UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-60063
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT G. FITCH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
March 17, 1998
Before DAVIS, JONES,and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Defendant-appellant, Robert G. Fitch (R.G. Fitch), was charged
in a five count superseding indictment with one count of conspiring
to manufacture, distribute and possess with intent to distribute
marijuana in violation of 21 U.S.C. §§841 and 846 (count 1) and
with two counts of knowingly and intentionally manufacturing,
distributing and possessing with intent to distribute marijuana in
violation of 21 U.S.C. §841 (counts two and three).1 Following a
1
Robert G. Fitch was indicted in counts one through three.
His co-defendant and son, Robert R. “Bo” Fitch, was named in
counts one through three and also in count four. Count five
involved a forfeiture of property and was dismissed prior to
sentencing.
trial by jury, the defendant was found guilty on each count. The
district court ordered a pre-sentence investigation report (PSR)
which recommended that R.G. Fitch be sentenced for offenses
involving 1,187 marijuana plants. According to the equivalency
ratio of one plant to 100 grams of United States Sentencing
Guideline (U.S.S.G.) §2D1.1(c)n*(E), the defendant’s offense
involved a total drug quantity of approximately 118 kilograms of
marijuana. Based on the total drug quantity involved, the
defendant’s total offense level was calculated to be 26, along with
a criminal history of I, making for a guideline range of 63 to 78
months. See U.S.S.G. §2D1.1(c)(7). Because over 1,000 marijuana
plants were attributed to the defendant, however, the statutorily
required minimum sentence was ten (10) years imprisonment pursuant
to 21 U.S.C. §841(b)(1)(A)(vii). Because the legislated mandatory
minimum sentence was greater than the maximum sentence under the
defendant’s applicable guideline range the statutorily required
minimum sentence applied under the guidelines as well. U.S.S.G.
§5G1.1(b).
At the sentencing hearing, R.G. Fitch objected to the PSR and
argued, among other things, that he should not be subject to the
statutory minimum dictated by §841(b)(1)(A)(vii) because he should
not be held accountable for over 1,000 marijuana plants. The
defendant’s argument centered upon the fact that 288 of the
marijuana plants seized by the government and attributed to him by
the PSR were in post-harvest form, i.e. they were not live plants
but dry dead husks. Therefore, these dead remains, he contends,
2
should not be counted as “plants” under 21 U.S.C.
§841(b)(1)(A)(vii). The sentencing judge rejected the defendant’s
assertion and sentenced him to ten years imprisonment. We conclude
that the defendant’s argument is not supported by the plain
language of the statute and affirm.2
Background
In the latter part of 1992, Robert R. “Bo” Fitch of Holly
Springs, Mississippi began selling marijuana to David Carter and
Lloyd Thompson, residents of Memphis, Tennessee. Through Thompson,
Bo Fitch became acquainted with William Grammar, also of Memphis.
By early 1993, Grammer was purchasing from one ounce to a quarter
pound of marijuana from Bo on a weekly or twice weekly basis.
Grammer requested marijuana deliveries by telephoning Bo at
the Fitch family residence in Holly Springs where Bo lived with his
2
On appeal, the defendant raises a number of points of error
with regard to his conviction and sentence, viz. (1) that the
evidence was insufficient to sustain his conviction, (2) that a
fatal variance existed between the indictment and the evidence
introduced at trial, (3) that the district court erred in refusing
to give a multiple-conspiracy jury instruction, (4) that the
district court erred in refusing to instruct the jury that it was
not to “pile inference upon inference” in order to find the
defendant guilty of conspiracy, (5) that the trial court erred in
admitting testimony regarding an out-of-court statement of a co-
conspirator, (6) that the district court erred in allowing the
government to question a witness concerning the August 1993 seizure
of marijuana from the defendant’s farm, (7) that the district court
failed to properly apply U.S.S.G. §1B1.2(d), and (8) that the
government failed to prove that over 1,000 plants were involved and
that these plants came from the defendant’s farm. We have
considered these arguments and do not find them persuasive.
We write herein to address an issue which is res nova in this
circuit: what is the meaning of the word “plant” as used in 21
U.S.C. §841(b)(1)(A)(vii)?
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parents. After leaving a message with either of Bo’s parents, or
upon contacting Bo directly, Grammer would relay to Bo the quantity
of drugs needed. Bo would drive to Memphis and deliver marijuana
to Grammer and other customers. Bo Fitch was able to supply them
with a ready source of the drug from an extensive marijuana growing
operation on the Fitch family farm in Mississippi. The Fitch farm
itself was owned by Bo’s father, the defendant, Robert G. “Bobby”
Fitch, who was aware of his son’s drug transactions in Memphis and
actively participated in the farm’s marijuana growing operation.
