                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-5153


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BERTRAND ANDER MILES,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:07-cr-00214-HEH-1)


Argued:   December 5, 2008                 Decided:   March 25, 2009


Before WILLIAMS, Chief Judge, and WILKINSON and GREGORY, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert James Wagner, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant.      Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.   ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg,
United States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     A     jury    in     the     Eastern    District     of    Virginia       convicted

Bertrand     Ander        Miles     of    manufacturing        and      conspiring      to

manufacture       more     than     one-hundred     marijuana        plants,     and   of

maintaining a place for the distribution, storage, or use of

marijuana.        Miles appeals his conviction.                For the reasons that

follow, we affirm.



                                            I.

     This case began with a DEA task force investigation of a

hydroponics 1 store in Richmond, Virginia.                     Officers performed a

“trash pull” of the store’s garbage and discovered credit card

receipts    of     purchases       made     by   Miles   from    November       2006    to

January 2007.        As a result of the investigation, the task force

obtained and executed a search warrant on Miles’ property in May

2007.    Robert Nelson, Miles’ landlord and housemate, owned the

house,   shed,      and    land     searched.       Miles      rented    the    upstairs

section of Nelson’s home.

     Miles    began       growing     and    smoking     marijuana      to     treat   his

cluster headaches.          Nelson agreed to allow Miles to use the shed


     1
       “Hydroponics” is “[t]he cultivation of plants by placing
the roots in liquid nutrient solutions rather than in soil;
soilless growth of plants.” Webster’s Unabridged Dictionary 938
(2d ed. 2001)



                                             2
on the property to grow marijuana as long as it was for Miles’

personal use.        Further, Nelson helped Miles move his hydroponic

equipment     to    the     shed     and    even   equipped    the    shed     with       air-

conditioning and an exhaust vent.

       When police searched the house and property, they found

evidence of marijuana manufacturing.                     Police found hydroponic

growing apparatus and marijuana growing under grow lights in an

upstairs closet.            Officers also found a scale and a smoking

device.      Additional marijuana and growing equipment were found

in the shed.

       The precise number of marijuana plants seized was highly

contested at trial.            The Government counted sixty-three plants:

twenty-nine in the upstairs closet, twenty-five in the shed, and

nine clones under a “cloning dome” in the shed.                        Miles conceded

that   the    jury    could        have     counted   thirty-four          seized    mature

plants with fully functioning root balls.                       But, Miles argued

that the rest of the seized materials were at most cuttings or

cloning      attempts,      and      that    the   Government        did    not     provide

evidence that his growing attempts “had taken root and started

growing.”          (Pet’r      Br.    7.)      Officer    Phillip          Johnakin,      who

participated in the search and did the counting, testified that

successful clones may take seven to ten days before they start

growing   roots.          In   his    written      report,    the    officer        did   not

indicate that all of the cuttings had root systems, although at

                                              3
trial he testified that he remembered all of the cuttings having

roots.

     At trial, the Government presented the testimony of three

“jailhouse informants,” who claimed that Miles bragged about his

success    and   expertise     at   growing       marijuana.        One   of    these

witnesses, Anthony Harrelson, testified that Miles claimed to

have grown more than one-hundred marijuana plants.

     Ultimately, the jury found Miles guilty on three counts:

Count     One,   conspiracy    to   manufacture          more   than   one-hundred

marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1) (2006),

841(b)(1)(B) (2006), and 846 (2006); Count Two, manufacturing

and possessing with intent to distribute more than one-hundred

marijuana    plants,    in    violation     of    21     U.S.C.    §§ 841(a)(1)(2)

(2006),    841(b)(1)(B)      (2006);   and       Count    Three,    maintaining    a

place for the distribution, storage, or use of marijuana, in

violation of 21 U.S.C. § 856(a)(2) (2006).                      The court granted

Miles’ motion for judgment of acquittal on Count Four—possession

of a firearm by an unlawful user of controlled substances, in

violation of 18 U.S.C. § 922(g)(3) (2006)—because the Government

failed to prove the firearm recovered was operable.

     The district court sentenced Miles to concurrent mandatory

minimum     sentences   of    sixty    months      on     Counts    One   and   Two.

Additionally, the court sentenced Miles to twenty-seven months

on Count Three to run concurrently with Counts One and Two.                      The

                                        4
court   imposed       a    five-year     term       of   supervised     release      and    a

forfeiture order in the amount of $20,000.                       Miles timely appeals

his conviction.



