US v. Ross, CR-2-90-207.
| Decision Date | 31 October 1991 |
| Docket Number | No. CR-2-90-207.,CR-2-90-207. |
| Citation | 778 F. Supp. 393 |
| Parties | UNITED STATES of America, Plaintiff, v. Daniel L. ROSS and Robert Holmes, Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Bradley Barbin, Asst. U.S. Atty., Columbus, Ohio, for plaintiff U.S.
Lewis E. Williams, Columbus, Ohio, for defendant Robert Holmes.
Jeffrey Berndt, Columbus, Ohio, for defendant Daniel L. Ross.
SENTENCING ORDER
This matter is before the Court for purposes of the sentencing of Defendants Daniel L. Ross ("Ross") and Robert Holmes ("Holmes"). Prior to sentencing the defendants, a variety of objections to the Presentence Report have been raised that need to be addressed. Specifically, Defendant Ross objects to the calculation of the sentence based upon the number of marihuana1 plants rather than the actual weight of the plants2. Defendant Holmes likewise objects to the use of the number of plants rather than the actual weight of the plants. Defendant Holmes further objects to the utilization of statements by Melvin Baker in the presentence report, a three level enhancement based upon Defendant Holmes' role in the offense, and the notation of the Guideline range of 210-262 months, arguing the range constitutes "cruel and unusual punishment". An additional argument raised at the time of sentencing, yet not contained in the addendum to the respective presentence reports, was an "estoppel" argument based upon the Assistant United States Attorney's representations to the Court during the sentencing of Co-defendant Melvin Baker, that the Government would agree that the appropriate Guideline offense level for this case would be a reduced level of 30. The Court will address these matters seriatim.
As previously stated, these defendants appear before this Court for purposes of sentencing. They stand convicted of conspiring to manufacture and possess with the intent to distribute in excess of 8,000 plants of marihuana, in violation of Title 21, U.S.C. § 846; the unlawful manufacture of in excess of 8,000 plants of marihuana, in violation of Title 21, U.S.C. § 841(a)(1) and § 841(b)(1)(A)(vii); and unlawful possession with the intent to distribute in excess of 8,000 plants of marihuana, in violation of Title 21, U.S.C. § 841(a)(1) and § 841(b)(1)(A)(vii).
The convictions were the result of an elaborate marihuana farming scheme. The defendants were growing the plant on three separate parcels of farmland, both indoors and outdoors. The properties were owned by coconspirator Melvin Baker, and were arranged to create a "greenhouse" type of effect for the cultivation of the marihuana. The testimony at trial and the observations of the officers' reflect that an extensive effort was given to provide the plants with ideal lighting, proper air circulation, and maintenance of the crop. Presumably, the great effort was made to create a near ideal growing atmosphere for the crop so as to obtain the maximum yield. In other words, this was no small time operation, as is evident by the seizure of miscellaneous lights, fans, and extension cords from the residences as well as various timers and transformers.
The process of cultivation being used by the conspirators is known as "hydroponics", which involves the clipping of immature plants and the growing of these plants in nutrient solutions which increases the total number of plants. The process is also commonly referred to as "cloning".
This illegal operation grew to the point that they erected a pole-barn so that they could grow upwards of 1,600 plants indoors under grow lights. In order to grow indoors, the conspiracy needed to tap Defendant Ross' expertise involving his knowledge of "cloning" and his ability to wire the sophisticated lighting necessary for the indoors growth. Defendant Holmes' role in the conspiracy was one of a leadership position. It is provided by his coconspirators that Holmes began the operation and enrolled the aid of others. It is further provided that Holmes was responsible for financing and planning, as well as assisting in the setup of the marihuana growing operations at the farms, and providing the seeds and handling the sales of the harvested crop. With the above-stated facts in mind, the Court will now turn its attention to the objections made by counsel to the presentence report.
The defendants argue that although they agree that the probation officer has properly applied the Sentencing Guidelines to the case, the guideline should be declared unconstitutional. The applicable guideline section is 2D1.1, wherein it provides as follows:
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. (emphasis in original)
Pursuant to this guideline and the fact that the defendants possessed 8,046 marihuana plants, the probation officer found under the Drug Quantity Table, 2D1.1(c) that the proper weight is 8,046 kilograms of marihuana, or a base offense level of 34. Level 34 is the proper offense level when the drug quantity is determined to be "at least 3,000 KG but less than 10,000 KG of Marihuana."
The defendants argue that the plants were incapable of producing one kilogram of marihuana per plant and as such the utilization of this amount is improper. To that end, the Court notes the case of United States v. Osburn, 756 F.Supp. 571 (N.D.Ga.1991).
In Osburn the defendants argued that the statutory penalty scheme under which they were charged, and the sentencing guideline scheme under which they were to be sentenced, are unconstitutional under the Fifth Amendment Due Process Clause. Pursuant to that position, the Court took oral argument concerning the utilization of one kilogram per plant for purposes of sentencing. At the 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. Dr. ElSohly's primary area of research is the production of marihuana for research. He stated that he had been involved in the growing of marihuana since 1976 and that he is the only person who has a contract with the government to grow marihuana for research. At the hearing, the doctor was admitted as an expert in the chemistry and botany of cannabis and the production of marihuana for research purposes.
His testimony provided that there is a variety of marihuana producing plants with varying growth cycles. He stated that some plants will mature in 8 weeks and will produce approximately 1-2 ounces of marihuana per plant. A second variety will mature in 12-16 weeks and will produce an average yield of 4-12 ounces. The final variety takes between 20 and 24 weeks to mature, however, it can produce an average of 4 ounces to 2 pounds of marihuana per plant.3 The doctor testified that he had never seen nor grown a plant that produced 1 kilogram of marihuana. It was his opinion that a sentencing scheme based on 100 grams of marihuana per plant would be reasonable, but a scheme based on 1 kilogram or 1000 grams per plant would be very unreasonable.
Although the Court noted that "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 (2nd 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, 1014-15 (1st Cir.1990)", United States v. Osburn, 756 F.Supp. 571, 573-74 (N.D.Ga.1991), the Court found "that there is no rational basis to support the Commission's 1000 grams per plant ratio for plants in groups of 50 or more." Id. at 576. The Court further found that "the record clearly demonstrates that a 1000 gram equivalency cannot be empirically supported ... and the court finds that the Sentencing Guideline sec. 2D1.1 is unconstitutional to the extent that the Drug Quantity Table treats one cannabis plant as equivalent to 1000 grams of marijuana." Id.
To the contrary is the holding in United States v. Lewis, 762 F.Supp. 1314 (E.D.Tenn.1991), wherein the Court made due notice of the holding in Osburn yet expressly rejected it. In Lewis the district court, at 1315, found guidance and rationale in the words of Senator Joseph Biden, Chairman of the Senate Judiciary Committee, who said:
To continue reading
Request your trial
-
US v. Watson
...Cir.1991); United States v. Lewis, 762 F.Supp. 1314, 1315-16 (E.D.Tenn.), aff'd, 951 F.2d 350 (6th Cir. 1991); United States v. Ross, et al., 778 F.Supp. 393 (S.D.Ohio 1991). While a marihuana plant is still growing the exact weight of the marihuana the plant will yield can not be determine......