In August 1993, Bo Fitch and Bill Grammer were arrested in
Memphis while attempting to consummate a drug deal with a third
person. Their arrest quickly led to a fly-over of the Fitch farm
via helicopter by the Mississippi Bureau of Narcotics Eradication
Unit, which discovered and destroyed seventy-two marijuana plants.
On November 10, 1993, local law enforcement officers obtained and
executed a search warrant on the entire Fitch farm. During this
search, the authorities found approximately twenty kilograms of
processed marijuana in individual zip lock plastic “baggies,” or
in cans, along with large amounts of marijuana residue throughout
the area and considerable evidence of a marijuana growing operation
(e.g. a large supply of plant food where no other evidence of
gardening or traditional farming existed, several boxes of zip lock
bags, scales and two pairs of shears). In addition, 288 marijuana
stalks, i.e. the remains of previously harvested marijuana plants,
were recovered. The stalks had been fully stripped of all leaves,
leaving only dry husks. Eventually, this search resulted in the
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indictment of R.G. Fitch, Bo Fitch and Daryl Fitch (another of R.G.
Fitch’s sons) on March 21, 1996 on federal drug charges.
Subsequently, on July 25, 1996, a random fly-over search of
the north Mississippi area conducted by the Mississippi Bureau of
Narcotics revealed marijuana again growing on the Fitch farm.
State law enforcement agents obtained a search warrant for the
Fitch farm and seized 827 marijuana plants in pre-harvest
condition, i.e. alive and growing. Additionally, a federal search
warrant executed the next day uncovered numerous items used by the
Fitch family to facilitate their marijuana growing activities, e.g.
empty sacks of potting soil, multiple cans of plant food, and five
gallon buckets camouflaged with black paint.
The July 1996 search led to the issuance of a five count
superseding indictment naming R.G. Fitch and Bo Fitch. In count
one of the superseding indictment, R.G. Fitch was charged with
participating in a conspiracy to distribute and possess with intent
to distribute marijuana lasting from on or about January 1993 until
July 26, 1996. In addition, counts two and three charged R.G.
Fitch with actually manufacturing, distributing and possessing
marijuana with intent to distribute during certain months of both
1993 and 1996 respectively. R.G. Fitch pleaded not guilty to these
charges and denied any knowledge of the alleged illegal activity.
At a jury trial, a considerable amount of evidence tended to show
that R.G. Fitch had knowingly assisted in the marijuana growing
operation. A verdict of guilty was returned as to R.G. Fitch on
all three counts.
5
Analysis
The defendant in this case was found guilty of conspiring to
violate 21 U.S.C. §8413 in violation of 21 U.S.C. §8464 and,
therefore, was sentenced according to §841(b) which lists the
maximum and minimum penalties applicable to such a violation.
Since 1984, Congress has established a policy making punishment for
a conviction under 21 U.S.C. §841 dependent upon both the type and
quantity or weight of the controlled substance involved in the
offense. See Chapman v. United States, 500 U.S. 453, 460-61
(1991). In furtherance of this policy, §841(b) establishes a
number of mandatory minimum and maximum sentences which a defendant
may receive upon conviction according to the factors of quantity
and drug type. Similarly, the United States Sentencing Guidelines
(U.S.S.G.) establish a defendant’s base offense level using the
same factors which when coupled with a defendant’s criminal history
produces his overall guideline range. See U.S.S.G.
§2D1.1(c)(setting a defendant’s base offense level according to the
quantity and type of drugs involved). However, if the guidelines
3
21 U.S.C. §841(a):
Except as authorized by this title, it shall be unlawful for
any person knowingly or intentionally--
(1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance;....
4
21 U.S.C. §846:
Any person who attempts or conspires to commit any offense
defined in this title shall be subject to the same penalties as
those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.
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indicate a sentencing range below a mandatory minimum set by the
substantive criminal statute, the U.S.S.G. provide that the
statutorily prescribed minimum sentence constitutes the appropriate
guideline sentence. See U.S.S.G. §5G1.1(b).
When an offense involves marijuana plants, the Sentencing
Guidelines determine the appropriate base offense level according
to the type and quantity of drug concerned by an equivalency ratio
of one marijuana plant to 100 grams of marijuana, unless the actual
weight of the marijuana involved is greater. U.S.S.G.
