                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 92-2057

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                          JOHN E. BURKE,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]
                                                     

                                           

                              Before

                      Boudin, Circuit Judge,
                                           
            Coffin and Oakes*, Senior Circuit Judges.
                                                    

                                           

  Mark  L. Randall  with  whom  Mary  A.  Davis  was  on  brief  for
                                               
appellant.
  Margaret  D. McGaughey,  Assistant  United States  Attorney,  with
                        
whom  Richard S. Cohen, United  States Attorney, and  Timothy D. Wing,
                                                                   
Assistant United States Attorney, were on brief for appellee.

                                           

                          August 2, 1993
                                           

                  

*Of the Second Circuit, sitting by designation.

     COFFIN,  Senior Circuit  Judge.   After  the district  court
                                   

denied  his suppression  motion, appellant  John Burke  entered a

conditional   guilty  plea   to  a   charge  that   he  knowingly

manufactured marijuana in  violation of 21 U.S.C.   841(a)(1) and

18  U.S.C.   2.   On appeal, he renews  his claim that the search

warrant  affidavit  failed  to  show  probable  cause  and  that,

consequently, evidence  seized from his home  must be suppressed.

He also claims that  the district court erred in  calculating his

sentence based on 50  marijuana plants and an equivalency  of one

kilogram per plant.  We affirm.

                        I. Probable Cause
                                         

     In July 1991, Bangor Police Officer Roy McKinney applied for

a warrant to search  the home occupied by appellant Burke and his

wife  Susan at 330  Fern Street in Bangor,  Maine.  The affidavit

filed by McKinney in support of the warrant application described

two  conversations  in  which   an  unidentified  individual  had

reported to  a confidential  informant about an  indoor marijuana

growing operation.  The informant, who had proven reliable in the

past,  had passed on the  information to a  Detective Gastia, who

then passed it on to McKinney.

     As reported  in the affidavit, the  unidentified person made

the following assertions:

     (1) A person named "John" was growing 40 marijuana plants in
his house;
     (2) The  unidentified person had been to John's house, which
was on Fern Street in Bangor, and it "reeked" of marijuana;
     (3) The house had a new addition;
     (4) A search warrant previously had been executed  at John's
house, resulting  in  the seizure  of  marijuana plants  from  an
indoor growing operation;

                               -2-

     (5) John had "beat the charge".
     The  affidavit  also   contained  the  following  additional

information from McKinney:1

     (6)  In 1989, McKinney had executed a warrant at the home of
John Burke, at 330 Fern Street, and uncovered an elaborate indoor
marijuana growing operation;
     (7)  John Burke had  not been prosecuted  in connection with
the 1989 seizure;
     (8) 330 Fern Street had a new addition;
     (9)  Two cars parked  at 330 Fern  Street on June  19, 1991,
were identified  through Department  of Motor Vehicle  records as
belonging to Susan and John Burke, of 330 Fern Street;
     (10) Power consumption records  for 330 Fern Street revealed
a pattern of usage  consistent with indoor marijuana cultivation,
with  a  dramatic drop  in usage  following  the 1989  search and
substantial increases beginning again in the fall of 1990.

     Burke contends  that this  affidavit was deficient  and that

the warrant therefore was invalid.  His primary complaint is that

the  central   information  in   the  affidavit  comes   from  an

unidentified  person   whose  reliability  and   credibility  are

untested and unknown.  The issuing judge, he argues, had no basis

upon  which to  credit  this individual's  assertions, which  had

passed  through two  other  persons before  reaching the  affiant

McKinney.

     Our limited role in evaluating a judge's decision to issue a

search warrant is well established:

          We review  the issuance  of a search  warrant with
     "great deference,"  United States  v. Ciampa, 793  F.2d
                                                 
     19,  22 (1st Cir. 1986), to verify that there existed a

                    

1 Defendant makes much of the fact that the affidavit reports the
informant's  conversations with Gastia "in substance" rather than
verbatim.    Unlike Burke,  we do  not  believe that  this phrase
suggests  that the  information  provided to  the magistrate  was
unreliable.  In our view, McKinney used the  phrase to inform the
magistrate fully  that he was providing what  he believed to be a
substantively accurate,  though not word-for-word,  report of the
conversations between Gastia and the informant.   