                                             II.

                                              A.

       The first issue before this Court is whether the jury was

presented with sufficient evidence to support its finding that

Miles manufactured and conspired to manufacture more than one-

hundred marijuana plants.               Miles has not demonstrated that the

evidence,    when         viewed   in    the       light   most    favorable      to    the

Government, was insufficient on these counts.

       This Court has found that a jury verdict must be sustained

“‘if    there    is       substantial        evidence,     taking       the   view      most

favorable   to    the       Government,        to    support     it.’      This   is    the

familiar standard for review of a defendant’s claim that the

evidence    is    insufficient          to    sustain      the    jury’s      verdict      of

guilty.”    United States v. Steed, 674 F.2d 284, 286 (4th Cir.

1982) (citing Glasser v. United States, 315 U.S. 60, 80 (1942),

overruled on other grounds).                 Substantial evidence is “evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”           United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996)(en banc).

                                               5
      Miles argues that one-hundred marijuana plants should not

be attributed to him because the evidence to support that amount

is not credible.        Officer Johnakin testified that he personally

counted sixty-three of Miles’ marijuana plants and that each

plant had roots.       We must credit this testimony over Miles’ mere

assertion that the officer conveniently added this information

on the stand.        Harrelson testified that Miles claimed to have

raised “at least well over 100” (J.A. 180) marijuana plants.

Although the only testimony that brought the number of plants

from sixty-three to one-hundred was the testimony of Harrelson,

a jailhouse informant, the evidence when viewed in the light

most favorable to the Government is sufficient to support Miles’

conviction.         Miles     acknowledges        that    this    Court    does     not

ordinarily    reweigh       the    district     court’s    credibility     findings.

(Pet’r. Br. 16-17.)          We find no reason to establish a new rule

here.

                                           B.

      Next, whether jury instructions were properly given is a

question of law to be reviewed de novo.                   United States v. Stitt,

250   F.3d   878,   888     (4th    Cir.   2001)    (citing      United    States    v.

Morrison,    991    F.2d     112,    115   (4th    Cir.    1993)).        However,    a

district court’s decision concerning which instructions to give

is reviewed for abuse of discretion.                United States v. Abbas, 74

F.3d 506, 513 (4th Cir. 1996).                 Furthermore, a district court’s

                                           6
refusal to give a proposed instruction is reversible error only

if     the    omitted       instruction       was    correct,      not    substantially

covered by the court’s actual instruction, and so important to

an issue in the trial that the failure to give the instruction

seriously impaired the defendant’s defense.                         United States v.

Lewis, 53 F.3d 29, 32 (4th Cir. 1995).

       Miles contends that the district court erred in rejecting

his proposed jury instruction.                 Specifically, counsel proposed a

definition      instruction         to   read,      “A    marijuana      ‘plant’       is   an

organism having leaves and a readily observable root formation,

which would include roots, a rootball, or root hairs.”                                 (J.A.

16.)     The language for this proposed instruction came from the

U.S.     Sentencing         Guidelines     Manual.           See      U.S.      Sentencing

Guidelines Manual § 2D1.1 cmt. n.17 (2008).

       Miles    argues       that   without       his    instruction      the    jury       was

without guidance and may have mistakenly thought that “a mere

leaf or stem or seed constituted a ‘plant.’”                          (Pet’r Br. 21.)

Moreover, he argues that this Court has no way of knowing that

the jury did not employ this incorrect analysis.                          Miles further

argues       that     although      Officer       Johnakin    testified         that    root

formation       was     a    requisite     for      his     characterization           of    a

marijuana plant, the jury was never informed of why this was

important.          Thus, Miles contends that the court’s failure to



                                              7
give his instruction seriously impaired his ability to present

an adequate defense.

          The district court’s reason for rejecting Miles’ proposed

instruction was that jurors did not have to be botanists to

count plants.          (J.A. 296.)      However, Miles maintains that there

is    a    vitally    important    distinction       between          what    a   layperson

would deem a plant and what is considered a marijuana plant for

the purposes of the Sentencing Guidelines.                         In essence, Miles

argues, counting is not the problem; the problem is knowing what

to count.

