*

The Honorable Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting

by designation. 

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0292p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

JESSICA OLSEN,

 Defendant-Appellant.

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No. 07-1706

Appeal from the United States District Court

for the Western District of Michigan at Marquette.

No. 02-00004-001—R. Allan Edgar, District Judge.

Argued: July 25, 2008

Decided and Filed: August 14, 2008 

Before: COLE and CLAY, Circuit Judges; RUSSELL, District Judge.*

_________________

COUNSEL

ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,

Michigan, for Appellant. Nils R. Kessler, ASSISTANT UNITED STATES ATTORNEY, Grand

Rapids, Michigan, for Appellee. ON BRIEF: Paul A. Peterson, FEDERAL PUBLIC

DEFENDER’S OFFICE, Marquette, Michigan, for Appellant. Nils R. Kessler, ASSISTANT

UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

_________________

OPINION _________________

CLAY, Circuit Judge. Defendant, Jessica Olsen, appeals from an order entered by the United

States District Court for the Western District of Michigan sentencing her to 41 months of

imprisonment and two years of supervised release for possession with intent to distribute marijuana

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). Specifically, Olsen contends that the district

court erred in calculating the drug quantity attributable to her for purposes of establishing her base

offense level. For the reasons that follow, we REVERSE the judgment of the district court.

1
No. 07-1706 United States v. Olsen Page 2

1

Joseph Olsen was arrested by police during the search of the Olsen residence. Mr. Olsen, however, is not a

party to the instant appeal. 

BACKGROUND

On January 15, 2002, after receiving a tip from an informant regarding illegal manufacturing,

possession and sale of marijuana by Joseph Olsen, members of the Upper Peninsula Substance

Enforcement Team obtained and executed a search warrant for Joseph Olsen’s home. Joseph Olsen

resided in the home with his wife, Defendant Jessica Olsen (“Olsen”). While searching the home,

police discovered a “5' x 5' x 5' growing chamber set up for the hydroponic cultivation of marijuana

in [the] basement.” (J.A. at 10) The basement contained approximately 168 live plants and 137

recently harvested plants. Additionally, police found 557.8 grams of processed marijuana,

apparently the proceeds of the harvested plants.1

Olsen arrived as police were executing the search warrant and agreed to an interview with

police. During the interview, Olsen indicated that she knew the substance being grown in her home

was marijuana and that she intended to distribute it. Olsen also stated that she helped to build the

hydroponic growing chamber. According to an affidavit filed by a law enforcement officer that

searched Olsen’s home, an informant reported that “Ms. Olsen had admitted to purchasing the

building materials with her own money.” (Id.)

On February 13, 2002, a grand jury sitting in the Western District of Michigan issued a two

count indictment against Olsen, charging her with manufacturing more than 100 marijuana plants

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) as well as possession with intent to distribute

marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). 

Approximately two months after the grand jury issued the indictment, Olsen entered into a

plea agreement with the government. Under the terms of the agreement, Olsen was to plead guilty

to count two of the indictment. The government, apparently based on its belief that Olsen was less

culpable than her husband, agreed to dismiss the first count of the indictment which alleged that

Olsen manufactured more than 100 marijuana plants. According to the factual basis of the

agreement, Olsen acknowledged jointly possessing 557.8 grams of marijuana with her husband with

the intent to distribute the marijuana. The agreement did not, however, specify the appropriate

Guidelines range and the “parties reserve[d] the right to seek any sentence within the statutory

maximum, and to argue for any criminal history category and score, offense level, specific offense

characteristics, adjustments and departures.” (J.A. at 16-17) On May 1, 2002, Olsen appeared

before a magistrate judge and pleaded guilty to possession with intent to distribute marijuana. The

magistrate judge’s acceptance of Olsen’s plea was subsequently adopted by the district court. 

In July of 2002, Olsen was scheduled to appear before the district court for sentencing.

Olsen, however, absconded prior to the hearing. Thereafter, the government requested that Olsen’s

bond be revoked pending sentencing. A magistrate judge granted the motion and issued a warrant

for Olsen’s arrest. On March 27, 2007, Olsen was apprehended in San Diego, California and

incarcerated pending sentencing. 