§2D1.1(c)n*(E). The guidelines’ equivalency ratio “is premised on
the fact that the average yield from a mature marihuana plant
equals 100 grams of marihuana.” U.S.S.G. §2D1.1, comment
(backg’d.). In the substantive criminal statute, however,
Congress set the mandatory minimum and maximum for offenses
involving marijuana plants according to the actual number of plants
involved, as opposed to the quantity or weight of the usable
marijuana the plants could produce. See 21 U.S.C.
§§841(b)(1)(A)(vii), (B)(vii), & (D). Section §841(b)(1)(A)(vii)
provides that “[i]n the case of a violation of [the substantive
provision of this section] involving...1,000 or more marihuana
plants regardless of weight...such person shall be sentenced to a
term of imprisonment which may not be less than 10 years or more
than life....” (emphasis added)
Prior to sentencing, the PSR indicated that R.G. Fitch’s
offenses involved 1,187 marijuana plants. This amount represented
the total number of marijuana plants found on the Fitch farm during
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the three seizures, detailed above, which covered the life of the
conspiracy charged in count 1 of the superseding indictment: (1)
the 72 marijuana plants discovered and destroyed on or about August
23, 1993, (2) the 288 marijuana stalks found November 10, 1993 and
(3) the 827 marijuana plants found growing on the Fitch farm on
July 25, 1996. Since over 1,000 marijuana plants were found to be
involved in this offense, the mandatory minimum sentence of ten
years imprisonment, applicable pursuant to 21 U.S.C.
§841(b)(1)(A)(vii), was determined to be the defendant’s guideline
sentence. In the absence of the statutory minimum, the defendant’s
Sentencing Guidelines’ range would have been calculated to be
between 63 to 78 months. See U.S.S.G. §5G1.1(b).
Following the recommendation of the PSR, the sentencing judge
determined that the defendant’s offense involved over 1,000
marijuana plants. Because the weight of the marijuana under the
equivalency ratio did not result in a sentencing range above 120
months, the district court sentenced the defendant to the statutory
minimum sentence of 10 years pursuant to 21 U.S.C.
§841(b)(1)(A)(vii).
The defendant argues that the trial court erred in finding
that over 1,000 plants were involved because the 288 dry harvested
stalks seized in November 1993 were not “plants” for the purposes
of §841(b)(1)(A)(vii). The defendant contends that the word
“plants,” as used in §841(b), applies only to marijuana plants
alive at the time of seizure, i.e. unharvested plants.
This court reviews the sentencing court’s application of the
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U.S.S.G. de novo, while reviewing the sentencing court’s factual
findings for clear error. United States v. Edwards, 65 F.3d 430,
432 (5th Cir. 1995). A district court’s determination as to the
quantity of drugs involved for sentencing purposes is considered a
factual finding reviewed for clear error. See United States v.
Mergerson, 4 F.3d 337, 345 (5th Cir. 1993). Since this appeal
involves a question of statutory construction, i.e. whether the 288
stalks were properly considered “plants” as that term is used in 21
U.S.C. §841(b), we review the district court’s determination on
this point de novo. Matter of Bruner, 55 F.3d 195, 197 (5th Cir.
1995).
The defendant relies upon United States v. Stevens, 25 F.3d
318 (6th Cir. 1994) and United States v. Blume, 967 F.2d 45 (2nd
Cir. 1992). In United States v. Blume, the Second Circuit held
that only live marijuana plants should be counted by the number of
plants under the equivalency provision 5, while the amount of dry
or harvested marijuana plants should be calculated for sentencing
purposes by the actual weight of marijuana they produced. Blume,
5
Prior to November 1, 1995, the Sentencing Guidelines’
equivalency ratio was a two-tiered system: If an offense involved
50 or more marijuana plants each plant was treated as the
equivalent of 1 kilogram of marijuana, while if fewer than 50
plants were involved each plant was treated as the equivalent of
100 grams of marijuana. See U.S.S.G. App. C, Am. 516; see also
United States v. Stevens, 25 F.3d 318, 322 (6th Cir.
1994)(explaining the reasoning behind this two-tiered system).
Obviously, a defendant’s guideline range under this system was
significantly impacted by the sentencing court’s determination as
to how many marijuana “plants” were involved in his offense. Thus,
a number of the cases addressing the issue of what is a “plant”
under the guidelines have arisen in this context and, while not
directly on point, do provide some guidance as to the issue in this
case.
