United States V. Edge

Per Curiam. Defendant-Appellant Dwayne Allen*fn1 Edge appeals the district court's Judgment in a Criminal Case following a guilty plea and sentencing hearing. He pled guilty to knowingly and intentionally distributing marijuana*fn2 in violation of 21 U.S.C. § 841(a)(1) (1988). He was sentenced to 108 months of imprisonment and five years of supervised release as the district court found Edge to be responsible for distributing over 1000 marijuana "plants." On appeal, Edge contends that: (1) 21 U.S.C. § 841(b)(1)(A)(vii) (1988 & Supp. III 1991)*fn3 and Section 2D1.1(c) (n.* ) of the United States Sentencing Commission's Guidelines Manual (Nov. 1991) [hereinafter U.S.S.G.]*fn4 violate his rights to due process and equal protection; (2) the police violated his right to due process of law by not preserving relevant evidence; and (3) the government did not meet its burden of proving that he distributed over 1000 marijuana "plants" because the majority of the confiscated marijuana cuttings in this case were not "plants" for federal sentencing purposes. Though we readily dismiss the first two assertions of error, we find merit in the third. We thus vacate the sentence imposed and remand the case for a Disposition consistent with this opinion.