US v. Weidner, SCr. 88-15.
| Citation | 703 F. Supp. 1350 |
| Decision Date | 19 September 1988 |
| Docket Number | No. SCr. 88-15.,SCr. 88-15. |
| Parties | UNITED STATES of America, v. Dale A. WEIDNER. |
| Court | United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana |
COPYRIGHT MATERIAL OMITTED
Rick L. Jancha, Asst. U.S. Atty., South Bend, Ind., for plaintiff.
Stephen G. Drendall, South Bend, Ind., for defendant.
SENTENCING MEMORANDUM
Dale A. Weidner is 28 years old. On February 16, 1988, drug task force officers executed a search warrant on his property. Inside a pole barn, the agents found a sophisticated manufacturing process for high-grade marijuana, and more than 100 marijuana plants. The agents found various chemicals, halogen glow lights, specialized growing/drying machines, aluminum foil on the walls, a charcoal air filtering system, a humidifier, a carbon dioxide tank, and ceiling fans.
The pole barn was divided into three rooms. The marijuana operation, consisting of two rooms, was at the rear; the front contained a body shop business operated by another person. There was no interior access between the body shop room and the first room of the marijuana operation. The agents found a loaded .16 gauge Browning semi-automatic shotgun in the corner, to the right of the exterior door leading into the first room of the marijuana operation. A six-foot electrical cord was tied to the shotgun's trigger. The government contends that the shotgun was used as a "trip gun" or "booby trap", although the trap was not activated at the time of the raid. Mr. Weidner testified that he never actually used the shotgun as a "trip gun", but rather intended to lead those who might be in the barn to believe the barn was booby-trapped when Mr. Weidner was away.
Mr. Weidner had given up his legitimate employment to raise marijuana full-time. He worked at his trade twelve hours a day, seven days a week, growing a cross between Hawaiian and Afghanistan marijuana. He began his operation for personal use, growing safe marijuana and avoiding the need to do business with drug dealers. As his production expanded, he began selling his product to close friends. Mr. Weidner made approximately $30,000.00 in the fifteen months of his operation. He sold about three-fourths of what he grew.
Mr. Weidner was charged in a four-count indictment. Count 1 charged him with unlawful manufacture of more than 100 marijuana plants. 21 U.S.C. § 841(a)(1). Count 2 charged him with possession with intent to distribute marijuana. 21 U.S.C. § 841(a)(1). Count 3 charged him with possession of a dangerous weapon (the semiautomatic shotgun) during the manufacture of more than 100 marijuana plants. 18 U.S.C. § 924(c)(1). Count 4 charged him with possession of a dangerous weapon during the possession of marijuana with intent to distribute marijuana. 18 U.S.C. § 924(c)(1).
Mr. Weidner has tendered pleas of guilty to Counts 1 and 2 of the indictment in exchange for the government's agreement that the sentences shall be served concurrently and for the dismissal of Counts 3 and 4.
Manufacture of more than 100 marijuana plants is punishable by imprisonment for not more than twenty years, a fine of as much as $1,000,000.00, and a mandatory supervised release term of at least three years. Possession with intent to distribute marijuana is punishable by imprisonment for not more than five years, a fine of not more than $250,000.00, and a mandatory supervised release term of at least two years. Because the offenses occurred after October 12, 1984, Mr. Weidner also faces mandatory special assessments of $50.00 on each count. Because the offenses occurred after November 1, 1987, the Sentencing Guidelines are applicable. The court earlier denied Mr. Weidner's motion to declare the Guidelines unconstitutional. United States v. Weidner, 692 F.Supp. 968 (N.D.Ind.1988).
The court first must determine the guideline section in Chapter Two of the Guidelines most applicable to the statute of conviction. § 1B1.1(a). That section is § 2D1.1(a)(3).