Prior to sentencing, a presentence investigation report (“PSR”) was prepared. The PSR

recommended against the application of a reduction for acceptance of responsibility, citing Olsen’s

“absconding from pre-trial supervision” and her statements in which she “falsely deni[ed] providing

growing and distribution assistance over the course of the instant offense . . . .” (J.A. at 79) Olsen’s

base offense level was calculated at 18 because the offense involved “at least 20 but less than 40

kilograms of marijuana. According to the Offense Conduct section, [Olsen’s] criminal activity

involved 30.5 kilograms of marijuana.” (J.A. at 80) The PSR calculated the drug quantity amount

based on the equivalency ratio provision contained in USSG § 2D1.1. Under that provision, the 168
No. 07-1706 United States v. Olsen Page 3

live plants and the 137 harvested plants found at the Olsen residence were multiplied by “100 grams

each for a total of 30.5 kilograms of marijuana.” (J.A. at 79) After a two-level enhancement for

obstruction of justice, Olsen’s total offense level was calculated at 20. The PSR determined Olsen

to be in criminal history category II. Olsen’s total offense level and criminal history category placed

her in the Guidelines range of 37-46 months of imprisonment. 

On May 24, 2007, Olsen appeared before the district court for sentencing. During the

hearing, Olsen raised an objection to the PSR’s method of calculating the drug quantity amount

attributable to her for purposes of sentencing. Although conceding that the 168 live marijuana plants

found during the search of her home were subject to § 2D1.1’s 1-to-100 equivalency ratio, Olsen

argued that the harvested plants should not fall under the equivalency provision. Rather, she

contended, the harvested plants should be calculated based on the weight of the marijuana actually

produced by the plants, which was estimated to be 557.8 grams by law enforcement officers.

Accordingly, Olsen asserted “[t]hat [the] total, which would be just over 17 kilograms, would be in

the lower guidelines category of 15, as opposed to 18.” (Id.) The district court, however, rejected

Olsen’s objection, noting that it found “that the pre-sentence report is correct, that the guidelines as

calculated, the drug quantity, at least as calculated there, is correct.” (J.A. at 54) Thus, the district

court treated the harvested plants as if they were live plants for purposes of sentencing and applied

the equivalency ratio.

After hearing arguments from Olsen and the government regarding the appropriate sentence,

the district court sentenced Olsen to 41 months of imprisonment and two years of supervised release.

Olsen now timely appeals.

DISCUSSION

 A. Standard of Review

This Court generally reviews a district court’s drug quantity calculation for clear error.

United States v. Swanberg, 370 F.3d 622, 624-25 (6th Cir. 2004). However, “[q]uestions involving

the interpretation of the guidelines are legal questions that this Court reviews de novo.” United

States v. Murphy, 241 F.3d 447, 458 (6th Cir. 2001); see also United States v. Edge, 989 F.2d 871,

876 (6th Cir. 1993) (“Defining the word ‘plant’ for purposes of the Sentencing Guidelines is a

question of statutory construction subject to de novo review.”) (citation and quotation marks

omitted).

B. Analysis

Olsen contends that the district court improperly calculated the amount of marijuana in

determining her base offense level under USSG § 2D1.1(c). Olsen asserts that the district court’s

use of the 1-to-100 equivalency ratio was inappropriate with respect to the 137 harvested plants

seized during the execution of a search warrant at her home. Instead, Olsen argues that the district

court should have utilized the actual weight of the 557.8 grams of marijuana harvested from the 137

plants to calculate her base offense level. We agree.

As a general matter, the drug quantity table of the Sentencing Guidelines determines the

offense level for marijuana crimes based on the weight of the marijuana attributable to a defendant.

However, “[w]hen a person is apprehended with marijuana plants . . . the appropriate weight of the

marijuana cannot be determined simply by weighing the plants, for Congress has criminalized

possession of only consumable portions of the plant . . . .” United States v. Stevens, 25 F.3d 318,

320-21 (6th Cir. 1994). Rather, under § 2D1.1(c) of the Guidelines, the base offense level of a

defendant convicted of a drug offense involving marijuana plants is established pursuant to what is

known as the “equivalency ratio” provision. Specifically, the equivalency ratio states that:
No. 07-1706 United States v. Olsen Page 4

In the case of an offense involving marihuana plants, treat each plant, regardless of

sex, as equivalent to 100 G of marihuana. Provided, however, that if the actual

weight of the marihuana is greater, use the actual weight of the marihuana.

