FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JULY 20, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-17164

Non-Argument Calendar

________________________

D. C. Docket No. 08-00010-CR-1-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM JERRY AUGER,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(July 20, 2009)

Before TJOFLAT, EDMONDSON and HULL, Circuit Judges.

PER CURIAM:

After pleading guilty, William Jerry Auger appeals his 46-month sentence
for maintaining drug-involved premises, in violation of 21 U.S.C. § 856(a)(2).

Auger, who leased a 1,342-acre tract of land, permitted Geraldo Hernandez to use a

portion of the land to grow marijuana. After review, we affirm the district court’s

determinations as to relevant conduct under U.S.S.G. § 1B1.3, but vacate

Defendant Auger’s sentence and remand for fact findings as to the number of

seedlings seized and whether those seedlings constitute “plants” for the calculation

of drug weight under U.S.S.G. § 2D1.1(c).

I. BACKGROUND

To inform the sentencing issues, we first outline the facts and procedural

history in detail.

A. Offense Conduct

According to the presentence investigation report (“PSI”), on July 22, 2006,

an off-duty sheriff’s deputy flying an aircraft over Coffee County, Georgia,

observed a large quantity of marijuana growing in a rural area. The sheriff’s

deputy notified local authorities, who investigated and learned that Defendant

Auger leased the land. In paragraph 6, the PSI reported that Auger’s property had

8,664 marijuana plants, described as 600 seedlings and the rest as tall plants:

The local authorities seized approximately 8,664 marihuana plants

from the site, described as being approximately 600 seedlings or small

plants and the rest of the plants being between 3 and 4 feet tall. In

addition, the local authorities observed two cook/campsites including

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tents, food, an ice chest, a nursery for starting plants, and an area with

larger plants. The sites had running water through an elaborate

irrigation system which used nearby natural water sources. One of the

tents had the name “CHINO” sprayed on it.

The property was locked with cables at each entrance, indicating that whoever

tended the marijuana had keys to open the cables.

The sheriff’s office contacted federal Drug Enforcement Administration

(“DEA”) Special Agent Stephen Tinsley. On July 31, 2006, Agent Tinsley and

two other DEA agents assisted the sheriff’s office in executing a search warrant for

Auger’s residence. Auger first denied knowing of the marijuana growing

operation. Agent Tinsley testified at the sentencing hearing that he took Auger to

the growing site. When they returned to Auger’s residence, Auger indicated he

was “ready to talk now.” According to the PSI, Auger admitted that a man named

Andy, later identified as Geraldo Hernandez, approached him and asked him to

provide land to grow marijuana. Auger agreed to show Hernandez the land in

exchange for some marijuana for his personal use.

According to Auger, he met with Hernandez and two other Hispanic males

at his residence to discuss the details of the marijuana growing process. Auger

reported that he agreed to let Hernandez plant between 100 and 150 marijuana

plants in exchange for ten percent of the finished project. Auger took Hernandez

and his associates to an area on the property with power lines and gave them

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permission to plant in the area north of the power lines. Auger’s residence was a

quarter of a mile from the entrance to the property and four miles from the growing

site.

After the initial meeting, Auger met with Hernandez and three Hispanic men

at his residence on several occasions “to discuss more details and to keep Auger

informed of the growing process.” Hernandez indicated that he and his associates

were staying in the woods to tend to the plants. Auger gave Hernandez keys to the

property and a water pump and bought Hernandez a cell phone for communication

purposes.

Auger also reported to the probation officer that, after thinking for several

days about permitting Hernandez to use his property, he told Hernandez and his

associates to stop and leave the property. Auger stated that he did not return to the

property once the growing process began. He denied knowing that Hernandez and

his associates were growing more than the agreed upon 100 to 150 plants.

In paragraph 13, the PSI stated that, although Auger denied knowing about

the additional plants, a preponderance of the evidence supported holding Auger

accountable for all the plants seized on the property, as follows:

Although Auger denies knowledge of the quantity of marihuana plants

being grown, he indeed gave permission for marihuana [to] be grown

on the property. He provided keys to the growers and supplied them

with a water pump for irrigation purposes. In addition, he admitted to

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buying Geraldo Hernandez a cell phone for communication purposes.

