteen month sentence and a $4,000 fine.

Prior to their convictions, defendants filed a motion with the district court challenging the constitutionality of 21 U.S.C. § 841. After finding the defendants guilty of the two underlying drug counts, the district court held an evidentiary hearing to determine whether the sentencing provisions embodied in section 841 violated the due process rights of defendants.

During this hearing, defendants proffered Dr. Mahmoud A. ElSohly as an expert in the chemistry and botany of cannabis and the production of marijuana for research purposes. ¹ Dr. ElSohly testified that he has a Drug Enforcement Administration license and has been growing marijuana under government supervision for fifteen years. At the time of the hearing, Dr. ElSohly's program was the only one in the United States in which marijuana was grown on a significant scale under a research grant from the government. Dr. ElSohly has a three-year contract with the National Institute of Drug Abuse to produce standardized marijuana for research.

Dr. ElSohly described the three types of marijuana plants. Each variety is characterized by the length of its growth cycle eight weeks, twelve to sixteen weeks, and twenty to twenty-four weeks. The average weight of dried marijuana leaves obtainable from the quickest maturing plants ranges from one to two ounces. The medium maturing variant yields between two and twelve ounces of marijuana, and the plant with the longest period of maturity averages between four ounces and two pounds. ² The biggest plant Dr. ElSohly ever grew yielded marijuana weighing approximately two pounds and was grown in an extremely congenial environment. Most of the plants grown under similarly optimum conditions produced only one pound of marijuana. Dr. ElSohly testified that he had never seen a plant weighing as much as a kilogram (2.2 pounds). ³

Most marijuana growers choose to cultivate the medium maturity variety because the short variety contains too little THC and the long variety takes too long to mature. Dr. ElSohly testified that a rough estimate of the weight of usable dry leaves derived from an average plant would be approximately 120 grams, or four ounces. In a two-year study conducted by Dr. ElSohly, he found that fully mature plants of the longest maturing variety yielded an average of 274 grams of marijuana.

Dr. ElSohly examined pictures of the marijuana seized in this case and testified that these plants were of the medium variety and were close to maturity. One of these plants was examined by the Georgia Bureau of Investigation and had been assigned a "wet" weight of five ounces. ⁴

Based upon Dr. ElSohly's testimony and the briefs of the defendants, the district court found the sentencing scheme of section 841 and the corresponding sentencing guidelines unconstitutional. United States v. Osburn, 756 F.Supp. 571 (N.D.Ga.1991). The trial court held that:

there is no rational basis to support the Commission's 1000 grams per plant ratio for plants in groups of 50 or more. The record clearly demonstrates that a 1000 gram equivalency cannot be empirically supported.... [T]he court finds that the Guidelines' Drug Quantity Table is unconstitutional to the extent that it treats one plant as equivalent to 1000 grams.

Id. at 576. Using Dr. ElSohly's testimony that the seized plants were of the medium variety, the judge applied a 300 gram per plant equivalency and sentenced the defendants accordingly. ⁵

The government appeals, claiming that the sentencing scheme of section 841 is constitutional. The defendants cross-appeal, challenging the district court's 300 gram equivalency. They argue that the court should have applied a lower average yield in calculating their sentences.

II. STANDARD OF REVIEW

The district court's finding concerning the constitutionality of section 841 is a question of law and is therefore subject to de novo review. United States v. Garcia, 890 F.2d 355 (11th Cir.1989). 18 U.S.C. § 3742(e) mandates the standard of review for findings of facts underlying sentences imposed according to the Federal Sentencing Guidelines. Under this statute, a reviewing court must accept the district court's factual finding that the sentence should be based upon a 300 gram per plant equivalency unless this finding is "clearly erroneous." Id. Similarly, this court must give "due deference" to the district court's application of the guidelines to the facts. Id.

III. THE STATUTE AND THE FEDERAL SENTENCING GUIDELINES

Defendants were convicted and sentenced pursuant to 21 U.S.C. § 841. ⁶ In that statute, Congress outlined a sentencing scheme in which an individual's sentence would increase in proportion to the number of plants seized or in proportion to the actual weight of dried marijuana involved in the conviction. In offenses involving the seizure of 50 or more marijuana plants, Congress provided a plant/weight equivalency scheme in which one plant would be equated with 1000 grams of marijuana. In instances involving fewer than 50 plants, the actual weight of marijuana attributable to the seized plant would be used when calculating the defendant's sentence.

In section 841(b), Congress established sentencing ranges based on the actual quantity of dry marijuana seized or the "equivalent" number of plants. If the conviction involves 1000 kilograms or more of marijuana, or 1000 or more marijuana plants, the defendant will receive a sentence of no less than ten years and no greater than life imprisonment. An offense involving 100 or more kilograms of marijuana or 100 or more plants requires a minimum sentence of five years and a maximum of forty years imprisonment. A defendant convicted of an offense involving 50 or more kilograms of marijuana or 50 or more plants will be subject to a maximum sentence of twenty years. An offense involving fewer than 50 kilograms of marijuana or fewer than 50 plants warrants a sentence of not more than five years.

The Federal Sentencing Guidelines echo the Congressional equivalency scheme contained in section 841(b):

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. U.S.S.G. § 2D1.1, p. 82 (Nov. 1991).

Although the statute indicates that sentencing for offenders convicted of possessing fewer than 50 plants is to be based on the actual weight, the Guidelines apply a 100 gram per se equivalency unless the actual weight is higher. The Commission justifies this ratio by "the fact that the average yield from a mature marihuana plant equals 100 grams of marihuana." U.S.S.G. § 2D1.1, p. 89 (Nov. 1991) (commentary following Guideline).

IV. SEPARATION OF POWERS

Federal legislation mandating length of sentences does not violate the separation of powers doctrine. In Mistretta v. United States, the Supreme Court upheld the federal sentencing statutory scheme because "Congress, of course, has the power to fix the sentence for a federal crime ... and the scope of judicial discretion with respect to a sentence is subject to congressional control." Mistretta v. United States, 488 U.S. 361, 364, 109 S.Ct. 647, 650, 102 L.Ed.2d 714 (1989) (citing Ex Parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 74, 61 L.Ed. 129) (citations omitted). Because "there is no right to individualized sentencing ... Congress may constitutionally prescribe mandatory sentences or otherwise...