          In order to evaluate a district court’s refusal to give a

proposed instruction we apply the Lewis test, which is composed

of    a    three-part      analysis:       1)     whether       the    instruction      was

correct;      2)     not   substantially     covered       by    the    court’s      actual

instruction; and 3) so important to an issue in the trial that

the       failure    to    give   an   instruction         seriously         impaired   the

defendant’s defense.              Lewis, 53 F.3d at 32.                 The Government

admits that Miles satisfied the second prong of the Lewis test,

as no part of the jury instructions addressed the meaning of the

term “marijuana plant.”            Thus, the issues in dispute are whether

the       proposed     instruction     was       correct     and      whether      it   was

necessary.




                                             8
                                               i.

       The Supreme Court has held that federal drug statutes need

not    be    interpreted      through        the     lens    of    the    advisory       Federal

Sentencing Guidelines.                 See, e.g., Kimbrough v. United States,

128    S.    Ct     558,    570-72      (2007)       (finding      that    the     Sentencing

Guidelines were not meant to modify relevant law and noting that

“[w]e do not lightly assume that Congress has omitted from its

adopted      text        requirements         that     it     nonetheless         intends       to

apply.”) (quoting Jama v. Immigration and Customs Enforcement,

543 U.S. 335, 341 (2005)); Neal v. United States, 516 U.S. 284

(1996).      When the Supreme Court interpreted Neal in Kimbrough it

stated that the United States Sentencing Commission “had not

purported to interpret the statute and could not in any event

overrule our [prior case law].”                      Kimbrough, 128 S. Ct. at 571-

572 (citing Neal, 516 U.S. at 287).                     Miles has offered no reason

to    read    an    application        note    in     the    United      States    Sentencing

Guidelines         as    modifying     or    defining        the   plain    language       of   a

federal drug statute.

       Under        21     U.S.C.      § 802(16)        (2006),          Congress     defined

marijuana (or “marihuana”) as it is used in 21 U.S.C. § 841(b)

(2006).           Marijuana       is   considered        “all      parts    of     the    plant

Cannabis      sativa       L.,”    including         seeds.        21    U.S.C.    § 802(16).

Congress gave no separate definition for a “marijuana plant”;

instead      it     gave    the     courts     a     clear    unambiguous         definition.

                                                9
There is no case law or statutory authority to support Miles’

contention that a jury instruction, derived from a comment in

the Sentencing Guidelines, which requires a plant to have a root

system     in   order    to    be      considered      a    “marijuana     plant,”    is

correct.

                                           ii.

         Assuming arguendo, that the instruction was correct, the

record     reflects     that     the    instruction        was   not   necessary     for

Miles’ defense.         The Government never refuted Miles’ definition

of   a    marijuana     plant.         Miles’    claimed     the   court    needed    to

clarify for the jury that a marijuana plant has a root system.

However, the Government’s key witness, Officer Johnakin, clearly

stated that each plant he counted had a root system.

         Since Officer Johnakin claimed that all sixty-three plants

that he counted had root balls, the jury only had to decide

whether     they   believed         him,   and    if       so,   whether   Miles     had

manufactured and possessed over one-hundred plants.                         Harrelson

testified that Miles took pride in growing marijuana (J.A. 179);

certainly, someone with Miles’ level of expertise would know how

to distinguish a marijuana plant from a clone.                         Therefore, it

would have been reasonable for the jury to conclude that if

sixty-three of the marijuana plants had root systems, then the

remaining thirty-seven that Miles told Harrelson he had grown

also had root systems.            The district court correctly found that

                                           10
the jury was merely charged with the task of deciding if they

believed Officer Johnakin and Harrelson, not deciding what a

marijuana       plant       is.       Therefore,       the        instruction      was   not

necessary.

                                             C.

       Finally,       we    address    the     issue        of    the   district    court’s

forfeiture order.           This Court reviews factual findings for clear

error and legal determinations de novo.                           See United States v.

Leftenant, 341 F.3d 338, 342 (4th Cir. 2003).                           Because Miles did

not    raise    the    forfeiture       issue       with    the    district    court,    our

review is for plain error.              See United States v. Olano, 507 U.S.

725, 732-37 (1993).

       Miles argues, “If the Court vacates or reverses Miles’s

convictions, it must also vacate the district court’s forfeiture

order based on those convictions as a ‘necessary consequence.’”

(Pet’r Br. 24. (quoting United States v. Wittig, 525 F. Supp. 2d

1281, 1287 (D. Kan. 2007), rev’d on other grounds).)                                Because

Miles has not established a reason to reverse or vacate his

convictions, we must evaluate his other arguments in support of

vacating the forfeiture order.