Auger also informed authorities that he was provided with details by

Geraldo Hernandez and his codefendants regarding the growing

process on numerous occasions. Finally, Auger’s assertion that he

never ventured onto the property where the marihuana was being

grown, even though he lived only a short distance from it, appears

highly suspect and unlikely. Therefore, the probation officer submits

that the preponderance of the evidence supports the conclusion that

Auger should be attributed with the total amount of marihuana plants

seized during the investigation.

B. PSI Calculations & Objections

The PSI recommended attributing to Auger 866.4 kilograms of marijuana

based on (1) the 8,664 plants seized on the property, and (2) each plant being

equivalent to 100 grams under the Sentencing Guidelines. Because the parties

agreed in the plea agreement that Auger had little or no participation in the

underlying controlled substance other than allowing the use of his premises, the

PSI recommended a base offense level of 26, pursuant to U.S.S.G. § 2D1.8(a)(2).

After a three-level decrease for acceptance of responsibility, pursuant to U.S.S.G. §

3E1.1(a)-(b), Auger’s total offense level was 23. With Auger’s criminal history

category of I, the PSI recommended an advisory guidelines range of 46 to 57

months’ imprisonment.

Auger objected to the PSI’s determination in paragraph 6 that 8,664 “plants”

were seized on his property. Under U.S.S.G. § 2D1.1, a “plant” is defined as an

organism that has leaves and a readily observable root formation, such as roots, a

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rootball or root hairs. See U.S.S.G. § 2D1.1(c) cmt. n.17. Auger argued that the

evidence was unclear as to the number of “plants” seized, as that term is defined by

the Sentencing Guidelines.

Auger also objected to paragraph 13 of the PSI, which attributed 866.4

kilograms of marijuana to him for purposes of computing his offense level. Auger

argued that it was not reasonably foreseeable to him that Hernandez and his

associates would grow more than the agreed upon 100 to 150 plants and that there

was no evidence to support the PSI’s conclusion that it was “suspect” or “unlikely”

that Auger did not venture onto the part of his property being used to grow

marijuana. Auger also pointed out that the evidence did not show that these plants

had readily observable root formations, as required by § 2D1.1(c).

In an addendum to the PSI, the probation officer responded to Auger’s

objections. As to paragraph 6, the probation officer stated that (1) DEA records

indicated that Coffee County law enforcement seized approximately 8,664

marijuana plants, and (2) DEA Agent Tinsley confirmed the amount of marijuana

plants seized. According to the PSI addendum, although Agent Tinsley did not

count the plants, he observed the plants with root formations and “determined that

1

However, as outlined later, in his testimony, Agent Tinsley said nothing about root 1

formations. Furthermore, contrary to the PSI’s statement that 600 of the 8,664 plants were

seedlings, Agent Tinsley testified that the majority of those plants were seedlings.

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the amount of plants that were approximated appeared appropriate.” The probation

officer pointed out that, even if the local authorities’ count was off by 1,000 plants,

Auger’s base offense level would remain the same.

As to the relevant conduct objection, the probation officer stated that it was

appropriate to hold Auger accountable for all of the plants found on his property.

The probation officer pointed out that: (1) Hernandez and his associates depended

on Auger’s cooperation for their venture to succeed and would not have grown

more than was agreed to given that Auger’s proximity to the site meant that he

“could easily visit the site at anytime”; (2) Auger met with Hernandez and his men

several times regarding the growing process; (3) Auger provided them with a water

pump and a cell phone and let the men reside on the property, all of which

indicates significant planning and an intent to grow a larger, rather than a smaller,

quantity of marijuana; and (4) at a minimum, Auger deliberately chose to remain

ignorant of the scope of the growing operation.

