United States Court of Appeals, Eleventh Circuit.

No. 96-8380

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Southerland CARTER, Defendant-Appellant.

April 18, 1997.

Appeal from the United States District Court for the Southern

District of Georgia. (No. CR-592-2), B. Avant Edenfield, Chief

Judge.

Before TJOFLAT, EDMONDSON and COX, Circuit Judges.

PER CURIAM:

Michael Southerland Carter appeals the denial of his motion

for sentence reduction under 18 U.S.C. § 3582(c)(2). For the

reasons below, we vacate and remand.

FACTS:

Carter pled guilty in 1992 to one count of conspiracy to

possess marijuana with intent to distribute. The PSI found that

Carter was responsible for 950 kilograms of marijuana that he had

imported into Georgia from other states. Thus, the PSI assigned

Carter a base offense level of 30. After adding and subtracting

adjustments, the PSI calculated Carter's total adjusted offense

level to be 32. Carter fell in Criminal History Category I, and

thus his guideline sentencing range was 121 to 151 months.

At the sentencing hearing, Carter challenged the PSI's

quantity finding, arguing that it was based on the weight of wet

marijuana. He explained, through counsel, that the marijuana had

been soaked with water before transport to Georgia. Carter alleged
that he had to dry the marijuana before he could resell it, and he

further claimed that the dried marijuana "didn't probably weigh

half of what it weighed in its wet-down form." The court credited

Carter's allegations, but held that the weight to be used in

calculating his base offense level was the marijuana's gross

weight, which included the weight of the water. Thus, the court

adopted the PSI's factual findings and guideline calculations.

The district court initially sentenced Carter to 135 months'

imprisonment. Pursuant to a government motion under U.S.S.G. §

5K1.1, however, the court later departed downward to 97 months'

imprisonment to reflect Carter's substantial assistance in criminal

prosecutions. Subsequently, the government filed a motion under

Federal Rule of Criminal Procedure 35(b) to further reduce Carter's

sentence in acknowledgment of his continued assistance in

prosecutions. The district court granted this motion and reduced

Carter's sentence to 80 months' imprisonment.

Effective November 1, 1993, the Sentencing Commission amended

the guidelines to provide that a controlled substance's weight for

sentencing purposes "does not include materials that must be

separated from the controlled substance before the controlled

substance can be used." U.S.S.G.App. C, amend. 484 (codified as

U.S.S.G. § 2D1.1, comment. (n. 1)). The Commission authorized

retroactive application of this amendment. U.S.S.G. § 1B1.10(a),

(c), p.s.

Effective November 1, 1995, the Commission amended the

guidelines again to clarify the language added by the previous

amendment. This new amendment expressly provided that a court
should approximate the dry weight of marijuana that is too wet to

consume. U.S.S.G.App. C, amend. 518 (codified as U.S.S.G. § 2D1.1,

comment. (n. 1)). Unlike the previous amendment, however, this new

amendment was not made retroactive. See U.S.S.G. § 1B1.10(a), (c),

p.s.

In light of these amendments, Carter brought a motion for

sentence reduction under 18 U.S.C. § 3582(c)(2), seeking to have

his sentence recalculated based on the dry weight of the marijuana.

Carter again argued that the PSI's quantity finding was based on

the wet weight of the marijuana, and alleged that the dry weight of

the marijuana was less than half the wet weight. He also asserted

that three government witnesses—Vernon Smith, J.W. Edwards, and

Johnny Johnson—could verify his claims.

The district court denied relief. After reviewing Amendments

484 and 518, the court concluded that it was unclear whether

retroactive recalculation of dry marijuana weight was authorized.

Nevertheless, the court assumed, without deciding, that Carter was

eligible for such relief under Amendment 484. The Court also

credited Carter's allegation that the PSI's quantity finding was

based on the wet weight of the marijuana. Because this case

involved an "historical drug conspiracy" and little marijuana had

been seized, however, the court found that "it would be impossible

to estimate the weight of the dried marijuana."

Carter appeals the denial of his motion.

DISCUSSION:

Carter contends that the district court erred in denying his

motion. Citing United States v. Smith, 51 F.3d 980 (11th
Cir.1995), Carter argues that he is clearly entitled to the

retroactive benefit of Amendments 484 and 518. He further argues

that the district court should hold an evidentiary hearing to

determine the dry weight of the marijuana.

