United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1535

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States
v. * District Court for the * District of Minnesota. George Henry Mihm, * * Defendant - Appellant. *

___________ Submitted: October 21, 1997 Filed: January 27, 1998

___________ Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.

___________ LOKEN, Circuit Judge.
This appeal raises a difficult sentencing question regarding the proper interplay between 18 U.S.C. § 3582(c)(2) , which gives the sentencing court limited authority to reduce a prior sentence by retroactively applying amendments to the Sentencin g Gui delines, and 18 U.S.C. § 3553(f), the prospective “safety valve” exception t o mandatory minimum drug sentences. The district court concluded that a resentencing under § 3582 (c)(2) must be done without regard to the § 3553(f) safety valve if th e original sentence was imposed before the effective date of § 3553(f). We disagree and therefore remand for further sentencing proceedings.-2-

In 1993, George Henry Mihm was sentenced to 160 months in prison fo r growing and consp iring to grow over one thousand marijuana plants and for failure to appear at trial. The marijuanaoffenses subjected Mihm to a mandatory minimum tenyear sentence. See21 U.S. C. § 841(b)(1)(A)(vii). However, he was sentenced under the Guidelines because his sentencing range of 151 to 188 months was greater than the mandator y minimum. We affirmed his conviction and sentence. United States v

. Mihm , 13 F.3d 1200 (8th Cir. 1994).

In dete rmining Mihm’s Guidelines sentencing range, the district court used a Guid elines formula that equated each marijuana plant to one kilogram of marijuana

. See U.S.S. G. § 2D1.1(c), comment. (backg’d) (1992). In November 1995, th e Sentencing Commission amended this provision to equate each marijuana plant to 100 grams of marijuana (unless the actual weight is greater). See U.S.S.G. App. C , Amendment 516, now codified at U.S.S.G. § 2D1.1(c), com ment. (nn. (E) & backg’d). The Comm

ission also concluded that this amendment may be applied retroactively to afford sentencing relief under 18 U.S.C. § 3582(c)(2). See U.S.S.G. § 1B1.10

. Accordingly, Mihm filed a motion seeking § 3582(c)(2) relief.
Using the amended plant equivalency formula low ers Mihm’s base offense level from 34 to 28, producing a Guidelines sentencing range of 78 to 97 months. That lower
se ntencing range brings the 120-month mandatory minimum sentence into play. I n Septemb er

1994, Congress enacted the safety valve provision in § 3553(f), whic h provides that the district court “shall impose” a Guidelines range sentence, rather than the mandat ory minimum, if it finds that the drug offense was non-violent and th e offender h as little or no criminal history, was not a leader in the offense, an d cooperated with law enforcement officials. In his § 3582(c) motion, Mihm argued that he qualifies for § 3553(f) safety valve relief a nd therefore must be sentenced within his modified Guidelines range of 78 to 97 months.The Sentencing Commission promulgated U.S.S.G. § 5C1.2 to restate an d 1 explain § 3553(f). Given the statute’s explicit non-retroactivity, § 5C1.2 is not in the list of Guidelines amendments that may be retroactively applied. See § 1B1.10(c). The court grouped the two marijuana offenses, producing a base offense level 2 of 26, and added a two-level enhancement for obstruction of justice because Mih m failedto appear for trial of the drug offenses, producing a total base level of 28. See U.S.S.G. §§ 2J1.6 & comment. (n. 3), 3C1.1, 3D1.2(c). -3- The distri ct court determined that Mihm is eligible for § 3582(c)(2) relief an d turned to the safet

y valve issue. Section 3553(f) applies “to all sentences imposed on
or af ter” September 23, 1994. Pub. L. No. 103-322, § 80001(c), 108 Stat. 198 6 (199 4). Without determining whether Mihm is eligible for safety valve relief, th e

1 distr ict court refused to invoke § 3553(f) in determining his reduced sentence unde r § 3582(c)(2), concluding that would be an improper retroactive application of the safety
va lve. Accordingly, the court resentenced Mihm to the mandatory minimum of 12 0 months on the marijuana off enses plus a one-day consecutive sentence for obstruction of j ustice because of his failure to appear. Mihm appeals, arguing that the § 3553(f) 2 safety valve should apply to his § 3582(c)(2) resentencing.

