US v. Osburn
| Decision Date | 13 February 1991 |
| Docket Number | Crim. No. 2:90-CR-13-WCO. |
| Citation | 756 F. Supp. 571 |
| Parties | UNITED STATES of America v. George Nye OSBURN and Robert Allott Osburn. |
| Court | U.S. District Court — Northern District of Georgia |
Carolyn J. Adams, Asst. U.S. Atty., Atlanta, Ga., for U.S.
C. Michael Abbott, Atlanta, Ga., for George Osburn.
Joseph Homans, Gainesville, Ga., for Robert Osburn.
O'KELLEY, Chief Judge.
Presently before the court is the defendants' due process claim and motion to declare the penalty phase of the statute and related sentencing guidelines unconstitutional.
The defendants have been charged with conspiracy to manufacture marijuana in violation of 21 U.S.C. sec. 846 and 841. The defendants allege that the statutory penalty scheme under which they are charged, and the sentencing guideline scheme under which they will be sentenced, are unconstitutional under the Fifth Amendment Due Process Clause. Specifically, the defendants allege that the statute and guideline scheme provide no rational basis between the offense committed and the penalty by: (1) providing a classification scheme with no rational basis between those convicted of an offense involving marijuana plants and those convicted of marijuana and other drug offenses whose penalties are based on actual weight or equivalencies; (2) providing a classification scheme with no rational basis between those convicted of an offense involving more than 50 plants and those convicted of an offense involving less than 50 plants; and (3) providing a classification scheme with no rational basis between those raising marijuana plants who were arrested before the plants were harvested and are sentenced according to the "plant" classification and those raising marijuana plants who were arrested after the plants were harvested and are sentenced according to actual weight.
The pertinent statute, 21 U.S.C. sec. 841(b), provides in part:
The Sentencing Guideline applicable to this case, sec. 2D1.1, prescribes base offense level 24 for the defendants (98 plants were confiscated from the defendants and level 24 offenses involve at least 80 kilograms but less than 100 kilograms of marijuana). The Sentencing Commission's footnote to the Drug Quantity Table as to offenses involving marijuana states:
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 100G 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.
On December 14, 1990, this court heard oral argument as to the present motion from counsel for the parties involved. At that hearing, the defendants presented the testimony of Dr. Mahmoud A. ElSohly, Research Professor and Program Coordinator of the Drug Abuse Research Program from the Research Institute of Pharmaceutical Sciences, School of Pharmacy, University of Mississippi located in Oxford, Mississippi. One of Dr. ElSohly's primary areas of research is to be involved in the production of marijuana for research. T-9. He has been involved in the growing of marijuana since 1976 and he is the only person who has a contract with the government to grow marijuana for research. T-9-11. He has a Ph.D in pharmacognosy, has published over 100 research papers and has testified in over 60 criminal trials related to drugs of abuse. T-13, 14. At the December 14th hearing, Dr. ElSohly was admitted as an expert in the chemistry and botany of cannabis (marijuana producing plant) and the production of marijuana for research purposes.
Dr. ElSohly stated that different varieties of marijuana have different growing cycles, i.e. the quick growing cycle variety will produce mature plants within 8 weeks, the medium variety within 12-16 weeks, and the late variety within 20-24 weeks. T-21. Dr. ElSohly testified that the quick variety has an average yield of 1-2 ounces or less of marijuana, the medium variety has an average yield of 4-12 ounces, and that the late variety has an average yield of 4 oz-2 lbs. T-21. Dr. ElSohly opined that most illicit growers grow the medium variety because the quick variety is low in THC, the active ingredient in marijuana, and the late variety takes too long to harvest in light of the risk of detection by law enforcement. T-27, 28.
Dr. ElSohly performed a consecutive 2-year study to determine the average weight of usable marijuana produced by a cannabis plant. T-16. In this study, Dr. ElSohly used both Mexican and Colombian plant material. In the first year, using Mexican plants, Dr. ElSohly's plants averaged 222.37 grams (.2 kilo) of usable marijuana. T-25. In the second year, using Colombian plants, Dr. ElSohly's plants averaged 273 grams of usable marijuana. T-26. The highest production of any of the plants was 709 grams. T-42.
Dr. ElSohly testified about certain ways to increase the yield of cannabis plants, i.e. topping the plants and intensive gardening, however, he further testified that he had never seen or grown a plant that produced 1 kilogram (2.2 lbs.). T-29, 30. Dr. ElSohly testified that the biggest single plant that he ever grew produced about 2 pounds. T-30. Significantly, Dr. ElSohly testified that, even under ideal conditions, he would not expect to get an average of 1 kilogram of marijuana per plant because that would mean that some plants would weigh as much as 5 pounds which is not possible. T-43, 44. Dr. ElSohly testified that a sentencing scheme based on 100 grams per plant would be reasonable, but a scheme based on 1 kilogram or 1000 grams per plant would be very unreasonable. T-39.
In the present case, the defendants contend that Sentencing Guideline sec. 2D1.1 violates their due process rights. It is well established that a defendant is not entitled to an "individualized sentencing, and Congress may constitutionally prescribe mandatory sentences or otherwise constrain the exercise of judicial discretion so long as such constraints have a rational basis." (emphasis added) (citations omitted) United States of America v. Huerta, 878 F.2d 89, 94 (8th Cir.1989); See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1988) (); United States v. La Guardia, 902 F.2d 1010, 1014-1015 (1st Cir.1990). In U.S. v. Buckner, 894 F.2d 975, 978 (8th Cir.1990), the court stated, Likewise, the 1 kilogram of marijuana to 1 marijuana plant ratio in the Guidelines, challenged by the defendants in the present case, is derived directly from Section 841(b), which mandates the same minimum sentence for crimes involving "1000 kilograms or more of a mixture or substance containing a detectable amount of marijuana" and crimes involving "1000 or more marijuana plants regardless of weight," and the same minimum sentence for crimes involving "100 kilograms or more of a mixture or substance containing a detectable amount of marijuana" and crimes involving "100 or more marijuana plants regardless of weight."1 21 U.S.C. sec. 841(b)(1)(A)(vii) and 841(b)(1)(B)(vii). Clearly, the United States Sentencing Commission only implemented congressional directives as set forth by statute when applying the 1 kilogram to 1 plant ratio to its delineation of sentencing ranges. See Buckner, 894 F.2d at 978.
Acts of Congress are subject to judicial review, "but by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it." United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1937). In Buckner, the court stated, 894 F.2d at 978, citing Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940 (1934). The court further stated that "courts should not and do not try `to determine whether the statute was the correct judgment or whether it best accomplishes Congressional objectives; rather, courts determine only whether Congress' judgment was rational'" Id. citing United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir. 1988). Thus, the focus of this court's inquiry is whether there is a rational basis for Guideline sec. 2D1.1.
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U.S. v. Lee
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