United States of America, Plaintiff-appellee, v. Michael R. Mack, Defendant-appellant, 111 F.3d 139 (9th Cir. 1997)

MEMORANDUM^** 

The parties are familiar with the facts, and we will not restate them here. Mack argues that the district court erred by refusing to recalculate his sentence based on the Sentencing Guidelines' new weight equivalency for marijuana plants. He disputes the findings in the presentence report concluding that he would have reasonably foreseen that more than 1,000 kilograms of marijuana would have been shipped to Montana during Mack's participation in the marijuana distribution enterprise. Mack claims that the 995 marijuana plants seized at his Hawaii property in 1984 were arbitrarily determined to weigh 900 pounds and that the district court relied on this figure at sentencing. Mack asserts that under the revised Sentencing Guidelines effective November 1, 1995, the appropriate calculation would result in a determination that the 995 plants weighed 220 pounds, resulting in a reduction of his sentence.

We review the district court's finding on quantity for clear error. United States v. Vought, 69 F.3d 1498, 1503 (9th Cir. 1995).

Mack's suggestion that the district court relied on the 995 plants in determining his sentence is incorrect. The district court did not rely upon the estimated weight of the 995 seized plants in making his quantity determination. Indeed, such a calculation would have resulted in an estimated weight of over 2,000 pounds rather than 900 pounds. Rather, the district court considered a number of factors including the probation officer's assessment of the amount of marijuana involved in the entire enterprise over a period of years. The presentence report, which was adopted by the district court, estimated that Mack and his co-conspirators delivered marijuana at the rate of 25 pounds to 120 pounds per month. The report was supported by the testimony of Detective Lockerby, who interviewed co-conspirators and other witnesses, and indicated that various sources were used to determine this 25-120 pound estimate. In sum, the district court made it plain that it did not consider the plants in reaching its conclusion. The district court's finding was not clearly erroneous.

The judgment of the district court is AFFIRMED.