                                       ___________

                                       No. 95-2878
                                       ___________

United States of America,                  *
                                           *
                Appellee,                  *   Appeal from the United States
                                           *   District Court for the
        v.                                 *   Eastern District of Missouri.
                                           *
Adam C. Risch,                             *
                                           *
                Appellant.                 *


                                       ___________

                        Submitted:     April 9, 1996

                              Filed:   June 24, 1996
                                       ___________

Before FAGG, JOHN R. GIBSON, and BOWMAN, Circuit Judges.

                                       ___________

BOWMAN, Circuit Judge.


        Following a jury trial, Adam C. Risch was convicted of manufacturing
marijuana, a violation of 21 U.S.C. § 841(a)(1) (1994).             The District
        1
Court       sentenced Risch to eighty-four months of imprisonment followed by
three years of supervised release.             Risch appeals his conviction and
sentence.      For reversal, Risch first argues that the District Court abused
its discretion at trial when it refused to give Risch's proposed theory-of-
defense instruction.         Risch also argues, and the government concedes, that
his case should be remanded to the District Court for consideration of
resentencing based on Amendment 516 to the Federal Sentencing Guidelines,
which       reduced the quantity of marijuana attributable for sentencing
purposes to a plant of marijuana.          Finally, Risch




        1
      The Honorable Charles A. Shaw, United States District Judge
for the Eastern District of Missouri.
argues that the District Court incorrectly calculated his criminal history
category by double-counting allegedly related offenses as reported in his
Presentence Investigation Report (PSR).             We affirm Risch's conviction and
the calculation of his criminal history category, but remand to the
District Court for consideration of whether Risch's sentence should be
reduced in light of Amendment 516.


                                             I.


        At trial, the government's case-in-chief included testimony from
officers with the Franklin County Sheriff's Department, who testified that
they began surveillance of Risch's home and property after receiving
information that there was marijuana growing on the premises.                     After
observing marijuana patches growing within fifty feet of Risch's mobile
home, the officers executed a search warrant for Risch's residence and
property.        The search of Risch's home uncovered a number of items,
including marijuana seeds, rolling papers, and marijuana cultivation and
seed catalogs.      In addition, the officers seized 150 marijuana plants from
seven patches around the mobile home.             In their search, the officers also
discovered black tubing, apparently used for irrigation of the marijuana
plants, buried between sections of the plant beds and leading to Risch's
home.      Several paths also led from these marijuana plots to Risch's
residence.      The officers testified that after arresting Risch and advising
him of his Miranda rights, Risch admitted ownership of the marijuana
plants, explaining that he was growing them to supplement his income.


        The    defense's    case-in-chief    included   testimony    from   Risch,   who
testified that he did not own or grow the marijuana plants.            When asked why
he   had      confessed    to   growing   the   marijuana   during   the    post-arrest
questioning, Risch testified that initially he told the officers that he
did not grow the marijuana plants.          Risch explained that when the officers
became angry with him, used




                                            -2-
abusive language, and threatened to seize his parents' property, he
admitted that he grew the marijuana.            Risch's trial testimony included
further explanations about his lack of involvement in or knowledge of the
marijuana cultivation on his property.          For example, he testified that at
the time of his arrest he had moved out of his mobile home and was living
with his girlfriend, Carol Davis, implying that another individual would
have had an opportunity to plant and grow the marijuana on his property
without his knowledge.


      Carol Davis testified that Risch had been living with her in an
apartment in St. Clair, Missouri at the time of his arrest.            She testified
that Risch would return to his mobile home only once a week to tend to his
vegetable garden and to pick up some of his belongings.               Davis testified
that she had never seen marijuana plants, marijuana seeds, or marijuana
cultivation materials at Risch's home or on his property.


                                          II.


      On appeal, Risch first argues that the District Court erred when it
refused to give the jury his proposed theory-of-defense instruction.                We
review for abuse of discretion the District Court's refusal to give Risch's
proposed instruction.    United States v. House, 939 F.2d 659, 663 (8th Cir.
1991).


      The defendant is entitled to an instruction on his theory of defense
"if   a   timely   request   is   made,   the   evidence   supports    the   proffered
instruction, and the instruction correctly states the law."            United States
v. Cheatham, 899 F.2d 747, 751 (8th Cir. 1990).             The district court has
broad discretion in formulating jury instructions, see United States v.
Felici, 54 F.3d 504, 506 (8th Cir.), cert. denied, 116 S. Ct. 251 (1995),
and the defendant "is not entitled to a particularly-worded instruction
when the instructions actually given by the trial court adequately and




                                          -3-
correctly cover the substance of the requested instruction,"   United States
v. Long, 977 F.2d 1264, 1272 (8th Cir. 1992).   On appeal, we evaluate "the
adequacy of instructions by reviewing them as a whole."   United States v.
McQuarry, 726 F.2d 401, 402 (8th Cir. 1984) (per curiam).


     Risch submitted the following proposed jury instruction to the
District Court:


           The defendant Adam Risch has pleaded "Not Guilty" to the
     charge contained in the indictment. This plea of not guilty
     puts in issue the two (2) essential elements of the offense as
     described in these instructions and imposes on the government
     the burden to establish each of these elements by proof beyond
     a reasonable doubt.

