No. 96-1442

 

United States of America, *

*

 Appellee, *

* Appeal from the United States

 v. * District Court for the Eastern

 * District of Missouri.

Charles W. Adams, *

*

 Appellant. *

 

 Submitted: November 19, 1996

 Filed: January 15, 1997 

 

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS

SHEPPARD ARNOLD, Circuit Judge.

 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Charles W. Adams appeals the denial of a motion made pursuant to 18

U.S.C. § 3582(c)(2) to reduce his sentence because of an amendment to the

federal sentencing guidelines applicable to his case. We reverse and

remand for resentencing.

I.

When federal drug enforcement agents entered property that Mr. Adams

owned with his wife, they discovered one hundred and ten marijuana plants

growing there. A seven-count indictment against Mr. Adams, his wife, and

his son for the manufacture and possession of marijuana resulted. This

indictment was subsequently dismissed, in accordance with the terms of a

plea agreement, and the government filed informations charging Mr. Adams

with the manufacture of seventy-three plants and his son with the
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manufacture of thirty-seven plants. Charges against Mrs. Adams were

dismissed. 

The plea agreement recited that the parties had stipulated "that the

number of marijuana plants manufactured (cultivated) in this case, that are

readily provable by the government as attributable to this defendant,

Charles W. Adams, were seventy-three (73) marijuana plants." The

agreement, however, acknowledged, as it had to, that "the sentencing judge

is neither a party to nor bound by this agreement and is free to impose a

sentence up to the maximum penalties as set forth elsewhere in the

agreement." This is in accordance with U.S.S.G. § 6B1.4(a) and § 6B1.4(d),

which provide, respectively, that while "[a] plea agreement may be

accompanied by a written stipulation of facts relevant to sentencing,"

nevertheless "[t]he court is not bound by the stipulation, but may with the

aid of the presentence report, determine the facts relevant to sentencing."

The presentence report, however, stated simply that "pursuant to the plea

agreement in this case, [the defendant] is accountable for 73 ... plants,"

and the district court sentenced Mr. Adams on that basis. Therefore,

though the district court made no explicit finding of the number of

marijuana plants in fixing a sentence for the defendant, it implicitly

adopted the number to which the parties had stipulated. The court

sentenced Mr. Adams to 30 months in prison, the minimum term in the range

prescribed by the sentencing guidelines at the time. 

Subsequent to Mr. Adams's sentencing, amendment 516 to § 2D1.1(c) of

the sentencing guidelines was passed. This amendment, which is made

retroactive by virtue of U.S.S.G. § 1B1.10(c), and which gives a court the

authority to modify a sentence under 18 U.S.C. § 3582(c)(2), see U.S.S.G.

§ 1B1.10(a), changed the weight equivalence of a marijuana plant for

sentencing purposes from one kilogram to one hundred grams. Mr. Adams

filed
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two motions urging the court to reconsider his sentence in light of the

amendment. The court, asserting in part that "[h]ad the defendant been

held accountable for the entire 110 marijuana plants, the statutorily

required minimum term of imprisonment would have been five years," denied

both motions.

II.

Mr. Adams's appeal appears to us to reduce to an argument that the

district court considered some things that it should not have and did not

consider other things that it should have, when it denied his motion to

have his sentence reduced. We find no merit in the second proposition, but

find sufficient merit in the first to remand for resentencing.

A.

We start with the question of what part the one hundred and ten

plants played in the court's decision to deny Mr. Adams's motion.

Mr. Adams believes that in deciding whether to apply the relevant amendment

retroactively, the district court revisited its earlier determination that

he was responsible for only seventy-three plants. Mr. Adams believes that

this was error for a number of reasons, but before we consider them, we are

obliged to determine whether the district court did indeed regard the deal

that Mr. Adams had made with the government with respect to the number of

plants relevant to the matter of resentencing.

While the matter is not entirely free from doubt, we believe that

Mr. Adams is correct in concluding that the district court weighed the fact

that the charges against him had been reduced in determining whether to

apply the amended sentencing guideline to him. The court stated that

"[h]ad the defendant been held accountable for the entire one hundred ten

marijuana plants, the statutorily required minimum term of imprisonment

would have been five years pursuant to 21 U.S.C. § 841(b)(1)(B)." The

court then
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observed that as "a result of the plea agreement, no minimum term resulted

and the guideline imprisonment range was reduced." The court also stated

that Mr. Adams "received adequate consideration in his plea bargaining

which the court approved." It seems apparent to us that the court was

indicating that Mr. Adams might well in fact have been responsible for more

than seventy-three plants and that he had gotten a break when the charges

were reduced.

