*

Honorable Jerome Farris, Senior U.S. Circuit Judge for the

Ninth Circuit, sitting by designation. 

 1Paragraph six of the PSI reads: "According to Agent

Ferrier, Patch No. 1 contained 110 plants total ... Patch No. 2

contained 96 standing marijuana plants, for a total of 206

plants." The record reflects that the two patches were 500 feet

apart. 

United States Court of Appeals, Eleventh Circuit.

No. 96-8191.

UNITED STATES of America, Plaintiff-Appellee,

v.

Roger Franklin COTHRAN, Defendant-Appellant.

March 11, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 2:92-CR-12-2-WCO), William C. O'Kelley,

District Judge.

Before BIRCH, Circuit Judge, and HILL and FARRIS*, Senior Circuit

Judges.

HILL, Senior Circuit Judge:

Appellant Roger Franklin Cothran appeals the sentence imposed

by the district court pursuant to his post-conviction motion for

modification of sentence under 18 U.S.C. § 3582(c)(2) predicated on

a retroactive amendment to the federal sentencing guidelines. We

affirm.

I.

Cothran was convicted in a jury trial of possessing marijuana

with intent to distribute, manufacturing marijuana, and conspiracy.

See 21 U.S.C. §§ 841(a)(1) and 846; 18 U.S.C. § 2. Cothran's

Presentence Investigation Report (PSI) attributed 206 marijuana

plants to him.1

 He did not contest the amount. The district court
 2

The United States Sentencing Guidelines (USSG) in effect

for offenses involving more than fifty marijuana plants, assigned

a weight value of one kilogram to each marijuana plant involved,

USSG § 2D1.1(c) (1992). Cothran was sentenced on the basis of

206 kilograms of marijuana. His guideline offense level 26 and

criminal history category I gave him a guideline sentencing range

of sixty-three to seventy-eight months. 

 3While admitting that "procedurally I find myself with Mr.

Cothran in a bind if I interpret the law ... correctly,"

nevertheless, the district judge found that "I don't believe I

have the—in a modification, that I have the prerogative to

readjudicate these matters. All of the matters that you're

arguing there today were adjudicated in Mr. Cothran's case

earlier and have been affirmed by the Eleventh Circuit Court of

Appeals...." 

sentenced Cothran to sixty-five months in prison. 2 This court

affirmed his convictions and sentence. Subsequently, amendment 516

to USSG § 2D1.1 was adopted. USSG App.C, amend. 516 (Nov. 1,

1995). It gives a court authority to modify a sentence under §

3582(c)(2), see USSG § 1B1.10(a), and changes the weight

equivalence of a marijuana plant for sentencing purposes from one

kilogram to one hundred grams. Id. The amendment was made

retroactive by the sentencing commission. USSG § 1B1.10(c).

Seeking to benefit from this guideline change, Cothran filed

a § 3582(c)(2) motion for modification of sentence. At hearing,

Cothran argued that the 206 plants were the equivalent of 20.6

kilograms of marijuana, and that his revised guideline sentencing

range was now twenty-seven to thirty-three months. The district

court disagreed, reducing Cothran's sentence, but only from

sixty-five to sixty months, the statutory mandatory minimum for

offenses involving one hundred or more marijuana plants. 21 U.S.C.

§ 841(b)(1)(B)(vii); USSG § 5G1.1(b).3

II.
 4

Cothran claims that new evidence would prove that he was

aware only of Patch No. 2 containing ninety-six plants, just

under the statutory mandatory minimum floor. 

On appeal Cothran contends that the district court erred in

refusing to re-examine the number of marijuana plants attributable

to him at resentencing.4

 He argues that, under the plain language

of § 3582(c)(2), referring the court to consider the factors listed

in § 3553(a), the district court is authorized to conduct an

evidentiary hearing to consider new evidence on issues of fact

relevant to the retroactive guideline amendment.

The Government contends that the district court has discretion

under § 3582(c)(2) whether to modify a defendant's sentence at all,

United States v. Vazquez, 53 F.3d 1216, 1227 (11th Cir.1995), and

that the factors listed in § 3553(a) merely inform the court

whether to exercise its discretion or not. Further, the Government

argues that a § 3582(c)(2) resentencing is not a "full-blown"

resentencing proceeding but merely a form of limited remand. The

Government claims that 206 plants, uncontested by Cothran at his

original sentencing, are now the law of the case.

III.

While we have not yet addressed this issue in this circuit,

others have. They are in agreement that § 3582(c)(2) and related

sentencing guidelines do not contemplate a full de novo

resentencing. See United States v. Adams, 104 F.3d 1028, 1030-31

(8th Cir.1997); see United States v. Torres, 99 F.3d 360 (10th

Cir.1996), petition for cert. filed, --- U.S.L.W. ---- (U.S. Jan.

28, 1997) (No. 96-7743); see United States v. Breen, 928 F.Supp.

977 (D.Alaska), aff'd, 103 F.3d 141 (9th Cir.1996).
 A court's power to reduce sentences under § 3582(c)(2) is

discretionary. Vazquez, 53 F.3d at 1226. The district court may

reduce the previously imposed sentence "after considering the

factors set forth in section 3553(a) to the extent they are

applicable, if such a reduction is consistent with the applicable

policy statements issued by the Sentencing Commission." 18 U.S.C.

§ 3582(c)(2); see United States v. Brown, 104 F.3d 1254 (11th

Cir.1997). A court should "consider the sentence that it would

have imposed had the [retroactive] amendment(s) to the guidelines

listed in [USSG § 1B1.10(c) ] been in effect at the time the

defendant was sentenced." USSG § 1B1.10(b). In determining the

amended guideline range under USSG § 1B1.10(b), the court shall

substitute only the [retroactive] amendment ... for the

corresponding guideline provisions that were applied when the

defendant was sentenced. All other guideline application decisions

remain unaffected. USSG § 1B1.10, comment. (n.2) (Nov. 1, 1994).

This case is not unlike the Eighth Circuit case of Adams, 104

F.3d at 1030-31. In Adams, federal agents discovered 110 marijuana

plants on property owned by Adams and his wife. In accordance with

a plea agreement, Adams was charged with the manufacture of

seventy-three plants and his son was charged with the manufacture

of thirty-seven plants. Adams was sentenced to thirty months in

prison. Id.

Subsequently, Adams filed § 3582(c)(2) motions urging the

court to reconsider his sentence in light of amendment 516. The

district court denied both motions asserting that "[h]ad the

defendant been held accountable for the entire 110 marijuana
 5

As we find that the district court was bound by its

previous determination with respect to the number of marijuana

plants that were relevant to Cothran's sentence, we need not

reach Cothran's alternative argument that, as his original

guideline sentence was greater than his statutory minimum

sentence, the district court had never previously considered

number of marijuana plants for purposes of § 841(b)(1)(B)(vii). 

plants, the statutorily required minimum term of imprisonment would

have been five years." Id. at 1030.

Finding error, the Eighth Circuit remanded for resentencing,

stating:

We ... believe ... 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 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 USSG § 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 USSG § 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.

Id. at 1030-31 (emphasis added).

 We conclude that the district court was correct in declining

to re-examine the number of plants charged to Cothran. Cothran

received all to which he was entitled when the court, within its

discretion, reduced his sentence to the statutory mandatory

minimum.5

IV.

The district court is affirmed.

AFFIRMED.