9
967 F.2d at 49. Similarly, the Sixth Circuit in United States v.
Stevens found that “[t]he equivalency provision was developed to
apply in sentencing when the plants have not been harvested” and
thus did not apply when plants were seized post-harvest. Stevens,
25 F.3d at 323.
The reasoning of Blume and Stevens, however, has been rejected
by a majority of the circuit courts that have interpreted both the
guidelines and the statutory provision at issue. See United States
v. Layman, 116 F.3d 105, 109 (4th Cir. 1997); United States v.
Shields, 87 F.3d 1194, 1197 (11th Cir. 1996)(en banc); United
States v. Silvers, 84 F.3d 1317, 1325-27 (10th Cir. 1996); United
States v. Wilson, 49 F.3d 406, 410 (8th Cir. 1995); United States
v. Wegner, 46 F.3d 924, 927-28 (9th Cir. 1995); United States v.
Haynes, 969 F.2d 569, 572 (7th Cir. 1992)(decided prior to Blume or
Stevens). For the following reasons, we now adopt the majority
view.
The statute, §841(b)(1)(A)(vii), states that any defendant
convicted of an offense under this subsection involving “1,000 or
more marijuana plants” shall be subject to a ten year mandatory
minimum sentence regardless of the weight of the marijuana
produced. Thus, under the plain language of the statute, the only
requirement which must be met in order to trigger the applicable
mandatory sentence is that the offense involve 1,000 or more
marijuana plants. Congress did not distinguish between harvested
and unharvested, live or dead plants, and no authority exists
within the plain language of the statute for creating such
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classifications. See Silvers, 84 F.3d at 1325(rejecting a
defendant’s argument that a marijuana plant cannot be considered a
plant for sentencing purposes unless the plant is seized alive);
United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996)(“Congress
has not further subdivided live marijuana plants into growing
plants and cut plants.”); Shields, 87 F.3d at 1197(“Nothing in the
text of... §841(b) suggests that [its] application depends upon
whether the marijuana plants are harvested before or after
authorities apprehend the grower.”); see also Wilson, 49 F.3d at
410(rejecting the similar argument that only seized live plants can
be considered plants for guidelines purposes). However, “[l]est
our holding be read too broadly, we emphasize that the term
‘offense involving... marijuana plants’ encompasses only the
cultivation and harvesting of marijuana plants and the processing
of plants into consumable product.” Haynes, 969 F.2d at 572; see
Layman, 116 F.3d at 109(“equivalency ratio... applies to all
offenses involving the growing of marijuana....”).
In essence, the defendant seeks to add an additional
evidentiary requirement to the statute, viz. that marijuana plants
must be alive when seized to be counted as plants for sentencing
purposes. The statute itself, however, contains no such
requirement. See Wegner, 46 F.3d at 928(holding that the
guidelines and statute merely require evidence that the defendant
actually grew and was in possession of live plants during the
offense, not specifically at the time the plants were seized).
Where the language of a statute is plain and unambiguous, no
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further inquiry is necessary and this court must construe the words
of the statute consistently with their ordinary meaning. See
Chapman, 500 U.S. at 461-2; Johnson v. Sawyer, 120 F.3d 1307, 1319
(5th Cir. 1997).
The government must prove the number of marijuana plants
involved in the offense. For the purposes of applying the
mandatory sentences found in §841(b) it is irrelevant whether the
plants involved in the offense were alive, cut, harvested or
processed when seized, provided that they were alive sometime
during the commission of the offense. See Haynes, 969 F.2d at 572;
Silvers, 84 F.3d at 1327(“[T]he government is required to prove...
that the defendant possessed with the intent to distribute or
distributed marijuana plants...at some point in time in order to
obtain a sentence under...21 U.S.C. §841(b)(1)(A)(vii).”); see also
Layman, 116 F.3d at 109(applying the guidelines equivalency ratio
to all offenses involving the growing of marijuana regardless of
whether plants are actually seized).
In this case, the defendant concedes that the 899 marijuana
plants seized by the government while growing were properly
considered by the sentencing court to be “plants” as defined in
§841(b). As for the 288 stalks in dispute, we conclude that the
district court correctly considered these stalks as evidence
proving that the offense involved an additional 288 marijuana
plants. As shown above, the fact that these 288 marijuana plants
had been harvested prior to their discovery did not affect their
status as marijuana “plants” involved in this offense for the
12
purposes of applying the mandatory minimum required by 21 U.S.C.
§841(b)(1)(A)(vii). Therefore, the district court did not commit
clear error in finding that this offense involved more than 1,000
marijuana plants for the purposes of sentencing.
Conclusion
Finding no error in the disposition of this matter by the
district court, we AFFIRM in all respects.
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