*

Honorable James K. Logan, Senior U.S. Circuit Judge for the

Tenth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-2393, 94-2417.

UNITED STATES of America, Plaintiff-Appellee,

v.

Glenn ANTONIETTI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward FINK, Defendant-Appellant.

June 26, 1996.

Appeals from the United States District Court for the Middle

District of Alabama. (No. 93-32-Cr-T-23A), Steven D. Merryday,

Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and LOGAN*

, Senior

Circuit Judge.

DUBINA, Circuit Judge:

In this consolidated appeal, defendants-appellants Glenn

Antonietti ("Antonietti") and Edward Fink ("Fink") appeal their

convictions and sentences for conspiracy to manufacture and possess

marijuana with intent to distribute and for manufacturing and

possession of a quantity of marijuana with intent to distribute.

I. STATEMENT OF THE CASE

A. Procedural History

A federal grand jury in the Middle District of Florida

returned an indictment charging Antonietti and Fink with conspiracy

to manufacture and possess with intent to distribute marijuana

plants, in violation of 21 U.S.C. §§ 841 and 846 (count one), and
manufacturing and possession with intent to distribute marijuana

plants, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (count

two). Fink and Antonietti filed motions to suppress evidence. A

hearing on the motions was conducted by a United States magistrate

judge. The magistrate judge recommended that the motions to

suppress be denied, and Fink and Antonietti filed objections to the

recommendation. The district court overruled the objections,

adopted the Report and Recommendation of the magistrate judge, and

denied the motions to suppress.

Fink and Antonietti then pled guilty to both counts of the

indictment but reserved their right to appeal the denial of their

suppression motions. Fink and Antonietti then perfected their

appeals.

B. Factual Background

Fink and Antonietti were childhood friends and are current

brothers-in-law. They used marijuana as teenagers and continued to

do so until their arrests in November of 1992. In order to support

their habits, Fink and Antonietti decided to grow their own

marijuana. They studied the High Times Magazine, rented a house at

6432 Juniper Street, Port Richey, Florida, and purchased grow

lights, electric fans, pots, and potting soil to further this plan.

Antonietti even sold his 1968 classic Camaro to finance the

project.

After receiving confidential information about suspicious

activity at the Juniper Street house, Pasco County Sheriff's

detectives began an investigation. On November 4, 1992, a

detective at the residence observed an open window near the front
door and noticed a strong odor of marijuana coming from the house.

After obtaining a search warrant, the detectives found 131

marijuana plant seedlings, three to four inches high, in one of the

bedrooms, as well as 69 marijuana plants in another bedroom and one

bathroom. The detectives also found five 1500 watt grow lights

hanging from the ceiling. One of the vehicles found on the

premises was registered to Antonietti, and the other vehicle and a

trailer were registered to Fink and his wife. The house was rented

to "Michael Camielo," an alias of Antonietti.

Fink arrived at the residence during the execution of the

warrant, and he was promptly arrested. He admitted that he and

Antonietti intended to sell the plants and said each had hoped to

make $2,000.00 from their efforts. Another 43 plants were found in

the garage attic at Fink's home. Antonietti arrived at the Juniper

Street residence the following evening and was also arrested.

After claiming he was a maintenance man hired to do some work at

the house, Antonietti admitted that he was cultivating marijuana

plants with Fink. He also admitted that the house was rented under

a fictitious name and that he planned to begin a new crop of

marijuana after the 70 plants were harvested. A small amount of

marijuana and approximately 30 marijuana buds were found at

Antonietti's home.

II. ISSUES

1. Whether the district court erred in calculating the

appellants' base offense levels by counting seedlings as marijuana

plants.

2. Whether the district court erred in calculating the
 1

See Eleventh Circuit Rule 36-1. 

appellants' base offense levels by counting quantities of marijuana

which were intended for personal use.

3. Whether the district court erred in denying the appellants'

motions to suppress evidence.

III. STANDARDS OF REVIEW

This court reviews a district court's determination of the

quantity of drugs used to establish a base offense level for

sentencing purposes under the clearly erroneous standard. United

States v. Taffe, 36 F.3d 1047, 1050 (11th Cir.1994).

