                    United States Court of Appeals,

                            Eleventh Circuit.

                               No. 93-9270.

             UNITED STATES of America, Plaintiff-Appellee,

                                       v.

         Maurie Wade SHIELDS, a/k/a Chip, Defendant-Appellant.

                             April 10, 1995.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-248-01-RCF), Richard C. Freeman,
Judge.

Before KRAVITCH, Circuit Judge, GODBOLD and RONEY, Senior Circuit
Judges.

     KRAVITCH, Circuit Judge:

     The issue presented in this case is whether admittedly dead

"root systems" remaining from marijuana plants harvested weeks or

months before police seizure may be counted along with seized

living plants as marijuana "plants" for sentencing purposes.              We

hold that dead, harvested root systems are not "plants" within the

meaning of 21 U.S.C. § 841(b) and the "equivalency provision" of

U.S.S.G.    §   2D1.1(c),   n.*,   ¶   5.   Accordingly,   we   VACATE   the

defendant's sentence and REMAND for resentencing.

                                       I.

     Appellant Maurie Shields and Joseph O'Reilly 1 grew marijuana
in a house the two were leasing in Marietta, Georgia.             When law

enforcement agents searched the house, they found 27 live marijuana

plants.     They also discovered a trash can containing 26 dead,

crumbling roots, each attached to a small portion of the stalk


     1
      O'Reilly is not a party to this appeal.
("root    systems"),   remaining   from   previously-harvested    plants.

Shields and O'Reilly each pleaded guilty to charges of conspiracy

to manufacture marijuana in violation of 21 U.S.C. §§ 841 and 846.

         At his sentencing hearing, Shields testified that what the

agents counted as 26 separate dead plants were actually the remains

of 6 to 8 multi-stalked plants that had been split apart during

harvesting, leaving each stalk with a partial root system. Shields

argued that he thus should be sentenced on the basis of only 33 to

35 marijuana plants.     After viewing a videotape of the seized root

systems being inspected and counted by the agents at the scene, the

district court specifically discredited Shields's testimony and

credited    the   testimony   of   the   law   enforcement   officers   who

conducted the search.     The court accordingly found that the root

systems were derived from 26 predecessor marijuana plants.2

     The district court noted that Shields's codefendant, O'Reilly,

had been sentenced on the basis of only the 27 live marijuana

plants (within the Guideline-mandated sentencing range of 10-16

months) because the government conceded that it could not show,

even by a preponderance of the evidence, that O'Reilly conspired

with Shields to grow the 26 previously-harvested plants.                The

district court commented that if Shields were held accountable for

53 plants, his Guideline-mandated sentencing range would be 33-41

months,3 and that it was troubled by the threefold disparity

     2
      After an independent review of the record, we cannot say
that the district court's determination of the number of
predecessor plants from which the dead root systems came was
clearly erroneous. See 18 U.S.C. § 3742(e).
     3
      The Sentencing Guidelines require significantly longer
sentences for offenses involving fifty or more plants. See
between O'Reilly's and Shields's sentences.             Nevertheless, because

it concluded the 26 root systems were plainly marijuana plants

under    the   sentencing    statute    and    the   Guidelines,   the   court

sentenced Shields to 33 months imprisonment, the lowest permissible

Guideline alternative.

                                       II.

                                       A.

        On appeal, Shields contends that the district court erred in

counting any of the 26 root systems as marijuana plants for the

purpose of sentencing.       Because this claim differs somewhat from

the argument Shields posited in the district court,4 we initially

must determine whether Shields may raise it for the first time in

this court.