                               -3-

     "substantial  basis" for the judicial officer's common-
     sense determination that,  "given all the circumstances
     set  forth in  the  affidavit .  .  . ,  including  the
     `veracity'   and  `basis   of  knowledge'   of  persons
     supplying  hearsay  information,  there  [was]  a  fair
     probability  that  contraband  or evidence  of  a crime
     [would] be found in a particular place."

United States v. Scalia, No. 93-1018, slip op. at 4 (1st Cir. May
                       

21,  1993) (quoting United States  v. Caggiano, 899  F.2d 99, 102
                                              

(1st  Cir. 1990) (quoting Illinois v. Gates, 462 U.S. 213, 238-39
                                           

(1983))).      Having  conducted   such   a   "totality  of   the

circumstances" scrutiny  of the affidavit here,  we are satisfied

that the issuing  judge had substantial  support for his  finding

that "there existed a fair probability that marijuana and related

paraphernalia would  be found in  appellant's residence," Scalia,
                                                                

slip op. at 8-9.  Although the original source of the information

leading to the search was anonymous, several  factors vouched for

the reliability  of this  person's assertions.   Most significant

was  McKinney's  experience  and knowledge  as  a  result of  his

involvement in the  1989 search  of Burke's home.   The  source's

information  that an  individual on  Fern Street  named John  was

growing  marijuana  dovetailed  with  McKinney's  knowledge  that

marijuana  plants had been seized two years earlier from the home

of John Burke  at 330 Fern Street.   The source's  further report

that  "John"  had "beat  the  charge"  coincided with  McKinney's

knowledge that Burke  had not been prosecuted as  a result of the

1989 seizure.   This coincidence of McKinney's knowledge with the

source's information served to corroborate that information.  See
                                                                 

United States  v. Taylor,  985 F.2d  3,  6 (1st  Cir. 1993)  ("An
                        

                               -4-

affiant's knowledge  of the  target's prior criminal  activity or

record clearly is material to the probable cause determination.")

     It  also is  significant that  the source's  information was

based on personal observation.  See Scalia, slip op. at  7.  This
                                          

individual had been to Burke's home and reported that it "reeked"

of marijuana.  But see United States v. DeLeon, 979 F.2d 761, 765
                                              

(9th  Cir.  1992)  (warrant  cannot  be  based  on  untrained  or

inexperienced person's claim to  have smelled growing plants that

have  no commonly recognized odor).   The source  also noted that

the house had  a new  addition, a fact  corroborated by  McKinney

based on both  his 1989 search and  a drive-by after he  received

the 1991 tip.

     Some  weight also attaches to  the established record of the

confidential  informant,  through  whom  the  unidentified source

communicated to the police officers.  According to the affidavit,

that informant  ("CI#102") had  provided information in  the past

that led to three felony drug arrests and the  seizure of several

pounds  of marijuana.    In addition,  McKinney  stated that  the

informant recently had provided  information to him and Detective

Gastia  that  was used  to  secure  another search  warrant  that

resulted indiscovery ofan indoor marijuanacultivating operation.2

                    

2  If we  were to  assign  no weight  to the  reliability of  the
informant in this context,  we would be in the  peculiar position
of  inviting  informants  to  be  less  forthcoming  about  their
sources.   For example, to avoid questions about the unidentified
person, the  informant could  have relayed the  information about
the Fern Street marijuana operation as if it were the informant's
direct  knowledge.  The issuing judge  then would have considered
only the  informant's veracity and reliability  in evaluating the
warrant  application.   In  any event,  we  think that  the  past

                               -5-

     McKinney's  own  investigation   further  corroborated   the

likelihood that  Burke once  again was  growing marijuana  at 330

Fern  Street.  The power  source records he  obtained showed that

the residents  of  330  Fern Street  resumed  an  unusually  high

consumption of electricity after a  lapse in time that  coincided

with  the  period  immediately  following  the  1989  search  and

seizure, when Burke predictably  would have been inclined  to lie

low.  McKinney confirmed that the  Burkes still lived at 330 Fern

Street  by checking  motor vehicle  records for  the cars  parked

there. 

