UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-5153

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

BERTRAND ANDER MILES, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Henry E. Hudson, District 

Judge. (3:07-cr-00214-HEH-1) 

Argued: December 5, 2008 Decided: March 25, 2009 

Before WILLIAMS, Chief Judge, and WILKINSON and GREGORY, Circuit 

Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Robert James Wagner, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Richmond, Virginia, for Appellant. Richard Daniel 

Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, 

for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public 

Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, 

United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 A jury in the Eastern District of Virginia convicted 

Bertrand Ander Miles of manufacturing and conspiring to 

manufacture more than one-hundred marijuana plants, and of 

maintaining a place for the distribution, storage, or use of 

marijuana. Miles appeals his conviction. For the reasons that 

follow, we affirm. 

I. 

 This case began with a DEA task force investigation of a 

hydroponics1 store in Richmond, Virginia. Officers performed a 

“trash pull” of the store’s garbage and discovered credit card 

receipts of purchases made by Miles from November 2006 to 

January 2007. As a result of the investigation, the task force 

obtained and executed a search warrant on Miles’ property in May 

2007. Robert Nelson, Miles’ landlord and housemate, owned the 

house, shed, and land searched. Miles rented the upstairs 

section of Nelson’s home. 

 Miles began growing and smoking marijuana to treat his 

cluster headaches. Nelson agreed to allow Miles to use the shed 

 1

 “Hydroponics” is “[t]he cultivation of plants by placing 

the roots in liquid nutrient solutions rather than in soil; 

soilless growth of plants.” Webster’s Unabridged Dictionary 938 

(2d ed. 2001) 

2 
on the property to grow marijuana as long as it was for Miles’ 

personal use. Further, Nelson helped Miles move his hydroponic 

equipment to the shed and even equipped the shed with airconditioning and an exhaust vent. 

 When police searched the house and property, they found 

evidence of marijuana manufacturing. Police found hydroponic 

growing apparatus and marijuana growing under grow lights in an 

upstairs closet. Officers also found a scale and a smoking 

device. Additional marijuana and growing equipment were found 

in the shed. 

 The precise number of marijuana plants seized was highly 

contested at trial. The Government counted sixty-three plants: 

twenty-nine in the upstairs closet, twenty-five in the shed, and 

nine clones under a “cloning dome” in the shed. Miles conceded 

that the jury could have counted thirty-four seized mature 

plants with fully functioning root balls. But, Miles argued 

that the rest of the seized materials were at most cuttings or 

cloning attempts, and that the Government did not provide 

evidence that his growing attempts “had taken root and started 

growing.” (Pet’r Br. 7.) Officer Phillip Johnakin, who 

participated in the search and did the counting, testified that 

successful clones may take seven to ten days before they start 

growing roots. In his written report, the officer did not 

indicate that all of the cuttings had root systems, although at 

3 
trial he testified that he remembered all of the cuttings having 

roots. 

 At trial, the Government presented the testimony of three 

“jailhouse informants,” who claimed that Miles bragged about his 

success and expertise at growing marijuana. One of these 

witnesses, Anthony Harrelson, testified that Miles claimed to 

have grown more than one-hundred marijuana plants. 

 Ultimately, the jury found Miles guilty on three counts: 

Count One, conspiracy to manufacture more than one-hundred 

marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1) (2006), 

841(b)(1)(B) (2006), and 846 (2006); Count Two, manufacturing 

and possessing with intent to distribute more than one-hundred 

marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1)(2) 

(2006), 841(b)(1)(B) (2006); and Count Three, maintaining a 

place for the distribution, storage, or use of marijuana, in 

violation of 21 U.S.C. § 856(a)(2) (2006). The court granted 

Miles’ motion for judgment of acquittal on Count Four—possession 

of a firearm by an unlawful user of controlled substances, in 

violation of 18 U.S.C. § 922(g)(3) (2006)—because the Government 

failed to prove the firearm recovered was operable. 

 The district court sentenced Miles to concurrent mandatory 

minimum sentences of sixty months on Counts One and Two. 

Additionally, the court sentenced Miles to twenty-seven months 

on Count Three to run concurrently with Counts One and Two. The 

4 
court imposed a five-year term of supervised release and a 

forfeiture order in the amount of $20,000. Miles timely appeals 

his conviction. 

