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, Cir cuit 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) t o reduce his sentence because of an amendment to the federal sentencing guidelines applicable to his case. We reverse an d 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 sev en-count indictment against Mr. Adams, his wife, and his son for the manufacture and possession of marijuana resulted. Thi s 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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manufa cture of thirty-seven plants. Charges against Mrs. Adams wer e dismissed.

The plea agreement recited that the parties had stipulated "that the number of marijuana plants manufactured (cultivated) in this case, that ar e readil y provable by the government as attributable to this defendant , Charle s W. Adams, were seventy-three (73) marijuana plants." Th e 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

sen tence up to the maximum penalties as set forth elsewhere in th e 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 b e accomp anied by a written stipulation of facts relevant to sentencing, " nevertheless "[t]he court is not bound by the stipulation, but may with th e aid of the presentence report, determine the facts relevant to sentencing. " The presentence repor t, however, stated simply that "pursuant to the plea agreement in this case, [the defendant] is accou ntable for 73 ... plants," and the di strict court sentenced Mr. Adams on that basis. Therefore , though th e district court made no explicit finding of the number o f marijuana plants in fixing a sentence for the defendant, it implicitl y ado pted the number to which the parties had stipulated. The cour t sentenced Mr. Adams t o 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 mad e retroactive by virtue of U.S.S.G. § 1B1.10(c), a nd which gives a court the authority to modify a sentence under 18 U.S.C. § 3582(c)(2), see U.S.S.G. § 1B 1.10(a), changed the weight equivalence of a marijuana plant fo r sente ncing purposes from one kilogram to one hundred grams. Mr. Adam s filed

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two motio ns urging the court to reconsider his sentence in light of th e amendment. The court, asserting in part that "[h]ad the defendant bee n held a ccountable for the entire 110 marijuana plants, the statutoril y required minimum term of imprisonment would have been five years," denied both motions.

II. Mr. Ad ams's appeal appears to us to reduce to an argument that th e district court consid ered some things that it should not have and did not consider other things that it should have, when it denied his motion t o have his sentence reduced. We find no merit in the second proposition, bu t find sufficient merit in the first to remand for resentencing.

A. We start with the question of what part the one hundred and te n plant s played in the court's decision to deny Mr. Adams's motion

. Mr. Adams believes that in deciding whether to apply the relevant amendmen t 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 ar e obliged to determine whether the district court did indeed regard the deal that Mr. Adams had ma de 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 tha t Mr. Adams is correct in concluding that the district court weighed the fac t that the charges against him had been reduced in determining whether t o apply the amended sentencing guideline to him. The court stated tha t "[h]ad the defendant been held accountable for the entire one hundred ten marijuana plants, the statutorily required minimum term of imprisonmen t would have been five years pursuant to 21 U.S.C. § 841(b)(1)(B)." Th e court then

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observed that as "a result of the plea agreement , no minimum term resulted and the guideline imp risonment range was reduced." The court also stated that M r. Adams "received adequate consideration in his plea bargainin g which th e court approved." It seems apparent to us that the court wa s indicating that Mr. Adams might well in fact have been responsible for mor e than seventy-three pl ants and that he had gotten a break when the charges were reduced.

Mr. Ad ams maintains that this was error, first of all, becaus e revisiting its earlier determination of the amount of marijuana that he wa s manufacturing runs af oul of the sentencing guidelines' injunction that in decidi ng whether to apply an amendment retroactively the district cour t "shall substitute only the amendment[] ... for t he 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 ref erence, in part, to previous factual decisions by the district cour t releva nt to sentencing, and thus that these provisions prohibit th e district court from reconsidering those factual decisions. We reject this contention. We think it plain that the application note merely states wha t is in any case necessarily so -- that any provis ion of the guidelines that is not amended remain s the same. In other words, the application note is saying that all other applicable guidelines remain unaffected by th e amendments

. The reference is to decisions with respect to what othe r guid elines are applicable and to their meaning, not to prior factua l findings.

We do, however, believe for other reasons that the district cou rt was bound by its previous determination with respect to the number of marijuan a plants that was relevant to Mr. Adams's sentence. In the first place , although the finding is perhaps not

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technic ally res judicata , it is unusual, for efficiency reasons if n o other, for trial courts to revisit factual findi ngs. In the second place, the district court had already made a finding that the seventy-three plant s fo r which Mr. Adams was going to be held responsible "adequatel y reflect[ed] the seriousness of the actual offense behavior," else the cour t could not have approv ed the reduction in the charges against Mr. Adams at all. See U.S.S.G. § 6B1.2(a). In the third place, the sentencin g guidelines direct a district court in situations like the present one to "consider the sentenc e 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 directi ve that the district court is to leave all of its previous factual decisions intact when decidin g whether to apply a guideline retroactively.

We therefore conclude that the court erred in taking into accou nt 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 als o U.S.S.G. § 1B1.10, background, which provides that courts may reduce a sentence pursuant to a retroactive amendment "after considering the factor s set forth in section 3553(a) to the extent they are applicable." Tha t 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 lis t 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 c ourt has considered the relevant matters, and that some reason i s 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 exami ne each factor listed in guidelines, or to explain what weight i t gives to each, when departing downward from the sentencing range).

This c ase involves not a sentencing in the first instance, but a decisio n by the court whether to resentence. We think that th e requirements imposed on a court to explain itself in this context coul d 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, b y mentioning several considerations that are found in § 3553(a), was aware of the entire contents of the relevant statute. That the court in thi s 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 rev ersible error. On remand, we would simply direc t the court's attention to the considerations listed in § 3553(a), and remind it of its duty to weigh them in reaching it s decision.

III. We therefore remand this case for resentencing in accordance wi th the views contained in this opinion.

A true copy.

Attest:

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