United States v. Vincent Herman

85 F.3d 638 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Vincent HERMAN, Defendant-Appellant. No. 95-15002. United States Court of Appeals, Ninth Circuit. Submitted Oct. 16, 1995 * . Memorandum Filed Oct. 20, 1995. Memorandum Withdrawn Feb. 26, 1996. Decided Feb. 26, 1996. The memorandum disposition filed October 20, 1995 is ordered WITHDRAWN. 1 Before: GOODWIN and HAWKINS, Circuit Judges, and FITZGERALD, ** District Judge. 2 MEMORANDUM *** 3 Vincent Herman, a federal prisoner, appeals the denial of his 28 U.S.C. § 2255 motion to vacate his sentence. On direct appeal we affirmed Herman's conviction for manufacturing more than 100 marijuana plants, a crime that carries a statutory mandatory minimum sentence of five years. 21 U.S.C. § 841 (b)(1)(B)(vii). Herman contends that the district court erred by including "dead" marijuana plants in its calculation of the total number of marijuana plants involved. We have…