United States v. Wilson ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 97-50425
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DALTON KNIGHT WILSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(P-96-CR-086)
June 3, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Dalton Knight Wilson appeals from his conviction for
possession of marijuana seeds with intent to manufacture marijuana
and attempt to manufacture and attempt to possess with intent to
distribute marijuana. Wilson claims that the district court erred
in admitting an involuntary confession, refusing to charge the jury
on a lesser included offense, and equating a seed with a plant for
sentencing purposes. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Wilson contends that the district court erred in admitting his
post-arrest confession because the statement was allegedly induced
by threats to arrest his brother and to place his niece in the
custody of a child-welfare agency or in foster care. See, e.g.,
Brown v. Mississippi, 297 U.S. 278, 286, 56 S. Ct. 461, 465, 80 L.
Ed. 682 (1936). While the ultimate issue of voluntariness is a
legal question, subject to de novo review, we “must give credence
to the credibility choices and findings of fact of the district
court unless clearly erroneous.” See United States v. Rogers, 906
F.2d 189, 190 (5th Cir. 1990) (citations omitted). The record
demonstrates that at the time of his confession, Wilson was aware
that arrangements had been made for his niece’s mother to fly in
from California and pick up the child that evening. The record
also reveals that at the time of Wilson’s confession, federal
agents had a good-faith basis for arresting Wilson’s brother.
These facts do not demonstrate coercion in any relevant, legal
sense, see Allen v. McCotter, 804 F.2d 1362, 1364 (5th Cir. 1986),
and we therefore find no error in the district court’s admission of
the confession.
Wilson also claims that the district court erred by refusing
to instruct the jury on the lesser included offense of simple
possession of marijuana or simple possession of marijuana seeds.
A defendant is not entitled to a lesser-included-offense
instruction unless: “(1) the elements of the [purported lesser]
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offense are a subset of the elements of the charged offense, and
(2) the evidence at trial permits a jury to rationally find the
defendant guilty of the lesser offense yet acquit him of the
greater.” United States v. Lucien, 61 F.3d 366, 372 (5th Cir.
1995). We review the district court’s determination of the
respective statutory elements de novo, but, absent an abuse of
discretion, will accept the trial judge’s conclusion as to the
presence or absence of an evidentiary basis sufficient to warrant
a requested lesser-included-offense instruction. Id. Wilson
asserts that the jury could find him guilty of possessing marijuana
with no intent to distribute or manufacture because Wilson admitted
at trial to possessing a certain small “baggie” of marijuana, found
near the front of Wilson’s van. The possession of this marijuana,
however, is irrelevant to the two counts of the indictment, which
charged only possession of marijuana seeds with intent to
manufacture marijuana, and attempt to manufacture and attempt to
possess with intent to distribute marijuana. See United States v.
Deisch, 20 F.3d 139, 142 (5th Cir. 1994) (holding that simple
possession is not a lesser included offense of attempt to produce
or attempt to possess with intent to distribute). As for an
instruction regarding the lesser included offense of simple
possession of marijuana seeds, we find no abuse of discretion in
the district court’s denial of this instruction. Wilson’s defense
rested on denying that he knew anything about the seeds, and that
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the growing equipment found in the back of his van was for
cultivating fruits and vegetables, not marijuana. This testimony
does not provide a basis on which a rational jury could find Wilson
guilty of simply possessing the seeds, but not guilty of intending
to manufacture marijuana. See United States v. Harrison, 55 F.3d
163, 168 (5th Cir. 1995) (finding no error in the district court’s
refusal of a simple possession instruction when the indictment
charged possession with intent to distribute and officers
discovered a large amount of the drug in defendant’s dresser, along
with two “tools of the trade”——a loaded pistol and a large amount
of cash).