II. 

A. 

 The first issue before this Court is whether the jury was 

presented with sufficient evidence to support its finding that 

Miles manufactured and conspired to manufacture more than onehundred marijuana plants. Miles has not demonstrated that the 

evidence, when viewed in the light most favorable to the 

Government, was insufficient on these counts. 

 This Court has found that a jury verdict must be sustained 

“‘if there is substantial evidence, taking the view most 

favorable to the Government, to support it.’ This is the 

familiar standard for review of a defendant’s claim that the 

evidence is insufficient to sustain the jury’s verdict of 

guilty.” United States v. Steed, 674 F.2d 284, 286 (4th Cir. 

1982) (citing Glasser v. United States, 315 U.S. 60, 80 (1942), 

overruled on other grounds). Substantial evidence is “evidence 

that a reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant’s guilt beyond 

a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 

(4th Cir. 1996)(en banc). 

5 
 Miles argues that one-hundred marijuana plants should not 

be attributed to him because the evidence to support that amount 

is not credible. Officer Johnakin testified that he personally 

counted sixty-three of Miles’ marijuana plants and that each 

plant had roots. We must credit this testimony over Miles’ mere 

assertion that the officer conveniently added this information 

on the stand. Harrelson testified that Miles claimed to have 

raised “at least well over 100” (J.A. 180) marijuana plants. 

Although the only testimony that brought the number of plants 

from sixty-three to one-hundred was the testimony of Harrelson, 

a jailhouse informant, the evidence when viewed in the light 

most favorable to the Government is sufficient to support Miles’ 

conviction. Miles acknowledges that this Court does not 

ordinarily reweigh the district court’s credibility findings. 

(Pet’r. Br. 16-17.) We find no reason to establish a new rule 

here. 

B. 

 Next, whether jury instructions were properly given is a 

question of law to be reviewed de novo. United States v. Stitt, 

250 F.3d 878, 888 (4th Cir. 2001) (citing United States v. 

Morrison, 991 F.2d 112, 115 (4th Cir. 1993)). However, a 

district court’s decision concerning which instructions to give 

is reviewed for abuse of discretion. United States v. Abbas, 74 

F.3d 506, 513 (4th Cir. 1996). Furthermore, a district court’s 

6 
refusal to give a proposed instruction is reversible error only 

if the omitted instruction was correct, not substantially 

covered by the court’s actual instruction, and so important to 

an issue in the trial that the failure to give the instruction 

seriously impaired the defendant’s defense. United States v. 

Lewis, 53 F.3d 29, 32 (4th Cir. 1995). 

 Miles contends that the district court erred in rejecting 

his proposed jury instruction. Specifically, counsel proposed a 

definition instruction to read, “A marijuana ‘plant’ is an 

organism having leaves and a readily observable root formation, 

which would include roots, a rootball, or root hairs.” (J.A. 

16.) The language for this proposed instruction came from the 

U.S. Sentencing Guidelines Manual. See U.S. Sentencing 

Guidelines Manual § 2D1.1 cmt. n.17 (2008). 

 Miles argues that without his instruction the jury was 

without guidance and may have mistakenly thought that “a mere 

leaf or stem or seed constituted a ‘plant.’” (Pet’r Br. 21.) 

Moreover, he argues that this Court has no way of knowing that 

the jury did not employ this incorrect analysis. Miles further 

argues that although Officer Johnakin testified that root 

formation was a requisite for his characterization of a 

marijuana plant, the jury was never informed of why this was 

important. Thus, Miles contends that the court’s failure to 

7 
give his instruction seriously impaired his ability to present 

an adequate defense. 

 The district court’s reason for rejecting Miles’ proposed 

instruction was that jurors did not have to be botanists to 

count plants. (J.A. 296.) However, Miles maintains that there 

is a vitally important distinction between what a layperson 

would deem a plant and what is considered a marijuana plant for 

the purposes of the Sentencing Guidelines. In essence, Miles 

argues, counting is not the problem; the problem is knowing what 

to count. 

