Size of plants allowed

[seattlegreens]

Hello Everyone,
I was told that it's allowed to have '15 mature plants' and that starters under a certain height don't count.
It seems this would make common sense, but I can't find anywhere that is says for example having 20 starters would be OK as long as you weed out 5 or more weak ones before they get to 12"

Is this true?
Does anybody have a link to where this is specifically written in law?

seattlegreens Reviewed by seattlegreens on 03-28-2010. Size of plants allowed Hello Everyone, I was told that it's allowed to have '15 mature plants' and that starters under a certain height don't count. It seems this would make common sense, but I can't find anywhere that is says for example having 20 starters would be OK as long as you weed out 5 or more weak ones before they get to 12" Is this true? Does anybody have a link to where this is specifically written in law? Rating: 5

[bridge4]

I don't have quick access to RCW law on this subject, but if I recall from my last review, but I believe a plant with roots is a plant. A seedling may be a plant too. My explanation is probably lacking in clarity, but I'm pretty sure height is not in the equation. I'm sure others will be johnny-on-the-spot with a better answer.

[Club420]

What he said ^^^

Anything with a root is a plant. However, in most cases, law enforcement will merely take plants they feel are over the limit without charging the patient... in most cases.

[killerweed420]

Ours is a pretty vague law. 15 is the guideline of any size plant. You can have more but you have to be able to prove a medical neccesity for it.

[jamessr]

We have many cases in law which states anything with any roots is a plant. I will search for the specific one in Oregon back in the beginning days of the medical cannabis laws that I know exists. This may be a few days as I am really pressed for time on my appeal.

There is no size limit in Washington, just an end product number of 24 oz. of usable cannabis limit. This means cured and dried for consumption.

All these #'s can be ignored by any patient if their doctor authorizes above these #'s but, if caught going above, one must prove by a presumption that it is a necessity in a court of law as you will be arrested and charged by any overzealous prosecutor....

In other words, if ya got the funds to fight them, go for it.

[WashougalWonder]

The law is 15 plants per person. I checked and even clones without roots qualify as a plant, I forget the exact clause in the law.

[dennisjill]

WAC 246-75-010: Medical marijuana.
"(b) "Plant" means any marijuana plant in any stage of growth."


Love it when lawmakers can't follow their own laws. In RCW 69.51a.080 it says "(1) By July 1, 2008, the department of health shall adopt rules defining the quantity of marijuana that could reasonably be presumed to be a sixty-day supply for qualifying patients; this presumption may be overcome with evidence of a qualifying patient's necessary medical use."

I didn't find that info

Dennis in Montana

[dennisjill]

ACLU's site (ACLU of Washington | A Guide to Washington's Medical Marijuana Law) gives a link to the Department of Health (Medical Marijuana Frequently Asked Questions - Washington State Dept of Health) site's FAQ, It says:
"A qualifying patient or designated provider may have a 60-day supply of medical marijuana. A 60-day supply is defined as 24 ounces and 15 plants (WAC 246-75-010). The law says that a patient may exceed these limits if he or she can prove medical need." (about half way down the page)

I guess different states resident's need different amounts! Montana is 6 plants and one ounce.

Dennis, blurry eyed in Montana :hippy:

[seattlegreens]

Chapter 69.51A RCW: Medical marijuana


This should let you know everything. But, a plant is a plant at any state of growth. 15 plants. The law is rarely logical.

Sure it seems like any plant without a root would not be a plant.

69.51A.080
Adoption of rules by the department of health â?? Sixty-day supply for qualifying patients.

(1) By July 1, 2008, the department of health shall adopt rules defining the quantity of marijuana that could reasonably be presumed to be a sixty-day supply for qualifying patients; this presumption may be overcome with evidence of a qualifying patient's necessary medical use.

(2) As used in this chapter, "sixty-day supply" means that amount of marijuana that qualifying patients would reasonably be expected to need over a period of sixty days for their personal medical use. During the rule-making process, the department shall make a good faith effort to include all stakeholders identified in the rule-making analysis as being impacted by the rule.

(3) The department of health shall gather information from medical and scientific literature, consulting with experts and the public, and reviewing the best practices of other states regarding access to an adequate, safe, consistent, and secure source, including alternative distribution systems, of medical marijuana for qualifying patients. The department shall report its findings to the legislature by July 1, 2008.

[jamessr]

69.51A.080
Adoption of rules by the department of health â?? Sixty-day supply for qualifying patients.