The court then must determine the base offense level and apply any appropriate specific offense characteristics contained in the particular guideline. § 1B1.1(b). In making that determination, the court must consider all relevant conduct and circumstances, including those acts or omissions of the defendant that are part of the same course of conduct as the offense of conviction, or are relevant to the defendant's mental state or motive, or indicate the defendant's degree of dependence upon criminal activity for a livelihood. § 1B1.3.
Section 2D1.1(a) directs the court to refer to the Drug Quantity Table to determine the base offense level; that table provides that the base offense level for an offense involving at least 100, but less than 199, marijuana plants is 16.
Section 2D1.1(b)(1) provides that if a firearm or other dangerous weapon was possessed during commission of the offense, the offense level must be increased by two levels. Mr. Weidner challenges the applicability of this section on the grounds that there is no evidence that the shotgun was actually ever used as a booby trap, or used to threaten any person, or possessed in connection with the commission of an offense. Application Note 3 provides guidance in resolving this objection:
The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.
Mr. Weidner intended the shotgun to defend his operation by making other believe they would be shot if they attempted unauthorized entry, and the electrical wire attached to the shotgun is inexplicable under any theory other than intended use or apparent use as a booby trap. Even if the preparation for that use was incomplete, and the weapon was never so used, the weapon was present and intended for use in guarding the marijuana. The court increases the offense level to 18.
The court next must apply adjustments related to victim, role and obstruction of justice, § 1B1.1(c), and acceptance of responsibility, § 1B1.1(e).
There are no victim-related adjustments to consider. Mr. Weidner did not willfully impede or obstruct the administration of justice or attempt to do so. § 3C1.1. The parties dispute the application of the remaining potential adjustments.
Section 3B1.1(a) provides that if "the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive", the offense level should be increased by four levels. The government and the probation officer contend that this section should apply to Mr. Weidner, who contends that it should not.
Mr. Weidner argues that he was not an organizer or leader. He argues that his manufacture and possession of marijuana involved no others, so § 3B1.1(a) does not apply. The probation officer and government argue that when one considers Mr. Weidner's customers, his operation was "otherwise extensive" within the meaning of § 3B1.1(a). See Application Note 2. The probation officer and the government also note that Application Note 3 directs the court to consider "the exercise of decisionmaking authority, the nature of participation in the commission of the offense, the recruitment of accomplices ... the degree of participation and planning or organizing the offense, the nature and scope of the illegal activity and the degree of control and authority exercised over the others."
The court has no quarrel with the proposition that Mr. Weidner's operation was extensive and well-planned. He harvested approximately $3,000.00 worth of high grade marijuana each month. Section 3B1.1(a), however, requires not only that the operation be extensive or have five or more participants, but also that the defendant be an organizer or leader. The record does not support the proposition that Mr. Weidner organized or led anyone. One who commits a series of solitary crimes does not become an organizer or leader because his crime is extensive; one ordinarily does not, simply by virtue of selling drugs, lead or organize those to whom he sells.
The court agrees with the defendant that the offense level cannot be increased pursuant to § 3B1.1(a).
Section 3E1.1(a) allows the offense level to be reduced by two levels if "the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the offense of conviction". Section 3E1.1(c) provides that a guilty plea does not alone warrant such a finding. Mr. Weidner claims entitlement to this reduction. He points to his extensive and detailed debriefing with representatives of the U.S. Attorney's Office, the Indiana State Police and the Internal Revenue Service. He states that he has ceased using marijuana and obtained steady employment. His actions, he maintains, go far beyond merely pleading guilty and should be found to be acceptance of responsibility.
The probation officer and the government disagree, based on: (a) Mr. Weidner's statement that he does not believe growing marijuana and selling it to adults is wrong; (b) Mr. Weidner's production of a urine sample that tested positive for THC during his pretrial release; and (c) the government's doubts concerning Mr. Weidner's honesty with the investigative agents.
The court cannot agree that Mr. Weidner's comments concerning the wrongfulness of his conduct foreclose a finding of acceptance of responsibility. A criminal defendant need not confess the moral wrongfulness...
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