USSG § 2D1.1(c), Application note E. According to the commentary accompanying § 2D1.1(c),

“[t]he decision to treat each plant as equal to 100 grams is premised on the fact that the average yield

from a mature marihuana plant equals 100 grams of marihuana.” Id.

In determining when the equivalency ratio is applicable, this Court has drawn a distinction

between different types of marijuana crimes that involve the growth and harvesting of marijuana

plants. Specifically, in Stevens, 25 F.3d 318 (6th Cir. 1994), and Oliver v. United States, 90 F.3d

177 (6th Cir. 1996), this Court held that the equivalency ratio is inapplicable to harvested plants in

the context of marijuana possession crimes and applicable to such plants in the context of sentencing

for marijuana manufacturing convictions. Because the parties do not dispute the propriety of the

district court’s use of the equivalency ratio with respect to the live marijuana plants seized at Olsen’s

home, the critical question becomes whether the harvested plants can be similarly subject to the ratio

under the factual circumstances surrounding Olsen’s offense. Thus, an extended discussion of

Stevens and Oliver is warranted.

In Stevens, this Court considered a challenge to the application of the equivalency ratio

where a defendant was convicted of conspiracy to possess marijuana with intent to distribute. 25

F.3d at 320. There, the defendant was indicted for the conspiracy offense after law enforcement

officers made a number of controlled purchases of marijuana and seized additional amounts of

marijuana while executing a search warrant at the defendant’s home. Id. Before the grand jury, the

government called the defendant’s supplier who testified regarding his history of providing

marijuana to the defendant. Id. In particular, the supplier testified that approximately 1600

marijuana plants were grown and/or harvested over the course of the conspiracy. Id.

At sentencing, the district court “determined [the defendant’s] base offense level using the

drug quantity table in § 2D1.1 of the Guidelines.” Id. The district court disregarded the actual

amount of consumable marijuana police purchased from the defendant and seized during the search

of the defendant’s home. Instead, the district court found the defendant to be responsible for 1600

plants, both live and harvested, grown by his supplier as “relevant conduct” that was attributable to

the defendant as a coconspirator. Id.

On appeal, this Court reversed the district court’s application of the equivalency ratio to

harvested plants. After reviewing the legislative history and a number of cases interpreting the

equivalency provision, the Stevens court noted that “[t]he equivalency provision was developed to

apply in sentencing when the plants have not been harvested.” Id. at 323. Thus, this Court held that

“[t]he proper way to calculate the quantity of marijuana for sentencing here, then, is to apply the

provision only to live marijuana plants found. Additional amounts for dry leaf marijuana that a

defendant possesses–or marijuana sales that constitute ‘relevant conduct’ that has occurred in the

past–are to be added based upon the actual weight of the marijuana and not based upon the number

of plants from which the marijuana was derived.” Id. at 323. See also United States v. Blume, 967

F.2d 45, 49 (2d Cir. 1992) (holding that § 2D1.1’s ratio applies only to live plants, rather than dry

leaf marijuana).

In Oliver v. United States, however, a panel of this Court narrowly interpreted the holding

of Stevens. There, a defendant pleaded guilty to manufacturing marijuana. At sentencing, the

district court computed the defendant’s base offense level utilizing the equivalency ratio at issue in

Stevens. As in Stevens, the district court applied the equivalency ratio to plants that had been

harvested before being seized by law enforcement. 90 F.3d at 178. On review, this Court held that

the defendant could not avail himself of the Stevens decision because Stevens was deemed to be
No. 07-1706 United States v. Olsen Page 5

2

As the government notes, most of the circuits that have considered this issue have reached a conclusion that

is in accord with Oliver. Indeed, with the exception of the Second and Sixth Circuits, the courts of appeals have

interpreted the equivalency provision to apply to both live and harvested plants when the defendant was involved in the

cultivation of the marijuana plants. See United States v. Layman, 116 F.3d 105, 109-10 (4th Cir. 1997); United States

v. Fitch, 137 F.3d 277, 280-82 (5th Cir. 1998); United States v. Montgomery, 990 F.2d 266, 269 (7th Cir. 1993); United

States v. Wilson, 49 F.3d 406, 410 (8th Cir. 1995); United States v. Wegner, 46 F.3d 924, 928 (9th Cir. 1995); United

States v. Silvers, 84 F.3d 1317, 1327 (10th Cir. 1996); United States v. Shields, 87 F.3d 1194, 1197 (11th Cir. 1996).