     This confluence of factors was  more than ample to establish

probable  cause.   Although the  multi-link chain  of information

began with  an unidentified  individual, the reliability  of that

information  was   reinforced  by  the  proven   history  of  the

confidential  informant, McKinney's  personal knowledge,  and the

documentary   evidence  developed  through  investigation.    The

standard  of probable cause  requires a probability,  not a prima

facie  showing,  of criminal  activity.    See United  States  v.
                                                             

Ciampa, 793 F.2d  19, 22  (1st Cir. 1986).   Unquestionably,  the
      

issuing judge  here was given  a sufficient basis  for concluding

that a new crop of marijuana probably was being cultivated at 330

Fern Street.

                    

history of the informant is relevant and does strengthen the case
for the warrant: it  suggests not only that the  information from
the original source is being accurately reported but, as a matter
of fact, that the informant has reliable sources.

                               -6-

     We take a moment to discuss briefly Burke's allegation  that

the warrant was defective because of a material omission from the

affidavit.   He  claims that  McKinney was  at least  reckless in

failing to notify the magistrate that the unidentified source had

reported  that "John" had "beat  the [1989] charge  due to search
                                                                 

and  seizure problems."  The affidavit  did not give a reason for
                     

the lack of prosecution.

     The district court held  an evidentiary hearing into Burke's

claim  that  material  information  had been  excluded  from  the

affidavit, concluding  that there was "no indication  of any kind

of deliberate falsehood or reckless disregard of the truth."  See
                                                                 

Tr.  of July 16, 1992, at  28.  We are  satisfied that that court

fully explored this issue, and that no basis for invalidating the

warrant  exists.  Any  discrepancy between the  actual reason for

the lack of prosecution  in 1989 and the source's  explanation is

of marginal significance,  if any, to  the existence of  probable

cause.    In  our  view,  the  crucial  fact  was   the  lack  of

prosecution, and on that point, the source and affiant were fully

in accord.

                       II. Number of Plants
                                           

     Under the  Sentencing Guidelines,  when an offense  involves

fifty or more marijuana  plants, the court is required  to equate

each plant  with  one kilogram  of marijuana  in determining  the

defendant's  base offense  level.   See U.S.S.G.    2D1.1.   When
                                       

                               -7-

fewer  than fifty  plants are  at issue,  the equivalency  is 100

grams for each plant.3

     The  district court  found  that the  offense here  involved

fifty  plants, and  Burke  consequently was  sentenced under  the

harsher one-kilogram-per-plant standard.  The court's computation

included 32  plants ranging in  size from one-  to three-and-one-

half feet that  were found in  a large basement  room in the  new

addition and two  plants of  similar size found  in an  adjoining

smaller  room.   The  court  also  included 16  one-to-three-inch

cuttings, each growing  in a separate pot, that were found in the

small room.4 

     Burke disputes the district  court's calculation.  He argues

that at least some,  and perhaps all, of  the 16 small  replanted

cuttings lacked sufficient root  development to be deemed plants.

And he  emphasizes that an error  on just one plant  would have a

                    

3 The relevant portion of the provision is as follows:

          In  the case  of  an offense  involving  marihuana
     plants,  if  the  offense   involved  (A)  50  or  more
     marihuana plants,  treat each plant as  equivalent to 1
     KG of  marihuana; (B)  fewer than 50  marihuana plants,
     treat  each plant as equivalent to  100 G of marihuana.
     Provided,  however, that  if the  actual weight  of the
     marihuana  is greater,  use  the actual  weight of  the
     marihuana.

4 A total of 36 one-to-three-inch cuttings was found in the small
room.  Although the  court believed that all of these were likely
to  be plants within the  meaning of the  Guidelines, the experts
who testified at the  sentencing hearing had examined only  16 of
them.  The  court therefore  decided to give  the defendant  "the
benefit  of the  doubt"  and to  exclude  the other  20  from his
calculation.  See Tr. of Aug. 12, 1992, at 86.
                 

