United States Court of Appeals,
Eleventh Circuit.
Nos. 94-2393, 94-2417.
UNITED STATES of America, Plaintiff-Appellee,
v.
Glenn ANTONIETTI, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Edward FINK, Defendant-Appellant.
June 26, 1996.
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*, Senior
Circuit Judge.
DUBINA, 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.
I. STATEMENT OF THE CASE
A. Procedural History
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
*
Honorable James K. Logan, Senior U.S. Circuit Judge for the
Tenth Circuit, sitting by designation.
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.
B. Factual Background
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.
II. ISSUES
1. Whether the district court erred in calculating the
appellants' base offense levels by counting seedlings as marijuana
plants.
2. Whether the district court erred in calculating the
appellants' base offense levels by counting quantities of marijuana
which were intended for personal use.
3. Whether the district court erred in denying the appellants'
motions to suppress evidence.
III. STANDARDS OF REVIEW
This court reviews a district court's determination of the
quantity of drugs used to establish a base offense level for
sentencing purposes under the clearly erroneous standard. United
States v. Taffe, 36 F.3d 1047, 1050 (11th Cir.1994).
A district court's decision to admit or exclude evidence will
not be disturbed on appeal absent a clear abuse of discretion.
United States v. Taylor, 17 F.3d 333, 338 (11th Cir.), cert.
denied, --- U.S. ----, 115 S.Ct. 364, 130 L.Ed.2d 317 (1994). This
court reviews findings of fact as to a motion to suppress evidence
for clear error; the district court's application of the law to
those facts is subject to de novo review. United States v. Diaz-
Lizaraza, 981 F.2d 1216, 1220 (11th Cir.1993).
IV. ANALYSIS
We begin our analysis by holding that the district court
committed no error in denying the appellants' motions to suppress.
The district court's reasoning is sound, and this issue warrants no
further discussion.1
We next turn our attention to the issue of whether the
district court erred in calculating the appellants' base offense
levels by counting seedlings as marijuana plants. In United States
v. Foree, 43 F.3d 1572, 1581 (11th Cir.1995), this court held that
1
See Eleventh Circuit Rule 36-1.
a cutting or seedling from a marijuana plant is not considered a
plant until the cutting or seedling develops roots of its own.
Fink and Antonietti argue that, based upon this decision, the
district court erred in counting the 131 seedlings in calculating
their base offense levels. As a result, they request us to vacate
their sentences and remand the case for resentencing.
The government concedes that the seedlings were improperly
counted but argues that the appellants waived this argument because
they failed to object to it in the district court in writing or at
any hearing. The appellants argue that they raised the seedlings
issue at the February 4, 1994, sentencing hearing during which the
defense mentioned United States v. Bechtol, 939 F.2d 603 (8th
Cir.1991), for the proposition that seedlings are not counted if
there is not a root formation. Appellants' counsel later cited two
additional cases for this same proposition: United States v.
Curtis, 965 F.2d 610 (8th Cir.1992), and United States v. Corley,
909 F.2d 359 (9th Cir.1990). The district court responded that it
"would like to read these cases and learn a little bit more about
seedlings and males and female plants and that sort of thing and
see what this calculation comes up with." R4-61. The court then
recessed and offered counsel the opportunity to submit supplemental
authority by citation.
The government claims that pursuant to United States v. Jones,
899 F.2d 1097, 1102-03 (11th Cir.), cert. denied, 498 U.S. 906, 111
S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other grounds,
United States v. Morrill, 984 F.2d 1136, 1137 (11th Cir.1993) (en
banc), the appellants waived this issue. However, in United States
v. Weir, 51 F.3d 1031, 1033 (11th Cir.1995), cert. denied, --- U.S.
----, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996), this court held:
"Jones provides for post-sentence objections because new issues may
arise between the pre-sentence report and the imposition of
sentence. If the relevant objection is raised after the
presentation of the report, however, but before the actual
imposition of the sentence, Jones is satisfied." Appellants'
counsel mentioned the issue during the hearing, and the district
court stated that it would consider it. Furthermore, it must be
remembered that United States v. Foree had not yet been decided and
that there was little existing case law on the issue. The
government asserts that the district court had no transcript of the
February 4 hearing at sentencing because it was not transcribed
until April 25, 1994. The record demonstrates, however, that the
district court reviewed handwritten notes and a preliminary
transcript prior to sentencing. In addition, during the March 22
continuation of the sentencing hearing, the district court referred
to the "cases that [the defendants] and the United States ha[d]
pointed to" and overruled "[t]hose [objections] which had to do
with the gender of the plant, the maturity of the plant, [and]
whether the plant was for personal or commercial use." R6-27
(emphasis added).