(1) By July 1, 2008, the department of health shall adopt rules defining the quantity of marijuana that could reasonably be presumed to be a sixty-day supply for qualifying patients; this presumption may be overcome with evidence of a qualifying patient's necessary medical use.

(2) As used in this chapter, "sixty-day supply" means that amount of marijuana that qualifying patients would reasonably be expected to need over a period of sixty days for their personal medical use. During the rule-making process, the department shall make a good faith effort to include all stakeholders identified in the rule-making analysis as being impacted by the rule.

(3) The department of health shall gather information from medical and scientific literature, consulting with experts and the public, and reviewing the best practices of other states regarding access to an adequate, safe, consistent, and secure source, including alternative distribution systems, of medical marijuana for qualifying patients. The department shall report its findings to the legislature by July 1, 2008.

Look at this 1990 9th cir. case discussing plants must have roots to be able to survive on their own outside the propagation unit. So no roots =no plant.

United States of America, Plaintiff-Appellee, v. Bruce M. Carlisle, Defendant-Appellant

No. 89-30097

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

907 F.2d 94; 1990 U.S. App. LEXIS 10553

March 9, 1990, Seattle, Washington, Argued and Submitted
June 28, 1990, Filed

PRIOR HISTORY: [**1] Appeal from the United States District Court for the Western District of Washington; D.C. No. CR-88-386-JCC; John C. Coughenour, District Judge, Presiding.


CASE SUMMARY

PROCEDURAL POSTURE: Defendant appealed the judgment of the United States District Court for the Western District of Washington imposing a sentence following his guilty plea to charges of manufacturing marijuana by propagation.

OVERVIEW: Defendant appealed the judgment imposing a sentence following his guilty plea to charges of manufacturing marijuana by propagation. He challenged the district court's inclusion of marijuana cuttings in calculating his base offense level under the Sentencing Guidelines and its application of the acceptance of responsibility provision. The court on appeal held that although some of the cuttings were small, the district court's conclusion that they were plants was not clearly erroneous because an agent testified that each individual cutting was in its own propagating unit and had the possibility of surviving outside the unit. The court also held that, because the district court neither made specific findings nor expressly adopted the conclusions in the presentence report, the court was unable to determine whether the district court considered defendant's objections to his probation officer's refusal to reduce his sentence for acceptance of responsibility. The court remanded for more specific findings.

OUTCOME: The court remanded because the district court failed to make specific findings for the court to determine whether the district court had considered defendant's objections to his probation officer's refusal to reduce his sentence for acceptance of responsibility.


CORE TERMS: plant, guideline, cutting, marijuana, presentence report, sentencing, probation, marijuana plants, recommended, equivalency, reduction, kilogram, mature, sentence, manufacturing, propagation, propagating, sentenced, packaged, quantity, disputed, calculating

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Appeals > Standards of Review > General Overview
HN1Go to the description of this Headnote. A district court should make clear on the record its resolution of all disputed matters, and specific findings of fact are to be encouraged.


COUNSEL: Peter K. Mair, Mair, Abercrombie, Camiel & Rummonds, Seattle, Washington, for the Defendant-Appellant.

Richard A. Jones, Assistant United States Attorney, Seattle, Washington, for the Plaintiff-Appellee.

JUDGES: Eugene A. Wright, Stephen Reinhardt and Diarmuid F. O'Scannlain, Circuit Judges.

OPINION BY: PER CURIAM

OPINION

[*95] Bruce Carlisle pleaded guilty to charges of manufacturing marijuana by propagation and appeals his sentence. He challenges the court's inclusion of marijuana cuttings in calculating his base offense level under the Sentencing Guidelines, and its application of the acceptance of responsibility provision.

BACKGROUND

An agent from the Drug Enforcement Agency searched Carlisle's home and discovered an indoor marijuana cultivation operation that included a security system, lighting and a venting system. He found 182 mature marijuana plants, 384 cuttings from marijuana plants and approximately three kilograms of packaged marijuana.

Carlisle was charged with manufacturing marijuana by propagation. [**2] Following a guilty plea, the probation office prepared a presentence report. It recommended a base offense level of 20 based on the amount of marijuana discovered in his home. United States Sentencing Commission, Guidelines Manual, § 2D1.1(c) (June 1988) (hereinafter "1988 Guidelines"). Although Carlisle submitted a written statement admitting his actions, the report recommended that no departure be made from the guidelines based on acceptance of responsibility. The district court accepted the recommendations in the presentence report, and sentenced Carlisle at the bottom of the guideline range, to 33 months.

