                   UNITED STATES COURT OF APPEALS

                            FIFTH CIRCUIT

                             ____________

                             No. 97-50425
                             ____________


          UNITED STATES OF AMERICA,

                                 Plaintiff-Appellee,

          versus

          DALTON KNIGHT WILSON,

                                 Defendant-Appellant.


          Appeal from the United States District Court
                for the Western District of Texas
                          (P-96-CR-086)
                           June 3, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Dalton    Knight   Wilson   appeals    from   his   conviction   for

possession of marijuana seeds with intent to manufacture marijuana

and attempt to manufacture and attempt to possess with intent to

distribute marijuana.    Wilson claims that the district court erred

in admitting an involuntary confession, refusing to charge the jury

on a lesser included offense, and equating a seed with a plant for

sentencing purposes.    We affirm.



     *
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
     Wilson contends that the district court erred in admitting his

post-arrest confession because the statement was allegedly induced

by threats to arrest his brother and to place his niece in the

custody of a child-welfare agency or in foster care.         See, e.g.,

Brown v. Mississippi, 297 U.S. 278, 286, 56 S. Ct. 461, 465, 80 L.

Ed. 682 (1936).      While the ultimate issue of voluntariness is a

legal question, subject to de novo review, we “must give credence

to the credibility choices and findings of fact of the district

court unless clearly erroneous.”       See United States v. Rogers, 906

F.2d 189, 190 (5th Cir. 1990) (citations omitted).           The record

demonstrates that at the time of his confession, Wilson was aware

that arrangements had been made for his niece’s mother to fly in

from California and pick up the child that evening.          The record

also reveals that at the time of Wilson’s confession, federal

agents had a good-faith basis for arresting Wilson’s brother.

These facts do not demonstrate coercion in any relevant, legal

sense, see Allen v. McCotter, 804 F.2d 1362, 1364 (5th Cir. 1986),

and we therefore find no error in the district court’s admission of

the confession.

     Wilson also claims that the district court erred by refusing

to instruct the jury on the lesser included offense of simple

possession of marijuana or simple possession of marijuana seeds.

A   defendant   is    not   entitled    to   a   lesser-included-offense

instruction unless: “(1) the elements of the [purported lesser]


                                  -2-
offense are a subset of the elements of the charged offense, and

(2) the evidence at trial permits a jury to rationally find the

defendant guilty of the lesser offense yet acquit him of the

greater.”      United States v. Lucien, 61 F.3d 366, 372 (5th Cir.

1995).    We   review   the   district         court’s    determination      of   the

respective statutory elements de novo, but, absent an abuse of

discretion, will accept the trial judge’s conclusion as to the

presence or absence of an evidentiary basis sufficient to warrant

a requested lesser-included-offense instruction.                    Id.      Wilson

asserts that the jury could find him guilty of possessing marijuana

with no intent to distribute or manufacture because Wilson admitted

at trial to possessing a certain small “baggie” of marijuana, found

near the front of Wilson’s van.           The possession of this marijuana,

however, is irrelevant to the two counts of the indictment, which

charged    only   possession        of   marijuana       seeds   with   intent     to

manufacture marijuana, and attempt to manufacture and attempt to

possess with intent to distribute marijuana.                See United States v.

Deisch, 20 F.3d 139, 142 (5th Cir. 1994) (holding that simple

possession is not a lesser included offense of attempt to produce

or attempt to possess with intent to distribute).                       As for an

instruction     regarding     the    lesser      included    offense    of   simple

possession of marijuana seeds, we find no abuse of discretion in

the district court’s denial of this instruction.                 Wilson’s defense

rested on denying that he knew anything about the seeds, and that


                                         -3-
the growing equipment found in the back of his van was for

cultivating fruits and vegetables, not marijuana.               This testimony

does not provide a basis on which a rational jury could find Wilson

guilty of simply possessing the seeds, but not guilty of intending

to manufacture marijuana.         See United States v. Harrison, 55 F.3d

163, 168 (5th Cir. 1995) (finding no error in the district court’s

refusal of a simple possession instruction when the indictment

charged     possession   with     intent    to   distribute     and   officers

discovered a large amount of the drug in defendant’s dresser, along

with two “tools of the trade”——a loaded pistol and a large amount

of cash).

