In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3061
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES G. SWANSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-CR-25-S--John C. Shabaz, Chief Judge.
Argued February 24, 2000--Decided April 24, 2000
Before POSNER, Chief Judge, and CUDAHY and EVANS,
Circuit Judges.
EVANS, Circuit Judge. One issue on this appeal presents an
interesting question: Can the "weight" of "dead"
marijuana plants add up to trouble for a defendant under the
federal sentencing
guidelines?
When officers from the Sauk County sheriff's department executed
a search warrant at James
Swanson's residence in Spring Green, Wisconsin, they discovered
an impressive marijuana-growing operation. The evidence seized
led to a federal charge alleging possession with intent to
manufacture marijuana.
The district court found that the search uncovered
408 "live" marijuana plants and 1,142 discarded, or
"dead," plants. The judge added the two and applied
the 1 plant equals 100 grams equivalency ratio under sec. 2D1.1(c)
of the guidelines.
Swanson argues that the district court erred in two related
ways. First, he asserts that it was
error to find that the 1,142 dead plants were "marijuana
plants." Because the 1,142 were merely
"stalks," the argument goes, they are specifically
excluded from the statutory definition of marijuana under 21
U.S.C. sec. 802(16). Second, Swanson asserts that it was error
to include the 1,142 in the drug equivalency ratio because they
were "dead" plants.
Marijuana is defined as "all parts of the plant Cannabis
sativa L., whether growing or not; the
seeds thereof; the resin extracted from any part of such plant;
and every compound, manufacture,
salt, derivative, mixture, or preparation of such plant, its
seeds or resin," but "the mature
stalks of such plants" are excluded from the definition.
21 U.S.C. sec. 802(16). For
sentencing purposes, however, the guidelines take into account
the total weight of marijuana,
including the stalks. Section 2D1.1 provides that the weight
of a controlled substance is
determined by "the entire weight of any mixture or substance
containing a detectable amount of
the controlled substance." U.S.S.G. sec. 2D1.1(c), *Note
(A).
The argument that the "stalks" should not be
counted is doomed by United States v. Garcia, 925
F.2d 170 (7th Cir. 1991). There, we held that
"stalks of the marijuana plant, although excluded
from the guideline definition of marijuana, can
still constitute part of a 'mixture or substance'
containing a detectable amount of marijuana for
the calculation of weight of the controlled
substance seized." Id. at 173. See also United
States v. Moreno, 94 F.3d 1453, 1456 (10th Cir.
1996) (marijuana stalks properly included in drug
weight calculation); United States v. Vasquez,
951 F.2d 636, 637 (5th Cir. 1992) (same).
Alternatively, Swanson argues that only "live"
plants can be used when applying the drug
equivalency guideline, sec. 2D1.1(c). Although
two circuits lend support to that position--
United States v. Stevens, 25 F.3d 318 (6th Cir.
1994), and United States v. Blume, 967 F.2d 45
(2d Cir. 1992)--the majority of the circuits
which have addressed the point do not. They hold
that the equivalency ratio of sec. 2D1.1(c)
applies to all offenses involving the growing of
marijuana, regardless of whether the plants are
alive or dead. See United States v. Fitch, 137
F.3d 277, 281-82 (5th Cir. 1998); United States
v. Layman, 116 F.3d 105, 109 (4th Cir. 1997);
United States v. Shields, 87 F.3d 1194, 1197
(11th Cir. 1996); 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).
We have not directly ruled on the issue of
whether the equivalency ratio applies to both
live and dead plants seized at a marijuana
grower's operation. However, in United States v.
Haynes, 969 F.2d 569 (1992), we considered the
closely related issue of whether the equivalency
ratio should apply in a historical conspiracy
where the government offered evidence of both the
actual number of marijuana plants harvested in
the past and the actual weight of the marijuana
produced. Id. at 571.
In Haynes, the defendant was charged with
conspiracy to manufacture and distribute over
1,000 marijuana plants. The number of harvested
plants (which no longer existed) was 12,500. The
amount of actual processed marijuana (which also
no longer existed) was 400 kilograms. The
defendant argued that he should be sentenced
based only on the harvested marijuana amount of
400 kilograms,/1 rather than the 12,500 plant
figure which, after application of the drug
equivalency ratio, resulted in a drug weight of
12,500 kilograms and thus a higher sentencing
range.
We held the defendant's sentence was properly
pegged to the 12,500 kilogram amount based on the
plain language of the equivalency provision in
the guidelines. We observed that the guidelines
clearly dictate that the actual weight figure,
not the 100 grams to 1 plant ratio, is used only
when the actual weight is higher. 969 F.2d 572.
The defendant in Haynes also argued that the
district court could not use the 12,500 plant
count because they did not exist anymore, and had
in fact been converted into harvested marijuana.
Again we rejected this argument, finding the
plain language of the guidelines provision
"contemplates that individuals who succeed in
harvesting plants and processing marijuana
therefrom are still considered to have committed
offenses 'involving . . . marijuana plants.'" 969
F.2d 572.
On the issue of seized live versus dead plants,
six other circuit courts of appeals have read
Haynes to mean that we believe seized dead plants
are counted for purposes of the 100 gram to 1
plant ratio set forth in U.S.S.G. sec. 2D1.1(c).
See Fitch, 137 F.3d at 281-82; Layman, 116 F.3d
at 109; Shields, 87 F.3d at 1196; Silvers, 84
F.3d at 1326; Wegner, 46 F.3d at 926; and
Stevens, 25 F.3d at 322. Those circuits have
correctly read our intentions. Today we
explicitly so hold: dead or alive, all "plants"
count.
For all these reasons, the judgment of the
district court is AFFIRMED.
/1 In 1992, when Haynes was decided, the guidelines
called for a ratio of 1 plant = 1 kilogram. The
guidelines were changed to a ratio of 1 plant =
100 grams in 1995.