 In order to evaluate a district court’s refusal to give a 

proposed instruction we apply the Lewis test, which is composed 

of a three-part analysis: 1) whether the instruction was 

correct; 2) not substantially covered by the court’s actual 

instruction; and 3) so important to an issue in the trial that 

the failure to give an instruction seriously impaired the 

defendant’s defense. Lewis, 53 F.3d at 32. The Government 

admits that Miles satisfied the second prong of the Lewis test, 

as no part of the jury instructions addressed the meaning of the 

term “marijuana plant.” Thus, the issues in dispute are whether 

the proposed instruction was correct and whether it was 

necessary. 

8 
i. 

 The Supreme Court has held that federal drug statutes need 

not be interpreted through the lens of the advisory Federal 

Sentencing Guidelines. See, e.g., Kimbrough v. United States, 

128 S. Ct 558, 570-72 (2007) (finding that the Sentencing 

Guidelines were not meant to modify relevant law and noting that 

“[w]e do not lightly assume that Congress has omitted from its 

adopted text requirements that it nonetheless intends to 

apply.”) (quoting Jama v. Immigration and Customs Enforcement, 

543 U.S. 335, 341 (2005)); Neal v. United States, 516 U.S. 284 

(1996). When the Supreme Court interpreted Neal in Kimbrough it 

stated that the United States Sentencing Commission “had not 

purported to interpret the statute and could not in any event 

overrule our [prior case law].” Kimbrough, 128 S. Ct. at 571-

572 (citing Neal, 516 U.S. at 287). Miles has offered no reason 

to read an application note in the United States Sentencing 

Guidelines as modifying or defining the plain language of a 

federal drug statute. 

 Under 21 U.S.C. § 802(16) (2006), Congress defined 

marijuana (or “marihuana”) as it is used in 21 U.S.C. § 841(b) 

(2006). Marijuana is considered “all parts of the plant 

Cannabis sativa L.,” including seeds. 21 U.S.C. § 802(16). 

Congress gave no separate definition for a “marijuana plant”; 

instead it gave the courts a clear unambiguous definition. 

9 
There is no case law or statutory authority to support Miles’ 

contention that a jury instruction, derived from a comment in 

the Sentencing Guidelines, which requires a plant to have a root 

system in order to be considered a “marijuana plant,” is 

correct. 

ii. 

 Assuming arguendo, that the instruction was correct, the 

record reflects that the instruction was not necessary for 

Miles’ defense. The Government never refuted Miles’ definition 

of a marijuana plant. Miles’ claimed the court needed to 

clarify for the jury that a marijuana plant has a root system. 

However, the Government’s key witness, Officer Johnakin, clearly 

stated that each plant he counted had a root system. 

 Since Officer Johnakin claimed that all sixty-three plants 

that he counted had root balls, the jury only had to decide 

whether they believed him, and if so, whether Miles had 

manufactured and possessed over one-hundred plants. Harrelson 

testified that Miles took pride in growing marijuana (J.A. 179); 

certainly, someone with Miles’ level of expertise would know how 

to distinguish a marijuana plant from a clone. Therefore, it 

would have been reasonable for the jury to conclude that if 

sixty-three of the marijuana plants had root systems, then the 

remaining thirty-seven that Miles told Harrelson he had grown 

also had root systems. The district court correctly found that 

10 
the jury was merely charged with the task of deciding if they 

believed Officer Johnakin and Harrelson, not deciding what a 

marijuana plant is. Therefore, the instruction was not 

necessary. 

C. 

 Finally, we address the issue of the district court’s 

forfeiture order. This Court reviews factual findings for clear 

error and legal determinations de novo. See United States v. 

Leftenant, 341 F.3d 338, 342 (4th Cir. 2003). Because Miles did 

not raise the forfeiture issue with the district court, our 

review is for plain error. See United States v. Olano, 507 U.S. 

725, 732-37 (1993). 

 Miles argues, “If the Court vacates or reverses Miles’s 

convictions, it must also vacate the district court’s forfeiture 

order based on those convictions as a ‘necessary consequence.’” 

(Pet’r Br. 24. (quoting United States v. Wittig, 525 F. Supp. 2d 

1281, 1287 (D. Kan. 2007), rev’d on other grounds).) Because 

Miles has not established a reason to reverse or vacate his 

convictions, we must evaluate his other arguments in support of 

vacating the forfeiture order. 