     With regard to his sentence, Wilson claims that the district

court erred in: (1) concluding, as a matter of law, that a seed is

a “plant” for purposes of 21 U.S.C. § 841(b)(1)(A)(vii), (2)

punishing    Wilson   for   the   unindicted     offense   of   manufacturing

marijuana plants, as opposed to actual marijuana, and (3) refusing

to calculate Wilson’s sentence based on the actual weight of the

seeds possessed, rather than on some hypothetical estimation of how

many marijuana plants those seeds might produce.                Even assuming

that the district court’s methodology was correct, Wilson claims

that the district court erred by relying on speculative testimony

regarding (1) the actual number of seeds possessed by Wilson and

(2) the number of plants realistically producible from that number

of seeds.     In assessing Wilson’s claims of error, we review the



                                      -4-
district court’s factual findings regarding the amount of seeds and

what the seeds might produce only for clear error.      See United

States v. Underwood, 61 F.3d 306, 308 (5th Cir. 1995).         The

district court’s application of the guidelines to those facts is

reviewed de novo.    Id.

     We find no clear error in the district court’s decision to

credit the government’s estimation of the number of seeds possessed

by Wilson.   The probation officer testified at Wilson’s sentencing

hearing that a DEA agent arrived at this estimate by weighing one

seed, rounding up to the nearest gram, and then dividing that

rounded number into the total weight of the seeds.    The district

court also granted Wilson’s request for a period of several days in

which to examine the actual seeds and report back to the court if

he arrived at a number “substantially less” than the government’s

estimate of 2,720.   Wilson never informed the court of the results

of this endeavor.

     As for the district court’s alleged assumption that each of

the 2,720 seeds, if planted, would produce a plant, we find this

assumption, if indeed it was made, irrelevant to the district

court’s application of the Sentencing Guidelines.     The district

court followed the PSR in assigning Wilson a criminal history

category of VI and an offense level of 37, based on Wilson’s status

as a “career offender.” See U.S.S.G. § 4B1.1 (“A career offender’s

criminal history category in every case shall be Category VI.”).


                                -5-
The PSR arrived at an offense level of 37 by crediting the

government’s estimation that Wilson was in possession of over 2,000

marijuana seeds, and then equating “one marijuana seed to one

marijuana plant.”    The statutory maximum for an offense “involving

over 1,000 marijuana plants,” is life in prison, see 21 U.S.C. §

841(b)(1)(A)(vii),    and   the   career    offender   provisions     of   the

sentencing guidelines therefore established Wilson’s offense level

as 37.    See U.S.S.G. § 4B1.1(a).

     While Wilson is correct that a seed is not a “plant,” at least

within the meaning of § 841(b)(1)(A)(vii), see United States v.

Fitch, 137 F.3d 277, 282 (5th Cir. 1998) (“For the purposes of . .

. [21 U.S.C.] § 841(b) it is irrelevant whether the plants involved

in the offense were alive, cut, harvested or processed when seized,

provided that they were alive sometime during the commission of the

offense.”)(emphasis added); U.S.S.G. § 2D1.1, application note 18

(“For purposes of the guidelines, a ‘plant’ is an organism having

leaves and a readily observable root formation.”), Wilson fails to

recognize that his attempt to manufacture offense will be punished

as if he had in fact succeeded in using the seeds to manufacture

marijuana. See U.S.S.G. § 2D1.1, background, cl. 4 (“In controlled

substance offenses, an attempt is assigned the same offense level

as the object of the attempt.”).            Assuming the success of the

charged   attempt,   Wilson’s     offense   would   “involve   over    1,000




                                    -6-
marijuana plants,”1 and § 841(b)(1)(A)(vii) would apply, meaning

that the appropriate offense level is in fact 37.

     Accordingly,   we   AFFIRM   Wilson’s   conviction   and   sentence.

Counsel’s motion to be relieved of representation of Wilson is

DENIED.




     1
       In written objections to the PSR, Wilson points out that the
government’s expert established at trial that over a period of
several days, only 25% of a sample of the seeds in Wilson’s
possession sprouted. Whatever this testimony might say about what
Wilson could have done with this particular group of seeds, it says
nothing about what he intended to do with them.         See, e.g.,
U.S.S.G. § 2D1.1, background, cl. 4 (providing that each marijuana
plant will be presumed to produce the “average” yield of 100 grams
of marijuana, even if the plant actually produces less, citing the
general rule that attempts are punished as if accomplished).
Wilson introduced no evidence at trial or sentencing indicating
what he or the average person would expect to grow from a bag of
over 2,000 seeds. Indeed, the only testimony regarding expected,
rather than actual, sprout rates came from Agent Stokes, who stated
that 80% was a “good” percentage of successful seedlings.        We
therefore find no clear error in the district court’s determination
that Wilson intended to produce at least 1,000 plants with the more
than 2,000 seeds in his possession.

                                   -7-
