The HONORABLE DAVID S. DOTY, United States District Judge for 1

the District of Minnesota.

 The HONORABLE DIANA E. MURPHY, then Chief Judge, United

2

States District Court for the District of Minnesota, now United

States Circuit Judge.

___________

No. 96-1052

___________

John Paul Warhol, *

 *

Appellant, *

 * Appeal from the United States

v. * District Court for the

 * District of Minnesota.

United States of America, *

 * [UNPUBLISHED]

Appellee. *

___________

 Submitted: July 5, 1996

 Filed: July 22, 1996

___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

PER CURIAM.

John Paul Warhol appeals from the district court's order denying his 1

18 U.S.C. § 3582(c)(2) motion to reduce his sentence. We affirm.

Warhol pleaded guilty to possessing marijuana plants with intent to

distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). In June

1994, the district court found that Warhol's offense involved 132

2

marijuana plants, and imposed the five-year statutory mandatory minimum

sentence of imprisonment required by 21
U.S.C. § 841(b)(1)(B)(vii) (five-year minimum sentence applies to any

person convicted of possessing with intent to distribute "100 kilograms or

more of . . . marijuana, or 100 or more marijuana plants regardless of

weight"). We affirmed Warhol's conviction and sentence on direct appeal.

United States v. Warhol, No. 94-2670, 1994 WL 706525 (8th Cir. Dec. 21,

1994) (unpublished per curiam).

Warhol later filed this section 3582(c)(2) motion to modify his term

of imprisonment, based on a November 1995 retroactive amendment to U.S.S.G.

§ 2D1.1 establishing a presumptive weight for a marijuana plant of 100

grams unless the plant's actual weight is greater. Warhol maintained that

the district court should resentence him without regard to the statutory

minimum sentence, pursuant to the also recently-enacted "safety-valve"

provision of 18 U.S.C. § 3553(f) (requiring imposition of Guidelines

sentence without regard to any statutory minimum sentence if defendant

meets series of conditions concerning criminal history, role in offense,

circumstances of offense, and providing information about relevant

conduct).

We agree with the district court that Warhol is not eligible for a

reduction in sentence under section 3582(c)(2): his sentence was "based

on" the five-year statutory minimum sentence and not the

subsequently-amended Guidelines range. See 18 U.S.C. § 3582(c)(2)

(allowing district court to reduce defendant's prison term if defendant was

sentenced "based on a sentencing range that has subsequently been lowered

by the Sentencing Commission"). We also agree with the district court that

section 3553(f) does not provide an independent basis for reducing Warhol's

sentence, because section 3553(f) and its Guidelines counterpart, U.S.S.G.

§ 5C1.2, are not retroactive. See 18 U.S.C. § 3553(f) (applying to

sentences imposed after September 23, 1994); United States v. Lopez-Pineda,

55 F.3d 693, 697 n.3 (1st Cir.) (stating § 5C1.2 is not retroactive), cert.

denied, 116 S. Ct. 259 (1995). 

Accordingly, we affirm.
A true copy.

Attest:

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