Opinion
No. 93-5078. Non-Argument Calendar.
February 1, 1995.
Robert E. Adler, Asst. Federal Public Defender, West Palm Beach, FL, for appellant.
Kendall Coffey, U.S. Atty., Miami, FL, Ilona Holmes, Robert K. Senior, Linda Collins Hertz, and Carol Herman, Asst. U.S. Attys., Ft Lauderdale, FL, for appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before ANDERSON, BLACK and CARNES, Circuit Judges.
Appellant Earl Thomas Smith, Jr., pled guilty to Count I of the indictment charging importing marijuana into the United States, in violation of 21 U.S.C. § 952(a) and 960. He raises two issues on appeal.
First, Smith contends that the district court erroneously attributed 544 kilograms of marijuana to him when he, along with the Government witness, testified that the marijuana was wet when weighed. Smith asserts that the Government never presented evidence concerning the weight of the dry marijuana, rather, it left the district court to speculate the weight of the marijuana when dried. The Government counters that it weighed the marijuana three times over a five-month period and, on each occasion, the weight had been approximately 1200 pounds. Moreover, it argues the district court credited the "objective" evidence of the marijuana weight that the Government presented over Smith's unsubstantiated testimony that the dampness of the marijuana accounted for one-half of the weight the Government had determined.
A district court's determination of the drug quantity used to establish a base offense level is reviewed for clear error. United States v. Carroll, 6 F.3d 735, 742 (11th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1234, 127 L.Ed.2d 577 (1994). The Guidelines provide that, unless otherwise specified, the weight of a controlled substance, as set forth in the drug/quantity table, refers to the entire weight of any mixture or substance containing a detectable amount of controlled substance. USSG § 2D1.1(c), (n.*) (Drug Quantity Table). Marijuana is not otherwise specified, therefore the relevant weight is the entire weight of any mixture or substance containing a detectable amount of marijuana. The weight does not, however, include unusable mixtures. United States v. Rolande-Gabriel, 938 F.2d 1231, 1238 (11th Cir. 1991). The government must prove the quantity of drugs by a preponderance of the evidence. United States v. Taffe, 36 F.3d 1047, 1050 (11th Cir. 1994).
This Court has not determined whether damp marijuana is a "mixture or substance" within the meaning of the Sentencing Guidelines. The Seventh Circuit has addressed this question in United States v. Garcia, 925 F.2d 170 (7th Cir. 1991). That court found that water is a natural component of the growing marijuana plant and is arguably included in the statutory definition of the drug. Id. at 172. The court reasoned that this approach results in minimizing judicial concerns about when the marijuana was harvested, how (or if) it was dried, and how it was processed and stored. Id. at 173. The Tenth Circuit adopted the rationale of the Seventh Circuit in United States v. Pinedo-Montoya, 966 F.2d 591, 595 (10th Cir. 1992) (finding that the entire weight of damp marijuana should be considered for sentencing purposes). Agreeing with the rationale of the Seventh and Tenth Circuits, this Court similarly can conclude that the district court properly attributed 544 kilograms of marijuana, the weight while damp, to Smith. The Government presented evidence that the marijuana weighed over 1200 pounds each of the three times it had been weighed during a five-month period. In so doing, the Government met its burden of proving the weight of the marijuana.
As to the second issue, that the district court unreasonably found that Smith possessed a dangerous weapon while importing marijuana, the district court did not clearly err when it imposed a three-level enhancement for possessing a firearm.
AFFIRMED.