Appeals from the United States District Court for the Middle District of Alabama. (No. 93-32-Cr-T-23A). Steven D. Merryday, Judge.
Before Edmondson and Dubina, Circuit Judges, and Logan,*fn* Senior Circuit Judge.
In this consolidated appeal, defendants-appellants Glenn Antonietti ("Antonietti") and Edward Fink ("Fink") appeal their convictions and sentences for conspiracy to manufacture and possess marijuana with intent to distribute and for manufacturing and possession of a quantity of marijuana with intent to distribute.
A federal grand jury in the Middle District of Florida returned an indictment charging Antonietti and Fink with conspiracy to manufacture and possess with intent to distribute marijuana plants, in violation of 21 U.S.C. §§ 841 and 846 (count one), and manufacturing and possession with intent to distribute marijuana plants, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (count two). Fink and Antonietti filed motions to suppress evidence. A hearing on the motions was conducted by a United States magistrate judge. The magistrate judge recommended that the motions to suppress be denied, and Fink and Antonietti filed objections to the recommendation. The district court overruled the objections, adopted the Report and Recommendation of the magistrate judge, and denied the motions to suppress.
Fink and Antonietti then pled guilty to both counts of the indictment but reserved their right to appeal the denial of their suppression motions. Fink and Antonietti then perfected their appeals.
Fink and Antonietti were childhood friends and are current brothers-in-law. They used marijuana as teenagers and continued to do so until their arrests in November of 1992. In order to support their habits, Fink and Antonietti decided to grow their own marijuana. They studied the High Times Magazine, rented a house at 6432 Juniper Street, Port Richey, Florida, and purchased grow lights, electric fans, pots, and potting soil to further this plan. Antonietti even sold his 1968 classic Camaro to finance the project.
After receiving confidential information about suspicious activity at the Juniper Street house, Pasco County Sheriff's detectives began an investigation. On November 4, 1992, a detective at the residence observed an open window near the front door and noticed a strong odor of marijuana coming from the house. After obtaining a search warrant, the detectives found 131 marijuana plant seedlings, three to four inches high, in one of the bedrooms, as well as 69 marijuana plants in another bedroom and one bathroom. The detectives also found five 1500 watt grow lights hanging from the ceiling. One of the vehicles found on the premises was registered to Antonietti, and the other vehicle and a trailer were registered to Fink and his wife. The house was rented to "Michael Camielo," an alias of Antonietti.
Fink arrived at the residence during the execution of the warrant, and he was promptly arrested. He admitted that he and Antonietti intended to sell the plants and said each had hoped to make $2,000.00 from their efforts. Another 43 plants were found in the garage attic at Fink's home. Antonietti arrived at the Juniper Street residence the following evening and was also arrested. After claiming he was a maintenance man hired to do some work at the house, Antonietti admitted that he was cultivating marijuana plants with Fink. He also admitted that the house was rented under a fictitious name and that he planned to begin a new crop of marijuana after the 70 plants were harvested. A small amount of marijuana and approximately 30 marijuana buds were found at Antonietti's home.
1. Whether the district court erred in calculating the appellants' base offense levels by counting ...