Although our review of the record persuades us that there was
no waiver of this issue by the appellants, there is an alternative
basis for vacating the appellants' sentences. Even if there had
been no objections, we would still be compelled to vacate the
appellants' sentences. We review assertions of error which were
not objected to at trial for plain error. See Fed.R.Crim.P. 52(b);
United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1777,
123 L.Ed.2d 508 (1993); United States v. Kramer, 73 F.3d 1067,
1074 (11th Cir.1996). Reversal for unobjected-to-error is possible
(but not required) where error is both (1) plain, and (2) affects
substantial rights. Olano, 507 U.S. at 732-36, 113 S.Ct. at 1777-
78; Kramer, 73 F.3d at 1074. Because the error here was plain and
affected the appellants' substantial rights, we must vacate the
appellants' sentences and remand for resentencing.
The final issue presented in this appeal is one of first
impression in this circuit: whether the drug quantity for the base
offense level calculation under U.S.S.G. § 2D1.1 includes drugs
possessed solely for personal use. The district court set the
appellants' base offense levels under § 2D1.1 according to the
total amount of marijuana seized during their arrests. The
district court recognized the lack of precedent within this circuit
concerning whether drugs for personal use should be included in
this determination, and it declined to follow relevant decisions
from the Ninth Circuit on this issue. The district court also
found that, even without that legal determination, its use of the
total drug quantity for the base offense levels was appropriate
based on the facts of this case.
The appellants contend that the drug quantity used to
determine their base offense levels under § 2D1.1 should not
include marijuana that they possessed merely for personal use.
They argue that the Controlled Substances Act, 21 U.S.C. § 841, and
the relevant sentencing guidelines' provisions require the
sentencing court to follow the Ninth Circuit's approach and take
into account the nature of the purpose for which the appellants
possessed the controlled substance.
The government responds that Congress intended large-scale
growers like Antonietti and Fink to be punished more severely than
a small-scale grower regardless of any quantity they may have
planned to retain for personal use. The government also argues
that because the appellants pled guilty to conspiracy to
manufacture and to manufacturing marijuana, as well as possession
with intent to distribute, they should be held accountable under
relevant conduct principles for all of the plants regardless of
whether they intended to distribute all or only some of them.
The Controlled Substances Act makes it unlawful "to
manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance." 21
U.S.C. § 841(a)(1). The corresponding guidelines provide for a
base offense level of 26 for such violations involving "[a]t least
100 KG but less than 400 KG of marijuana." U.S.S.G. § 2D1.1(c)(9).
The guidelines also provide that such base offense level shall be
determined on the basis of all acts or omissions "that were part of
the same course of conduct or common scheme or plan as the offense
of conviction." U.S.S.G. § 1B1.3(a)(3). Furthermore, "quantities
and types of drugs not specified in the count of conviction are to
be included in determining the offense level if they were part of
the same course of conduct or part of a common scheme or plan as
the count of conviction." Id. at comment. (backg'd.) The
threshold question is whether the drug quantity used to determine
the base offense level for manufacturing or possession with intent
to distribute includes drugs manufactured or possessed for personal
consumption.
In deciding this issue, the First Circuit held that where
there is evidence of a conspiracy to distribute, and the defendant
is a member, the "defendant's purchases for personal use are
relevant in determining the quantity of drugs that the defendant
knew were distributed by the conspiracy." United States v.
Innamorati, 996 F.2d 456, 492 (1st Cir.1993), cert. denied, ---
U.S. ----, 114 S.Ct. 409, 126 L.Ed.2d 356 (1993). The First
Circuit's view has been followed by the Seventh, Eighth, and Tenth
Circuits. See United States v. Snook, 60 F.3d 394, 395 (7th
Cir.1995); United States v. Fregoso, 60 F.3d 1314, 1328 (8th
Cir.), reh'g and sugg. for reh'g en banc denied (Oct. 10, 1995);
United States v. Wood, 57 F.3d 913, 920 (10th Cir.1995).
On two occasions, however, the Ninth Circuit has held that
"[d]rugs possessed for mere personal use are not relevant to the
crime of possession with intent to distribute because they are not
"part of the same course of conduct' or "common scheme' as drugs
intended for distribution." United States v. Kipp, 10 F.3d 1463,
1465-66 (9th Cir.1993). See also United States v. Rodriguez-
Sanchez, 23 F.3d 1488, 1494-96 (9th Cir.1994).
We choose to reject the Ninth Circuit's analysis and instead
follow the majority of the circuits that have considered the
personal use issue. We therefore hold that the marijuana intended
for personal use by Antonietti and Fink was properly included by
the district court in determining their base offense levels.
V. CONCLUSION
For the foregoing reasons, we affirm Antonietti and Fink's
convictions in all respects. Moreover, we affirm their sentences
in part, vacate in part, and remand for resentencing consistent
with this opinion.
AFFIRMED in part, VACATED in part, and REMANDED.