                                                                      [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                        FOR THE ELEVENTH CIRCUIT        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                         ________________________            AUGUST 9, 2001
                                                           THOMAS K. KAHN
                               No. 97-9232                      CLERK
                        ________________________
                    D. C. Docket No. 93-00007-3-CR-DF

UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                   versus

SAMUEL J. HESTER,

                                                Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________
                              (August 9, 2001)


  ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before BLACK, WILSON and RONEY, Circuit Judges.

BLACK, Circuit Judge:
      On April 15, 1994, a jury convicted Appellant Samuel Hester of conspiracy

to manufacture, possess with intent to distribute, and distribute marijuana;

manufacture of marijuana; distribution of marijuana; possession with intent to

distribute marijuana; and possession of a firearm by a convicted felon. The

Government filed an information pursuant to 21 U.S.C. §851, seeking to enhance

Appellant's sentence based on Appellant's prior Georgia state conviction for the

sale of marijuana. When Appellant was originally sentenced, the district court, by

a preponderance of the evidence, found him responsible for 2,924 marijuana plants.

United States Sentencing Guidelines § 2D1.1(c)(4), as then in effect, instructed the

district court to impose an equivalency of one kilogram per plant for an offense

involving more than 50 plants. This calculation produced a Guideline range of 240

to 262 months' imprisonment. The district court sentenced Appellant to 262

months' imprisonment.

      Appellant filed a notice of appeal on February 10, 1995. Effective

November 1, 1995, the Sentencing Commission added Amendment 516 to the

Guidelines. Amendment 516 changed the weight calculation applicable to

marijuana plants and instructed district courts to use a standard of 100 grams per

plant (or the actual weight of the plant if higher) regardless of the number of plants




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involved in the offense.1 Amendment 516 applies retroactively. Accordingly, this

Court affirmed Appellant's conviction, but remanded for resentencing in light of

Amendment 516. See United States v. Hester, 199 F.3d 1287, 1298 (11th Cir.

2000).

      On remand, on July 5, 1996, the district court observed that application of

Amendment 516 reduced Appellant’s Guideline range to 108 to 135 months'

imprisonment. The court also noted, however, that 21 U.S.C. § 841(b)(1)(A)(vii)

provided a statutory mandatory minimum sentence of 20 years for a drug amount

in excess of 1,000 plants combined with a prior conviction. The district court

therefore sentenced Appellant to 20 years' imprisonment.

      On appeal, we rejected Appellant's argument that the number of marijuana

plants constituted "an element of his offense which the Government failed to prove

beyond a reasonable doubt."2 Hester, 199 F.3d at 1291. The Supreme Court

subsequently decided Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000), declaring that “[o]ther than the fact of a prior conviction, any fact that



      1
      The Amendment reveals that the Sentencing commission believed that 100
grams per plant better reflected the true weight of marijuana plants.
      2
       We first held that “Amendment 516 did not render the sentencing regime
unconstitutional.” 199 F.3d at 1290. The Supreme Court's remand does not
require us to reconsider that aspect of our holding.
                                           3
increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490,

120 S. Ct. at 2362-63. The Supreme Court later granted Appellant's petition for

certiorari, vacated our opinion in this case, and remanded it to us for further

consideration in light of Apprendi. Hester v. United States, 121 S. Ct. 336 (2000).

We now vacate Appellant’s sentence and remand to the district court for

resentencing in light of Apprendi.

      VACATED AND REMANDED.




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