Patterson further contends that the destruction of the evidence violated his "constitutional right of access to evidence" under the Due Process Clause. See United States v. Belden, 957 F.2d 671, 673 (9th Cir. 1992). We review for an abuse of discretion the district court's decision whether to exclude evidence as a sanction for destroying or failing to preserve evidence.
Patterson further contends that the destruction of the evidence violated his "constitutional right of access to evidence" under the Due Process Clause. See United States v. Belden, 957 F.2d 671, 673 (9th Cir. 1992).
We have previously rejected the argument that Congress violates either the equal protection or due process clause of the fourteenth amendment by equating 100 kilograms of marijuana with 100 marijuana plants. SeeUnited States v. Belden, 957 F.2d 671, 676 (9th Cir.1992) ("[U.S.S.G. section 2D1.1(c)'s] rationality lies in its recognition of a higher level of culpability for marijuana growers compared to those who merely possess the harvested product.
As an initial matter, we must determine whether the district court's refusal to depart is reviewable. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992). Ordinarily, a sentencing court's decision not to depart is not reviewable unless the decision resulted from a legal determination that the guidelines prevented departure.
"`[T]he section's rationality lies in its recognition of a higher level of culpability for marijuana growers compared to those who merely possess the harvested product.'" Id. (quoting United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992)). The statute is not ambiguous and there is simply no indication, in the statute or elsewhere, that Congress meant to impose the plant-kilogram equivalency only with respect to exact quantities of 100 and 1000 plants, while examining the actual yield of the plants falling in between these numbers.
Like the district court below, the circuit courts which have addressed this argument have upheld the challenged provisions. See United States v. Lee, 957 F.2d 778, 784 (10th Cir. 1992) (section 841(b)(1)(B)(vii)'s five-year minimum for 100 plants or 100 kilograms does not violate equal protection); United States v. Belden, 957 F.2d 671, 675-76 (9th Cir. 1992) (U.S.S.G. § 2D1.1 withstands due process challenge); United States v. Webb, 945 F.2d 967, 968-69 (7th Cir. 1991) (U.S.S.G. § 2D1.1 constitutional), cert. denied, ___ U.S. ___, 112 S.Ct. 1228, 117 L.Ed.2d 463 (1992); United States v. Lewis, 762 F. Supp. 1314, 1315-17 (E.D.Tenn.) (same), aff'd., 951 F.2d 350 (6th Cir. 1991) (Table).
Here, the testimony of Deputy Jopes alone would have been sufficient to establish the existence of 108 plants. See United States v. Belden, 957 F.2d 671, 673-74 (9th Cir.) (conviction based on testimony of officers who made the initial plant counts; a number of the plants were subsequently mangled or destroyed), cert. denied, ___ U.S. ___, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992); United States v. Cody, 7 F.3d 1523, 1527 (10th Cir. 1993) (conviction based on officer's recollection of number of plants); United States v. Scalia, 993 F.2d 984, 988 (1st Cir. 1993) (same); United States v. Allen, 954 F.2d 1160, 1168-69 (6th Cir. 1992). Jopes's testimony did not stand alone, however: it was strongly corroborated by the testimony of Dr. Sances, who investigated Robinson's greenhouses one month after the arrest, and concluded that more than 100 plants had been growing there. See United States v. Lennick, 18 F.3d 814, 820 (9th Cir. 1994) (permissible to estimate number of plants based on circumstantial evidence such as the amount of harvested marijuana, number of pots, and size of utility bills).
United States v. Morales, 972 F.2d 1007, 1011 (9th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1665, 123 L.Ed.2d 283 (1993). If, however, the court indicates that it would not depart even if it could, the sentence is not reviewable on appeal. United States v. Brown, 985 F.2d 478, 480-481 (9th Cir. 1993); United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992). B. Analysis
While this statement correctly pointed out that a juror's request for lenient sentencing is not a sufficient basis upon which to justify a departure, these and other of the judge's comments in the record do not alone establish that the judge believed more categorically that he either possessed or lacked authority to depart. Nonetheless, the Government is correct in pointing out that we have consistently upheld denials of departure motions framed in language similar to that used by the district court. See, e.g., U.S. v. Belden, 957 F.2d 671, 676 (9th Cir. 1992) (declining to review where district court found "no basis for departure"); United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992) (deeming denial of motion unreviewable where district court found downward departure "not warranted"); United States v. Koenig, 952 F.2d 267, 273-74 (9th Cir. 1991) (finding discretionary refusal to depart where district court that motion did not "have a basis"). However, because Rose failed to identify a mitigating circumstance on which departure could be premised under 18 U.S.C. § 3553(b), we decline to disentangle the consequently non-dispositive issue of reviewability.
In Smith, the Eighth Circuit, in upholding the constitutionality of 21 U.S.C. § 841(b)(1)(B)(vii) and its companion sentencing guideline, cited to the various circuits that had reached the same conclusion. See Smith, 961 F.2d at 1390 (citing United States v. Lee, 957 F.2d 778, 784 (10th Cir. 1992) (section 841(b)(1)(B)(vii)'s five-year minimum for 100 plants or 100 kilograms does not violate equal protection); United States v. Belden, 957 F.2d 671, 675-76 (9th Cir. 1992) (U.S.S.G. § 2D1.1 withstands due process challenge); United States v. Webb, 945 F.2d 967, 968-69 (7th Cir. 1991) (U.S.S.G. § 2D1.1 constitutional), cert. denied, 502 U.S. 1116, 112 S.Ct. 1228, 117 L.Ed.2d 463 (1992); United States v. Lewis, 762 F.Supp. 1314, 1315-17 (E.D.Tenn.) (same), aff'd., 951 F.2d 350 (6th Cir. 1991) (Table)). The court observed: