[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 2, 2008
No. 07-14610 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00038-CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON MASSIE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 2, 2008)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellant Aaron Massie appeals his 60-month sentence for conspiracy to
manufacture marijuana. Massie argues the district court clearly erred in finding he
was responsible for 163 marijuana plants and therefore subject to a statutory
minimum sentence.
We review determinations of drug quantities for clear error.
United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). A statutory
minimum sentence of 5 years is required in drug offenses when the offense
committed involves 100 or more marijuana plants. 21 U.S.C. § 841(b)(1)(B)(vii).
In determining the quantity of drugs involved for imposition of a statutory
minimum sentence, the district court is limited to consideration of the quantity
reasonably foreseeable by the defendant. United States v. O’Neal, 362 F.3d 1310,
1316 (11th Cir. 2004), vacated on other grounds by Sapp v. United States,
543 U.S. 1106, 125 S. Ct. 1011, 160 L. Ed. 2d 1027 (2005), reinstated by United
States v. Sapp, 154 Fed. Appx. 161, 162 (11th Cir. 2005). If a quantity of drugs is
not seized, “the court shall approximate the quantity of the controlled substance.”
U.S.S.G. § 2D1.1 comment. (n.12). Sentencing should be based on “fair, accurate,
and conservative estimates of the quantity of drugs attributable to a defendant,” not
speculative calculations. See United States v. Zapata, 139 F.3d 1355, 1359
(11th Cir. 1998).
After reviewing the record and reading the parties’ briefs, we conclude that
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the district court did not clearly err in determining that Massie qualified for the
statutory minimum. Authorities found 85 plants in Massie’s house, and found 63
plants in Paul Myhre’s house. Adding those plants with the 15 cuttings given by
Massie to Alan Crossley, the district court correctly calculated that the amount of
plants exceeded the 100 necessary under the statute. Accordingly, we affirm
Massie’s sentence.
AFFIRMED.
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