                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0292p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                            X
                                       Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                             -
                                                             -
                                                             -
                                                                 No. 07-1706
              v.
                                                             ,
                                                              >
 JESSICA OLSEN,                                              -
                                    Defendant-Appellant. -
                                                            N
                              Appeal from the United States District Court
                           for the Western District of Michigan at Marquette.
                           No. 02-00004-001—R. Allan Edgar, District Judge.
                                            Argued: July 25, 2008
                                   Decided and Filed: August 14, 2008
               Before: COLE and CLAY, Circuit Judges; RUSSELL, District Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,
Michigan, for Appellant. Nils R. Kessler, ASSISTANT UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee. ON BRIEF: Paul A. Peterson, FEDERAL PUBLIC
DEFENDER’S OFFICE, Marquette, Michigan, for Appellant. Nils R. Kessler, ASSISTANT
UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        CLAY, Circuit Judge. Defendant, Jessica Olsen, appeals from an order entered by the United
States District Court for the Western District of Michigan sentencing her to 41 months of
imprisonment and two years of supervised release for possession with intent to distribute marijuana
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). Specifically, Olsen contends that the district
court erred in calculating the drug quantity attributable to her for purposes of establishing her base
offense level. For the reasons that follow, we REVERSE the judgment of the district court.




        *
         The Honorable Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting
by designation.


                                                         1
No. 07-1706                      United States v. Olsen                                                     Page 2


                                               BACKGROUND
        On January 15, 2002, after receiving a tip from an informant regarding illegal manufacturing,
possession and sale of marijuana by Joseph Olsen, members of the Upper Peninsula Substance
Enforcement Team obtained and executed a search warrant for Joseph Olsen’s home. Joseph Olsen
resided in the home with his wife, Defendant Jessica Olsen (“Olsen”). While searching the home,
police discovered a “5' x 5' x 5' growing chamber set up for the hydroponic cultivation of marijuana
in [the] basement.” (J.A. at 10) The basement contained approximately 168 live plants and 137
recently harvested plants. Additionally, police       found 557.8 grams of processed marijuana,
apparently the proceeds of the harvested plants.1
        Olsen arrived as police were executing the search warrant and agreed to an interview with
police. During the interview, Olsen indicated that she knew the substance being grown in her home
was marijuana and that she intended to distribute it. Olsen also stated that she helped to build the
hydroponic growing chamber. According to an affidavit filed by a law enforcement officer that
searched Olsen’s home, an informant reported that “Ms. Olsen had admitted to purchasing the
building materials with her own money.” (Id.)
        On February 13, 2002, a grand jury sitting in the Western District of Michigan issued a two
count indictment against Olsen, charging her with manufacturing more than 100 marijuana plants
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) as well as possession with intent to distribute
marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D).
        Approximately two months after the grand jury issued the indictment, Olsen entered into a
plea agreement with the government. Under the terms of the agreement, Olsen was to plead guilty
to count two of the indictment. The government, apparently based on its belief that Olsen was less
culpable than her husband, agreed to dismiss the first count of the indictment which alleged that
Olsen manufactured more than 100 marijuana plants. According to the factual basis of the
agreement, Olsen acknowledged jointly possessing 557.8 grams of marijuana with her husband with
the intent to distribute the marijuana. The agreement did not, however, specify the appropriate
Guidelines range and the “parties reserve[d] the right to seek any sentence within the statutory
maximum, and to argue for any criminal history category and score, offense level, specific offense
characteristics, adjustments and departures.” (J.A. at 16-17) On May 1, 2002, Olsen appeared
before a magistrate judge and pleaded guilty to possession with intent to distribute marijuana. The
magistrate judge’s acceptance of Olsen’s plea was subsequently adopted by the district court.
       In July of 2002, Olsen was scheduled to appear before the district court for sentencing.
Olsen, however, absconded prior to the hearing. Thereafter, the government requested that Olsen’s
bond be revoked pending sentencing. A magistrate judge granted the motion and issued a warrant
for Olsen’s arrest. On March 27, 2007, Olsen was apprehended in San Diego, California and
incarcerated pending sentencing.
       Prior to sentencing, a presentence investigation report (“PSR”) was prepared. The PSR
recommended against the application of a reduction for acceptance of responsibility, citing Olsen’s
“absconding from pre-trial supervision” and her statements in which she “falsely deni[ed] providing
growing and distribution assistance over the course of the instant offense . . . .” (J.A. at 79) Olsen’s
base offense level was calculated at 18 because the offense involved “at least 20 but less than 40
kilograms of marijuana. According to the Offense Conduct section, [Olsen’s] criminal activity
involved 30.5 kilograms of marijuana.” (J.A. at 80) The PSR calculated the drug quantity amount
based on the equivalency ratio provision contained in USSG § 2D1.1. Under that provision, the 168

