United States v. Fitch

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)?

3
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

4
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.

6
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

7
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

8
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

10
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

11
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.

13