Without addressing the retroactivity of Amendment 484, the

government contends that Amendment 518 is not retroactive. The

government further contends that, even if Amendment 518 is

retroactive, the district court did not abuse its discretion in

denying Carter's motion. The government argues, inter alia, that

no evidence can be adduced concerning the dry weight of the

marijuana. Finally, the government asserts that Carter defaulted

on this claim by failing to raise it on direct appeal.

In reply, Carter argues, inter alia, that the dry weight of

the marijuana may be "difficult" to estimate, but that it is not

"impossible."

 The government failed to raise its procedural-default

argument below, and thus the issue is waived for purposes of

appeal. Hansen v. United States, 956 F.2d 245, 247 (11th

Cir.1992).

ISSUE 1: Whether Carter is eligible for a sentence reduction

In cases where the defendant was sentenced to a term of

imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission, the district court may reduce

the term of imprisonment if such a reduction is consistent with the

applicable policy statements issued by the Commission. 18 U.S.C.

§ 3582(c)(2). According to the applicable guidelines policy

statement, a defendant is eligible for retroactive application of
a subsequently enacted guideline amendment if the amendment is

listed in U.S.S.G. § 1B1.10(c). U.S.S.G. § 1B1.10(a), p.s.

Amendment 484, which established the initial rule excluding

unusable materials from drug weight, is among the amendments listed

in § 1B1.10(c). Amendment 518, which clarified this rule with

respect to wet marijuana, is not listed. Thus, Carter is eligible

for relief only if Amendment 484 is interpreted as excluding water

from the weight of marijuana.

In United States v. Smith, 51 F.3d 980 (11th Cir.1995), this

Court interpreted Amendment 484's language as requiring a

sentencing court to approximate the dry weight of marijuana that is

too wet to consume. 51 F.3d at 981-82. The Court cited Amendment

518—which was then pending before Congress—as support for this

interpretation. Id. at 981. Nevertheless, the Court merely used

Amendment 518 as "subsequent legislative history." Id. The actual

language that the Court interpreted to require exclusion of water

weight was that of Amendment 484.

Thus, Smith appears to authorize the relief that Carter seeks.

ISSUE 2: Whether the district court abused its discretion in

denying Carter a sentence reduction

 The decision whether to retroactively apply an amendment to

a particular defendant is a matter within the discretion of the

district court. United States v. Vazquez, 53 F.3d 1216, 1227-28

(11th Cir.1995).

 When determining whether to reduce the defendant's sentence,

the court should consider the factors set forth in 18 U.S.C. §

3553(a) "to the extent they are applicable." 18 U.S.C. §

3582(c)(2). The court is not required to make specific findings
regarding the applicability of each § 3553(a) factor, but it should

state the reasons for its ruling. See United States v. Dorrough,

84 F.3d 1309, 1311 (10th Cir.1996), cert. denied --- U.S. ----, 117

S.Ct. 446, 136 L.Ed.2d 342; cf. United States v. Parrado, 911 F.2d

1567, 1572-73 (11th Cir.1990) (a district court is not required to

rule on the applicability of each particular § 3553(a) factor when

imposing sentence, but it should tailor its comments to show that

the sentence imposed is appropriate in light of the these factors),

cert. denied, 498 U.S. 1104, 111 S.Ct. 1005, 112 L.Ed.2d 1088

(1991). The court should also consider the sentence it would have

imposed had the amendment been in effect at the time the defendant

was sentenced. U.S.S.G. § 1B1.10(b), p.s.

 Here, the district court provided only one reason for denying

Carter's motion: it found that estimating the dry weight of the

marijuana would be "impossible." The record does not support this

finding. Although the actual marijuana is not available to weigh,

there are witnesses who can testify concerning the degree of weight

reduction that drying entailed. Carter himself is such a witness.

Furthermore, the PSI indicates that Carter had partners in his

marijuana business. These individuals may be able to testify in

support or contradiction of Carter's allegations. Finally,

Carter's motion identified three witnesses that allegedly could

verify his claims.

Thus, because the district court erred in concluding that it

would be impossible to estimate the marijuana's dry weight, we

vacate and remand.

VACATED and REMANDED.