A district court's decision to admit or exclude evidence will

not be disturbed on appeal absent a clear abuse of discretion.

United States v. Taylor, 17 F.3d 333, 338 (11th Cir.), cert.

denied, --- U.S. ----, 115 S.Ct. 364, 130 L.Ed.2d 317 (1994). This

court reviews findings of fact as to a motion to suppress evidence

for clear error; the district court's application of the law to

those facts is subject to de novo review. United States v. DiazLizaraza, 981 F.2d 1216, 1220 (11th Cir.1993).

IV. ANALYSIS

We begin our analysis by holding that the district court

committed no error in denying the appellants' motions to suppress.

The district court's reasoning is sound, and this issue warrants no

further discussion.1

 We next turn our attention to the issue of whether the

district court erred in calculating the appellants' base offense

levels by counting seedlings as marijuana plants. In United States

v. Foree, 43 F.3d 1572, 1581 (11th Cir.1995), this court held that
a cutting or seedling from a marijuana plant is not considered a

plant until the cutting or seedling develops roots of its own.

Fink and Antonietti argue that, based upon this decision, the

district court erred in counting the 131 seedlings in calculating

their base offense levels. As a result, they request us to vacate

their sentences and remand the case for resentencing.

The government concedes that the seedlings were improperly

counted but argues that the appellants waived this argument because

they failed to object to it in the district court in writing or at

any hearing. The appellants argue that they raised the seedlings

issue at the February 4, 1994, sentencing hearing during which the

defense mentioned United States v. Bechtol, 939 F.2d 603 (8th

Cir.1991), for the proposition that seedlings are not counted if

there is not a root formation. Appellants' counsel later cited two

additional cases for this same proposition: United States v.

Curtis, 965 F.2d 610 (8th Cir.1992), and United States v. Corley,

909 F.2d 359 (9th Cir.1990). The district court responded that it

"would like to read these cases and learn a little bit more about

seedlings and males and female plants and that sort of thing and

see what this calculation comes up with." R4-61. The court then

recessed and offered counsel the opportunity to submit supplemental

authority by citation.

The government claims that pursuant to United States v. Jones,

899 F.2d 1097, 1102-03 (11th Cir.), cert. denied, 498 U.S. 906, 111

S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other grounds,

United States v. Morrill, 984 F.2d 1136, 1137 (11th Cir.1993) (en

banc), the appellants waived this issue. However, in United States
v. Weir, 51 F.3d 1031, 1033 (11th Cir.1995), cert. denied, --- U.S.

----, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996), this court held:

"Jones provides for post-sentence objections because new issues may

arise between the pre-sentence report and the imposition of

sentence. If the relevant objection is raised after the

presentation of the report, however, but before the actual

imposition of the sentence, Jones is satisfied." Appellants'

counsel mentioned the issue during the hearing, and the district

court stated that it would consider it. Furthermore, it must be

remembered that United States v. Foree had not yet been decided and

that there was little existing case law on the issue. The

government asserts that the district court had no transcript of the

February 4 hearing at sentencing because it was not transcribed

until April 25, 1994. The record demonstrates, however, that the

district court reviewed handwritten notes and a preliminary

transcript prior to sentencing. In addition, during the March 22

continuation of the sentencing hearing, the district court referred

to the "cases that [the defendants] and the United States ha[d]

pointed to" and overruled "[t]hose [objections] which had to do

with the gender of the plant, the maturity of the plant, [and]

whether the plant was for personal or commercial use." R6-27

(emphasis added).

 Although our review of the record persuades us that there was

no waiver of this issue by the appellants, there is an alternative

basis for vacating the appellants' sentences. Even if there had

been no objections, we would still be compelled to vacate the

appellants' sentences. We review assertions of error which were
not objected to at trial for plain error. See Fed.R.Crim.P. 52(b);

United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1777,

123 L.Ed.2d 508 (1993); United States v. Kramer, 73 F.3d 1067,

1074 (11th Cir.1996). Reversal for unobjected-to-error is possible

(but not required) where error is both (1) plain, and (2) affects

substantial rights. Olano, 507 U.S. at 732-36, 113 S.Ct. at 1777-

78; Kramer, 73 F.3d at 1074. Because the error here was plain and

affected the appellants' substantial rights, we must vacate the

appellants' sentences and remand for resentencing.