       First,       Miles    argues    that     the        forfeiture     order    lacks   a

sufficient factual basis.                See Libretti v. United States, 516

U.S.   29,     44    (1995)       (requiring    a    “factual       nexus”    between    the

amount ordered forfeited and proceeds of crime).                          To support his

                                             11
argument, Miles emphasizes the evidence in the record that he

sold very little marijuana, and involved outsiders only “if he

had any extra.”             (J.A. 76, 117.)             Miles argues that when the

Court considers the following facts it must determine that the

forfeiture order was unconstitutional:                         1) he was often “dry”

(J.A.     118)     or    without     harvest;     2)    there     were   breaks   in    his

growing process; 3) Nelson saw Miles sell marijuana only twice

in a year; and 4) Miles smoked a large amount personally.

       Additionally, at trial the Government put Sergeant Preuss,

a   DEA     task    force     officer,     on     the    stand.      Miles    challenges

Sergeant Preuss’ suggestion that his marijuana was worth $3,200

per pound ($800 per quarter pound).                       He argues that there was

evidence at trial that he sold marijuana for $50 per quarter

pound, even though he believed that he could probably get as

much      as   $120     per   quarter      pound.        Miles     contends    that     the

Government         offered      no   support      for    its    contention     that    the

marijuana was worth sixteen times what he actually received for

it during his sales.

       As      counsel    for    the     Government      pointed     out    during     oral

argument,        one     of     Miles’    prison-mates,           Christian    Shoolroy,

testified that in his experience one marijuana plant yielded

one-half of an ounce to an ounce of marijuana.                             Shoolroy also

testified that Miles stated that he consumed a quarter ounce

every two to four weeks.                 If we assume Miles produced the low

                                             12
end of Shoolroy’s estimate then we can assume that the sixty-

three plants recovered from Miles yielded thirty-one and a half

ounces of marijuana.           If we assume that Miles smoked a quarter

ounce    of   marijuana     every     week    during     the    three-month    growth

season during which the sixty-three plants were produced—even

more than Shoolroy’s highest estimate, which would be Miles’

best    support    for   his   theory    that    the     marijuana    was     for   his

personal use and not for sale—then we would find that Miles

smoked about three ounces during the three months.                        Therefore,

even when we assume Miles smoked more than what is documented in

the record, only about ten percent of his harvest could ever

have conceivably been allocated for personal use.                        Even though

there was limited evidence of Miles’ drug sales, the district

court correctly discerned from the facts that Miles produced

significantly more marijuana than he could have consumed.                       These

calculations       coupled     with     evidence        of   Miles’   prior       sales

provided a sufficient factual nexus for the forfeiture order.

       Once the jury found that Miles was guilty of manufacturing

one-hundred marijuana plants, the district court relied on the

number    one     hundred    and    converted      it    into    grams    using     the

conversion rate of one-hundred grams per plant found in U.S.S.G.

§ 2D1.1.        The district court then relied on the testimony of




                                         13
Sergeant Preuss and multiplied $3,200 by 21.9 pounds 2 reaching a

value of $70,080.        The district court then decided to attribute

Miles    with   $20,000,   less   than    thirty   percent   of    the   overall

calculated amount.       Miles argues that there was no factual nexus

between the forfeiture order and the facts of the record.                   Given

that there was a sufficient basis to attribute Miles with ninety

percent of the marijuana produced, after subtracting the high

estimate of ten percent for personal use, it appears that the

district court’s forfeiture amount was generous. 3                Miles has not

demonstrated error, let alone plain error. 4

        Miles   cannot     overcome      the   steep   burdens      of    review

applicable to the claims he asserts.            Therefore, the decision of

the district court is affirmed.

                                                                         AFFIRMED




     2
         100 plants = 10,000 grams = 22.05 pounds
     3
       Using Preuss’ rate and attributing Miles with ninety
percent of the marijuana he produced, would have justified a
forfeiture of $63,000.
     4
       The Government suggests that an excessiveness challenge
can never be mounted against a criminal forfeiture pursuant to
21 U.S.C. § 853(a)(1). This argument has been plainly rejected.
See United States v. Bajakajian, 524 U.S. 321, 338-39 (1998);
United States v. Ahmad, 213 F.3d 805, 814 (4th Cir. 2000).
However, we need not address this issue further because Miles’
arguments are unavailing on other grounds.



                                      14
