U.S. v. Wegner

• Decision Date: 30 January 1995
• Docket Number: No. 94-30033,94-30033
• Citation: 46 F.3d 924
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kelly Kay WEGNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 924

46 F.3d 924

UNITED STATES of America, Plaintiff-Appellee, v. Kelly Kay WEGNER, Defendant-Appellant.

No. 94-30033.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 5, 1994.

Decided Jan. 30, 1995.

Timothy J. Cavan, Cavan, Smith & Cavan, Billings, MT, for defendant-appellant.

James E. Seykora, Asst. U.S. Atty., Billings, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before NOONAN, O'SCANNLAIN, and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

Kelly Kay Wegner ("Wegner") appeals her sentence under the Sentencing Guidelines following her guilty plea for drug manufacturing and trafficking. She argues that the district court miscalculated her base offense level by erroneously applying the one kilogram

to one marijuana plant conversion ratio in U.S.S.G. Sec. 2D1.1(c) n.*.

FACTS AND PRIOR PROCEEDINGS

On November 10, 1992, Kelly Wegner pled guilty to one count of an indictment alleging that she manufactured and possessed with intent to distribute "at least 100 marijuana plants." Wegner admitted to growing and harvesting marijuana in the basement of her rented house. She, however, maintained that the number of plants involved was less than one hundred, and objected to having her sentence based on the number of plants grown over a period of time but not seized by the government. Instead, she claimed that only the dry weight of marijuana actually produced by the plants, approximately 10 to 20 kilos, should be used for determining her base offense level. With her Criminal History Category of II, this would have resulted in a base offense level of 16 under U.S.S.G. Sec. 2D1.1.

The government contended that between 100 and 400 individual marijuana plants had been grown and harvested by the defendant personally and that she should be sentenced according to the number of plants. This would result in a base offense level of 26 under U.S.S.G. Sec. 2D1.1.

The court found that the defendant had been involved in growing and harvesting at least 100 individual plants. The court ruled that the defendant's base offense level should be determined, not by the actual dry weight of marijuana harvested, but by treating each plant as one kilogram. In making this determination the court relied on a note to Sec. 2D1.1(c) of the Sentencing Guidelines:

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 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. Sec. 2D1.1(c) n.* (1993).

The court found that the Guidelines' sentencing range for Wegner would be between 60 and 63 months. Due, however, to her substantial, continuing cooperation with the government investigation, the district court departed downward under Rule 35(b) ¹ and imposed a sentence of only 20 months.

ANALYSIS

Applicability of One Kilo Conversion Ratio

I. Standard of Review

A district court's interpretation of the Sentencing Guidelines is reviewed de novo. United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.1994).

II. Discussion

The single issue presented is whether the district court was correct in applying the one kilogram conversion ratio when the marijuana plants upon which the charge and sentence were predicated were never in fact actually seized. Proof of the grow operation and the number of plants involved was established by presentation of evidence of: partial plant remains; other circumstantial evidence found at the scene; and testimony of the defendant and other witnesses obtained after the grow operation had been shut down.

Citing United States v. Corley, 909 F.2d 359 (9th Cir.1990) and other cases, the defendant asserts that our precedent mandates that the one kilo conversion ratio be used only when live plants have been seized. When live plants are not seized, base offense levels must be determined by the dry weight of consumable marijuana produced.

The defendant's argument is meritless, and her reliance on Corley and related cases is misplaced. Under 21 U.S.C. Sec. 841 and the Sentencing Guidelines controlling Corley, that is, pre-1989 Guidelines, there was no In an amendment of the U.S.S.G. effective November 1, 1989, however, the Commission modified Sec. 2D1.1(c), and introduced the one kilogram conversion ratio when the crime involved 50 or more marijuana plants. ² U.S.S.G., App. C, Amend. No. 125 (1994).

