                                                             [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                    FILED
                                                           U.S. COURT OF APPEALS
                               No. 10-10994                  ELEVENTH CIRCUIT
                           Non-Argument Calendar              FEBRUARY 16, 2011
                         ________________________                 JOHN LEY
                                                                   CLERK
                     D.C. Docket No. 3:09-cr-00082-LC-1

UNITED STATES OF AMERICA,

                                                lllllllllllllllllllllPlaintiff-Appellee,

                                    versus

MICHAEL PHILLIP KESSLER,

                                             lllllllllllllllllllllDefendant-Appellant.

                         _______________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       ________________________

                             (February 16, 2011)



Before BLACK, HULL and MARTIN, Circuit Judges.

PER CURIAM:

     Michael Phillip Kessler appeals his convictions and sentences for
manufacturing more than 100 marijuana plants, in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(B)(vii), and conspiracy to manufacture and possess with

intent to distribute more than 100 marijuana plants, in violation of 21 U.S.C. §§

846, 841(a)(1) and (b)(1)(B)(vii). Kessler raises several issues on appeal, which

we address in turn. After review, we affirm Kessler’s convictions and sentences.

                                          I.

      Kessler first argues there was insufficient evidence to support his

convictions because the testimony of his unindicted co-conspirator, Eric Rogers,

was so incredible that, as a matter of law, no rational trier of fact could rely upon

his testimony to sustain Kessler’s conviction. He argues Rogers was the only

person to connect him to the growing operation and letting his conviction stand on

the basis of Rogers’ testimony would result in a complete miscarriage of justice.

      We review de novo the disposition of a defendant’s properly preserved

motion for judgment of acquittal. United States v. Perez-Tosta, 36 F.3d 1552,

1556 (11th Cir. 1994).

      To obtain a conviction under § 841(a)(1), the Government had to prove

beyond a reasonable doubt that Kessler knowingly or intentionally manufactured

marijuana. See 21 U.S.C. § 841(a)(1). With regard to the conspiracy charge, the

Government had to prove: (1) an illegal agreement existed to manufacture or

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possess with intent to distribute marijuana; (2) Kessler knew of the agreement; and

(3) Kessler knowingly and voluntarily joined the agreement. See United States v.

Charles, 313 F.3d 1278, 1284 (11th Cir. 2002).

       Viewing all the evidence in the light most favorable to the Government,

there was sufficient evidence to support Kessler’s convictions. First, contrary to

Kessler’s assertion, Rogers did not provide the only testimony linking Kessler to

the home at 9014 Bone Bluff Drive. McCullom testified he rented the home to a

man named Michael Kessler and he was paid from Kessler’s bank account.

Kessler’s bank accounts revealed he had made monthly payments to McCullum.

Moreover, the home’s electricity was in Kessler’s name.

       Further, Rogers’ testimony was not incredible as a matter of law.1 Rogers’

prior conviction, status as a cooperating witness, and capacity for truthfulness

were explored on both direct and cross-examination. The trial judge properly

instructed the jury on how to assess the credibility of witnesses and the particular

caution that should be exercised when assessing the credibility of a cooperating

witness. Thus, to the extent Rogers’ testimony was necessary to convict Kessler,



       1
         We have repeatedly acknowledged that credibility determinations should be made by the
jury. United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (collecting cases). Unless
the witness’s testimony was incredible as a matter of law, courts should not disturb the jury’s
credibility determination. Id.

                                               3
the jury’s verdict implicitly reveals the jury found Rogers credible despite the

impeaching evidence presented. Kessler cannot establish Rogers’ testimony was

incredible as a matter of law merely by pointing out that he had lied in the past,

been involved in criminal activity, and stood to benefit from his testimony. See

United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985).

                                                II.

       Kessler also challenges the district court’s finding that the offenses of

conviction involved 100 or more marijuana plants. Kessler asserts: (1) only

Detective Tara Milstead testified there were 100 or more plants that were live and

mature, with leaves and readily observable root formation; (2) Milstead’s

credibility was impeached by the testimony of the other witnesses who did not

observe 100 or more marijuana plants; and (3) the district court’s reliance on the

jury’s special finding that the offenses involved 100 or more plants was not

specific enough to establish the threshold amount for triggering the ten-year

mandatory minimum sentence.

       We review a district court’s factual findings regarding drug quantity for

clear error. United States v. Robinson, 935 F.2d 201, 205 (11th Cir. 1991).2


       2
         A district court’s factual findings are not clearly erroneous when they are supported by
the testimony of law enforcement officers. United States v. Shields, 87 F.3d 1194, 1196 n.1
(11th Cir. 1996) (en banc).

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      The Sentencing Guidelines provide that “a ‘plant’ is an organism having

leaves and a readily observable root formation (e.g., a marihuana cutting having

roots, a rootball, or root hairs is a marihuana plant).” U.S.S.G. § 2D1.1(c) cmt.

n.17; see also United States v. Foree, 43 F.3d 1572, 1579-81 (11th Cir. 1995)

(holding that for sentencing purposes, cuttings and seedlings are not marijuana

plants unless there is some readily observable evidence of root formation).

      The district court did not clearly err when it found Kessler was responsible

for more than 100 marijuana plants and, thus, subject to a ten-year mandatory

minimum. First, Milstead’s testimony supported the district court’s finding.

Milstead testified three times about the amount of drugs found at 9014 Bone Bluff

Drive, and all three times she stated there were more than 200 marijuana plants.

She also testified she observed root formations on all the plants she counted.

      Milstead’s testimony was not impeached by that of the other witnesses. To

the extent McCollum and Brinkeroff testified there were a smaller number of

plants, their estimates do not include plants that were found in the garage.

Moreover, Rogers testified there were 8 plants in one closet, roughly 50 plants in

the other closet, and 64 plants in the garage, and he was sure the cuttings had roots

when they were seized.

      Further, the jury’s verdict supported the district court’s finding. The jury

                                          5
was instructed that a marijuana plant is defined as an organism having leaves and a

readily observable root formation and that cuttings could not count as plants

unless they had some readily observable evidence of root formation. The jury then

specifically found both counts involved 100 or more marijuana plants.

Accordingly, we affirm Kessler’s convictions and sentences.

      AFFIRMED.




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