In an interesting decision today, the Sixth Circuit reversed a sentence where the Guideline range was predicated upon the 1-to-100 ratio of marijuana equivalency for live, growing marijuana plants. The defendant in this case pled guilty to possession with intent to distribute marijuana being grown by her husband in their basement. The PSR attributed 100 grams of marijuana to the defendant for both the 168 live plants found in their home and the 137 harvested plants found in the home, even though there was an actual weight of marijuana available for the harvested plants (557.8 grams). After reviewing two prior, somewhat conflicting, decisions on the issue, U.S. v. Stevens, 25 F.3d 318 (6th Cir. 1994) and Oliver v. United States, 90 F.3d 177 (6th Cir. 1996), the Sixth Circuit made a distinction in cases where a defendant pleads to possession of marijuana as opposed to manufacturing marijuana, "[i]nasmuch as police found the harvested amount of consumable marijuana, as in Stevens, there is no need to speculate regarding the amount of marijuana that could have been produced by the plant such that the 1-to-100 ratio is unnecessary." For the Court the deciding factor was that the defendant had pled guilty to merely possessing the marijuana for sale, not manufacturing it. So what this decision teaches is that a defendant is in a better position to not have the arbitrary 1-to-100 ratio applied to the weight of the marijuana attributable to him if he pleads to possession as opposed to manufacture. Therefore, if you have a client that is facing two counts of each, see if you can't get to plead to only the possession count.
Another lesson, is that the 1-to-100 ratio propogated by the Sentencing Commission is complete bunk. Under their calculations, the defendants here should have been able to harvest 13,700 grams of marijuana from the harvested plants. Instead, they actually harvested only 557.8 grams. I don't know how the Sentencing Commission would account for the 13,142.2 gram disparity between the academic weight propounded in its chambers and the actual weight of the marijuana grown by a person actually engaged in the activity. I believe this ratio is not based upon good policy (although I have to admit to not examining its history very closely at this time) and appears to be potentially vulnerable to a Kimbrough-esque challenge.