C. Sentencing Hearing

At sentencing, Auger renewed his objection to the number of marijuana

plants (8,664) attributed to him for purposes of calculating his offense level. The

district court noted that, even if the authorities’ count had been off by 1,000 plants,

Auger’s sentencing range would have been the same. The court rejected Auger’s

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claim that he agreed to Hernandez’s growing only 100 to 150 plants, finding it

“inconceivable”:

[O]nly planting a hundred or a hundred and fifty plants is – I mean,

that’s something you can do in buckets out in your backyard. And

here they were out in this whole big field with over a thousand acres

leased, and [Auger] went out there with them and specified the area

they could plant it. And then he had further discussions with them

about planting it, and what percentage he was going to get of the

plants . . . . And for any person to reasonably believe under the

circumstances of this case that you’re only talking about a hundred or

a hundred and fifty marijuana plants, I mean, that’s like asking me to

believe that Santa Claus is going to really come down the chimney in

a couple of weeks.

Auger’s counsel countered that, according to the PSI, Auger was supposed to

receive ten percent of the yield for his personal use and tried to call the agreement

off after a few days, which made it “actually inconceivable” that he agreed to let

them grow over 8,500 plants. The district court rejected this personal-use

argument, finding it “hard to swallow,” as follows:

Well, but that’s what the defendant says. That’s the deal they struck.

And, you know, he lived a quarter-of-a-mile from the field. I mean,

he lived a quarter-of-a-mile from the entrance of the field, okay. He

lived about four miles from the actual field where the marijuana was

growing. He went out there, and they looked at it, and they talked

about where the power lines went through, and where they would be

permitted to grow, and all this kind of stuff. And it went on for a long

period of time. And whether he said, I’m getting ten percent for my

own personal use, or whether he planned on distributing that – I mean,

all the plants that were there and all the plants that were found there,

you know, if he had got ten percent for his own personal use, he’d be

lighting up every day till he got to be a hundred years old, I guess.

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So – but anyway, I’m listening to what you’re saying, but it’s

kind of hard to swallow it.

Auger also argued that the 8,664 plant count was based on hearsay evidence that

did not “bear any indicia of reliability” and that would not be admissible “even for

purposes of a sentencing hearing.” The government responded to the defense

objections by stating that it concurred with the findings in the PSI and that the

plant count was accurate.

After hearing the parties’ arguments, the district court adopted the

statements in the PSI and the addendum. The district court found that Auger had a

total offense level of 23 and a criminal history category of I, which yielded an

advisory guidelines range of 46 to 57 months of imprisonment. After considering

the factors in 18 U.S.C. § 3553(a), the district court imposed a 46-month sentence.

After the district court pronounced the sentence, Auger renewed his

objection to the drug weight being 866.4 kilograms. Auger argued that the court’s

findings as to weight “were not based on a sufficient evidentiary showing . . . to

establish by a preponderance of the evidence that the requisite number of plants, as

that term is defined by the sentencing guidelines, were attributable to the

defendant.” The district court then allowed the government to call DEA Agent

9
Tinsley to testify.

2

Agent Tinsley testified that the law enforcement agencies collected the

plants on July 22, 2006, the day the growing operation was spotted by a sheriff’s

deputy from the air. Agent Tinsley was contacted a week later, on July 28, and

asked to assist with the investigation. Agent Tinsley went to the Coffee County

Sheriff’s Office and met with two detectives, who showed him the plants in their

drug vault.

Agent Tinsley later received documents from the Coffee County Sheriff’s

Office and the Altamaha Drug Task Force, run by the Georgia Bureau of

Investigation (“GBI”), both of which indicated that 8,664 plants had been seized.

Agent Tinsley explained that, because of allegations of corruption in the Coffee

County Sheriff’s Office, the GBI was asked to “collect the evidence there on the

scene from the hunting lease” and to conduct an independent count of the plants.

According to the GBI report that Agent Tinsley received, GBI Special Agents

Shane Mathis and America Lopez collected and counted the plants. The counts by

the Coffee County Sheriff’s Office and the GBI were “the same number or very

close to the same number.” Agent Tinsley opined that, based on what he had seen

When the government called Agent Tinsley to testify, Auger objected on hearsay

2

grounds. The district court overruled the objection, stating “hearsay is admissible at a

sentencing hearing, and I can hear the hearsay regarding the weight; I can hear it regarding the

relevant conduct.”