     The treatment of sentencing objections in this circuit is

governed by United States v. Jones, 899 F.2d 1097, 1102-03 (11th

Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230

(1990), overruled on other grounds, United States v. Morrill, 984

F.2d 1136, 1137 (11th Cir.1993) (en banc).              In Jones, we required

the district courts, after conducting the sentencing hearing,

stating    their   factual   findings,       applying   the   Guidelines,   and

imposing sentence, to "elicit fully articulated objections" to

their "ultimate findings of fact and conclusions of law."                Id. at

1102.     We noted that "[w]here the district court has offered the


U.S.S.G. § 2D1.1(c), n.*, ¶ 5.
     4
      In the district court, the dispute centered on whether
there were 6-8 or 26 harvested plants, and all parties assumed
that however many dead plants the court found to exist would be
counted as marijuana plants.
opportunity to object and a party is silent or fails to state the

grounds for objection, objections to the sentence will be waived

for the purposes of appeal ... [absent] manifest injustice."                       Id.

at 1103.          As a corollary to this waiver principle, we held that

"[w]here the district court has not elicited fully articulated

objections following the imposition of sentence, this court will

vacate the sentence and remand for further sentencing in order to

give       the    parties     an   opportunity    to    raise    and   explain   their

objections."          Id.

           Because the district court in this case failed to comply with

Jones, we ordinarily would vacate the sentence and remand without

reaching the merits of Shields's argument.                      We do, however, have

the discretion to consider sentencing objections, notwithstanding

a "technical violation of Jones," where "the record is sufficient

for meaningful appellate review."                United States v. Cruz, 946 F.2d

122, 124 n. 1 (11th Cir.1991).            See also United States v. Costales,

5 F.3d 480, 483 n. 3 (11th Cir.1993) (same).                      Because this case

presents a purely legal question on a complete record, we exercise

that discretion here, and consider Shields's appeal on the merits.5

                                           B.

       21        U.S.C.   §   841(b)   requires        certain    minimum   mandatory

       5
      Because the appellants in Costales and Cruz did not raise
new sentencing arguments on appeal, those cases are not fully
controlling. Nevertheless, the practical considerations
animating those decisions counsel their extension to this
context. At a minimum, Shields is entitled, pursuant to Jones,
to a vacatur of his sentence and a remand for resentencing. At
his resentencing, Shields would naturally raise the argument he
now advances, and the same issue would then be properly
presented, on the same record, by a subsequent appeal to this
court. Judicial economy would be plainly disserved by such a
procedure.
sentences for convictions of controlled substance offenses,6 based

on either (i) the weight in kilograms of "a mixture or substance

containing a detectable amount of marijuana" or (ii) the number of

"marijuana plants regardless of weight." The Sentencing Guidelines

elaborate this statutory scheme. U.S.S.G. § 2D1.1(c) sets the base

offense level for certain drug offenses on the basis of "marihuana"

weight in kilograms.   The so-called "equivalency provision" then

equates each plant to a kilogram of marijuana if the offense

involved fifty or more plants, and to 100 grams of marijuana if the

offense involved fewer than fifty plants.7

     Although 21 U.S.C. § 802(16) defines "marihuana," neither the
                                                                  8
statute nor the current Guidelines define "marihuana plant."

Implicit in our recent decision in United States v. Foree, 43 F.3d

1572 (11th Cir.1995), however, is the proposition that clearly dead

vegetable matter is not a plant.9   In Foree, we concluded that new


     6
      See 21 U.S.C. § 841(a).
     7
      U.S.S.G. § 2D1.1(c), n.*, ¶ 5 provides: "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
1KG of marihuana; (B) fewer than 50 marihuana plants, treat each
plant as equivalent to 100G of marihuana. Provided, however,
that if the actual weight of the marihuana is greater, use the
actual weight of the marihuana."
     8
      The Sentencing Commission has recently suggested amending
U.S.S.G. § 2D1.1 to define a "plant" as "an organism having
leaves and a readily observable root formation." See Proposed
Amendments to the Federal Sentencing Guidelines, 56 Crim.L.Rep.
(BNA) 2063, 2088, 2091 (Jan. 11, 1995). The 26 root systems
seized in this case lacked leaves, and would therefore not be
counted as plants under this proposed definition.
     9
      Accord 1 Gerald T. McFadden, Judy C. Clarke, & Jeffrey L.
Staniels, Federal Sentencing Manual ¶ 8.05[1][b] at 8-43 (1994)
("A [marijuana] plant stops being a plant when it is
harvested.").
cuttings and seedlings are not marijuana plants until they develop

"some readily observable evidence of root formation." Id. at 1581.

