"Mother" Plants for Cloning Properly Included As Part of Overall Enterprise

U.S. v. Montgomery, --- F.3d ----, 2006 WL 3291658 (10th Cir. November 14, 2006)

In a case involving 101 marijuana plants, district court’s granting of a judgment of acquittal or in the alternative a new trial on the theory that the government was required to prove an intent to distribute marijuana from each of the plants, was erroneous. The 10th construed the word “involving” in the part of the statute addressing increased penalties for offenses involving 100 or more plants (§ 841(b)(1)(B)(vii) ). It reasoned that the penalties of § 841(b)(1)(B)(vii) are triggered when the predicate violation of § 841(a)(1), has as a part or includes (i.e., “involving”), 100 or more marijuana plants. The 10th distinguished Asch, wherein finite quantities of drugs for personal use are not included in the base amount for the offense under § 841(b)(1). Here, the two “mother plants” kept for cloning, not for distribution, could reasonably have been interpreted by the jury as part of the overall distribution enterprise. Also, because the D never moved for a new trial, the district court lacked authority to grant one. Reversed.