Unpublished Disposition, 940 F.2d 670 (9th Cir. 1990)

MEMORANDUM^** 

On June 26, 1990, John Rogers Sousa entered a conditional guilty plea to a charge of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a) (1), reserving his right to appeal the district court's denial of his motions to suppress evidence. On October 2, 1990, the district court sentenced Sousa to 21 months imprisonment, followed by three years supervised release. Sousa appeals the district court's denial of his motions to suppress evidence and his sentence under the Sentencing Guidelines. We affirm.

DISCUSSION

On June 6, 1989, federal agents of the Drug Enforcement Administration (DEA) executed three search warrants, all based on the same affidavit, on three residences in Sprague River Valley, Oregon. During the search of defendant Sousa's residence, the agents seized 381 live marijuana plants.

Sousa made two motions to suppress evidence before the district court. In his first motion, Sousa attacked the search warrant on the grounds that (1) the warrant was based on "stale" information and (2) the affiant intentionally or recklessly mislead the magistrate with material misstatements or omissions. In his second motion, Sousa argued that the evidence seized pursuant to the warrant should be suppressed because the agents trespassed onto his property to gather evidence.

A search warrant is valid only if it is supported by an affidavit establishing probable cause. This court affirms a magistrate's decision to issue a warrant if under the totality of the circumstances there is substantial evidence to conclude that the affidavit in support of the warrant established probable cause. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); United States v. Ramos, 923 F.2d 1346, 1351 n. 9 (9th Cir. 1991). "To meet this test, the facts must be sufficient to justify a conclusion that the property which is the object of the search is probably on the premises to be searched at the time the warrant is issued." United States v. Greany, 929 F.2d 523, 524-25 (9th Cir. 1991).

The magistrate's determination of probable cause is supported by substantial evidence. The warrant was based on information from a confidential informant and from aerial surveillance conducted by DEA agents. The informant provided agent Troy with information indicating that Sousa was growing marijuana from 1981 to early 1989. Aerial surveillance by DEA agents confirmed that Sousa's property had a greenhouse (with plants that looked similar to marijuana) and a large generator. Agent Troy stated that a generator of the size found on Sousa's property is consistent with these found at other marijuana growing operations.

Sousa's first argument is that the warrant is invalid because it is based on "stale" information. Sousa argues that the information provided by the informant only suggested that Sousa was growing marijuana up to 1986, three years before the search took place.

The evidence supporting the warrant was not stale. Sousa is correct that the informant did not see marijuana growing on Sousa's property after 1986. But " [w]hen the evidence sought is of an ongoing criminal business of a necessarily long-term nature, such as marijuana growing, ... greater lapses of time are permitted if the evidence in the affidavit shows the probable existence of the activity at an earlier time." Greany, 929 F.2d at 525 (magistrate could reasonably conclude that evidence of defendant's marijuana growing would still be present two years after the beginning of a growing operation). Here the informant stated that Sousa had attempted to give him marijuana back in 1981 and was growing marijuana five years later in 1986. He also stated that he saw a large greenhouse covered with plastic and powered by a large generator in the winter of 1988-89. More importantly, the agents' aerial surveillance provided confirmation that Sousa was still growing marijuana in May 1989--only one month before the search.

Sousa next argues that, even if the warrant is facially valid, evidence still must be suppressed because the affiant intentionally or recklessly misled the magistrate with material misstatements or omissions. See, e.g., Franks v. Delaware, 438 U.S. 154 (1978); United States v. Stanert, 762 F.2d 775 (9th Cir.), amended, 769 F.2d 1410 (1985). Under Franks, a defendant must satisfy a two-pronged test to obtain an evidentiary hearing. First, a defendant must make a substantial preliminary showing that the affidavit contained actual falsity and that the falsity was deliberate or resulted from reckless disregard for the truth. Franks, 438 U.S. at 171. Second, the court must determine that the challenged statements are necessary to establish probable cause. Id. at 171-72; United States v. Dicesare, 765 F.2d 890, 894-95, amended, 777 F.2d 543 (9th Cir. 1985).

