United States v. Philip J. Simon

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3033
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Philip J. Simon, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 14, 2000
Filed: March 23, 2000
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Before MORRIS SHEPPARD ARNOLD and FAGG, Circuit Judges, and BENNETT,*
District Judge.
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PER CURIAM.
After execution of a search warrant on Philip J. Simon's residence revealed a
marijuana growing operation consisting of rotating lights, fertilizer, potting soil, a CO2
system, and 105 potted marijuana plants, Simon pleaded guilty to possession of
marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Simon appeals
his sentence of 188 months in prison and 8 years of supervised release. We affirm.
*
The Honorable Mark W. Bennett, Chief Judge, United States District Judge for
the Northern District of Iowa, sitting by designation.
Simon contends the district court erroneously applied a career offender
enhancement because his 1993 Nebraska conviction for attempted possession of
marijuana with intent to deliver was not a controlled substance offense within the
meaning of § 4B1.1 of the Sentencing Guidelines. We disagree. Controlled substance
offenses include state law offenses "punishable by imprisonment for a term exceeding
one year[] that prohibit[] . . . the possession of a controlled substance . . . with intent
to manufacture, import, export, distribute, or dispense," U.S. Sentencing Guidelines
Manual § 4B1.2(b), and "the offenses of aiding and abetting, conspiring, and attempting
to commit such offenses," id. at commentary n.1. Although Simon correctly asserts
simple possession drug offenses are not included, see United States v. Baker, 16 F.3d
854, 856 (8th Cir. 1994), Simon was not convicted of simple possession, but rather of
attempted possession with intent to deliver, a class IV felony punishable by up to five
years imprisonment under Nebraska law. See Neb. Rev. Stat. §§ 28-105, 201(4)(c),
& 416(1)(a) & (2)(b) (1989). Simon's argument that the Nebraska conviction should
be excluded because it is an attempt crime and the Sentencing Commission lacked
statutory authority to include such crimes under § 4B1.1 is foreclosed by our decision
in United States v. Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995). We thus conclude
the district court correctly applied the career offender provisions in determining Simon's
sentence.
Simon also claims the district court's finding that he was cultivating 105
marijuana plants was based on insufficient evidence. Contrary to Simon's contention,
the court's finding was supported by the evidence and was not clearly erroneous. See
United States v. Covington, 133 F.3d 639, 643-44 (8th Cir. 1998). Two agents
extensively trained in marijuana identification testified that all 105 plants found in
Simon's outbuilding were marijuana. See id. at 644 (testimony of experienced narcotics
officer sufficient to establish identity of controlled substance). Further testimony
showed that the individually potted plants were counted three times and photographs
showing the plants in detail were introduced into evidence.
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We affirm the sentence imposed by the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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