         1
           Joseph Olsen was arrested by police during the search of the Olsen residence. Mr. Olsen, however, is not a
party to the instant appeal.
No. 07-1706                   United States v. Olsen                                             Page 3


live plants and the 137 harvested plants found at the Olsen residence were multiplied by “100 grams
each for a total of 30.5 kilograms of marijuana.” (J.A. at 79) After a two-level enhancement for
obstruction of justice, Olsen’s total offense level was calculated at 20. The PSR determined Olsen
to be in criminal history category II. Olsen’s total offense level and criminal history category placed
her in the Guidelines range of 37-46 months of imprisonment.
        On May 24, 2007, Olsen appeared before the district court for sentencing. During the
hearing, Olsen raised an objection to the PSR’s method of calculating the drug quantity amount
attributable to her for purposes of sentencing. Although conceding that the 168 live marijuana plants
found during the search of her home were subject to § 2D1.1’s 1-to-100 equivalency ratio, Olsen
argued that the harvested plants should not fall under the equivalency provision. Rather, she
contended, the harvested plants should be calculated based on the weight of the marijuana actually
produced by the plants, which was estimated to be 557.8 grams by law enforcement officers.
Accordingly, Olsen asserted “[t]hat [the] total, which would be just over 17 kilograms, would be in
the lower guidelines category of 15, as opposed to 18.” (Id.) The district court, however, rejected
Olsen’s objection, noting that it found “that the pre-sentence report is correct, that the guidelines as
calculated, the drug quantity, at least as calculated there, is correct.” (J.A. at 54) Thus, the district
court treated the harvested plants as if they were live plants for purposes of sentencing and applied
the equivalency ratio.
         After hearing arguments from Olsen and the government regarding the appropriate sentence,
the district court sentenced Olsen to 41 months of imprisonment and two years of supervised release.
Olsen now timely appeals.
                                            DISCUSSION
        A.      Standard of Review
        This Court generally reviews a district court’s drug quantity calculation for clear error.
United States v. Swanberg, 370 F.3d 622, 624-25 (6th Cir. 2004). However, “[q]uestions involving
the interpretation of the guidelines are legal questions that this Court reviews de novo.” United
States v. Murphy, 241 F.3d 447, 458 (6th Cir. 2001); see also United States v. Edge, 989 F.2d 871,
876 (6th Cir. 1993) (“Defining the word ‘plant’ for purposes of the Sentencing Guidelines is a
question of statutory construction subject to de novo review.”) (citation and quotation marks
omitted).
        B.      Analysis
        Olsen contends that the district court improperly calculated the amount of marijuana in
determining her base offense level under USSG § 2D1.1(c). Olsen asserts that the district court’s
use of the 1-to-100 equivalency ratio was inappropriate with respect to the 137 harvested plants
seized during the execution of a search warrant at her home. Instead, Olsen argues that the district
court should have utilized the actual weight of the 557.8 grams of marijuana harvested from the 137
plants to calculate her base offense level. We agree.
       As a general matter, the drug quantity table of the Sentencing Guidelines determines the
offense level for marijuana crimes based on the weight of the marijuana attributable to a defendant.
However, “[w]hen a person is apprehended with marijuana plants . . . the appropriate weight of the
marijuana cannot be determined simply by weighing the plants, for Congress has criminalized
possession of only consumable portions of the plant . . . .” United States v. Stevens, 25 F.3d 318,
320-21 (6th Cir. 1994). Rather, under § 2D1.1(c) of the Guidelines, the base offense level of a
defendant convicted of a drug offense involving marijuana plants is established pursuant to what is
known as the “equivalency ratio” provision. Specifically, the equivalency ratio states that:
No. 07-1706                   United States v. Olsen                                             Page 4