ANALYSIS

Carlisle appeals his sentence on two grounds. First, he challenges the use of the 384 cuttings in calculating his base offense. Second, he argues that the district court erred in applying the guideline provision which allows a two level decrease from his base offense level for acceptance of responsibility.

I. Calculation of Base Offense Level

The court sentenced Carlisle under Guidelines § 2D1.1 which establishes the base offense level for drug crimes. In [*96] § 2D1.1(c), a drug equivalency table provides the base offense level for quantities [**3] of drugs measured according to weight or number of plants. 1 The presentence report recommended a base offense level of 20 based on 596 plants. 2

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1 The guidelines were amended effective November 1989. The drug equivalency table no longer measures drug quantity according to the number of plants. It now provides that, when the offense involves 50 or more plants, each plant is treated as the equivalent of one kilogram of marijuana. Guidelines Manual § 2D1.1(c), at 2.45 (Nov. 1989).2 The agent found 182 mature plants, as well as 384 cuttings which were counted as separate plants. In addition, the three kilograms of packaged marijuana converted to 30 plants. See 1988 Guidelines § 2D1.1, application note 10 (indicating that 100 grams of marijuana equals one plant). This totals 596 plants.

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Carlisle argues that the 384 cuttings should not be considered plants when determining the base offense level under § 2D1.1's drug equivalency table. A cutting is a portion of the stem. The guidelines do not define [**4] "marijuana plant" and do not distinguish between cuttings and mature plants.

Although some of the cuttings were small, the court's conclusion that they were plants was not clearly erroneous. The district judge heard testimony from the DEA agent that each individual cutting was in its own propagating unit. Each had varying degrees of root formation. Each had the possibility of surviving outside of its propagating unit. Cf. United States v. Graham, 710 F. Supp. 1290, 1291 (N.D.Cal. 1989) (finding that a defendant should not benefit by being arrested in the early stages of plant growth). We find no clear error in the court's decision to count the 384 cuttings as plants in sentencing.

II. Acceptance of Responsibility

Carlisle next asserts that the district court made insufficient findings in applying Guidelines § 3E1.1(a), which allows the court to reduce the base offense by two levels for acceptance of responsibility.

We said recently that HN1Go to this Headnote in the case."the district court should make clear on the record its resolution of all disputed matters, and . . . specific findings of fact are to be encouraged." United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990) [**5] (citing United States v. Sanchez-Lopez, 879 F.2d 541, 557-58 (9th Cir. 1989)). In Rigby, the judge did not make specific findings regarding the adjustment under Guidelines § 3B1.2 for the defendant's role in the offense. Rigby, 896 F.2d at 394. Nevertheless, he clearly stated that he found the position as stated in the Probation Officer's addendum to be correct, and we found that this finding was sufficient under the guidelines. Id.

The district court in this case neither made specific findings nor expressly adopted the conclusions in the presentence report. Although Carlisle objected to the Probation Officer's refusal to grant him a reduction for acceptance of responsibility prior to the sentencing hearing, the resolution of this disputed matter was not articulated by the court. It said:

All right -- I'll find, and this portion of the transcript will be attached to the presentence investigation and constitute the Court's findings under the guidelines -- I find that the smaller plants were in fact plants and that the appropriate guideline range is 33 to 44 months.

We are unable to determine from this statement whether [**6] the court considered Carlisle's objections to the Probation Officer's refusal to reduce his sentence for acceptance of responsibility.

We remand for more specific findings. 3 If the district court finds that Carlisle is entitled to the acceptance of responsibility reduction, it shall resentence him. This [*97] panel will retain jurisdiction over any future appeals.

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3 Because we remand for more specific findings regarding acceptance of responsibility, we need not reach Carlisle's argument that the presentence report forced him to implicate himself in other crimes in violation of the Fifth Amendment. We note, however, that our recent decision in United States v. Gonzalez, 897 F.2d 1018, 1021 (9th Cir. 1990), characterized the acceptance of responsibility reduction as "merely a benefit which may be accorded to a defendant if he is able to make the necessary showing." See also United States v. Smith, 905 F.2d 1296, 1302 (9th Cir. 1990).

I have more if need be but, I think this should settle anyone's misguided thought's in their own mind...put the pipe down and learn please.