United States of America, Plaintiff-appellee, v. John M. Yarbro, Defendant-appellant, 28 F.3d 110 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 28 F.3d 110 (9th Cir. 1994) Submitted May 11, 1994. *Decided May 20, 1994

Before: HUG, D.W. NELSON, and FERNANDEZ, Circuit Judges.


John M. Yarbro appeals his 30-month sentence imposed following his guilty pleas to manufacturing marijuana in violation of 21 U.S.C. § 841(a) (1), and being a fugitive in possession of a firearm in violation of 18 U.S.C. § 922(g). Yarbro contends that the district court erroneously calculated his base offense level by relying, in part, on the Guidelines' treatment of each marijuana plant as the equivalent of one kilogram of marijuana where fewer than fifty plants are cultivated, rather than the actual weight of each plant. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Here, the presentence report indicated that 25 live marijuana plants (2,500 grams) and 182 grams of processed marijuana were seized from Yarbro's residence. Additionally, Yarbro sold 13 pounds (5,896.80 grams) of marijuana. Based upon a total of 8,578.80 grams of marijuana, Yarbro's base offense level was 14. See U.S.S.G. Sec. 2D1.1. Yarbro argues that the actual weight of the marijuana plants--8.2 grams--rather than Guidelines' plant-to-weight conversion table, should be utilized in calculating his base offense level. Relying on the actual weight, the amount of marijuana for sentencing purposes is 6,087 grams. Because the lower amount would still yield a base offense level of 14, see id., we need not address this sentencing dispute, see United States v. Fuentes, 925 F.2d 1191, 1193 (9th Cir. 1991) (per curiam) (declining to address alleged error in Guidelines dispute where resolution would not impact the sentence).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3