                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-16175                ELEVENTH CIRCUIT
                                                              JUNE 8, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                      D. C. Docket No. 08-00010-CR-5

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

WILLIAM JERRY AUGER,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                                (June 8, 2010)

Before BLACK, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     William Jerry Auger appeals his 46-month sentence imposed after he pled
guilty to maintaining a drug-involved premises, in violation of 21 U.S.C.

§ 856(a)(2). This is Auger’s second appeal challenging the district court’s finding

as to the number of marijuana plants seized on Auger’s property. After review, we

affirm Auger’s sentence.

                                I. BACKGROUND

A.    Auger’s First Appeal

      Auger allowed others use land he leased to grow marijuana. When the

marijuana growing operation was discovered, law enforcement agents executed a

search warrant at Auger’s property and seized the marijuana plants growing there.

      At Auger’s original sentencing, the government presented testimony of Drug

Enforcement Administration (“DEA”) Special Agent Stephen Tinsley, who

inspected the seized plants three days after they were collected and counted.

Tinsley testified that many of the plants he saw were “seedlings” in plastic trays,

but that the reported 8,664-plant count appeared accurate within 1,000 plants.

Based on Tinsley’s testimony, the district court found that 8,664 plants were

seized.

      This Court vacated Auger’s sentence and remanded for further fact finding

as to the number of seedlings seized on Auger’s property and whether those

seedlings were “plants,” within the meaning of U.S.S.G. § 2D1.1(c). United States



                                          2
v. Auger, 338 F. App’x 823 (11th Cir. 2009). The commentary to § 2D1.1(c)

defines a “plant” as “an organism having leaves and a readily observable root

formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is a

marihuana plant).” U.S.S.G. § 2D1.1(c) cmt. n.17. We explained that, because

Auger objected to the statement in the Presentence Investigation Report (“PSI”)

that 8,664 plants were seized on Auger’s property, the government was required to

produce evidence that the 8,664 plants seized had observable root formation.

Agent Tinsley had not testified as to whether the “seedlings” he saw had

observable root formation. Auger, 339 F. App’x at 831.

B.    Resentencing

      At the resentencing hearing, the government presented testimony from

Coffee County Sheriff’s Department Detective James Hersey, who supervised the

counting of the plants seized on Auger’s property. Hersey stated that a Georgia

Bureau of Investigation agent instructed his officers that each organism had to have

rootballs, root hairs or a rooting system to qualify as a plant. Accordingly, only

plants with existing root systems were counted. After his officers finished the

count, Hersey recounted the plants and placed them in black plastic bags. Hersey

counted 8,664 marijuana plants. Hersey did not count between 200 and 600 plants

because they were too small. Hersey identified several photographs of the plants



                                           3
seized from Auger’s property. One photograph shows several small plants

growing in trays, and two photographs show larger marijuana plants growing in the

ground.

      The government also called Agent Tinsley, who testified that after this Court

vacated Auger’s original sentence, he photographed what remained of the seized

marijuana plants, including the root systems. Tinsley explained that when he first

inspected the seized marijuana plants, they were stored in a blue Tupperware tub,

garbage bags and brown sacks. At the time, Tinsley believed that the amount

collected looked like it could have been 8,000 marijuana plants. Later, when

Tinsley returned to photograph the plants, although much of the material had since

rotted, Tinsley could still identify the plants’ root systems. Tinsley clarified that at

no time during his investigation did he observe any plants without a root system.

The government introduced Tinsley’s photographs, which showed, inter alia, a

large blue container, four garbage bags of rotting plants, and close-ups of plants

that have visible root material and soil.

      Defendant Auger called Scott Harper, an evidence custodian with the Coffee

County Sheriff’s Department. Harper testified that several months after the

seizure, he provided Agent Tinsley with samples of the marijuana plants in a paper

bag for testing. Harper opined that, in his experience, marijuana plants one to two



                                            4
inches tall typically do not have a root structure. When Auger asked Harper

whether be believed the blue Tupperware container depicted in the government’s

photographs was large enough to store 8,664 marijuana plants, the district court

sustained the government’s objection and stated that the evidence was that the

plants were stored in multiple containers, including boxes, bags and plastic bags.