 The final issue presented in this appeal is one of first

impression in this circuit: whether the drug quantity for the base

offense level calculation under U.S.S.G. § 2D1.1 includes drugs

possessed solely for personal use. The district court set the

appellants' base offense levels under § 2D1.1 according to the

total amount of marijuana seized during their arrests. The

district court recognized the lack of precedent within this circuit

concerning whether drugs for personal use should be included in

this determination, and it declined to follow relevant decisions

from the Ninth Circuit on this issue. The district court also

found that, even without that legal determination, its use of the

total drug quantity for the base offense levels was appropriate

based on the facts of this case.

The appellants contend that the drug quantity used to

determine their base offense levels under § 2D1.1 should not

include marijuana that they possessed merely for personal use.

They argue that the Controlled Substances Act, 21 U.S.C. § 841, and

the relevant sentencing guidelines' provisions require the
sentencing court to follow the Ninth Circuit's approach and take

into account the nature of the purpose for which the appellants

possessed the controlled substance.

The government responds that Congress intended large-scale

growers like Antonietti and Fink to be punished more severely than

a small-scale grower regardless of any quantity they may have

planned to retain for personal use. The government also argues

that because the appellants pled guilty to conspiracy to

manufacture and to manufacturing marijuana, as well as possession

with intent to distribute, they should be held accountable under

relevant conduct principles for all of the plants regardless of

whether they intended to distribute all or only some of them.

The Controlled Substances Act makes it unlawful "to

manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance." 21

U.S.C. § 841(a)(1). The corresponding guidelines provide for a

base offense level of 26 for such violations involving "[a]t least

100 KG but less than 400 KG of marijuana." U.S.S.G. § 2D1.1(c)(9).

The guidelines also provide that such base offense level shall be

determined on the basis of all acts or omissions "that were part of

the same course of conduct or common scheme or plan as the offense

of conviction." U.S.S.G. § 1B1.3(a)(3). Furthermore, "quantities

and types of drugs not specified in the count of conviction are to

be included in determining the offense level if they were part of

the same course of conduct or part of a common scheme or plan as

the count of conviction." Id. at comment. (backg'd.) The

threshold question is whether the drug quantity used to determine
the base offense level for manufacturing or possession with intent

to distribute includes drugs manufactured or possessed for personal

consumption.

In deciding this issue, the First Circuit held that where

there is evidence of a conspiracy to distribute, and the defendant

is a member, the "defendant's purchases for personal use are

relevant in determining the quantity of drugs that the defendant

knew were distributed by the conspiracy." United States v.

Innamorati, 996 F.2d 456, 492 (1st Cir.1993), cert. denied, ---

U.S. ----, 114 S.Ct. 409, 126 L.Ed.2d 356 (1993). The First

Circuit's view has been followed by the Seventh, Eighth, and Tenth

Circuits. See United States v. Snook, 60 F.3d 394, 395 (7th

Cir.1995); United States v. Fregoso, 60 F.3d 1314, 1328 (8th

Cir.), reh'g and sugg. for reh'g en banc denied (Oct. 10, 1995);

United States v. Wood, 57 F.3d 913, 920 (10th Cir.1995).

On two occasions, however, the Ninth Circuit has held that

"[d]rugs possessed for mere personal use are not relevant to the

crime of possession with intent to distribute because they are not

"part of the same course of conduct' or "common scheme' as drugs

intended for distribution." United States v. Kipp, 10 F.3d 1463,

1465-66 (9th Cir.1993). See also United States v. RodriguezSanchez, 23 F.3d 1488, 1494-96 (9th Cir.1994).

We choose to reject the Ninth Circuit's analysis and instead

follow the majority of the circuits that have considered the

personal use issue. We therefore hold that the marijuana intended

for personal use by Antonietti and Fink was properly included by

the district court in determining their base offense levels.
V. CONCLUSION

For the foregoing reasons, we affirm Antonietti and Fink's

convictions in all respects. Moreover, we affirm their sentences

in part, vacate in part, and remand for resentencing consistent

with this opinion.

AFFIRMED in part, VACATED in part, and REMANDED.