Mr. Adams maintains that this was error, first of all, because

revisiting its earlier determination of the amount of marijuana that he was

manufacturing runs afoul of the sentencing guidelines' injunction that in

deciding whether to apply an amendment retroactively the district court

"shall substitute only the amendment[] ... for the corresponding guideline

provision[] that [was] applied when the defendant was sentenced," leaving

"[a]ll other guideline application decisions ... unaffected." See U.S.S.G.

§ 1B1.10, application note 2. Mr. Adams argues that these provisions have

reference, in part, to previous factual decisions by the district court

relevant to sentencing, and thus that these provisions prohibit the

district court from reconsidering those factual decisions. We reject this

contention. We think it plain that the application note merely states what

is in any case necessarily so -- that any provision of the guidelines that

is not amended remains the same. In other words, the application note is

saying that all other applicable guidelines remain unaffected by the

amendments. The reference is to decisions with respect to what other

guidelines are applicable and to their meaning, not to prior factual

findings.

We do, however, believe for other reasons that the district court was

bound by its previous determination with respect to the number of marijuana

plants that was relevant to Mr. Adams's sentence. In the first place,

although the finding is perhaps not
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technically res judicata, it is unusual, for efficiency reasons if no

other, for trial courts to revisit factual findings. In the second place,

the district court had already made a finding that the seventy-three plants

for which Mr. Adams was going to be held responsible "adequately

reflect[ed] the seriousness of the actual offense behavior," else the court

could not have approved the reduction in the charges against Mr. Adams at

all. See U.S.S.G. § 6B1.2(a). In the third place, the sentencing

guidelines direct a district court in situations like the present one to

"consider the sentence that it would have imposed had the amendment[] ...

been in effect" at the time of the original sentencing. See U.S.S.G. §

1B1.10(b). We think it implicit in this directive that the district court

is to leave all of its previous factual decisions intact when deciding

whether to apply a guideline retroactively.

We therefore conclude that the court erred in taking into account the

possibility that Mr. Adams was in fact responsible for more than seventythree plants when deciding whether to reduce his sentence.

 

B.

Mr. Adams also contends that the district court erred by neglecting

to consider certain matters that the statutes required it to consider.

Specifically, he points to language in 18 U.S.C. § 3582(c)(2), see also

U.S.S.G. § 1B1.10, background, which provides that courts may reduce a

sentence pursuant to a retroactive amendment "after considering the factors

set forth in section 3553(a) to the extent they are applicable." That

section, of course, comprises the considerations a court must weigh in the

original act of sentencing. See 18 U.S.C. § 3553(a).

 

We know of no authority that requires a court mechanically to list

every consideration of § 3553(a) when it sentences a defendant
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in the first instance. What is important is that there is evidence that

the court has considered the relevant matters, and that some reason is

stated for the court's decision. See United States v. McCarthy, 97 F.3rd

1562, 1577 (8th Cir. 1996) (court is required to state reasons, but not to

examine each factor listed in guidelines, or to explain what weight it

gives to each, when departing downward from the sentencing range). 

This case involves not a sentencing in the first instance, but a

decision by the court whether to resentence. We think that the

requirements imposed on a court to explain itself in this context could

hardly be more rigorous than those applicable to an original sentencing.

The law asks a court to consider the factors of § 3553(a) "to the extent

... applicable." We are satisfied that the court in this case, by

mentioning several considerations that are found in § 3553(a), was aware

of the entire contents of the relevant statute. That the court in this

case did not mention the specific considerations that Mr. Adams feels were

particularly relevant to his case is not evidence that the court was not

aware of those considerations. Nor was it a reversible error. On remand,

we would simply direct the court's attention to the considerations listed

in § 3553(a), and remind it of its duty to weigh them in reaching its

decision.

III.

We therefore remand this case for resentencing in accordance with the

views contained in this opinion.

A true copy.

Attest:

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