       Based on the evidence presented, the district court again found that Auger

was accountable for 8,664 marijuana plants. The district court found that “the

number of seized organisms that were seedlings were at least 8,664; and that the

number of seized organisms that had readily observable root formations and met

the definition of a plant were at least 8,664 plants.” The district court calculated

Auger’s base offense level accordingly, which resulted in an advisory guidelines

range of 46 to 57 months’ imprisonment. The district court reimposed a 46-month

sentence.

                                      II. DISCUSSION

       On appeal, Auger argues that the district court’s finding of 8,664 marijuana

plants is clearly erroneous and, as a result, his 46-month sentence is procedurally

unreasonable.1


       1
         We review a district court’s fact finding as to drug quantity for clear error. United
States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). When that fact finding is based on
the credibility of witnesses, “the resolution will almost never be clear error.” Id. We review the
reasonableness of a sentence under the abuse-of-discretion standard. Gall v. United States, 552

                                                 5
       Although the Sentencing Guidelines are now advisory after United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the district court must still calculate

the advisory guidelines range correctly. United States v. Pugh, 515 F.3d 1179,

1190 (11th Cir. 2008). A sentence based on a miscalculated advisory guidelines

range or on clearly erroneous facts is procedurally unreasonable. See Gall, 552

U.S. at 51, 128 S. Ct. at 597.

       When a defendant objects to a PSI’s factual allegation “used in calculating

his guideline sentence, such as drug amount, the government bears the burden of

establishing the disputed fact by a preponderance of the evidence.” Rodriguez, 398

F.3d at 1296. Although “[t]he preponderance of the evidence is a relaxed

evidentiary standard,” if the defendant has properly objected, the district court may

not “sentence the defendant in the absence of sufficient evidence . . . .” Id. The

district court’s findings of fact at sentencing “may be based on evidence heard

during trial, facts admitted by a defendant’s plea of guilty, undisputed statements

in the presentence report, or evidence presented at the sentencing hearing.” United

States v. Saunders, 318 F.3d 1257, 1271 n.22 (11th Cir. 2003) (quotation marks

omitted). A sentencing court may consider any evidence, including hearsay,

regardless of its admissibility so long as it has sufficient indicia of reliability, the



U.S. 38, 46, 128 S. Ct. 586, 594 (2007).

                                             6
district court makes explicit credibility findings and the defendant has an

opportunity to rebut the evidence. United States v. Baker, 432 F.3d 1189, 1253

(11th Cir. 2005).

         Here, the district court’s finding that Auger’s offense involved 8,664

marijuana plants is supported by Detective Hersey’s testimony. Hersey testified

that his officers counted 8,664 marijuana “plants” with observable root formations

and that he then verified that count by recounting them himself. The district court

credited Hersey’s testimony, which was corroborated by Agent Tinsley’s testimony

that he saw root systems on the plants and the government’s photographs of seized

marijuana plants with visible roots.

         Auger has given us no reason to disturb the district court’s credibility

finding. Auger points to Agent Tinsley’s testimony that when he visited Auger’s

property three days after the seizure, he saw stalks and roots sticking out of the

ground. We reject Auger’s contention that this evidence shows that law

enforcement cut down all the plants and left the roots. Furthermore, while some

plants may have been cut down, Auger presented no evidence that these “cuttings”

were counted by Detective Hersey and his officers. Thus, Agent Tinsley’s

testimony does not contradict Hersey’s testimony that he counted only plants with

roots.



                                             7
      Auger also contends that it was “patently impossible” for 8,664 marijuana

plants with observable roots to be stored in the blue Tupperware container.

However, the district court did not find that the officers stored all the plants in the

blue container. To the contrary, as the district court noted during the sentencing

hearing, Agent Tinsley testified that the seized plants were stored in multiple

containers, including garbage bags and brown paper bags. Notably, Agent

Tinsley’s photographs show at least four garbage bags in addition to the blue

container.

      Finally, Auger contends that the government’s photographs show “far less

than 8,664 roots.” However, none of the witnesses testified that the marijuana

plants depicted in the government’s photographs were all of the marijuana plants

seized at Auger’s property. And, the government was not required to photograph

the root system of every marijuana plant in order to carry its burden.

      We conclude that the district court did not clearly err in finding that Auger’s

offense involved 8,664 marijuana plants and properly calculated Auger’s base

offense level under U.S.S.G. § 2D1.1(c). Because the district court did not rely on

clearly erroneous facts and did not miscalculate Auger’s advisory guidelines range,

Auger has not shown that his 46-month sentence is procedurally unreasonable.

      AFFIRMED.



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