In so holding, we explicitly rejected the less-stringent proposal

that a cutting may be a plant if "it appears to the court to be a

growing and living thing, even if its root structures are not yet

formed." Id. (quoting government's brief). Foree therefore treats

evidence   of   life   as   a   necessary   (but   alone   insufficient)

prerequisite of "planthood," and its reasoning counsels rejection

of the government's converse contention here that dead marijuana

remains are plants simply because they have roots.10

     Foree suggests that the 26 root systems were not plants;

other circuit precedent explains how harvested former plants should

be treated at sentencing.       In United States v. Osburn, 955 F.2d

1500, 1509 (11th Cir.), cert. denied, --- U.S. ----, ----, 113

S.Ct. 223, 290, 121 L.Ed.2d 160, 215 (1992), we held that

     [u]nder section 841(b), a grower who is arrested immediately
     after she has harvested her marijuana crop will be sentenced
     according to the [actual] weight of the marijuana yielded by
     the crop, ... [y]et a similarly situated grower, arrested
     immediately prior to harvesting his crop, will be sentenced on
     a [presumed] 1000-gram-per-plant basis [pursuant to the



     10
      21 U.S.C. § 802(16) does not compel a contrary result.
The statute defines "marihuana," for sentencing purposes, inter
alia as "all parts of the plant Cannabis sativa L., whether
growing or not ... [but] not includ[ing] the mature stalks of
such plant." The government contends that the reference to
"growing" marijuana implies that this definition embraces plants,
and that the simultaneous reference to "not [growing]" marijuana
therefore requires that both dead and live plants must be counted
under § 841(b). The explicit exclusion of mature stalks from
this statutory provision, however, implies that it does not
attempt to define the term "marijuana plant" (as distinguished
from "marihuana"), and is therefore inapposite. Rather, the
reference to "growing" marijuana contemplates immature cuttings
without roots that are not plants under Foree.
      "equivalency provision" of U.S.S.G. § 2D1.1(c), n.*, ¶ 5].11

Other decisions in this circuit have noted the same anomaly in the

sentencing regime.     See Foree, 43 F.3d at 1581 ("[U]nder [the

existing] sentencing scheme, the government undeniably benefits if

it catches a grower before harvest, for after harvest the defendant

would have to be sentenced according to the (much lower) actual

weight of the usable portions of the plant (i.e. not stalks or

sterilized seeds).") (emphasis omitted); United States v. Bradley,

905 F.2d 359, 361 (11th Cir.1990) ("When marijuana is discovered in

dry   leaf   form   after   harvest,   the   weight   measurement   is

appropriate.").12

                                  C.

      The government urges that our precedents are distinguishable


      11
      This language is holding rather than dictum because a
determination that the statutory scheme in fact favored growers
who have just completed their harvest over growers who have not
yet harvested their marijuana plants was a necessary predicate to
the Osburn court's subsequent consideration of the defendants'
constitutional challenge to that sentencing distinction. See
Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2996-97, 86
L.Ed.2d 664 (1985) (prior to reaching any constitutional
questions, federal courts must consider nonconstitutional grounds
for decision).
      12
      The government contends, relying on United States v.
Lewis, 762 F.Supp. 1314 (E.D.Tenn.), aff'd, 951 F.2d 350 (6th
Cir.1991) (table), that the 1988 amendment to § 841(b) made "the
entire plant in effect a mixture or substance containing
marijuana" so that "both dead and alive, harvested and
unharvested" plants are marijuana plants under the statute. Id.
at 1317. If that were the effect of the amendment, however, the
equivalency provision in U.S.S.G. § 2D1.1(c) would be
superfluous—instead of converting each live plant to 1 kg or 100
g of marijuana, the whole plant would simply be weighed as a
"mixture or substance containing a detectable amount of
marijuana" under § 841(b). This result does not appear to be
what Congress intended in introducing alternative "marihuana
plant" number and "mixture or substance" weight methods for
determining mandatory sentences.
because the instant case involves manufacturing and conspiracy to