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in the drug vault, the photographs of the growing site, his walk-through of the

growing site and his experience in seizing and counting marijuana plants, the

8,664-plant count appeared to be accurate within 1,000 plants.

3

On cross-examination, defense counsel brought out that the majority of the

8,664 plants were “seedlings.” Specifically, Agent Tinsley explained that when he

observed the plants in the drug vault, they were kept in one to three trash bags.

During his visit, Agent Tinsley held in the palm of his hand several thousand plants

“in the nursery stage” that had been removed from small plastic trays. Agent

Tinsley described the plastic trays as 24 inches by 12 inches in size and consisting

of 50 cubicles. According to Agent Tinsley, the majority of the plants were in

these plastic trays and were “seedlings,” and “additional plants [were] planted in

the ground.” Agent Tinsley did not testify as to whether he observed any root

formations on the seedlings or plants.

4

The government pointed out that the law enforcement reports of the plant count were 3

given to defense counsel during discovery. The government did not introduce those reports in

evidence. Instead, the only evidence is Agent Tinsley’s testimony.

When Auger’s counsel asked Agent Tinsley about a press release issued by the Coffee

4

County Sheriff’s Office after the plant seizure, the government objected. Auger argued that the

questioning was relevant to the reliability of the plant count. The district court responded,

“Well, how about the indicia of reliability when your client first denies any involvement and

says, I’m not involved in any way. I don’t know anything about it, don’t have anything to do

with it. And then he later decides, well, maybe it’s in my favor to admit to what happened. 

Does that change the situation, counsel?” When defense counsel stated that it did not, the

district court stated, “And then he insists to the probation office that he’s only talking about a

hundred or a hundred and fifty plants? I mean, give me a break.”

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When defense counsel questioned Agent Tinsley about the reliability of the

Coffee County Sheriff’s Office report, the district court disallowed that line of

inquiry. The district court emphasized that Agent Tinsley testified that he was an

agent for nineteen years and had personally visited the field and then observed the

plants in the trash bags at the drug vault and in the “little potty things” and “put

them in his hand.”

After Agent Tinsley’s testimony, Auger argued that, for purposes of weight

calculations in the guidelines, a “plant” is a term of art referring to a large,

independent plant with a readily observable root formation and that seedlings are

not “plants” for this purpose. Auger stressed that 8,664 plants cannot occupy only

one to three trash bags. Auger also argued that the weight calculation was based

on information from an unreliable source. But, even if the source had been

reliable, Auger asserted that the weight calculation was improper because it

appeared to be based on an ordinary understanding of “plant” rather than its legal

definition in the guidelines. Auger contended that, in the absence of sufficient

evidence of 8,664 plants, he should be held accountable only for the 100 to 150

plants to which he admitted.

The district court noted Auger’s objection, but stated that it disagreed.

Auger filed this appeal.

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II. DISCUSSION

On appeal, Auger raises two arguments relating to the drug quantity.

Specifically, Auger claims the district court erred in (1) including all of the seized

plants as relevant conduct, and (2) finding the total drug weight was 866.4

kilograms of marijuana because the majority of the 8,664 plants were seedlings and

there was no evidence the seedlings had any root formation.

5

A. Relevant Conduct

Under the advisory guidelines, a defendant may be held accountable for “all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). To be held responsible

for the conduct of others, the conduct must be both (1) “in furtherance of the

jointly undertaken criminal activity” and (2) “reasonably foreseeable in connection

with that criminal activity.” U.S.S.G. § 1B1.3 cmt. n.2; United States v. Hunter,

323 F.3d 1314, 1319-20 (11th Cir. 2003). “In order to determine the defendant’s

accountability for the conduct of others under subsection (a)(1)(B), the court must

first determine the scope of the criminal activity the particular defendant agreed to

A district court must begin the sentencing process by correctly calculating the applicable 5

guidelines range. Gall v. United States, 552 U.S. 38, __, 128 S. Ct. 586, 596 (2007). Likewise,

this Court reviews a sentence in part by ensuring “that the district court committed no significant

procedural error,” such as improperly calculating the guidelines range. Id. at __, 128 S. Ct. at

597.