With regard to his sentence, Wilson claims that the district
court erred in: (1) concluding, as a matter of law, that a seed is
a “plant” for purposes of 21 U.S.C. § 841(b)(1)(A)(vii), (2)
punishing Wilson for the unindicted offense of manufacturing
marijuana plants, as opposed to actual marijuana, and (3) refusing
to calculate Wilson’s sentence based on the actual weight of the
seeds possessed, rather than on some hypothetical estimation of how
many marijuana plants those seeds might produce. Even assuming
that the district court’s methodology was correct, Wilson claims
that the district court erred by relying on speculative testimony
regarding (1) the actual number of seeds possessed by Wilson and
(2) the number of plants realistically producible from that number
of seeds. In assessing Wilson’s claims of error, we review the
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district court’s factual findings regarding the amount of seeds and
what the seeds might produce only for clear error. See United
States v. Underwood, 61 F.3d 306, 308 (5th Cir. 1995). The
district court’s application of the guidelines to those facts is
reviewed de novo. Id.We find no clear error in the district court’s decision to
credit the government’s estimation of the number of seeds possessed
by Wilson. The probation officer testified at Wilson’s sentencing
hearing that a DEA agent arrived at this estimate by weighing one
seed, rounding up to the nearest gram, and then dividing that
rounded number into the total weight of the seeds. The district
court also granted Wilson’s request for a period of several days in
which to examine the actual seeds and report back to the court if
he arrived at a number “substantially less” than the government’s
estimate of 2,720. Wilson never informed the court of the results
of this endeavor.
As for the district court’s alleged assumption that each of
the 2,720 seeds, if planted, would produce a plant, we find this
assumption, if indeed it was made, irrelevant to the district
court’s application of the Sentencing Guidelines. The district
court followed the PSR in assigning Wilson a criminal history
category of VI and an offense level of 37, based on Wilson’s status
as a “career offender.” See U.S.S.G. § 4B1.1 (“A career offender’s
criminal history category in every case shall be Category VI.”).
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The PSR arrived at an offense level of 37 by crediting the
government’s estimation that Wilson was in possession of over 2,000
marijuana seeds, and then equating “one marijuana seed to one
marijuana plant.” The statutory maximum for an offense “involving
over 1,000 marijuana plants,” is life in prison, see 21 U.S.C. §
841(b)(1)(A)(vii), and the career offender provisions of the
sentencing guidelines therefore established Wilson’s offense level
as 37. See U.S.S.G. § 4B1.1(a).
While Wilson is correct that a seed is not a “plant,” at least
within the meaning of § 841(b)(1)(A)(vii), see United States v.
Fitch, 137 F.3d 277, 282 (5th Cir. 1998) (“For the purposes of . .
. [21 U.S.C.] § 841(b) it is irrelevant whether the plants involved
in the offense were alive, cut, harvested or processed when seized,
provided that they were alive sometime during the commission of the
offense.”)(emphasis added); U.S.S.G. § 2D1.1, application note 18
(“For purposes of the guidelines, a ‘plant’ is an organism having
leaves and a readily observable root formation.”), Wilson fails to
recognize that his attempt to manufacture offense will be punished
as if he had in fact succeeded in using the seeds to manufacture
marijuana. See U.S.S.G. § 2D1.1, background, cl. 4 (“In controlled
substance offenses, an attempt is assigned the same offense level
as the object of the attempt.”). Assuming the success of the
charged attempt, Wilson’s offense would “involve over 1,000
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marijuana plants,”1 and § 841(b)(1)(A)(vii) would apply, meaning
that the appropriate offense level is in fact 37.
Accordingly, we AFFIRM Wilson’s conviction and sentence.
Counsel’s motion to be relieved of representation of Wilson is
DENIED.
1
In written objections to the PSR, Wilson points out that the
government’s expert established at trial that over a period of
several days, only 25% of a sample of the seeds in Wilson’s
possession sprouted. Whatever this testimony might say about what
Wilson could have done with this particular group of seeds, it says
nothing about what he intended to do with them. See, e.g.,
U.S.S.G. § 2D1.1, background, cl. 4 (providing that each marijuana
plant will be presumed to produce the “average” yield of 100 grams
of marijuana, even if the plant actually produces less, citing the
general rule that attempts are punished as if accomplished).
Wilson introduced no evidence at trial or sentencing indicating
what he or the average person would expect to grow from a bag of
over 2,000 seeds. Indeed, the only testimony regarding expected,
rather than actual, sprout rates came from Agent Stokes, who stated
that 80% was a “good” percentage of successful seedlings. We
therefore find no clear error in the district court’s determination
that Wilson intended to produce at least 1,000 plants with the more
than 2,000 seeds in his possession.
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