PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                    No. 96-4500

DAYNA R. PATRICK LAYMAN,
Defendant-Appellee.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4533

JOE BENNETT SMITH, III,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-95-65-R)

Argued: May 6, 1997

Decided: June 24, 1997

Before WILKINSON, Chief Judge, WILKINS, Circuit Judge, and
TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed in part and vacated and remanded with instructions in part
by published opinion. Judge Wilkins wrote the opinion, in which
Chief Judge Wilkinson and Judge Traxler joined.

_________________________________________________________________
COUNSEL

ARGUED: Joseph William Hooge Mott, Assistant United States
Attorney, Roanoke, Virginia, for Appellant. John E. Lichtenstein,
LICHTENSTEIN & FISHWICK, P.L.C., Roanoke, Virginia, for
Appellee Layman; Jonathan M. Rogers, JONATHAN ROGERS,
P.C., Roanoke, Virginia, for Appellee Smith. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Daniel Campbell, Third Year
Law Intern, Roanoke, Virginia, for Appellant. Charles M. Smith, Jr.,
LICHTENSTEIN & FISHWICK, P.L.C., Roanoke, Virginia, for
Appellee Layman.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

The United States appeals the sentence imposed on Dayna R. Pat-
rick Layman following her plea of guilty to conspiracy to manufac-
ture and to distribute marijuana, see 21 U.S.C.A. § 841(a)(1) (West
1981), arguing that the district court improperly changed the sentence
after it had been pronounced. Joe Bennett Smith, III cross-appeals his
sentence, also imposed following a plea of guilty to conspiracy to
manufacture and to distribute marijuana, see id. , primarily contending
that the district court incorrectly applied the 100-gram-per-plant
equivalency ratio found in the Sentencing Guidelines because no mar-
ijuana plants were seized. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c) (n.*(E)) (1995). We conclude that because the sentence
was imposed on Layman when it was orally pronounced in open
court, the district court lacked authority to alter the sentence absent
"arithmetical, technical, or other clear error." See Fed. R. Crim. P.
35(c). And, since the modification of Layman's sentence was not
prompted by any such error, we vacate the modified sentence and
remand with instructions to impose the sentence as originally pro-
nounced. Additionally, we hold that the equivalency ratio applies to
any offense involving the cultivation of marijuana plants, regardless
of whether live plants are actually seized. So, finding no error with
respect to Smith's sentence, we affirm it.

                    2
I.

In 1988, Layman and her husband, Victor, approached George and
Cheryl Fender with a plan to grow large quantities of high-quality
marijuana in the area of Roanoke, Virginia. The responsibilities of the
conspiracy would be divided: The Fenders would grow the marijuana
in "grow houses" financed by Smith, while Victor would process and
distribute the marijuana. Eventually, the conspiracy expanded to
include other individuals who operated additional grow houses. The
conspiracy continued until 1995 when the participants were indicted.

On May 17, 1996, a Friday, Layman appeared for sentencing. The
district court determined that Layman's guideline range was 6-12
months and sentenced her to nine months imprisonment to be fol-
lowed by a 36-month term of supervised release. No written order of
conviction was filed at that time.

During the weekend, Layman and Victor each wrote a letter to the
court requesting that it modify the sentence to place Layman in home
detention. And, Layman subsequently filed a motion formally
requesting such a sentence. The district court convened a hearing on
the motion at which it made clear that it considered the proceedings
to be a continuation of the May 17 hearing and that its oral pro-
nouncement of sentence at that hearing did not constitute the "imposi-
tion of sentence" within the meaning of Rule 35(c). After hearing
argument from the parties, the district court sentenced Layman to nine
months of home confinement and supervised release of 36 months,
stating that it adhered to the previous sentence but was imposing
home confinement as a substitute for imprisonment. On June 4, the
district court conducted yet another sentencing hearing after the pro-
bation officer informed the court that the sentence imposed was not
permitted by the guidelines.1 At that hearing, the court sentenced Lay-
man to 36 months probation, with nine months home detention as a
condition of probation. See U.S.S.G. § 5C1.1(c)(3).
_________________________________________________________________
1 Pursuant to U.S.S.G. § 5C1.1(c)(2), the district court could have sen-
tenced Layman to a term of supervised release including home detention,
but only if at least one month of the sentence was satisfied by imprison-
ment.

                    3
Smith's written guilty plea stipulated a drug quantity of between 40
and 120 kilograms of marijuana, with the precise amount to be deter-
mined by the district court at sentencing. Because there was no direct
evidence available concerning the number of marijuana plants actu-
ally grown by the conspirators, the presentence report (PSR)
employed a formula based on electrical bills to estimate the number
of plants grown at the houses with which Smith was involved. The
PSR then applied the 100-gram-per-plant equivalency ratio to arrive
at a quantity of marijuana to be attributed to Smith. At sentencing, the
district court observed that it was difficult to determine the precise
amount of marijuana that should be attributed to Smith. Nevertheless,
the court found Smith responsible for between 80 and 100 kilograms
of the drug, noting that although the actual amount of marijuana was
far greater than the amount stipulated in the plea agreement, it had
"bent over backwards to give [Smith] the benefit of the doubt." J.A.
401. The district court sentenced Smith to 57 months imprisonment.

