United States v. Shields

49 F.3d 707, 1995 WL 125920

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 10, 1995
• Docket: 93-9270
• Status: Published

Opinion

KRAVITCH, Circuit Judge, concurring:

Although the three judge panel in this case found itself

bound by United States v. Foree, 43 F.3d 1572 (11th Cir. 1995), and United States v. Osburn, 955 F.2d 1500 (11th Cir.), cert.

denied, 506 U.S. 878 (1992), having considered the case en banc I

agree with the opinion of the court. I write separately to alert

sentencing courts to a potential problem in applying the rule

established by this opinion.

There could be a double-counting problem with punishing

defendants both for growing marijuana plants based on the number

of plants involved, and for possessing the marijuana derived from

those same plants based on the weight of the dry leaf marijuana

possessed. We should be concerned in cases like this one that

the government, upon finding both harvested, rotting plants and a

quantity of dry leaf marijuana derived from those plants, might

count the same marijuana against the defendant twice: once by

using the dead plants as evidence of previously living plants in

sentencing for growing, and again by weighing the dry leaf

marijuana in sentencing for possession. This problem does not

arise if defendants can be sentenced for growing based only on

the number of live plants discovered by the police; thus, the

panel opinion in Shields had the virtue of establishing a

prophylactic rule. I assume, however, that sentencing courts

will be able to monitor and prevent such double-counting on a

case-by-case basis (and that law enforcement officials and

prosecutors will not intentionally overreach).