United States v. Roger Affleck

5 F.3d 532 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action. UNITED STATES of America, Appellee, v. Roger AFFLECK, Appellant. No. 93-2033. United States Court of Appeals, Eighth Circuit. Submitted: September 7, 1993. Filed: September 23, 1993. Before JOHN R. GIBSON, MAGILL, and BEAM, Circuit Judges. PER CURIAM. [1] Roger Affleck appeals the 120-month sentence imposed by the district court1 after he pleaded guilty to conspiracy to manufacture marijuana, in violation of 21 U.S.C. Sec. 846. Affleck was indicted after officers found over 1,800 marijuana plants in a barn he designed and constructed for growing marijuana. For reversal, he argues that male marijuana plants should not have been added to the calculation for his total offense level, and that the one plant-one kilogram equivalency violated his due process, equal protection, and Eighth Amendment rights. We affirm. [2] Affleck's arguments run counter to established caselaw in this circuit. We have rejected the argument that only female plants may be counted in a base offense level, noting that the Guidelines do not distinguish between male and female plants. United States v. Curtis, 965 F.2d 610, 616 (8th Cir. 1992). Likewise, we have rejected arguments that equating one living marijuana plant to one kilogram of processed marijuana violates due process and equal protection. See United States v. Johnston, 973 F.2d 611, 613 (8th Cir. 1992), cert. denied, 113 S. Ct. 1019 (1993); United States v. Smith, 961 F.2d 1389, 1390 (8th Cir. 1992). Finally, we have rejected an Eighth Amendment challenge to both the one plant-one kilogram ratio and the inclusion of male plants to determine base offense level in United States v. Coones, 982 F.2d 290, 292 (8th Cir. 1992). [3] Accordingly, the judgment is affirmed. Footnotes [1] The Honorable Russell G. Clark, Senior District Judge for the Western District of Missouri