II.

The parties agree that the only question presented by Layman's
appeal is whether the district court had authority to modify Layman's
sentence after it had been pronounced during the May 17 hearing.
Federal Rule of Criminal Procedure 35(c) allows a district court to
alter a sentence only to "correct a sentence that was imposed as a
result of arithmetical, technical, or other clear error" within seven
days of the "imposition of sentence."2 The authority of the district
court to modify a sentence pursuant to Rule 35(c) is severely limited.
See generally United States v. Abreu-Cabrera, 64 F.3d 67, 71 (2d Cir.
1995) (discussing the history of Rule 35(c)). The rule "is not intended
to afford the court the opportunity to reconsider the application or
interpretation of the sentencing guidelines or for the court simply to
change its mind about the appropriateness of the sentence." Fed. R.
Crim. P. 35 advisory committee's note; see also United States v.
Cook, 890 F.2d 672, 675 (4th Cir. 1989) (noting that "[t]he power of
_________________________________________________________________
2 It is undisputed that neither Rule 35(a), allowing a district court to
modify a sentence on remand from the court of appeals, nor Rule 35(b),
permitting amendment of a sentence pursuant to a motion by the Govern-
ment within one year of the imposition of sentence, applies here. See
Fed. R. Crim. P. 35(a), (b).

                    4
a district court to amend a sentence does not extend to a situation
where the district judge simply changes his mind").

The Government argues that sentence was imposed on Layman
when the district court orally pronounced it during the May 17 hear-
ing, so that any subsequent amendments to the sentence were
restricted to the circumstances set forth in Rule 35(c). Further, the
Government contends that the action of the district court in this case
does not fall within the parameters of that rule. Layman responds that
a sentence is not imposed until the court enters a written judgment
and that until that time, the district court is free to manipulate the sen-
tence as it sees fit. This is a legal issue subject to de novo review. See
United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996).

Although we have not yet had occasion to rule on this question, the
Second and Tenth Circuits have held that a sentence is imposed for
purposes of Rule 35(c) when it is orally pronounced by the district
court. See Abreu-Cabrera, 64 F.3d at 73-74; United States v.
Townsend, 33 F.3d 1230, 1231 (10th Cir. 1994); see also United
States v. Navarro-Espinosa, 30 F.3d 1169, 1170 (9th Cir. 1994) (not-
ing that "the phrase `imposition of sentence' is a term of art that gen-
erally refers to the time at which a sentence is orally pronounced").
The Seventh Circuit, however, has reached a contrary conclusion,
linking the imposition of sentence for purposes of Rule 35(c) to the
entry of a judgment of conviction. See United States v. Clay, 37 F.3d
338, 340 (7th Cir. 1994).

We conclude that a sentence is imposed for purposes of Rule 35(c)
when it is orally pronounced by the district court. As the Tenth Cir-
cuit reasoned in Townsend:

           It is well established that a sentence orally imposed gov-
          erns a conflicting, later-written sentence of the court. This
          rule is grounded in the Sixth Amendment[,] which requires
          that a defendant be physically present at sentencing. When
          a judgment of conviction containing the sentence is offi-
          cially entered of record, only members of the clerk's office
          are present. This cannot be what Congress meant in Rule
          35(c) by "imposition of sentence" in light of the Sixth
          Amendment.

                     5
Townsend, 33 F.3d at 1231. Moreover, a rule that sentence is "im-
posed" when it is orally pronounced better promotes the goal of final-
ity in sentencing. See Abreu-Cabrera, 64 F.3d at 74. Otherwise, a
district court could simply delay the ministerial task of filing a judg-
ment, thereby providing the court an indefinite period of time in
which to change its mind about the sentence. See id.; see also Cook,
890 F.2d at 674-75 (observing that the purpose of the amendments to
Rule 35 "was to impose on the new sentencing system a requirement
that the sentence imposed in the public forum during the sentencing
hearing would remain constant, immune from later modification"
(emphasis added)).

The district court orally pronounced Layman's sentence, and thus
imposed it, during the May 17 hearing. At the conclusion of that hear-
ing, all that remained to be done was the ministerial task of entering
the judgment. Accordingly, Rule 35(c) governed the authority of the
district court to amend Layman's sentence. The modification of Lay-
man's sentence by the district court clearly was not for the purpose
of correcting "arithmetical, technical, or other clear error" in sentenc-
ing, but rather was the product of a change of heart by the sentencing
judge. Fed. R. Crim. P. 35(c). Therefore, we vacate Layman's sen-
tence and remand with instructions to impose the sentence pro-
nounced by the district court at the May 17 hearing.