 First, Miles argues that the forfeiture order lacks a 

sufficient factual basis. See Libretti v. United States, 516 

U.S. 29, 44 (1995) (requiring a “factual nexus” between the 

amount ordered forfeited and proceeds of crime). To support his 

11 
argument, Miles emphasizes the evidence in the record that he 

sold very little marijuana, and involved outsiders only “if he 

had any extra.” (J.A. 76, 117.) Miles argues that when the 

Court considers the following facts it must determine that the 

forfeiture order was unconstitutional: 1) he was often “dry” 

(J.A. 118) or without harvest; 2) there were breaks in his 

growing process; 3) Nelson saw Miles sell marijuana only twice 

in a year; and 4) Miles smoked a large amount personally. 

 Additionally, at trial the Government put Sergeant Preuss, 

a DEA task force officer, on the stand. Miles challenges 

Sergeant Preuss’ suggestion that his marijuana was worth $3,200 

per pound ($800 per quarter pound). He argues that there was 

evidence at trial that he sold marijuana for $50 per quarter 

pound, even though he believed that he could probably get as 

much as $120 per quarter pound. Miles contends that the 

Government offered no support for its contention that the 

marijuana was worth sixteen times what he actually received for 

it during his sales. 

 As counsel for the Government pointed out during oral 

argument, one of Miles’ prison-mates, Christian Shoolroy, 

testified that in his experience one marijuana plant yielded 

one-half of an ounce to an ounce of marijuana. Shoolroy also 

testified that Miles stated that he consumed a quarter ounce 

every two to four weeks. If we assume Miles produced the low 

12 
end of Shoolroy’s estimate then we can assume that the sixtythree plants recovered from Miles yielded thirty-one and a half 

ounces of marijuana. If we assume that Miles smoked a quarter 

ounce of marijuana every week during the three-month growth 

season during which the sixty-three plants were produced—even 

more than Shoolroy’s highest estimate, which would be Miles’ 

best support for his theory that the marijuana was for his 

personal use and not for sale—then we would find that Miles 

smoked about three ounces during the three months. Therefore, 

even when we assume Miles smoked more than what is documented in 

the record, only about ten percent of his harvest could ever 

have conceivably been allocated for personal use. Even though 

there was limited evidence of Miles’ drug sales, the district 

court correctly discerned from the facts that Miles produced 

significantly more marijuana than he could have consumed. These 

calculations coupled with evidence of Miles’ prior sales 

provided a sufficient factual nexus for the forfeiture order. 

 Once the jury found that Miles was guilty of manufacturing 

one-hundred marijuana plants, the district court relied on the 

number one hundred and converted it into grams using the 

conversion rate of one-hundred grams per plant found in U.S.S.G. 

§ 2D1.1. The district court then relied on the testimony of 

13 
14 

Sergeant Preuss and multiplied $3,200 by 21.9 pounds2 reaching a 

value of $70,080. The district court then decided to attribute 

Miles with $20,000, less than thirty percent of the overall 

calculated amount. Miles argues that there was no factual nexus 

between the forfeiture order and the facts of the record. Given 

that there was a sufficient basis to attribute Miles with ninety 

percent of the marijuana produced, after subtracting the high 

estimate of ten percent for personal use, it appears that the 

district court’s forfeiture amount was generous.3 Miles has not 

demonstrated error, let alone plain error.4

 Miles cannot overcome the steep burdens of review 

applicable to the claims he asserts. Therefore, the decision of 

the district court is affirmed. 

AFFIRMED

 2

 100 plants = 10,000 grams = 22.05 pounds 

3

 Using Preuss’ rate and attributing Miles with ninety 

percent of the marijuana he produced, would have justified a 

forfeiture of $63,000. 

4

 The Government suggests that an excessiveness challenge 

can never be mounted against a criminal forfeiture pursuant to 

21 U.S.C. § 853(a)(1). This argument has been plainly rejected. 

See United States v. Bajakajian, 524 U.S. 321, 338-39 (1998); 

United States v. Ahmad, 213 F.3d 805, 814 (4th Cir. 2000). 

However, we need not address this issue further because Miles’ 

arguments are unavailing on other grounds.