KRAVITCH, Circuit Judge, concurring:
Although the three judge panel in this case found itself
bound by United States v. Foree, 43 F.3d 1572 (11th Cir. 1995),
and United States v. Osburn, 955 F.2d 1500 (11th Cir.), cert.
denied, 506 U.S. 878 (1992), having considered the case en banc I
agree with the opinion of the court. I write separately to alert
sentencing courts to a potential problem in applying the rule
established by this opinion.
There could be a double-counting problem with punishing
defendants both for growing marijuana plants based on the number
of plants involved, and for possessing the marijuana derived from
those same plants based on the weight of the dry leaf marijuana
possessed. We should be concerned in cases like this one that
the government, upon finding both harvested, rotting plants and a
quantity of dry leaf marijuana derived from those plants, might
count the same marijuana against the defendant twice: once by
using the dead plants as evidence of previously living plants in
sentencing for growing, and again by weighing the dry leaf
marijuana in sentencing for possession. This problem does not
arise if defendants can be sentenced for growing based only on
the number of live plants discovered by the police; thus, the
panel opinion in Shields had the virtue of establishing a
prophylactic rule. I assume, however, that sentencing courts
will be able to monitor and prevent such double-counting on a
case-by-case basis (and that law enforcement officials and
prosecutors will not intentionally overreach).