Unpublished Disposition, 914 F.2d 264 (9th Cir. 1990)

MEMORANDUM^* 

Defendant, Edward M. Parris, appeals from his conviction for manufacture of marijuana and his sentence imposed under the Sentencing Guidelines ("Guidelines").

FACTS

Parris lived on the "Proctor Ranch." The ranch consisted of a main brick building, a mobile home, and a shed used to dry hay. Special Agent Roger J. Miles believed that an indoor marijuana grow operation was being conducted on the ranch, and obtained a search warrant for the premises.

Upon service of the warrant, the officers found 841 plants in the brick house and 227 plants in the shed, for a total of 1,068 plants. The officers found twenty-six bags of marijuana in a refrigerator in the brick house. The gross weight of the bags was eight pounds. The officers also seized 467 grams of marijuana from a bedroom. That quantity included stems and wrappings.

Parris was indicted for conspiracy to manufacture and distribute marijuana, manufacture of marijuana, and possession of marijuana with intent to distribute. Parris filed motions to suppress the evidence acquired during the search of the ranch. After conducting a hearing, Judge Burns denied the motion. Parris then entered a conditional plea of guilty to count two of the indictment for manufacture of marijuana.

Parris' Pre-Sentence Report ("PSR") calculated a base offense level of 24, based on a total marijuana quantity of 120 kilograms. Parris objected to the finding that there were 1,068 live plants. He objected to the use of "cloned" and small plants in the total. He also disputed the amount of marijuana found in the refrigerator and in the bedroom. Finally, Parris objected to the use of a shoplifting conviction in his criminal history calculation.

At the sentencing hearing conducted before Judge Redden on July 24, 1989, the court found that the Government sustained its burden of proof to show that 1,068 plants were involved. The court did not rule on whether the amounts of drugs seized from the bedroom and refrigerator were correct. The court assessed a criminal history point for the shoplifting conviction. The resulting Guideline range was sixty-three to seventy-eight months. The court sentenced Parris to a term of imprisonment of sixty-three months and a term of supervised release of six years. The judgment was entered on August 8, 1989. Parris filed a timely notice of appeal on August 10, 1989.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

This court reviews application of the Sentencing Guidelines de novo and reviews findings of facts for clear error. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990).

DISCUSSION

1. Motions to Suppress.

Parris asserts that the district court did not make the findings required by Fed. R. Crim. P. 12(e) when it denied his motions to suppress. He is correct. At the end of the suppression hearing, Judge Burns invited the government to submit proposed findings. The government never did so, and no findings were ever made. We have taken a liberal view of what can constitute findings. See United States v. Gomez, 846 F.2d 557, 560 (9th Cir. 1988). However, we have never said that the court need make none at all.

Here, as the unfortunate result of the procedures used in the district court where no single judge has responsibility over all of the proceedings in a case, coupled with the failure of the prosecutor to submit proposed findings, we are presented with a matter that cannot now be reviewed.

Therefore, we will remand the matter to the district court for the judge who heard the suppression motions to make findings regarding the motions.

2. Sentencing.

a. Marijuana Plants.

First, Parris asserts that the Government did not prove the presence of 1,068 plants. The Government must prove sentencing facts by a preponderance of the evidence. Howard, 894 F.2d at 1090. The Government satisfied its burden as to the live plants. Miles testified that he supervised the counting of the plants. The court also observed a videotape produced by Parris which showed the extent of the cultivation operation.

Parris asserts that he should have had the opportunity to examine certain photographs at the hearing. Parris, however, had the benefit of the videotape. He also alleges that Miles testified that only 680 plants were seized from the house. Miles explained, however, that the 680-plant figure referred to plants seized from one of four rooms in the house.

Second, Parris challenges the inclusion of "cloned" plants and seedlings in the total of live plants. Parris' argument is without merit. Those plants were properly included in the drug quantity calculation. See United States v. Carlisle, No. 89-30097, slip op. 6527, 6530-31 (9th Cir. June 28, 1990) (per curiam).

Third, Parris contests the inclusion in the marijuana quantity calculation of all of the marijuana seized from his bedroom and of the wrappings around the marijuana seized from the refrigerator. Judge Redden did not rule on these objections.

Fed. R. Crim. P. 32(c) (3) (D) requires that once an objection is made to the PSR the district court must resolve the dispute or find that the matter will not be taken into account in sentencing. Strict compliance with Fed. R. Crim. P. 32(c) (3) (D) is required and a failure to comply will result in remand. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc). The district court failed to comply with the requirements of the rule. We will therefore remand the matter to the district court for findings which comply with Fed. R. Crim. P. 32(c) as to the quantity of marijuana seized from the bedroom and refrigerator.

b. Criminal History.

Parris contends that the district court erred when it included a prior shoplifting conviction in his criminal history. He contends that U.S.S.G. Sec. 4A1.2(c) (1) requires exclusion of the conviction, because the conviction was for a local ordinance violation. The Guideline provides that a conviction for violation of a local ordinance is included in the criminal history calculation, if the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days. Parris received a ninety-day suspended sentence, but a suspended sentence is not counted. U.S.S.G. Sec. 4A1.2(b) (2). Judge Redden made no findings regarding whether this conviction was for violation of a local ordinance, or whether Parris served all or a part of the suspended sentence. Thus, we will also remand for a determination of these issues.

CONCLUSION

The district court erred when it denied Parris' motions to suppress but failed to make the findings required by law. The district court properly concluded that there were 1,068 marijuana plants. However, we vacate the sentence since there were no findings regarding the amount of marijuana found in the defendant's refrigerator and bedroom and none regarding the shoplifting offense.

We remand to the district court with instructions to make findings of fact as required by Fed. R. Crim. P. 12(e) regarding the motions to suppress. The findings shall be made within 60 days from the date of this remand and if not so made the judgment of conviction shall be vacated. Upon making of those findings the defendant shall be resentenced in a manner not inconsistent with the determinations in this decision.

Any further appeal after sentencing shall come before this panel.

REMANDED.