manufacture plants rather than possession of marijuana plants with

intent to distribute.13     Because Congress intended to treat "plant

growers    more   harshly   than   those   convicted   of   [distribution]

marijuana crimes," Osburn, 955 F.2d at 1509, the government argues

that growers of plants and parties to conspiracies to grow plants

should not benefit from the happenstance of the timing of the

harvest.    Instead, the government suggests, relying on           United

States v. Haynes, 969 F.2d 569 (7th Cir.1992) and its progeny,14

     13
      At oral argument, the government contended that the 26
dead plants were grown during the course of the conspiracy
between O'Reilly and Shields, and hence were part of the base
offense level calculation because they were part of Shields's
offense of conviction. In the district court, however, the
government conceded that it could not show, even by a
preponderance of the evidence, that O'Reilly was in any way
connected with growing the 26 dead plants. In light of this
concession, we are hard-pressed to see how the 26 plants could
have been grown during the course of the O'Reilly/Shields
conspiracy.

          Nevertheless, Shields's individual act of
     "manufacturing" the 26 dead plants was "part of the same
     course of conduct or common scheme or plan as the offense of
     conviction [i.e., the conspiracy to manufacture]," U.S.S.G.
     § 1B1.3(a)(2), and should still be accounted for in
     sentencing. The government now argues that, in both
     manufacturing and conspiracy to manufacture cases,
     defendants should be responsible for the number of dead
     harvested plants produced (even if the dry leaf weight
     measure is proper in possession cases). While we ultimately
     disagree with this proposed distinction, the fact that the
     26 dead plants were not part of the manufacturing conspiracy
     is not ipso facto fatal to this argument, as the act of
     manufacturing was "relevant conduct."
     14
      See United States v. Atkinson, 15 F.3d 715, 719-20 (7th
Cir.1994) (following Haynes ); United States v. Young, 997 F.2d
1204, 1209 (7th Cir.1993) (same); United States v. Montgomery,
990 F.2d 266, 269 (7th Cir.1993) (same); but cf. United States
v. Young, 34 F.3d 500, 506 (7th Cir.1994) (marijuana
manufacturing co-conspirator who merely brokered sale of certain
quantity of consumable marijuana and was not part of conspiracy
when plants were grown had to be sentenced on basis of weight of
that it should be permitted to show by circumstantial evidence how

many already-harvested, long-dead plants were grown by defendants

charged with manufacturing or conspiracy to manufacture during the

time-frame   alleged   in   the   indictment.15     Alternatively,    the

government argues that because the object of Shields's conduct was

to grow a certain number of plants, he should be held accountable
                                           16
for what he intended to accomplish.               Under   either   theory,

according to the government, the district court properly sentenced

Shields by applying the 1 kg/plant equivalency to the number of

dead plants.17


harvested dry leaf for which he bargained because he could not
have reasonably foreseen underlying number of plants grown by
conspiracy). All of these cases involved Haynes's
coconspirators.
     15
      The Haynes court reasoned that the last sentence of the
U.S.S.G. § 2D1.1(c), n.*, ¶ 5 equivalency provision (the
"proviso") required that "the weight calculated with the [1
kg/plant] conversion factor," based on the number of dead,
harvested plants, should be used "if it is greater than the
actual weight of the consumable marijuana" produced. Id. at 572.
If courts must "automatically base sentence[s] upon the actual
weight of consumable product" once the plants have been
harvested, the court opined, the proviso "would be superfluous."
Id.
     16
      See Atkinson, 15 F.3d at 719-20 (object of conspiracy was
not simply to produce a quantity of dry leaf marijuana but also
to grow underlying number of plants, and defendant should
therefore be sentenced based on number of harvested plants rather
than amount of consumable marijuana produced); United States v.
Phillips, No. 94-5140, 1995 WL 82503 at *5-*6 (4th Cir. Feb. 27,
1995) (per curiam) (2-1) (200 seeds that never germinated and
died after planting could be counted as marijuana plants in
sentencing of manufacturing conspiracy defendant because he
intended to grow plants); cf. U.S.S.G. § 2D1.1, comment. (n. 12)
(drug quantity in conspiracy cases calculated, in certain
instances, by reference to amount defendant intended to produce).