Sousa contends that he made the requisite showing to be afforded a full Franks hearing. He points to four alleged material false statements or omissions by the affiant: (1) agent Troy omitted the informant's bias towards Sousa, (2) the affidavit inaccurately indicated that Sousa's father-in-law was arrested on drug charges, (3) agent Troy failed to inform the magistrate that many houses in rural Oregon used large generators for electricity, and (4) the agents flying over Sousa's property were not certain that the plants in the greenhouse were marijuana. We address each argument in turn:

During cross-examination, agent Troy admitted that he knew the informant had an ongoing feud with Sousa, and that in fact Sousa had filed a lawsuit against the informant. Appellee's Excerpt of Record (ER) at 22. This information should have been provided in the affidavit to enable the magistrate to better judge the veracity of the informant. Nonetheless, this court may assume that the magistrate expected that the confidential informant had an ulterior motive when the informant provided incriminating information against Sousa. See United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988) ("It would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive. The magistrate would naturally have assumed that the informant was not a disinterested citizen."), cert. denied, 489 U.S. 1032 (1989). Furthermore, the informant's credibility was strengthened by the corroborating details that the agents provided.

In the affidavit, the informant noted that Sousa had bragged that his father-in-law was involved in illegal drug trafficking. ER at 11. Agent Troy stated that he checked with local police who confirmed that Sousa's father-in-law had been arrested on drug charges in Texas. Id. On cross-examination, however, agent Troy testified that after the search he determined that Sousa's father-in-law had actually been arrested in Oregon for an offense involving an illegal chemical dump--not in Texas for drug charges. ER at 26-27. He also admitted that he did not disclose to the magistrate that a computer records check failed to turn up a criminal record on the father-in-law. ER at 29-30.

The district court found that any misstatements or omissions concerning Sousa's father-in-law were at most "negligent" and not material. This finding is not erroneous. There is nothing in the record to suggest that the error concerning the father-in-law's criminal background was deliberate or resulted from reckless disregard for the truth. Moreover, the criminal background of Sousa's father-in-law is a very small portion of the affidavit. Even without this information, the affidavit establishes probable cause.

Agent Troy informed the magistrate that operation of a large generator is consistent with marijuana growing. Sousa contends that agent Troy misled the magistrate by omitting the fact that Sousa's home was in a rural area where it was not unusual to use generators for electricity. But Sousa has not made a showing that generators of the size found on his property (10,000 to 15,000 watts) are commonly used to power small homes. See Agent Miles Testimony [ER at 38] ("I did grow up in eastern Oregon, and we utilized generators for our power before we even had power. I knew that they didn't have to have [generators of the size found on the defendants' properties] to operate just normal household items."). Thus, his argument fails.

4. Uncertainty Over Whether Plants Were Marijuana

Sousa contends that agent Troy misled the magistrate by failing to disclose the extent of the agents' uncertainty concerning their identification of the plants in the greenhouse as marijuana. No error exists here. The affidavit correctly states that the agents could determine from their aerial surveillance only that the plants in Sousa's greehouse were similar to marijuana. ER at 13.

In a second motion to suppress evidence, Sousa argued that evidence seized pursuant to a warrant should be suppressed because the officers trespassed onto Sousa's property when observing the generator. The court, however, found that the agents did not trespass onto Sousa's property. Sousa gives no reason sufficient to upset the district court's factual finding that the officers did not trespass onto Sousa's property.

Sousa also contends that the agents conducted a warrantless search by using binoculars to view Sousa's property while flying overhead. We are bound by the Ninth Circuit's previous decision rejecting this argument. United States v. Allen, 675 F.2d 1373, 1381-82 (9th Cir. 1980) (aerial observation using binoculars does not constitute a search under the Fourth Amendment), cert. denied, 454 U.S. 833 (1981).

Sousa makes three challenges to his sentence. First, he "incorporates all objections and challenges raised in [United States v. Belgard, 694 F. Supp. 1488 (D. Or. 1988) ] for purposes of this appeal." Brief of Appellant at 14. Second, he argues that the district court failed to depart downwards from the Guidelines. Finally, he contends the district court erred in applying the guideline presumption of 100 grams per marijuana plant even though the evidence at sentencing indicated the plants produced at most 10 to 13 grams per plant.