        In the case of an offense involving marihuana plants, treat each plant, regardless of
        sex, 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.
USSG § 2D1.1(c), Application note E. According to the commentary accompanying § 2D1.1(c),
“[t]he decision to treat each plant as equal to 100 grams is premised on the fact that the average yield
from a mature marihuana plant equals 100 grams of marihuana.” Id.
         In determining when the equivalency ratio is applicable, this Court has drawn a distinction
between different types of marijuana crimes that involve the growth and harvesting of marijuana
plants. Specifically, in Stevens, 25 F.3d 318 (6th Cir. 1994), and Oliver v. United States, 90 F.3d
177 (6th Cir. 1996), this Court held that the equivalency ratio is inapplicable to harvested plants in
the context of marijuana possession crimes and applicable to such plants in the context of sentencing
for marijuana manufacturing convictions. Because the parties do not dispute the propriety of the
district court’s use of the equivalency ratio with respect to the live marijuana plants seized at Olsen’s
home, the critical question becomes whether the harvested plants can be similarly subject to the ratio
under the factual circumstances surrounding Olsen’s offense. Thus, an extended discussion of
Stevens and Oliver is warranted.
        In Stevens, this Court considered a challenge to the application of the equivalency ratio
where a defendant was convicted of conspiracy to possess marijuana with intent to distribute. 25
F.3d at 320. There, the defendant was indicted for the conspiracy offense after law enforcement
officers made a number of controlled purchases of marijuana and seized additional amounts of
marijuana while executing a search warrant at the defendant’s home. Id. Before the grand jury, the
government called the defendant’s supplier who testified regarding his history of providing
marijuana to the defendant. Id. In particular, the supplier testified that approximately 1600
marijuana plants were grown and/or harvested over the course of the conspiracy. Id.
        At sentencing, the district court “determined [the defendant’s] base offense level using the
drug quantity table in § 2D1.1 of the Guidelines.” Id. The district court disregarded the actual
amount of consumable marijuana police purchased from the defendant and seized during the search
of the defendant’s home. Instead, the district court found the defendant to be responsible for 1600
plants, both live and harvested, grown by his supplier as “relevant conduct” that was attributable to
the defendant as a coconspirator. Id.
        On appeal, this Court reversed the district court’s application of the equivalency ratio to
harvested plants. After reviewing the legislative history and a number of cases interpreting the
equivalency provision, the Stevens court noted that “[t]he equivalency provision was developed to
apply in sentencing when the plants have not been harvested.” Id. at 323. Thus, this Court held that
“[t]he proper way to calculate the quantity of marijuana for sentencing here, then, is to apply the
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.” Id. at 323. See also United States v. Blume, 967
F.2d 45, 49 (2d Cir. 1992) (holding that § 2D1.1’s ratio applies only to live plants, rather than dry
leaf marijuana).
         In Oliver v. United States, however, a panel of this Court narrowly interpreted the holding
of Stevens. There, a defendant pleaded guilty to manufacturing marijuana. At sentencing, the
district court computed the defendant’s base offense level utilizing the equivalency ratio at issue in
Stevens. As in Stevens, the district court applied the equivalency ratio to plants that had been
harvested before being seized by law enforcement. 90 F.3d at 178. On review, this Court held that
the defendant could not avail himself of the Stevens decision because Stevens was deemed to be
No. 07-1706                       United States v. Olsen                                                       Page 5