                               -8-

dramatic impact on his sentence because of the 50-plant threshold

for the one-kilogram equivalency.

     The  district  court's determination  that  the  16 cuttings

should  be   classified  as   plants  rests   both  on  a   legal

determination -- what constitutes a "plant" under the guidelines?

--  and  a factual  determination --  did  the cuttings  at issue

fulfill those requirements?  After a careful review of the record

and caselaw, we find no reversible error in either respect.

     The  court defined  a plant  for sentencing  purposes as  "a

cutting with a root formation," Tr. of August 12, at 85.  This is

consistent with the definition previously accepted by this court,

see United States  v. McMahon, 935 F.2d 397,  401 (1st Cir. 1991)
                             

(defining  plants as  "cuttings with  roots"), as  well  as other

courts, see, e.g., United States v. Edge, 989  F.2d 871, 879 (6th
                                        

Cir.  1993)  (a  marijuana  cutting  is  a  "plant"  for  federal

sentencing purposes  "if there is readily  observable evidence of

root formation");  United States  v. Bechtol, 939  F.2d 603,  604
                                            

(8th Cir. 1991) (a cutting with "root hairs" -- "fine projections

coming from the stem" -- is a plant); United States  v. Eves, 932
                                                            

F.2d  856, 859  (10th  Cir. 1991)  (endorsing  holding in  United
                                                                 

States v. Fitol,  733 F. Supp. 1312,  1315 (D. Minn.  1990), that
               

there  must   be  evidence  of  "`individual   growth  after  the

severance, such as growing of roots'"); United  States v. Speltz,
                                                                

733  F. Supp. 1311, 1312  (D. Minn. 1990)  ("cuttings with roots"

are  marijuana plants).   We see  no reason  to depart  from this

relatively straightforward, widely utilized standard.

                               -9-

     Indeed,  even Burke agrees that  the presence of  roots is a

determinative  factor  in  identifying  a plant.    He  suggests,

however,  a  more  functional   approach  than  is  reflected  by

precedent.  Based  on the  testimony presented by  his expert  at

trial, Burke  argues that new growth  on a cutting may  be termed

roots -- and the cutting identified as a "plant" -- only when the

growth "physiologically functions as a root."  See Brief at 21.
                                                  

     We  decline to  embrace  this functional  refinement to  the

"cuttings  with  roots" definition.    If  a cutting  has  growth

extending from its base  that is differentiated from its  stem or

stalk,  a court  must  be  permitted  to  use  its  eyesight  and

commonsense to conclude that it has before it a plant with roots.

To  require a court to determine whether the growth is performing

all of the technical functions of roots is to complicate a matter

that Congress intended to simplify:

     As Judge Devitt noted in [United States v.] Fitol, [733
                                                      
     F. Supp. 1312 (D. Minn. 1990)], the legislative purpose
     was to remedy the problems  associated with determining
     the weight  of marijuana -- specifically, whether seeds
     and  stems should  be  weighed in  the  mix --  and  to
     supplant this test with a more simple  method; a method
     providing  that the  number  of "plants  regardless  of
     weight" would  trigger the mandatory  minimum sentence.
     733  F.   Supp.  at  1315.     We  perceive   that  the
     congressional   intent  was   to   simplify,   not   to
     complicate, the  method of determining the  high end or
     low end mandatory sentences.  To accept the appellant's
     formulation  would   be  to   turn  our  face   on  the
     legislative purpose.

Eves, 932 F.2d at 860 (quoted in Edge, 989 F.2d at  878).  In our
                                     

view,  plant status  is  sufficiently established  when there  is

"some readily observable evidence of root formation,"   Edge, 989
                                                            

F.2d at 877.  In other words, at the first sign of roots, a plant

                               -10-

exists for sentencing  purposes.   Cf. Bechtol, 939  F.2d at  605
                                              

(rejecting viability as the  standard for whether a cutting  is a

plant); Eves, 932 F.2d at 857 (same).
            

