Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:93-cr-248-01-RCF. DISTRICT JUDGE: FREEMAN, RICHARD C.
Before Tjoflat, Chief Judge, Kravitch, Hatchett, Anderson, Edmondson, Cox, Birch, Dubina, Black, Carnes and Barkett, Circuit Judges. Kravitch, Circuit Judges, concurring
The primary issue in this appeal is whether, under 21 U.S.C. § 841 and U.S.S.G. § 2D1.1, a marijuana grower who is apprehended after his marijuana crop has been harvested should be sentenced according to the number of plants involved in the offense or according to the weight of the marijuana. A panel of this court held that, under our precedents, a grower who is apprehended after harvest may not be sentenced according to the number of plants involved. United States v. Shields, 49 F.3d 707, 712-13 (11th Cir. 1995). We vacated the panel opinion and granted rehearing en banc. United States v. Shields, 65 F.3d 900 (11th Cir. 1995). We hold that a defendant who has grown and harvested marijuana plants should be sentenced according to the number of plants involved, and affirm the district court.
Maurie Shields and Joseph O'Reilly rented a house in Marietta, Georgia, where they grew marijuana in the basement. When law enforcement officers searched the house, they discovered 27 live marijuana plants in a hydroponic garden. During the search, the officers also discovered a trash can which contained the remains of marijuana plants that Shields previously had harvested. The officers identified the dead plant matter as the remains of 26 separate marijuana plants. The search of the residence, including the officers' count of the harvested marijuana plants, was videotaped.
Shields was convicted on his plea of guilty to one count of conspiracy to manufacture marijuana, in violation of 21 U.S.C. § 846 (1994). In the presentence investigation report ("PSI"), a probation officer described Shields's offense conduct as involving 53 marijuana plants, and concluded that the appropriate guidelines sentencing range was 33 to 41 months imprisonment. This recommended sentence was calculated using the "equivalency provision" of U.S.S.G. § 2D1.1 n. *, which at that time required significantly greater sentences for offenses involving 50 or more marijuana plants than for offenses involving less than 50 plants. Shields objected to the PSI on the ground that his offense involved only 34 plants.
Shields was sentenced in October 1993. At the sentencing hearing, Shields again objected to the calculation of his offense level, arguing that his offense conduct only involved 33 to 35 marijuana plants. The court heard testimony from Shields that the root systems found in his basement were the remains of six to eight marijuana plants with multiple stems that he had broken apart when he harvested them. The government offered the testimony of two law enforcement officers who had participated in the search of Shields's residence. The officers testified that the dead plant matter found in Shields's basement was the remains of 26 marijuana plants, each of which consisted of a complete root system attached to the stem of a plant. The officers testified that if the root systems and stems had been the remains of fewer than 26 plants, they would have seen tears down the side of the plant stems, which were not present. During the hearing, the district court judge viewed the portion of the videotape of the search of Shields's home in which the officers counted the root systems.
The district court credited the testimony of the law enforcement officers over Shields's testimony, finding that the root systems were the remains of 26 marijuana plants, and that Shields was responsible for a total of 53 marijuana plants. The court concluded that Shields's guidelines range was 33 to 41 months imprisonment, and sentenced him to 33 months imprisonment. Shields appeals his sentence.
Shields's primary argument on this appeal is that the district court misapplied 21 U.S.C. § 841 and U.S.S.G. § 2D1.1 when it calculated his sentence using the number of the harvested plants rather than the weight of the marijuana derived from those plants.*fn1 Shields failed to object to his sentence on this ground at his sentencing hearing. But the district court failed to elicit objections from the parties at the conclusion of the sentencing hearing, as required by United States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir.), cert. denied, 498 U.S. 906, 112 L. Ed. 2d 230, 111 S. Ct. 275 (1990), overruled on other grounds, United States v. Morrill, 984 F.2d 1136 (1993) (en banc), and the panel concluded that this was a proper case for the exercise of the court's discretion to address on the merits an argument raised for the first time on appeal. Shields, 49 F.3d at 709. Both parties ask us to address the merits of this issue. We elect to do so, and therefore need not decide whether the panel correctly concluded that the court must either address this issue on its merits or vacate the sentence and remand for resentencing. Id. at 709 & n.5.
The base offense level for certain drug offenses is calculated using the Drug Quantity Table at § 2D1.1 of the sentencing guidelines. See United States Sentencing Commission, Guidelines Manual, § 2D1.1(c) (Nov. 1992). In the version of the guidelines which applied at the time of Shields's sentencing,*fn2 the Drug Quantity Table assigns offense levels for marijuana offenses according to the weight of marijuana measured in grams or kilograms. For offenses involving marijuana plants, the number of plants is converted to weight using an "equivalency provision," which reads:
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.
U.S.S.G. § 2D1.1(c) n. *.*fn3 The equivalency ratio for offenses involving more than 50 plants (one plant equals one kilogram marijuana) was derived from the statute that sets mandatory minimum penalties for offenses involving marijuana and marijuana plants. U.S.S.G. § 2D1.1 comment. (backg'd); see 21 U.S.C. § 841(b)(1)(A)(B)(D) (1994) (setting, for example, a ten-year mandatory minimum for offenses involving at least 1000 kilograms of marijuana or 1000 marijuana plants). The equivalency ratio for offenses involving less than 50 plants (one plant equals 100 grams marijuana) was intended to approximate the average actual yield of a marijuana plant. U.S.S.G. § 2D1.1 comment. (backg'd). We have held that there is a reasonable basis for penalizing offenses involving 50 or ...