In U nited States v. Wyatt , 115 F.3d 606, 609 (8th Cir. 1997), a case decide d after the district court issued its order in this case, we concluded:
[A] motion to modify a sentence under section 3582(c) occasioned by a retroactive amendme nt which alters a previous Guideline range, requires a district court to make two distinct determinations. First, by substituting onl y the amended sentencing range for the originally determine d sen tencing range, and leaving all other previous factual decision s con cerning particularized sentencing factors . . . intact, the district court mustd etermine what sentence it would have imposed had the ne w sentencing range been the range at the time of the original sentencing

. Secon d, having made the first determination, the district court mus t consider that determination together with the general sentencing-4-

co nsiderations contained in section 3553(a) and, in the exercise of its thus informe d discretion, d ecide whether or not to modify the original sentence previously imposed.

The first determ

ination, mandated by U.S.S.G. § 1B1.10(b), defines the impact of the new amendment on t

he previous Guidelines range. Because the district court omitted this step in Wyatt , we remanded for reconsid eration of the § 3582(c)(2) motion. Here,
on the other hand, it is undisputed that the district court correctly made this first , exclusively Guidelines-based determination.
The second determination is quite dif ferent, because it is based upon the district court’s sente ncing discretion at the time it rules on the § 3582(c)(2) motion. When a de fendant is eligible for a § 3582(c)(2) reduction, the district court must consider al l relevant statutory sentencing factors. That was the basis for our decision in Unite d States v. Williams , 103 F.3d 57, 58 (8th Cir. 1996) (per curiam), where we held that the government may elect to move for a downward departure under 18 U.S.C. § 3553(e) at the time of a § 3582(c)(2) resentencing, even though it did not make such a motion at the time of orig inal sentencing. Like § 3553(e), the § 3553(f) safety valve is a ge neral sentencing consideration that the district court must take into account i n
exerc ising its present discretion to resentence under § 3582(c)(2). Read together , Wy att and Williams clarify that the grant of § 3582(c)(2) relief to Mihm is a distinc t sentencing exercise, one that results in a sentence “imp osed on or after” September 23, 1994. Thus, there is no retr oactivity bar to applying § 3553(f) in these circumstances. Accord United States v. Reynolds , 111 F.3d 132 (Table), 1997 WL 152032 (6th Cir. 1997), citing United States v. Clark , 110 F.3d 15, 18 (6th Cir. 1997); cf. United States v. Polanco , 53 F.3d 893, 898-99 (8t h Cir. 1995), cert. denied , 116 S. Ct. 2555 (1996), appl ying § 3553(f) to a sentence imposed after appellate remand even though th e original sentence preceded the statute’s effective date.-5-

This conclusion, while logical, produces a troublesome anomal y that led the Ninth Circu it to reach a contrary conclusion in a very similar case. When the original dru g sentence was based upon a statutory mandatory minimum because the Guidelines had produced a lower

sentencing range, this court and others have held that § 3582(c)(2 ) relief is not available because the origin al sentence was not, in the words of that statute, “based on a sentencing range that has subsequentl y been lowered.” And if § 3582(c)(2) relief is not available, the defendant may not take advantage of the § 3553(f) safety valve because that statute is prospective only. See Warhol v. United States , 92 F.3d 119 0 (Table), 1996 WL 406134 (8th Cir. 1996) (unpublished per curiam); accord Unite d States v. Torres , 99 F.3d 360 (10th Cir. 1996), cert. denied , 117 S. Ct. 1273 (1997)

. The Ninth Circuit concluded that § 3553(f) does not ap ply to § 3582(c)(2) resentencings because it is extensive growers like Mihm who w ere initially sentenced according to the Guidelines, rather than the statutory minimum, and

It makes no sense to impute a purpose to Congress to allow escape from th e statutory minimum only to the criminal who grew five times as muc h marijuana [but] not the smaller-scale grower.

United States v. Stockdale , 129 F.3d 1066, 1069 (9th Cir. 1997). It may well b e anomalous to grant Mr. Mihm, for example, safety valve relief, but not Mr. Warhol. But
as we have explained, a fair reading of the two statutes makes § 3553(f) safety valv e relief available to defendants who are eligible for § 3582(c)(2) relief. Therefore, i t would violate the rule of lenity to deny § 3553(f) relief to Mr. Mihm because, in ou r view, there are others to whom it should also have been extended. See generally Bifulco v. United States , 447 U.S. 381, 387 (1 980); United States v. R.L.C. , 915 F.2d 320, 325 (8th Cir. 1990), aff'd , 503 U.S. 291 (1992).

For the foregoing reasons, the judgment of the district court is reversed and the case is remanded to the district court for further sentencing proceedings not inconsistent with this opinion. We have not considered whether Mr. Mihm is eligible for the-6-

§ 3553(f) safety valve nor other issues that may arise under § 3582(c)(2) o n remand. We leave such issues in the first instance to the sentencing court.
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.