     It  is the government's burden  to prove, by a preponderance

of the  evidence, that each of  the 16 contested specimens  was a

plant.   See United States  v. Wright, 873 F.2d  437, 441-42 (1st
                                     

Cir.  1989) (preponderance  of the  evidence standard  applies to

sentencing issues).   The district court's finding that  each had

sufficient  root development to be  classified as a  plant may be

reversed only for  clear error. See Eves, 932 F.2d at 859; United
                                                                 

States v. Carlisle, 907 F.2d 94, 96 (9th Cir. 1990) (per curiam).
                  

     We find no such  error.  The district court  heard extensive

testimony from two  experts, viewed a  videotape of the  cuttings

taken  at the time of the seizure, and examined photographs taken

by the defendant's expert after the cuttings had been pulled from

their pots and  dried.  Both experts agreed that  the cuttings as

viewed in the videotape  were healthy and thriving.   Both agreed

that at least some of the cuttings when examined displayed growth

from  the base,  and  that  the  videotape  showed  that  all  36

specimens  in the small room  (20 of which  the court discounted,

see supra at n.4) were of similar height and condition.
         

     With this consensus  as a foundation, the district court had

ample support for finding that the cuttings all were sufficiently

developed to be classified  as plants.  The government's  expert,

Dr. Lydon, explicitly testified that the growth on the six to ten

cuttings  that he personally examined was a form of roots, and he

                               -11-

found the remnants of roots in the growing medium from which  the

cuttings had been removed.   He identified roots on 12 of  the 16

cuttings shown in the photographs.  He further testified that the

leaves on  the cuttings in  the videotape could  be as large  and

healthy  as they  were only  if there  existed a  root system  to

sustain them.   This was  particularly so, he  said, because  the

cuttings were placed under intense light to spur their growth. 

     Although  the defense expert,  Professor Colby, contradicted

certain of Lydon's testimony, it  was within the district court's

province to evaluate what  it heard and make judgments  about the

weight to attribute to each expert's views.  Colby stated that he

saw  no plant  matter in  the  rock wool  that had  contained the

cuttings.   The court,  however, reasonably could  credit Lydon's

contrary  testimony in light  of its own ability  to see roots on

most of the 16 cuttings in Colby's photographs.  Similarly, Colby

testified that  the growth at  the base  of the cuttings  was not

roots  but simply "primordia," or the precursor of roots to come.

In   our   view,   the   court   properly   could   reject   this

characterization   of  the   growth  because   Colby's  testimony

primarily focused on when  plants have "functional root systems,"

see Tr. of August 6, at  37, rather than on when the  first stage
   

of the system manifests.5

                    

5 Colby testified that the "newly emerging growth" at the base of
some  of  the  cuttings  was  not  "roots"  because  it  was  not
performing  the function of roots.   Tr. of August  6, at 38.  He
explained  that  one  of  the  critical  functions  of  roots  --
absorbing water -- requires  root hairs.  The root  hairs develop
on  secondary  roots, which  in turn  are  formed off  of primary
roots.  Id.  He further testified:
           

                               -12-

     Burke  makes  much  of the  fact  that  both  Lydon and  the

district court acknowledged  that several of the  cuttings in the

photographs showed no visible signs of roots.   See Tr. of August
                                                   

12, at 47, 52, 67.  The testimony, however, clearly permitted the

district  court to conclude  that each  of the  similarly healthy

plants in  the videotape must  have had  the same  level of  root

growth  as  the  six  to ten  examined  by  Lydon,  and that  the

inability  to see  them  in the  photographs  was the  result  of

fuzziness in the pictures or loss of the roots when  the cuttings

were pulled from the pots and dried.

