                    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.

                            June 19, 1996.

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 TJOFLAT, Chief Judge, and KRAVITCH, HATCHETT, ANDERSON,
EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit
Judges.

     COX, Circuit Judge:

     The primary issue in this appeal is whether, under 21 U.S.C.

§ 841 and U.S.S.G. § 2D1.1, a marijuana grower who is apprehended

after his marijuana crop has been harvested should be sentenced

according to the number of plants involved in the offense or

according to the weight of the marijuana.      A panel of this court

held that, under our precedents, a grower who is apprehended after

harvest may not be sentenced according to the number of plants

involved.     United States v. Shields, 49 F.3d 707, 712-13 (11th

Cir.1995).    We vacated the panel opinion and granted rehearing en

banc.   United States v. Shields, 65 F.3d 900 (11th Cir.1995).    We

hold that a defendant who has grown and harvested marijuana plants

should be sentenced according to the number of plants involved, and

affirm the district court.

                             I. Background

     Maurie Shields and Joseph O'Reilly rented a house in Marietta,
Georgia, where they grew marijuana in the basement.                  When law

enforcement officers searched the house, they discovered 27 live

marijuana plants in a hydroponic garden.              During the search, the

officers also discovered a trash can which contained the remains of

marijuana plants that Shields previously had harvested.                     The

officers identified the dead plant matter as the remains of 26

separate marijuana plants.         The search of the residence, including

the   officers'   count     of    the   harvested     marijuana   plants,   was

videotaped.

      Shields was convicted on his plea of guilty to one count of

conspiracy to manufacture marijuana, in violation of 21 U.S.C. §

846 (1994).    In the presentence investigation report ("PSI"), a

probation officer described Shields's offense conduct as involving

53 marijuana plants, and concluded that the appropriate guidelines

sentencing    range   was    33    to   41   months    imprisonment.        This

recommended    sentence     was     calculated      using   the   "equivalency

provision" of U.S.S.G. § 2D1.1 n. *, which at that time required

significantly greater sentences for offenses involving 50 or more

marijuana plants than for offenses involving less than 50 plants.

Shields objected to the PSI on the ground that his offense involved

only 34 plants.

      Shields was sentenced in October 1993.                At the sentencing

hearing, Shields again objected to the calculation of his offense

level, arguing that his offense conduct only involved 33 to 35

marijuana plants.     The court heard testimony from Shields that the

root systems found in his basement were the remains of six to eight

marijuana plants with multiple stems that he had broken apart when
he harvested them. The government offered the testimony of two law

enforcement    officers   who    had   participated      in   the     search    of

Shields's residence.      The officers testified that the dead plant

matter found in Shields's basement was the remains of 26 marijuana

plants, each of which consisted of a complete root system attached

to the stem of a plant.        The officers testified that if the root

systems and stems had been the remains of fewer than 26 plants,

they would have seen tears down the side of the plant stems, which

were not present.      During the hearing, the district court judge

viewed the portion of the videotape of the search of Shields's home

in which the officers counted the root systems.

     The    district   court     credited    the   testimony     of    the     law

enforcement officers over Shields's testimony, finding that the

root systems were the remains of 26 marijuana plants, and that

Shields was responsible for a total of 53 marijuana plants.                    The

court concluded that Shields's guidelines range was 33 to 41 months

imprisonment, and sentenced him to 33 months imprisonment. Shields

appeals his sentence.

                               II. Discussion

         Shields's   primary    argument    on   this   appeal   is    that    the

district court misapplied 21 U.S.C. § 841 and U.S.S.G. § 2D1.1 when

it calculated his sentence using the number of the harvested plants

rather than the weight of the marijuana derived from those plants.1

     1
      Shields repeats the argument he made at the sentencing
hearing that the dead plant matter represents six to eight plants
rather than 26 plants. We find this argument meritless. The
district court's finding that the dead plant matter was the
remains of 26 plants is supported by the testimony of the law
enforcement officers and thus is not clearly erroneous. See
United States v. Robinson, 935 F.2d 201, 205 (11th Cir.1991),
Shields failed to object to his sentence on this ground at his

sentencing hearing.             But the district court failed to elicit

objections from the parties at the conclusion of the sentencing

hearing, as required 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 (1993) (en banc), and the panel concluded

that this was a proper case for the exercise of the court's

discretion to address on the merits an argument raised for the

first time on appeal.           Shields, 49 F.3d at 709.          Both parties ask

us to address the merits of this issue.                 We elect to do so, and

therefore need not decide whether the panel correctly concluded

that the court must either address this issue on its merits or

vacate the sentence and remand for resentencing.                      Id. at 709 & n.