     17
      Accord United States v. Wilson, --- F.3d ----, ----, 1995
WL 82877 at *3 (8th Cir.1995) (following Seventh Circuit;
manufacturing conspiracy defendant could be sentenced by applying
     The   government,   however,      overlooks     the   fact   that   the

defendants in Osburn were convicted of conspiracy to manufacture

marijuana plants, and the defendants in Bradley were convicted of

manufacturing marijuana plants.         See Osburn, 955 F.2d at 1502;

Bradley, 905 F.2d at 361.     Our decisions therefore contemplate the

use of actual post-harvest weight of consumable marijuana, rather

than presumed weight derived from the number of harvested plants,

for sentencing in manufacturing and conspiracy to manufacture, as

well as possession, cases.         See also United States v. Young,       39

F.3d 1561, 1571-72 (11th Cir.1994) (implicitly approving, without

comment,   the   sentencing   of    members   of   marijuana   growing   and

distribution conspiracy based on weight of dry leaf produced rather

than number of plants grown).18


the 1 kg/plant equivalency provision to number of
previously-harvested, now dead plants); United States v. Wegner,
--- F.3d ----, ----, 1995 WL 32008 at *3 (9th Cir.1995)
(declining to follow Osburn and following Haynes); manufacturing
defendant properly sentenced based on circumstantial evidence of
number of plants grown over course of operation because "one
kilogram conversion ratio applies even when live plants are not
seized"); see also United States v. Lewis, No. 91-5729, 951 F.2d
350 (table), 1991 WL 278965 at *2 (6th Cir. Dec. 30, 1991) (20
dead root balls could be counted as marijuana plants for
sentencing because they "were evidence that [defendant] had
manufactured those twenty plants during the relevant period"
charged in the indictment), aff'g 762 F.Supp. 1314, 1317
(E.D.Tenn.1991) ("neither the statute nor the Guidelines makes
any distinction between live and dead plants or between harvested
and unharvested plants"); cf. United States v. Murphy, 979 F.2d
287, 290 (2nd Cir.1992) (dictum) ("[I]f there is proof that a
defendant has recently harvested ... and the marijuana in his or
her possession is the fruit of those poisonous plants, then that
individual should be sentenced as if the plants had not yet been
harvested.") (emphasis added).
     18
      Accord United States v. Stevens, 25 F.3d 318, 321-23 (6th
Cir.1994) (following Osburn; declining to follow Haynes )
(equivalency provision applies only to live plants, and dead
plants must be accounted for based on weight of possessed or
distributed dry leaf marijuana produced from them); United
     Furthermore, Foree explicitly rejected the contention that

sentencing calculations in marijuana plant cases are guided solely

by reference to the defendant's intent.   See Foree, 43 F.3d at 1581

n. 13.    In such cases, the conspirators intend both to grow plants

and to harvest them and produce dry leaf marijuana.   The fact that

§ 841(b) creates alternative plant number and marijuana weight

sentencing regimes implies that growers should not continue to be

punished for plants when those plants cease to exist.        Accord

Stevens, 25 F.3d at 322-23 (canvassing legislative history of §

841(b) and concluding that dichotomous sentencing scheme requires

transition from plant number to marijuana weight method after

harvest);     but see Wegner, --- F.3d at ---- (statute does not

require that "reliable evidence as to plants, even if not seized,

must be for sentencing purposes transformed into evidence of a

proportionate amount of dry harvested marijuana").