     Two  other points  highlighted  by Burke  similarly fail  to

undermine  the  district  court's  finding.    Detective McKinney

testified that the  cuttings continued to  grow for several  days

following their  seizure,  and Burke  suggests that  it was  only

during  this time  -- if  at all --  that the  cuttings developed

enough to be  termed plants.   The district  court, however,  was

free  to   credit  Lydon's  contrary  testimony   that  the  root

                    

     What we're looking for is a root system.   And in order
     for  a plant  to be  classified as  a fully  functional
     living  organism . . . it's got to have functional root
     systems, leaf systems and stem systems."  Id. at 38-39.
                                                  

     In his testimony  on the process  by which cuttings  develop
roots, Lydon stated that callus tissue first develops in the spot
where roots later will emerge.  Tr.  of August 12, at 34.  In his
view, when  sufficient tissue  develops  at that  location to  be
differentiated from the stem,  the root system has begun  and the
specimen  may be  defined  as  a  "cutting  with  roots."    This
description is consistent with the approach for recognizing roots
adopted by  the court in Edge  (callus tissue is not  a root, but
                             
small  "hair-like  projections"  are  the  beginning  of  a  root
system).  See 989 F.2d at 878-79 &amp; nn.9, 10.
             

                               -13-

development he saw could  not have been achieved in  just several

days.  See Tr. of August 12, at 16.
          

     Burke  also  challenges Lydon's  reliance  on  the size  and

health  of the leaves to support his conclusion that the cuttings

must have  had roots.   He notes  that the government  expert was

unable  to  say  unequivocally that  Burke  had  removed  all the

previously grown  large leaves from the  cuttings before planting

them  -- the  technique  typically used  by experienced  growers.

Burke's theory is that, if the leaves as viewed in  the videotape

were on the plants before the replanting, their size would not be

evidence of  functioning roots.   But  Lydon's testimony  was not

premised solely on the  size of the  leaves.  He saw  significant

root  formation, and primarily relied  on the size  of the leaves

only for his  conclusion that  the plants he  did not  personally

observe must have had the same root development.

     Finally,  Burke contends  that, at  the least,  the district

court  should have reduced the number  of plants by 10 percent to

reflect the  typical failure  rate of  marijuana cuttings.   This

theory, adopted by  the court in United States v.  Angell, 794 F.
                                                         

Supp.  874, 876  (D.  Minn. 1992),  was  never presented  to  the

district court, and  we decline to consider it for the first time

on appeal.   See McMahon,  935 F.2d  at 399-400.   Defendant  had
                        

ample  opportunity to  develop  support for  this theory  through

either of the two experts who testified.  On this record, we have

no basis for disturbing the district court's calculation.

                         III. Due Process
                                         

                               -14-

     Burke  argues that  the  equivalency  of  one plant  to  one

kilogram  of  marijuana  in  the Sentencing  Guidelines  lacks  a

rational  basis  and therefore  constitutes  a  violation of  due

process.  This court recently rejected this argument, see Taylor,
                                                                

985 F.2d at  9.  Although Burke attempts to  distinguish his case

because  it involves  a different  and allegedly  less productive

variety  of the marijuana plant, the rationale of Taylor is fully
                                                        

applicable.  See id. ("Congress reasonably may opt for a punitive
                    

deterrent against large-scale marijuana  manufacturing operations

which  pose a  greater  threat than  small-scale operations,  and

warrant   exponentially  enhanced   punishment.")     This  claim

therefore also fails.

     Affirmed.
             

                                   Concurrence follows.

                               -15-

     OAKES, Senior Circuit Judge, concurring.  While I concur  in
                                

the majority's carefully  reasoned opinion, I do  so only because

as  a visiting judge  in this circuit I  consider myself bound by

this court's  prior decisions.   These  include United States  v.
                                                             

Taylor,  985 F.2d  3,  9  (1st  Cir.  1993)  (equation  of  young
      

marijuana plants  to kilograms of marijuana  rational) and United
                                                                 

States  v. McMahon,  935 F.2d  397, 401  (1st Cir.  1991) (same).
                  

Were I  sitting where I  would be  free to consider  the question

solely  on its  merits, I  would conclude  that the  equation for

sentencing purposes  of three-inch marijuana plants  with at best

marginal root structures to  kilograms of marijuana is arbitrary,

irrational and a violation of due process.

                               -16-