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jointly undertake (i.e., the scope of the specific conduct and objectives embraced

by the defendant’s agreement). The conduct of others that was both in furtherance

of, and reasonably foreseeable in connection with, the criminal activity jointly

undertaken by the defendant is relevant conduct . . . .” U.S.S.G. § 1B1.3 cmt. n.2.

6

Although its findings could have been clearer, the district court rejected as

“inconceivable” Auger’s claim that his jointly undertaken criminal activity was

limited to only 100 to 150 marijuana plants and found that it encompassed the

larger scale marijuana growing operation found on Auger’s property. These

undisputed facts support the district court’s credibility finding: (1) Auger gave

Hernandez and three other men free access to over a thousand acres of land; (2)

Auger took the men to the property and showed them where they could plant the

marijuana; (3) after that, Auger met with the men several times at his home to

discuss the growing process; (4) Auger lived only four miles from the field where

the marijuana was being grown and indeed only a quarter mile from the entrance to

the property; (5) Auger negotiated a percentage of the yield; and (6) Auger initially

denied to Agent Tinsley any knowledge of the marijuana plants and admitted his

involvement only after being shown the site of the growing operation. In addition,

Although we review de novo whether the district court misapplied the relevant conduct 6

provisions in U.S.S.G. § 1B1.3, United States v. McCrimmon, 362 F.3d 725, 728 (11th Cir.

2004), we review for clear error the district court’s factual findings pertaining to relevant

conduct, United States v. Blanc, 146 F.3d 847, 851 (11th Cir. 1998).

14
the following facts in PSI addendum, which the district court adopted, also cast

doubt on Auger’s claim: (1) Auger knew that four men were involved in the

growing operation and that they were staying on the property to tend the plants; (2)

Auger provided the men with a water pump, which they used to establish an

elaborate irrigation system; and (3) Auger bought Hernandez a cell phone so they

could communicate about the growing operation. The PSI addendum also

explained that it was highly unlikely that Hernandez and his men would have

grown significantly more marijuana than Auger authorized given that Auger’s

proximity to the growing site meant he might visit the site at any time.

These facts, which Auger did not dispute, support the district court’s finding

that the scope of the criminal activity Auger agreed to jointly undertake was not

limited to 150 plants and that it was reasonably foreseeable to Auger that

Hernandez and his men would conduct a large-scale marijuana growing operation.

Thus, there is no reversible error in the district court’s attributing to Auger all of

the marijuana plants seized from his own property.

B. Total Weight Seized

The question remains, however, whether the district court erred in its

determination of the weight of the marijuana seized from Auger’s land. We review

our precedent in this regard and then what happened in this case.

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1. Marijuana Weight Precedent

To calculate the offense level of a defendant convicted of an offense

involving marijuana plants, each “plant” is treated as the equivalent of 100 grams

of marijuana. U.S.S.G. § 2D1.1(c) E. “For purposes of the guidelines, a ‘plant’ is

an organism having leaves and a readily observable root formation (e.g., a

marihuana cutting having roots, a rootball, or root hairs is a marihuana plant).”

U.S.S.G. § 2D1.1(c) cmt. n.17 (emphasis added). Our decision in United States v.

Foree, 43 F.3d 1572, 1579-80 (11th Cir. 1995), sheds light on how marijuana

plants are counted under the guidelines.

In Foree, this Court concluded that “for sentencing purposes, cuttings and

seedlings are not ‘marihuana plants’ unless there is ‘some readily observable

evidence of root formation.’” 43 F.3d at 1574. A search of Foree’s residence

uncovered 24 mature marijuana plants, 56 cuttings and 17 seedlings. Id. at 1579.

At sentencing, Foree argued that the cuttings and seedlings could not be counted as

“plants” unless the government proved that they had readily observable root

formations. Id. at 1580. The district court rejected this argument and included the

cuttings and seedlings in the total drug quantity attributed to Foree for sentencing

purposes. Id.

At the time of Foree, neither the drug statutes nor the Sentencing Guidelines

16
defined the term “plant.” Id. Thus, this Court relied upon precedent from other

circuits to conclude that “for sentencing purposes, root formation is the sine qua

non of a marijuana ‘plant.’” Id. We concluded:

Marijuana plants have three characteristic components readily

apparent to the unaided layperson’s eye: roots, stems, and leaves.