“distinguishable on the basis of the underlying crime” based on the fact that the defendant was
convicted of manufacturing marijuana whereas Stevens involved a conviction for possession with
intent to distribute. Id. at 179. The panel noted that “[t]his Circuit recognizes that one reason
behind the equivalency ratio in marijuana sentencing is to punish marijuana growers more harshly
than mere marijuana possessors.” Id. (citing United States v. Holmes, 961 F.2d 599, 601 (6th Cir.
1992)). “If the equivalency ratio were deemed inapplicable in cases such as this, where a convicted
grower of marijuana has just harvested his crop, this goal would be frustrated. So long as the
government can prove, by a preponderance of the evidence, that a particular grower charged with
manufacture grew a particular plant, sentencing should be based on the equivalency ratio in the
sentencing guidelines.” Id. Thus, this Could held that “the equivalency ratio should remain
applicable to harvested plants  in manufacture cases in order to treat all defendants convicted of
manufacturing the same.”2 Id.
         We find that, when read together, Stevens and Oliver require that the harvested, dry leaf
marijuana attributable to Olsen be calculated based on weight. Thus, the district court’s application
of the equivalency ratio to the harvested plants for the purpose of establishing Olsen’s base offense
level was in error. In the instant case, police found approximately 168 live marijuana plants and 137
harvested plants from which 557.8 grams of consumable marijuana was derived. Inasmuch as police
found the harvested amount of consumable marijuana, as in Stevens, there is no need to speculate
regarding the amount of marijuana that could have been produced by the plant such that the 1-to-100
ratio is unnecessary. Moreover, unlike Oliver, Olsen was not convicted of marijuana manufacturing,
but rather possession of marijuana with intent to distribute. Indeed, the government noted at Olsen’s
sentencing hearing that she was offered the opportunity to plead guilty to the possession offense
because she was less culpable than her husband. Therefore, the overall purpose of the equivalency
ratio, to punish those convicted of marijuana manufacturing, will not be undermined.
        The government, however, contends that the harvested plants are attributable to Olsen, and
thus should be treated as live plants under the equivalency ratio provision for purposes of
sentencing, pursuant to the relevant conduct provision of the Guidelines. In particular, the
government contends that because Olsen admitted to assisting with the purchase of materials used
to build the marijuana lab, that the factual predicate involved in this case is more akin to Oliver than
to Stevens. Thus, the government contends that Olsen’s relevant conduct subjects the harvested
plants to the equivalency provision. This argument is without merit.
        As an initial matter, a defendant who is convicted of a possession or distribution offense is
not subject to the equivalency provision merely because their relevant conduct involves a degree of
manufacturing activity. Indeed, in Stevens, the defendant was similarly subject to the relevant
conduct provision of the Guidelines because he was a coconspirator of a marijuana manufacturer
in a distribution offense. There, the defendant consulted with the grower regarding the number of
plants needed to supply the marijuana distribution conspiracy. Thus, as a coconspirator, the
defendant was liable for the foreseeable criminal acts, i.e., marijuana manufacturing, of
coconspirators. Stevens, 25 F.3d at 322-23. Nevertheless, the Stevens court held that, to the extent
that the defendant could be held responsible for his coconspirator’s manufacturing activities under


         2
           As the government notes, most of the circuits that have considered this issue have reached a conclusion that
is in accord with Oliver. Indeed, with the exception of the Second and Sixth Circuits, the courts of appeals have
interpreted the equivalency provision to apply to both live and harvested plants when the defendant was involved in the
cultivation of the marijuana plants. See United States v. Layman, 116 F.3d 105, 109-10 (4th Cir. 1997); United States
v. Fitch, 137 F.3d 277, 280-82 (5th Cir. 1998); United States v. Montgomery, 990 F.2d 266, 269 (7th Cir. 1993); United
States v. Wilson, 49 F.3d 406, 410 (8th Cir. 1995); United States v. Wegner, 46 F.3d 924, 928 (9th Cir. 1995); United
States v. Silvers, 84 F.3d 1317, 1327 (10th Cir. 1996); United States v. Shields, 87 F.3d 1194, 1197 (11th Cir. 1996).
However, it does not appear that the other circuits have explicitly limited the application of the equivalency provision
to marijuana manufacturing convictions as this Court did in Oliver.
No. 07-1706                 United States v. Olsen                                          Page 6


the relevant conduct provision, any marijuana harvested must be measured by weight rather than the
equivalency provision. Id. In short, under Stevens, a district court is not barred from considering
manufacturing activity as relevant conduct in sentencing a defendant convicted of possession or
distribution, it is simply limited in terms of how such conduct is measured for purposes of
sentencing. Indeed, Oliver confirms this limitation based on its explicit application of the
equivalency provision in the context of convictions for marijuana manufacturing. Thus, contrary
to the government’s assertion, the district court erred in applying the equivalency provision to
harvested plants to Olsen in a case that did not involve a conviction for marijuana manufacturing.
                                        CONCLUSION
       For the reasons set forth above, we REVERSE the district court’s judgment, VACATE
Olsen’s sentence and REMAND for further proceedings consistent with this opinion.