5.

         The   base    offense      level    for   certain       drug    offenses     is

calculated     using      the   Drug    Quantity   Table    at    §     2D1.1   of   the

sentencing guidelines.           See United States Sentencing Commission,

Guidelines Manual, § 2D1.1(c) (Nov. 1992).                 In the version of the

guidelines which applied at the time of Shields's sentencing,2 the
Drug Quantity Table assigns offense levels for marijuana offenses

according      to   the    weight      of   marijuana   measured        in   grams   or

kilograms.     For offenses involving marijuana plants, the number of


cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 789
(1992) (holding that a district court's factual findings
regarding drug quantity are reviewed for clear error).
     2
      As a general rule, we apply the guidelines in effect at the
time of a defendant's sentencing hearing. United States v.
Wilson, 993 F.2d 214, 216 (11th Cir.1993).
plants is converted to weight using an "equivalency provision,"

which reads:

          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 1 KG of marihuana; (B) fewer than
     50 marihuana plants, treat each plant 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.
                            3
U.S.S.G. § 2D1.1(c) n. *.       The equivalency ratio for offenses

involving more than 50 plants (one plant equals one kilogram

marijuana) was derived from the statute that sets mandatory minimum

penalties for offenses involving marijuana and marijuana plants.

U.S.S.G. § 2D1.1 comment. (backg'd); see 21 U.S.C. § 841(b)(1)(A),

(B), (D) (1994) (setting, for example, a ten-year mandatory minimum

for offenses involving at least 1000 kilograms of marijuana or 1000

marijuana plants).   The equivalency ratio for offenses involving

less than 50 plants (one plant equals 100 grams marijuana) was

intended to approximate the average actual yield of a marijuana

plant.   U.S.S.G. § 2D1.1 comment. (backg'd).    We have held that

there is a reasonable basis for penalizing offenses involving 50 or

more plants more harshly than offenses involving less than 50


     3
      Section 2D1.1 has been amended, and the current version
establishes a uniform 100-gram-per-plant equivalency ratio.
U.S.S.G.App.C. (amend. 516) (effective Nov. 1, 1995). The
Sentencing Commission has listed this amendment as one subject to
retroactive application. U.S.S.G. § 1B1.10 (Nov. 1995). Under
18 U.S.C. § 3582(c)(2) (1994), Shields may petition the district
court to modify his sentence. Shields has not filed such a
petition or raised the issue of the retroactivity of the
amendment on appeal, so a remand on this issue would be
inappropriate. Cf. United States v. Vasquez, 53 F.3d 1216, 1227-
28 (11th Cir.1995) (remanding to the district court the issue of
whether a defendant was entitled to a modification of his
sentence where the defendant raised the issue of retroactivity
for the first time on appeal).
plants.      United States v. Osburn, 955 F.2d 1500, 1507-09 (11th

Cir.), cert. denied, 506 U.S. 878, 113 S.Ct. 223, 121 L.Ed.2d 160

(1992).

          Shields argues that the district court erred in applying the

equivalency provision of § 2D1.1 to his case because the dead

plants found in his basement were not "marijuana plants" within the

meaning of the guideline.           As authority for the proposition that

the term "marijuana plants" as used in the guideline includes only

living plants, he cites United States v. Foree, 43 F.3d 1572, 1581

(11th Cir.1995) (holding that marijuana cuttings and seedlings are

not "marijuana plants" for purposes of § 2D1.1 unless they have

"some readily observable evidence of root formation") (quoting

United States v. Edge, 989 F.2d 871, 877 (6th Cir.1993)).4                 Under

Shields's reading, the equivalency provision of § 2D1.1 applies

only to marijuana growers who are apprehended prior to harvest.

See United States v. Stevens, 25 F.3d 318, 322-23 (6th Cir.1994)

(holding that the equivalency provision only applies when live

marijuana plants are found);          United States v. Blume, 967 F.2d 45,

49 (2d Cir.1992) (same).

