U.S. v. Shields

• Decision Date: 10 April 1995
• Docket Number: No. 93-9270,93-9270
• Citation: 49 F.3d 707
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maurie Wade SHIELDS, a/k/a Chip, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 707

49 F.3d 707

UNITED STATES of America, Plaintiff-Appellee, v. Maurie Wade SHIELDS, a/k/a Chip, Defendant-Appellant.

No. 93-9270.

United States Court of Appeals Eleventh Circuit.

April 10, 1995.

Bruce S. Harvey, Atlanta, GA, for appellant.

Joe D. Whitley, U.S. Atty., James R. Harper, Amy Levin Weil, Asst. U.S. Attys., N.D.Ga., Atlanta, GA, for appellee.

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

Before KRAVITCH, Circuit Judge, GODBOLD and RONEY, Senior Circuit Judges.

KRAVITCH, Circuit Judge:

The issue presented in this case is whether admittedly dead "root systems" remaining from marijuana plants harvested weeks or months before police seizure may be counted along with seized living plants as marijuana "plants" for sentencing purposes. We hold that dead, harvested root systems are not "plants" within the meaning of 21 U.S.C. Sec. 841(b) and the "equivalency provision" of U.S.S.G. Sec. 2D1.1(c), n.*, p 5. Accordingly, we VACATE the defendant's sentence and REMAND for resentencing.

I.

Appellant Maurie Shields and Joseph O'Reilly ¹ grew marijuana in a house the two were leasing in Marietta, Georgia. When law enforcement agents searched the house, they found 27 live marijuana plants. They also discovered a trash can containing 26 dead, crumbling roots, each attached to a small portion of the stalk ("root systems"), remaining from previously-harvested plants. Shields and O'Reilly each pleaded guilty to charges of conspiracy to manufacture marijuana in violation of 21 U.S.C. Secs. 841 and 846.

At his sentencing hearing, Shields testified that what the agents counted as 26 separate dead plants were actually the remains of 6 to 8 multi-stalked plants that had been split apart during harvesting, leaving each stalk with a partial root system. Shields argued that he thus should be sentenced on the basis of only 33 to 35 marijuana plants. After viewing a videotape of the seized root systems being inspected and counted by the agents at the scene, the district court specifically discredited Shields's testimony and credited the testimony of the law enforcement officers who conducted the search. The court accordingly found that the root systems were derived from 26 predecessor marijuana plants. ²

The district court noted that Shields's codefendant, O'Reilly, had been sentenced on the basis of only the 27 live marijuana plants (within the Guideline-mandated sentencing range of 10-16 months) because the government conceded that it could not show, even by a preponderance of the evidence, that O'Reilly conspired with Shields to grow the 26 previously-harvested plants. The district court commented that if Shields were held accountable for 53 plants, his Guideline-mandated sentencing range would be 33-41 months, ³ and that it was troubled by the threefold disparity between O'Reilly's and Shields's sentences. Nevertheless, because it concluded that the 26 root systems were plainly marijuana plants under the sentencing statute and the Guidelines, the court sentenced Shields to 33 months imprisonment, the lowest permissible Guideline alternative.

II.

A.

On appeal, Shields contends that the district court erred in counting any of the 26 root systems as marijuana plants for the purpose of sentencing. Because this claim differs somewhat from the argument Shields posited in the district court, ⁴ we initially must determine whether Shields may raise it for the first time in this court.

The treatment of sentencing objections in this circuit is governed 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, 1137 (11th Cir.1993) (en banc). In Jones, we required the district courts, after conducting the sentencing hearing, stating their factual findings, applying the Guidelines, and imposing sentence, to "elicit fully articulated objections" to their "ultimate findings of fact and conclusions of law." Id. at 1102. We noted that "[w]here the district court has offered the opportunity to object and a party is silent or fails to state the grounds for objection, objections to the sentence will be waived for the purposes of appeal ... [absent] manifest injustice." Id. at 1103. As a corollary to this waiver principle, we held that "[w]here the district court has not elicited fully articulated objections following the imposition of sentence, this court will vacate the sentence and remand for further sentencing in order to give the parties an opportunity to raise and explain their objections." Id.

Because the district court in this case failed to comply with Jones, we ordinarily would vacate the sentence and remand without reaching the merits of Shields's argument. We do, however, have the discretion to consider sentencing objections, notwithstanding a "technical violation of Jones," where "the record is sufficient for meaningful appellate review." United States v. Cruz, 946 F.2d 122, 124 n. 1 (11th Cir.1991). See also United States v. Costales, 5 F.3d 480, 483 n. 3 (11th Cir.1993) (same). Because this case presents a purely legal question on a complete record, we exercise that discretion here, and consider Shields's appeal on the merits. ⁵

B.

