### The HONORABLE DAVID S. DOTY, United State s District Judge for 1 

### the District of Minnesota.

The HONORABLE DIANA E. MURPHY, then Chief Judge, Unite d 2 

### States District Court for the District of Minnesota, now Unite d 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 United States of America, * * [UNPUBLISHED] Appellee.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 pl eaded 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, th e district court found that Warhol's offense involved 13 2 2 marijuana plants, and imposed the five-year statutory mandatory minimu m sentence of imprisonment required by 21U.S.C. § 841(b)(1)(B)(vii) (five-year minimum sentence applies to an y

person convicted of possessing with intent to di stribute "100 kilograms or
more of . . . marijuana, or 100 or more marijuana plants regardless o f weight"). We affirme d Warhol's conviction and sentence on direct appeal. United St ates v. Warhol , No. 94-2670, 1994 WL 706525 (8th Cir. Dec. 21 , 1994) (unpublished per curiam).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 10 0 grams unless the plant's actual weight is greate r. Warhol maintained that the district court should resentence him without regard to the statutory mini mumsentence, pursuant to the also recently-enacted "safety-valve " provis ion of 18 U.S.C. § 3553(f) (requiring imposition of Guideline s senten ce without regard to any statutory minimum sentence if defendan t meets series of conditions concerning criminal history, role in offense, circumstances of offense, and providing information about relevan t conduct).

We agr ee with the district court that Warhol is not eligible for a reduction in sentence under section 3582(c)(2): his sentence was "based on" th e five-year statutory minimum sentence and not th e subsequently-amended Guidelines range. See 18 U.S.C. § 3582(c)(2 ) (allowing district court to reduce defendant's prison term if defendant wa s sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission"). We also agree with the district court tha t section 3553(f) does not provide an independent basis for reducing Warhol' s sentence, because section 3553(f) and its Guidel ines counterpart, U.S.S.G. § 5C1.2, are not retroactive. See 18 U.S.C. § 3553(f) (applying t o 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.