                one kilogram conversion ratio for marijuana plants.  Each plant was equated with 100 grams of marijuana.  909 F.2d at 361.   In Corley, we held that the purpose of the 100 gram conversion ratio was to provide a proportionate manner of sentencing based on plants or harvested dry substance by establishing a reasonable estimate of the average dry yield of growing plants.  Corley, 909 F.2d at 361 (relying on United States v. Graham, 710 F.Supp. 1290 (N.D.Cal.1989)).  Thus, as the policy was explained in Corley, prior to the 1989 amendment of the U.S.S.G., the Guidelines intended in all cases to punish growth of plants according to the average amount of dry substance which could be harvested
                

We have previously held that the rationale behind this amendment was Congress' intent to punish the manufacture of marijuana more severely. See United States v. Jordan, 964 F.2d 944, 946 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 478, 121 L.Ed.2d 384 (1992); United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992). In these cases, we explained that Congress did not introduce the one kilogram conversion ratio because that quantity provided any evidentiary "estimate" of the potential yield of a marijuana plant, whether proximate or remote. Instead, Congress imposed that conversion ratio because it provided a degree of punishment determined appropriate for producers of 50 or more marijuana plants:

[The one kilogram conversion ratio] is not designed as a substitute for individualized determinations regarding the actual weight of harvestable marihuana taken from a given plant. Instead, it functions only as a measure of culpability for sentencing purposes by assigning an increased level of culpability to marihuana growers as opposed to mere possessors.

Jordan, 964 F.2d at 947.

Our precedent unambiguously endorses the view that the one kilogram conversion ratio represents congressional intent to punish growers of 50 or more marijuana plants to a greater extent than smaller producers or mere possessors. The defendant's argument that she should be spared application of that one kilogram equivalency ratio because termination of the grow operation eliminated all the productive character of the plants involved is, therefore, meritless. ³

Circuit courts of appeals, however, are split on whether the one kilogram conversion ratio is applicable when plants are not seized. This appears to be a case of first impression in this circuit.

The Seventh Circuit, in United States v. Haynes, 969 F.2d 569 (7th Cir.1992), found that the one kilogram equivalency ratio should be applied whenever there is sufficient evidence of plant growth and production, not only when those plants are actually seized. Id. at 572-73. In view of our agreement with the Seventh Circuit on the underlying purpose behind the one kilogram conversion ratio, it is consistent that we should The Second, Sixth, and Eleventh Circuits, however, have chosen not to follow this rule. ⁴ Nothing in these decisions persuades us to their holding.

adopt the same interpretation as the Seventh Circuit. We hold that the one kilogram conversion ratio applies even when live plants are not seized.

In United States v. Blume, 967 F.2d 45 (2d Cir.1992), the Second Circuit rejected application of the one kilogram conversion ratio, finding that it was not supported by the evidence of the actual amount produced:

Uncontroverted evidence indicates that [the defendant's] farms produced an amount of marijuana substantially less than that used for sentencing.... [T]he amounts harvested were certainly less than one kilogram per plant.... Because the evidence does not support finding upon which the district court imposed sentence, we remand for resentencing.

Blume, 967 F.2d at 49-50. Given our holding that the conversion ratio is not intended to provide an evidentiary rule or estimate, the Second Circuit's view is based on a different interpretation of the conversion ratio than our precedent indicates.

The Eleventh Circuit in United States v. Osburn, 955 F.2d 1500 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992), adopted without discussion the same interpretation as the Second Circuit:

Defendants correctly identify an anomaly in the statutory scheme. Under Section 841(b), a grower who is arrested immediately after she has harvested her marijuana crop will be sentenced according to the weight of the marijuana yielded by that crop.... Yet, a similarly situated grower, arrested immediately prior to harvesting his crop, will be sentenced on a 1000-gram-per-plant basis. In this example, two people, almost identically situated will be treated in an appreciably different manner.

Id. 955 F.2d at 1509.

In effect, the Eleventh Circuit assumes that the one kilogram conversion ratio does not apply to plants which have not actually been seized, and in so doing creates the very statutory anomaly it considers. Application of the one kilogram conversion ratio in accord with our holding, like application of the rule adopted by the Seventh Circuit in Haynes, prevents this anomaly by treating alike both of the defendants described in the Eleventh Circuit's hypothetical.

In United States v. Stevens, 25 F.3d 318 (6th Cir.1994), the Sixth Circuit states that the legislative history of the...