Until a cutting develops roots of its own, it is not a plant but a mere

piece of some other plant. Accordingly, we hold that cuttings and

seedlings are not “marihuana plants” within the meaning of 21 U.S.C.

§ 841(b) and U.S.S.G. § 2D1.1(c) unless there is some readily

observable evidence of root formation.

Id. at 1581 (citations and quotation marks omitted). Because the district court had

not made findings as to whether any of the cuttings and seedlings had roots, we

vacated Foree’s sentence and remanded for resentencing “to give the government

the chance to make a proper showing if it can do so.” Id. at 1582.

When Foree was decided, the Sentencing Commission already had proposed

amending the commentary to U.S.S.G. § 2D1.1(c) to define a “plant” as an

organism with leaves and “readily observable root formation” and to give as an

example a marijuana “cutting” that has “roots, rootball or root hairs.” 43 F.3d at

1580 n.12. After Foree, this proposed amendment was adopted. See U.S.S.G. app.

C, amend. 518. Thus, for the seedlings here to be counted as marijuana plants for

drug weight calculations, the government had to submit some evidence that the

seedlings had root formations.

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2. Auger’s Case

Auger expressly objected several times to the factual statements in paragraph

6 of the PSI that local law enforcement seized from the growing site 8664 plants,

600 of which were seedlings. Auger’s objections pointed out that the guidelines

required readily observable root formation for seedlings to be counted as plants

under § 2D1.1(c).

Once the defendant objects to a PSI’s factual allegation, the government

bears the burden to prove the disputed fact by a preponderance of the evidence.

United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). If the

government does not present sufficient evidence to support the disputed fact, we

are “obliged to vacate the sentence imposed and remand for resentencing.” United

States v. Hall, 349 F.3d 1320, 1325-26 (11th Cir. 2003).

Given Auger’s objections, the government was required to come forward

with at least some evidence showing the number of “plants” seized, that is, the

number of seized organisms with observable root formation. The government did

call Agent Tinsley, but he never mentioned root formations. Specifically, Agent

Tinsley testified that, when he inspected the plants, they were “in the nursery

stage” in plastic containers, all of the plant matter fit in one to three trash bags, and

he was able to hold thousands of them in the palm of his hand. Agent Tinsley also

18
testified that the majority of the plants were only seedlings. Agent Tinsley’s

testimony, if anything, contradicted the PSI’s statements that only 600 of the 8,664

plants seized were seedlings and that the remainder were plants three to four feet

high. Agent Tinsley testified summarily that both the Coffee County Sheriff’s

Office and the GBI counted the plants, but those reports are not in evidence.

In sum, the only evidence on this issue, at this juncture, is Agent Tinsley’s

testimony that the majority of the 8,664 plants were seedlings. And, there is no

evidence indicating whether those seedlings had roots or root hairs. Thus, the

record is insufficient to support the district court’s finding of a drug weight of

866.4 kilograms.

7

Accordingly, we remand for the district court to resolve the disputed factual

issues as to: (1) the number of seized organisms that were seedlings, and (2) the

number of seized organisms that had readily observable root formations and, thus,

met the definition of a “plant” under § 2D1.1(c). Both parties shall be allowed to

present evidence as to those issues on remand.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s finding that all of

The government argues that any error was inconsequential because a plant count 7

anywhere within Agent Tinsley’s 1000-plant margin of error would have resulted in the same

offense level. This argument ignores the fact that Agent Tinsley testified that “the majority” of

the 8,664 plants were seedlings. Thus, any error was not harmless.

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the seized marijuana plants should be counted as relevant conduct under § 1B1.3,

but vacate Auger’s sentence and remand for evidence and fact findings as to the

number of seedlings seized and whether those seedlings constitute “plants” under

§ 2D1.1(c).

8

VACATED AND REMANDED.

Because our remand is for a limited, rather than a de novo, resentencing, the parties are 8

precluded from raising at resentencing issues that could have been, but were not, raised in this

appeal.

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