210 F.3d 788 (7th Cir. 2000)
UNITED STATES OF AMERICA,    Plaintiff-Appellee,v.JAMES G. SWANSON,    Defendant-Appellant.
No. 99-3061
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 24, 2000Decided April 24, 2000

Appeal from the United States District Court  for the Western District of Wisconsin.  No. 99-CR-25-S--John C. Shabaz, Chief Judge.
Before POSNER, Chief Judge, and CUDAHY and EVANS,  Circuit Judges.
TERENCE T. EVANS, Circuit Judge.


1
One issue on this appeal  presents an interesting question: Do "dead"  marijuana plants add up to trouble for a  defendant under the federal sentencing  guidelines?


2
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.


3
Swanson tried, unsuccessfully, to suppress the  evidence obtained from the search. Afterwards, he  entered a conditional guilty plea to the charge  and was sentenced to a term of 42 months in  prison. He appeals, alleging that the police  intentionally or recklessly included false  information in the affidavit which led the state  judge to issue the search warrant. Failing that,  he claims that the search warrant was not  supported by probable cause. Finally, he tags on  an interesting sentencing issue, arguing that  remnants of marijuana plants--dead plants, he  says--found on his property should not have been  included in determining the size of his weed-  growing operation.


4
The search warrant issues can be quickly  brushed aside. The search warrant was issued in  reliance on the detailed, four-page, single-  spaced affidavit of Detective Tom Meyer, a 15-  year law enforcement veteran with substantial  experience in investigating drug cases. Contrary  to Swanson's alternative argument that the  affidavit contains no probable cause, we find,  despite some minor flaws, that it's brimming with  it. So we move to the claim that material  misstatements intentionally or recklessly crept  into Meyer's affidavit.


5
Franks v. Delaware, 438 U.S. 154 (1978), sets  out the standards for challenging the validity of  search warrants obtained with the help of factual  misrepresentations, usually in affidavits but  sometimes in sworn testimony. To obtain a hearing  here, dubbed a Franks hearing after 1978, Swanson  had to establish by a "substantial preliminary  showing" that: (1) the affidavit contained a false material statement; (2) the affiant made  the false statement intentionally, or with  reckless disregard to the truth; and (3) the  false statement is necessary to support the  finding of probable cause. 438 U.S. at 155-56;  United States v. Pritchard, 745 F.2d 1112 (7th  Cir. 1984). These elements are hard to prove, and  thus Franks hearings are rarely held.


6
Swanson's attacks here amount to little more  than throwing pebbles at a tank. He makes several  weak claims but we will mention only a few.  First, he says Meyer provided misleading  information because he failed to tell the issuing  judge that Swanson's residence was bigger than a  neighbor's residence used for purposes of  comparing electrical use. Second, he alleges  false and misleading statements about his tax  returns were included in the affidavit. Also, he  cites "misleading" statements about his real  estate--omitting the fact that his $609,917  property was encumbered by a $508,000 mortgage.


7
A lot of heat, and thus electricity, is needed  to grow marijuana, and Detective Meyer reported  that he obtained energy usage records for  Swanson's residence. Those records revealed that  Swanson's average monthly use of electricity  increased every year from 1994 through 1998,  starting at 1,443 kilowatt hours per month,  progressing to 2,347 kwh/month, 5,057 kwh/month,  and 6,804 kwh/month. In 1998, Swanson averaged  9,615 kwh/month. Meyer contrasted this electrical  use with that of an unidentified neighbor of  Swanson's who averaged only 1,408 kwh/month in  1997 and 1,424 kwh/month in 1998. This  information tended, if ever so slightly, to show  that something other than TV dinners were cooking  at Swanson's.


8
In another part of his affidavit, Detective  Meyer reported that a different state agent  reviewed Swanson's tax returns for 1995-1997. In  those returns, Swanson identified himself as an  "operative builder." Swanson had no W-2's. In  1995, while living at a different residence in  Spring Green, Swanson declared an adjusted gross  loss of $8,531, with inventory at $257,909. In  1996, Swanson declared an adjusted gross income  of $3,586, with an ending inventory of $229,429.  In 1997, Swanson reported an adjusted gross  income of $46,197, with a year-end inventory of  $239,681. Swanson's return for 1997 also revealed  mutual fund investments generating $1,989 in  income.


9
Detective Meyer reported that he had reviewed  records of the Sauk County register of deeds  which disclosed that Swanson's property had a  fair market value of $607,917 in 1998. (Detective  Meyer also reviewed Wisconsin DOT records which  indicated that Swanson owned a 1954 Dodge truck,  1965 Porsche, 1967 Land Rover, 1989 Ford truck,  and a 1998 Audi station wagon.) No mortgage on  the real property was reported.


10
As to the abnormally high electricity used on  the Swanson property, he has a point, although it  is a minor one at best. Swanson's property was  bigger than his neighbor's. But the lack of a  comparison only lessens the weight of the  allegations. If Meyer had intentionally said the  properties were the same exact size, when they  really were materially different, we would have  something closer to a Franks violation. Because  no comparison is explicitly stated, the  allegation ceases to be particularly useful in  establishing probable cause. And an unimportant  allegation, even if viewed as intentionally  misleading, does not trigger the need for a  Franks hearing.


11
As for the tax records, Swanson argues that  Meyer misled the issuing judge because he failed  to include all of the information from the tax  returns. But there is no evidence to suggest that  Meyer intentionally withheld additional  information to trick the judge. The failure to  include more information, which would have given  a more complete picture of Swanson's "business"  and thus shed more light on whether or not it was  a "front" for an illegal operation, is little  more than negligence. And negligence is no basis  for convening a Franks hearing.


12
Finally, nothing in Swanson's offer of proof  shows that Detective Meyer knew about the  mortgage on the property and disregarded or hid  it from the issuing judge. In essence, then,  Swanson is saying that the investigators should  have done more work. This, however, is not the  high standard required for convening a Franks  hearing. Swanson simply fails to explain why the  district court's finding on this issue that  "there is no evidence that the police learned  this information and then failed to include it in  the affidavit; any failure to actually verify  this point is at most negligence" is clearly  erroneous. Finally, Detective Meyer accurately  reported to the issuing judge the "fair market  value" of the property owned by Swanson. He did  not characterize this figure as a "net equity  position."


13
We could go on and on, but what's the point?  Nothing here suggests that a Franks hearing was  required: At the very most, a little negligence  was at work. But a little negligence--actually  even a lot of negligence--does not the need for  a Franks hearing make.


14
This brings us to the sentencing issue. 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.


15
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.


16
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).


17
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).


18
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).


19
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.


20
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.


21
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.


22
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.


23
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.


24
For all these reasons, the judgment of the  district court is AFFIRMED.



Notes:


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.