III.

In his cross-appeal, Smith argues that the district court erred in
determining the amount of marijuana attributable to him for sentenc-
ing purposes, principally contending that the court improperly applied
the 100-gram-per-plant equivalency ratio of U.S.S.G.§ 2D1.1(c)
(n.*(E)). Note *(E) instructs that "[i]n the case of an offense involving
marijuana plants," the district court should apply the equivalency ratio
unless the weight of the marijuana actually produced is greater. Id.
Smith maintains that because the plants attributed to him had long
since been harvested and the resulting marijuana distributed when the
investigation of the conspiracy began, the offense was not one "in-
volving marijuana plants." Thus, he contends, the district court should
not have determined drug quantity based on an application of the
equivalency ratio to the number of plants involved in the offense, but
rather on the actual amount of marijuana produced. The proper inter-

                     6
pretation of § 2D1.1(c) (n.*(E)) is a legal issue, which we review de
novo. See United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994).

The circuit courts of appeals are divided with respect to when an
offense is one "involving marijuana plants" so that the equivalency
ratio applies. See, e.g., United States v. Fletcher, 74 F.3d 49, 55 n.5
(4th Cir.), cert. denied, 117 S. Ct. 157 (1996). The Second Circuit
Court of Appeals has concluded that the equivalency ratio should be
applied only when live plants are seized. See United States v. Blume,
967 F.2d 45, 49-50 (2d Cir. 1992) (concluding that the district court
erred in estimating the number of plants previously grown rather than
basing drug quantity on testimony concerning the amount of mari-
juana actually produced). Most circuits, however, have concluded that
when a defendant has been involved in the growing of marijuana for
subsequent distribution, the offense is one "involving marijuana
plants" and thus the equivalency ratio applies regardless of whether
plants are seized. See United States v. Shields , 87 F.3d 1194, 1197
(11th Cir. 1996) (en banc) (ruling that, in case involving live plants
and dead stalks, district court properly sentenced based on the total
number of plants because "nothing in [§ 2D1.1(c) (n.*(E))] ... sug-
gests that [its] application depends upon whether the marijuana plants
are harvested before or after authorities apprehend the grower");
United States v. Wilson, 49 F.3d 406, 410 (8th Cir.) (holding that
when a defendant participates "in the planting, cultivation, and har-
vesting of marijuana plants," the equivalency ratio applies even
though "the marijuana ... was harvested, shucked, packaged, and sold
many months before law enforcement personnel intervened"), cert.
denied, 116 S. Ct. 384 (1995); United States v. Wegner, 46 F.3d 924,
927-28 (9th Cir. 1995) (same); United States v. Haynes, 969 F.2d 569,
571-72 (7th Cir. 1992) (determining that drug quantity is properly
based on the number of plants harvested if application of the equiva-
lency ratio results in a quantity of marijuana greater than the amount
actually produced).

We agree with the majority of courts to have addressed this issue
that the equivalency ratio of § 2D1.1(c) (n.*(E)) applies to all
offenses involving the growing of marijuana, regardless of whether
plants are seized. Thus, we conclude that the district court properly
sentenced Smith by applying the equivalency ratio to the number of
plants grown during his involvement in the conspiracy.

                    7
Smith also contends that the district court erred in its calculation
of the number of plants for which he was responsible. Factual deter-
minations by the district court are reviewed for clear error. See Jones,
31 F.3d at 1315. We conclude that the evidence more than adequately
justifies the conclusion of the district court that Smith was responsible
for at least 80 kilograms of marijuana, or 800 plants. The PSR esti-
mated that Smith was responsible for at least 2,300 plants. Accord-
ingly, we determine that the district court did not err in calculating the
amount of marijuana attributable to Smith for sentencing purposes,
and we affirm his sentence.

IV.

In sum, we hold that a sentence is imposed for purposes of Federal
Rule Criminal Procedure 35(c) when it is orally pronounced by the
district court. Subsequent to the oral pronouncement of sentence, Rule
35(c) allows alteration of the sentence only to correct "arithmetical,
technical, or other clear error." Fed. R. Crim. P. 35(c). Because the
district court modified Layman's sentence after it had been imposed
in open court, and because this modification does not fall within the
parameters of Rule 35(c), we vacate Layman's sentence and remand
with instructions to impose the sentence originally pronounced. Addi-
tionally, we conclude that the district court properly applied the
equivalency ratio of U.S.S.G. § 2D1.1(c) (n.*(E)) and did not other-
wise err in its calculation of Smith's sentence. Accordingly, we affirm
it.

AFFIRMED IN PART; VACATED AND
REMANDED WITH INSTRUCTIONS IN PART

                     8