Sousa's first two arguments are meritless. Sousa concedes that this court has rejected the constitutional attacks on the Guidelines made by the defendant in Belgard.¹  See United States v. Belgard, 894 F.2d 1092 (9th Cir. 1990), cert. denied, 111 S. Ct. 164 (1990); see also Mistretta v. United States, 488 U.S. 361 (1989) (Guidelines do not excessively delegate legislative power nor violate the doctrine of separation of powers). We may not revisit Belgard here. We also have no jurisdiction to review the district court's discretionary decision not to depart downward from the applicable guideline range. United States v. Morales, 898 F.2d 99, 102-03 n. 2 (9th Cir. 1990).

Sousa's last argument is that the Guidelines presume that each marijuana plant is capable of producing 100 grams of marijuana, but that this amount has no rational connection to the actual amount of marijuana that a plant may produce. See United States v. Buckner, 894 F.2d 975, 978 (8th Cir. 1990) (congressional acts do not offend due process "if they bear a 'reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory' ") (quoting Nebbia v. New York, 291 U.S. 502 (1934)). Sousa was sentenced under the 1988 version of the Guidelines. Under the 1988 Guidelines, if 20-39 kilograms of marijuana or 200-300 marijuana plants are involved, a defendants base offense level is set at 18. U.S.S.G. Sec. 2D1.1 ("Drug Quantity Table") (1988 ed.). This approach equates each marijuana plant with 100 grams of marijuana, regardless of the potential yield per plant.²  Sousa contends that the court should have sentenced him based on the evidence presented at sentencing indicating that each of Sousa's marijuana plants was capable of producing only 10 to 13 grams of marijuana.

This court rejected a similar argument (albeit not based on the due process clause like Sousa's) in United States v. Corley, 909 F.2d 359 (9th Cir. 1990). The district court in Corley sentenced the defendant on the basis of a quantity of 500 marijuana plants. The defendant argued "that the potential yield of all 1,300 plants (as estimated by his expert to be between 7.6 and 9.85 pounds) should be the measure of marijuana for the base offense level." Id. at 360. In rejecting the argument that the yield of the marijuana should be the controlling sentencing factor, this court adopted the reasoning of the district court:

Marijuana is found in either live plant form prior to harvest or dry leaf from after harvest. Weight is the appropriate measure for dry marijuana, but a distinction must be made for live plants prior to harvest. Such a distinction is important, because live plants weigh more than marijuana in dry leaf form. Therefore, when marijuana is seized prior to harvest, the Guidelines contemplate using the number of plants as the measure.

Weight is irrelevant because the actual amount of usable marijuana had the plant been allowed to fully grow is unknown.

Id. at 360-61 (quoting United States v. Graham, 710 F. Supp. 1290 (N.D. Cal. 1989)).

This analysis is relevant to Sousa's due process argument. Under the Guidelines, when dry marijuana leaves are involved, sentencing is based on the weight of the leaves. But, with live plants, sentencing a defendant purely on the weight of the plant would not make sense "because the actual amount of usable marijuana had the plant been allowed to fully grow is unknown," id. at 361, and in some cases may be much greater than the weight of the plant.

The Guidelines approach does not offend due process as long as it bears a 'reasonable relation to a proper legislative purpose, and [is] neither arbitrary nor discriminatory.' " United States v. Buckner, 894 F.2d 975, 978 (8th Cir. 1990) (quoting Nebbia v. New York, 291 U.S. 502 (1934)); United States v. Streeter, 907 F.2d 781, 790 (8th Cir. 1990) ("a Guideline that is arbitrary and capricious cannot be given effect in court"). The question is not whether the Guidelines approach is the best one, but whether it is rational.

Setting punishment on the basis of the number of plants involved is not arbitrary or irrational. In general, more plants can create more marijuana. Setting a fixed punishment per plant negates the need for complicated hearings to determine the potential yield of a given plant. Moreover, the Commission's decision to set the offense level for offenses involving more than 50 plants at an amount which equates each plant with 1 kilogram of marijuana (as the current Guidelines do) bears a relation to the statutory scheme set by Congress. See 21 U.S.C. § 841(b) (1) (B) (vii) (setting a sentencing range based on "100 kilograms or more of a mixture or substance containing ... marijuana or 100 or more marijuana plants"). Sousa's due process argument therefore fails.

AFFIRMED.