      The plain language of the equivalency provision and the

statute     on   which   it   was   based   lead    us   to   reject   Shields's

interpretation.        See U.S.S.G. § 2D1.1;       18 U.S.C. § 841(a).    By its

own   terms,     the   equivalency    provision      applies   to   "offense[s]

involving marijuana plants." Similarly, the statute sets mandatory


      4
      Because we sit en banc, we are not bound by the decisions
of prior panels. See Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981) (establishing the rule that Eleventh Circuit
panel decisions may only be overruled by the en banc court).
minimum   sentences    for   violations     of   §   841(a)   "involving"   a

specified number of "marijuana plants."          Nothing in the text of §

2D1.1 or § 841(b) suggests that their application depends upon

whether   the   marijuana    plants   are   harvested      before   or   after

authorities apprehend the grower. United States v. Wilson, 49 F.3d

406, 410 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 384,

133 L.Ed.2d 306 (1995) (relying on the plain language of § 2D1.1 in

rejecting the argument that the equivalency provision only applies

to live plants seized);       United States v. Haynes,         969 F.2d 569,

571-72 (7th Cir.1992) (same).

     An interpretation of § 2D1.1 that is not supported by the text

of the guideline and depends on a state of affairs discovered by

law enforcement authorities is contrary to the principle that

guideline ranges are based on relevant conduct.               See U.S.S.G. §

1B1.3.    The guidelines broadly define "relevant conduct," which

includes, among other things, "all acts and omissions committed ...

by the defendant ... that occurred during the commission of the

offense of conviction." Id. (emphasis added). We hold that, where

there is sufficient evidence that the relevant conduct for a

defendant   involves   growing   marijuana       plants,   the   equivalency

provision of § 2D1.1 applies, and the offense level is calculated

using the number of plants.       Accord United States v. Wegner, 46

F.3d 924, 928 (9th Cir.1995);     Wilson, 49 F.3d at 410;        Haynes, 969

F.2d at 572.5

     5
      Shields's reliance on Foree is misplaced. In that case,
the defendants' offenses involved marijuana cuttings and
seedlings, and we were required to decide whether marijuana
cuttings and seedlings were "marijuana plants" within the meaning
of § 2D1.1. 43 F.3d at 1579. We are not required to further
       There is more than sufficient evidence that Shields's relevant

conduct          included   cultivating      and   harvesting    a   first    crop    of

marijuana          plants   in    addition    to   the   growing     crop    found    by

government agents.6              In fact, there is no real dispute concerning

this issue.          Shields himself testified that the dead root systems

were       the    remains   of    marijuana    plants    that   he   cultivated      and

harvested.

       AFFIRMED.

       KRAVITCH, Circuit Judge, concurring:

       Although the three judge panel in this case found itself bound

by United States v. Foree, 43 F.3d 1572 (11th Cir.1995), and United

States v. Osburn, 955 F.2d 1500 (11th Cir.), cert. denied, 506 U.S.

878, 113 S.Ct. 223, 121 L.Ed.2d 160 (1992), having considered the

case en banc I agree with the opinion of the court.                           I write

separately to alert sentencing courts to a potential problem in

applying the rule established by this opinion.

       There       could    be    a   double-counting    problem     with    punishing

defendants both for growing marijuana plants based on the number of

plants involved, and for possessing the marijuana derived from


define the term "marijuana plants" in this case, because, as we
discuss below, there is sufficient evidence that Shields's
offense involved a first crop of marijuana plants that were live
and mature.
       6
      Shields's involvement with the first crop of marijuana
plants was not part of the manufacturing conspiracy for which he
was convicted. The government conceded at sentencing that it
could not show by a preponderance of the evidence that O'Reilly,
Shields's sole co-conspirator, was in any way connected to the
first crop. But Shields's manufacture of the first crop is
conduct that is relevant to the determination of his guideline
range because it was "part of the same course of conduct or
common scheme or plan as the offense of conviction." U.S.S.G. §
1B1.3(a)(2).
those same plants based on the weight of the dry leaf marijuana

possessed.   We should be concerned in cases like this one that the

government, upon finding both harvested, rotting plants and a

quantity of dry leaf marijuana derived from those plants, might

count the same marijuana against the defendant twice:               once by

using the dead plants as evidence of previously living plants in

sentencing   for   growing,   and   again   by   weighing    the   dry   leaf

marijuana in sentencing for possession.           This problem does not

arise if defendants can be sentenced for growing based only on the

number of live plants discovered by the police;             thus, the panel

opinion in Shields had the virtue of establishing a prophylactic

rule.   I assume, however, that sentencing courts will be able to

monitor and prevent such double-counting on a case-by-case basis

(and that law enforcement officials and prosecutors will not

intentionally overreach).