However, it does not appear that the other circuits have explicitly limited the application of the equivalency provision

to marijuana manufacturing convictions as this Court did in Oliver. 

“distinguishable on the basis of the underlying crime” based on the fact that the defendant was

convicted of manufacturing marijuana whereas Stevens involved a conviction for possession with

intent to distribute. Id. at 179. The panel noted that “[t]his Circuit recognizes that one reason

behind the equivalency ratio in marijuana sentencing is to punish marijuana growers more harshly

than mere marijuana possessors.” Id. (citing United States v. Holmes, 961 F.2d 599, 601 (6th Cir.

1992)). “If the equivalency ratio were deemed inapplicable in cases such as this, where a convicted

grower of marijuana has just harvested his crop, this goal would be frustrated. So long as the

government can prove, by a preponderance of the evidence, that a particular grower charged with

manufacture grew a particular plant, sentencing should be based on the equivalency ratio in the

sentencing guidelines.” Id. Thus, this Could held that “the equivalency ratio should remain

applicable to harvested plants in manufacture cases in order to treat all defendants convicted of

manufacturing the same.”2 Id.

We find that, when read together, Stevens and Oliver require that the harvested, dry leaf

marijuana attributable to Olsen be calculated based on weight. Thus, the district court’s application

of the equivalency ratio to the harvested plants for the purpose of establishing Olsen’s base offense

level was in error. In the instant case, police found approximately 168 live marijuana plants and 137

harvested plants from which 557.8 grams of consumable marijuana was derived. Inasmuch as police

found the harvested amount of consumable marijuana, as in Stevens, there is no need to speculate

regarding the amount of marijuana that could have been produced by the plant such that the 1-to-100

ratio is unnecessary. Moreover, unlike Oliver, Olsen was not convicted of marijuana manufacturing,

but rather possession of marijuana with intent to distribute. Indeed, the government noted at Olsen’s

sentencing hearing that she was offered the opportunity to plead guilty to the possession offense

because she was less culpable than her husband. Therefore, the overall purpose of the equivalency

ratio, to punish those convicted of marijuana manufacturing, will not be undermined.

The government, however, contends that the harvested plants are attributable to Olsen, and

thus should be treated as live plants under the equivalency ratio provision for purposes of

sentencing, pursuant to the relevant conduct provision of the Guidelines. In particular, the

government contends that because Olsen admitted to assisting with the purchase of materials used

to build the marijuana lab, that the factual predicate involved in this case is more akin to Oliver than

to Stevens. Thus, the government contends that Olsen’s relevant conduct subjects the harvested

plants to the equivalency provision. This argument is without merit.

As an initial matter, a defendant who is convicted of a possession or distribution offense is

not subject to the equivalency provision merely because their relevant conduct involves a degree of

manufacturing activity. Indeed, in Stevens, the defendant was similarly subject to the relevant

conduct provision of the Guidelines because he was a coconspirator of a marijuana manufacturer

in a distribution offense. There, the defendant consulted with the grower regarding the number of

plants needed to supply the marijuana distribution conspiracy. Thus, as a coconspirator, the

defendant was liable for the foreseeable criminal acts, i.e., marijuana manufacturing, of

coconspirators. Stevens, 25 F.3d at 322-23. Nevertheless, the Stevens court held that, to the extent

that the defendant could be held responsible for his coconspirator’s manufacturing activities under
No. 07-1706 United States v. Olsen Page 6

the relevant conduct provision, any marijuana harvested must be measured by weight rather than the

equivalency provision. Id. In short, under Stevens, a district court is not barred from considering

manufacturing activity as relevant conduct in sentencing a defendant convicted of possession or

distribution, it is simply limited in terms of how such conduct is measured for purposes of

sentencing. Indeed, Oliver confirms this limitation based on its explicit application of the

equivalency provision in the context of convictions for marijuana manufacturing. Thus, contrary

to the government’s assertion, the district court erred in applying the equivalency provision to

harvested plants to Olsen in a case that did not involve a conviction for marijuana manufacturing.

CONCLUSION

 For the reasons set forth above, we REVERSE the district court’s judgment, VACATE

Olsen’s sentence and REMAND for further proceedings consistent with this opinion.