     Because we do not agree that Foree, Osburn, and Bradley are

distinguishable from this case, the government's reliance on Haynes

and Atkinson is unavailing.19


States v. Blume, 967 F.2d 45, 49 (2nd Cir.1992) (following Osburn
) (same); see also United States v. Curtis, 965 F.2d 610, 616
(8th Cir.1992) (noting district court's elimination, at
sentencing of manufacturing conspiracy defendant, of "those
[marijuana] plants which appeared to be dead or dying").
     19
      We are, in any event, unpersuaded by the reasoning of
Haynes. The third sentence of U.S.S.G. § 2D1.1, comment.
(backg'd), ¶ 4 (Nov. 1994) provides: "For cases involving fewer
than fifty plants, the Commission has adopted an equivalency of
100 grams per plant, or the actual weight of the usable
marijuana, whichever is greater" (emphasis added). The
Background Commentary therefore makes clear that the Sentencing
Commission intended the equivalency provision proviso, on which
Haynes primarily relied, to apply only in cases involving fewer
than fifty plants. Because Haynes involved more than fifty
plants, the proviso could not have mandated the Seventh Circuit's
                                   III.

       We therefore reaffirm that dead, harvested root systems are

not   marijuana   plants   for   sentencing    purposes   irrespective   of

whether the defendant is convicted of possession, manufacturing, or

conspiracy to manufacture marijuana plants. 20        We leave it to the

district court to decide, in the first instance, how the 26 dead

root systems should be accounted for in sentencing in this case (as
                                          21
they cannot be counted as plants).               Accordingly, we VACATE


conclusion that dead marijuana plants may be resurrected for
sentencing. Cf. Hadfield v. United States, No. 92-1508, 979 F.2d
844 (table), 1992 WL 340307 at *6 n. 2 (1st Cir. Nov. 20, 1992)
(characterizing as "erroneous" the proposition that "a prosecutor
can use the drug equivalency tables in the Sentencing Guidelines
to convert an offender's possession of dried marijuana into
possession of marijuana plants").
      20
      We note, however, that our holding is a limited one. In
this case, the 26 root systems were both clearly harvested and
clearly dead. We express no opinion on any of the following:
(i) at what point a plant becomes "dead"; (ii) how a dead plant,
either still planted, or already removed from the soil, should be
accounted for if it has not yet been harvested; and (iii) if
dead but harvested plants are treated differently from dead but
unharvested plants, at what point a plant becomes "harvested."
Compare United States v. Cody, 7 F.3d 1523, 1527 (10th Cir.1993)
(counting "991 growing plants and 37 drying plants" without
discussion of whether the "drying" plants were either harvested
or dead). Furthermore, we do not decide whether circumstantial
evidence of the number of previously-harvested plants may be
introduced for non-sentencing purposes. See United States v.
Lennick, 18 F.3d 814, 820 (9th Cir.1994) (government entitled to
rely, at trial, on circumstantial evidence to estimate number of
plants manufactured and harvested during offense period, where
indictment charged specific number of plants), cert. denied, ---
U.S. ----, 115 S.Ct. 162, 130 L.Ed.2d 100 (1994).
      21
      Decisions of the Second and Sixth Circuit suggest one
possible method. See Stevens, 25 F.3d at 322-23 ("The proper way
to calculate the quantity of marijuana for sentencing ... is to
apply the [equivalency] provision only to live marijuana plants
found. Additional amounts for dry leaf marijuana that a
defendant possesses—or marijuana sales that constitute "relevant
conduct" that has occurred in the past—are to be added based upon
the actual weight of the marijuana and not based upon the number
of plants from which the marijuana was derived.") (emphasis
Shields's   sentence   and   REMAND   to   the   district   court   for

resentencing and other proceedings consistent with this opinion.




added); Blume, 967 F.2d at 49-50 (district court must sentence
defendant based on average yield of dry leaf produced by dead,
harvested plants over course of growing conspiracy).