21 U.S.C. Sec. 841(b) requires certain minimum mandatory sentences for convictions of controlled substance offenses, ⁶ based on either (i) the weight in kilograms of "a mixture or substance containing a detectable amount of marijuana" or (ii) the number of "marijuana plants regardless of weight." The Sentencing Guidelines elaborate this statutory scheme. U.S.S.G. Sec. 2D1.1(c) sets the base offense level for certain drug offenses on the basis of "marihuana" weight in kilograms. The so-called "equivalency provision" then equates each plant to a kilogram of marijuana if the offense involved fifty or more plants, and to 100 grams of marijuana if the offense involved fewer than fifty plants. ⁷

Although 21 U.S.C. Sec. 802(16) defines "marihuana," neither the statute nor the current Guidelines define "marihuana plant." ⁸ Implicit in our recent decision in United States v. Foree, 43 F.3d 1572 (11th Cir.1995), however, is the proposition that clearly dead vegetable matter is not a plant. ⁹ In Foree, we concluded that new cuttings and seedlings are not marijuana plants until they develop "some readily observable evidence of root formation." Id. at 1581. In so holding, we explicitly rejected the less-stringent proposal that a cutting may be a plant if " 'it appears to the court to be a growing and living thing, even if its root structures are not yet formed.' " Id. (quoting government's brief). Foree therefore treats evidence of life as a necessary (but alone insufficient) prerequisite of "planthood," and its reasoning counsels rejection of the government's converse contention here that dead marijuana remains are plants simply because they have roots. ¹⁰

Foree suggests that the 26 root systems were not plants; other circuit precedent explains how harvested former plants should be treated at sentencing. In United States v. Osburn, 955 F.2d 1500, 1509 (11th Cir.), cert. denied, --- U.S. ----, ----, 113 S.Ct. 223, 290, 121 L.Ed.2d 160, 215 (1992), we held that

[u]nder section 841(b), a grower who is arrested immediately after she has harvested her marijuana crop will be sentenced according to the [actual] weight of the marijuana yielded by the crop, ... [y]et a similarly situated grower, arrested immediately prior to harvesting his crop, will be sentenced on a [presumed] 1000-gram-per-plant basis [pursuant to the "equivalency provision" of U.S.S.G. Sec. 2D1.1(c), n.*, p 5]. ¹¹

Other decisions in this circuit have noted the same anomaly in the sentencing regime. See Foree, 43 F.3d at 1581 ("[U]nder [the existing] sentencing scheme, the government undeniably benefits if it catches a grower before harvest, for after harvest the defendant would have to be sentenced according to the (much lower) actual weight of the usable portions of the plant (i.e. not stalks or sterilized seeds).") (emphasis omitted); United States v. Bradley, 905 F.2d 359, 361 (11th Cir.1990) ("When marijuana is discovered in dry leaf form after harvest, the weight measurement is appropriate."). ¹²

C.

The government urges that our precedents are distinguishable because the instant case involves manufacturing and conspiracy to manufacture plants rather than possession of marijuana plants with intent to distribute. ¹³ Because Congress intended to treat "plant growers more harshly than those convicted of [distribution] marijuana crimes," Osburn, 955 F.2d at 1509, the government argues that growers of plants and parties to conspiracies to grow plants should not benefit from the happenstance of the timing of the harvest. Instead, the government suggests, relying on United States v. Haynes, 969 F.2d 569 (7th Cir.1992) and its progeny, ¹⁴ that it should be permitted to show by circumstantial evidence how many already-harvested, long-dead plants were grown by defendants charged with manufacturing or conspiracy to manufacture during the time-frame alleged in the indictment. ¹⁵ Alternatively, the government argues that because the object of Shields's conduct was to grow a certain number of plants, he should be held accountable for what he intended to accomplish. ¹⁶ Under either theory, according to the government, the district court properly sentenced Shields by applying the 1 kg/plant equivalency to the number of dead plants. ¹⁷

The government, however, overlooks the fact that the defendants in Osburn were convicted of conspiracy to manufacture marijuana plants, and the defendants in Bradley were convicted of manufacturing marijuana plants. See Osburn, 955 F.2d at 1502; Bradley, 905 F.2d at 361. Our decisions therefore contemplate the use of actual post-harvest weight of consumable marijuana, rather than presumed weight derived from the number of...