           Defendant Adam Risch moreover contends that he is not
     guilty of the crime charged because he did not live at or near
     his trailer from May 13, 1993 to June 17, 1993 and he would not
     have had the opportunity to cultivate, plant, and tend to the
     plants.     During this time he was working for Jeffco
     Construction Company in Washington, Missouri, and living with
     his girlfriend, Carol Davis at 400 Apt A Walnut Grove Court,
     St. Clair, Missouri 63077.

           In addition the plant beds are more readily accessible to
     a path that connects with Old State Line Road than to Mr.
     Risch's home.

           The beds that were arguably connected to the electric
     cable contained galvanized metal studs similar to those found
     at Mr. Risch's home were not being used to cultivate marijuana
     plants and no such plants were growing in those beds.

           Person or persons unknown would have had ample
     opportunity and access to the planted area to enable them to
     plant, then and cultivate the plants recovered by Franklin
     County Sheriff's Office.


     The District Court's charge to the jury in the present case fairly
stated the applicable law.   Specifically, the court's instructions numbers
3 and 22 adequately and accurately covered the legal substance of paragraph
one of Risch's proposed jury




                                    -4-
instruction.    In jury instruction number 3, the court instructed the jury
on the government's burden of proof.         In jury instruction number 22, the
court properly instructed the jury on the elements of the crime of
manufacturing marijuana.


        The remainder of Risch's proposed jury instruction consists of an
argumentative rendition of Risch's version of the facts.          The District
Court was under no obligation to give an instruction of this sort to the
jury.    See United States v. Lisko, 747 F.2d 1234, 1237-38 (8th Cir. 1984);
Manual Of Model Criminal Jury Instructions for the District Courts of the
Eighth Circuit § 9.05 Commentary at 402 (1996).      The instructions that were
given provided Risch the opportunity fully to present his theory of defense
to the jury in closing argument.         Having reviewed the instructions as a
whole, McQuarry, 726 F.2d at 402, we conclude that the District Court did
not abuse its discretion by rejecting Risch's proposed instruction.


                                      III.


        Risch next argues that the District Court incorrectly calculated his
criminal history category by double-counting related offenses reported in
his PSR.    This argument is specious.    While on its face the PSR reports two
offenses that occurred on the same date with the same factual background,
the PSR, as Risch must know, inaccurately reports that both convictions
occurred on July 7, 1990, and arose out of the same facts.           The state
prosecution charging documents and subsequent court orders recording
Risch's convictions reflect that these two prior convictions reference two
separate incidents with two separate case numbers and separate sentencing
dates.     See State v. Risch, No. CR390-642M/668M (Cir. Ct. Franklin Co. Mo.
Oct. 24, 1990) (recording conviction for one count of possession of
controlled dangerous substance and one count of possession of paraphernalia
with arrest date of July 30, 1989); State v. Risch, No. CR390-1052M (Cir.
Ct. Franklin Co. Mo. Nov. 7, 1990) (recording convictions for driving while
intoxicated, driving




                                      -5-
while suspended, and loud and unnecessary noise with arrest date of July
7, 1990).   Therefore, because these two prior convictions were in fact
separate offenses, the District Court did not err in assessing them as
separate offenses when calculating Risch's criminal history category.
Accordingly, we affirm the District Court's criminal history calculation,
and instruct the District Court to direct the correction of the errors we
have noted in the PSR.   See 28 U.S.C. § 2106 (1994).



                                   IV.


     Finally, Risch argues, and the government concedes, that Risch's case
should be remanded to the District Court for consideration of whether his
sentence should be reduced based on Amendment 516 to the Federal Sentencing
Guidelines, which reduced the quantity of marijuana attributable for
sentencing purposes to a plant of marijuana.


     At his sentencing on July 6, 1995, the District Court determined that
Risch was responsible for manufacturing a total of 150 marijuana plants.
Applying a ratio of one kilogram per plant, as was then required by
U.S.S.G. § 2D1.1(c)(6) (1994),2 the PSR indicated that Risch should be held
accountable for 150 kilograms of marijuana.   Risch's base offense level was
computed to be




      2
       The Sentencing Guideline in effect at the time of Risch's
sentencing provided:

     [i]n the case of an offense involving marihuana plants,
     if the offense involved (A) 50 or more marihuana plants,
     treat each plant as equivalent to 1 KG of marihuana; (B)
     fewer than 50 marihuana plants, treat each plant as
     equivalent to 100 G of marihuana. Provided, however,
     that if the actual weight of the marihuana is greater,
     use the actual weight of the marihuana.

U.S.S.G. § 2D1.1, Notes to Drug Quantity Table (1994).

                                   -6-
twenty-six.   Based upon a total offense level of twenty-six and a criminal
history category of III, the guideline imprisonment range was seventy-eight
to ninety-seven months.    The court sentenced Risch to eighty-four months
of imprisonment followed by three years of supervised release.


     Effective November 1, 1995--almost four months after Risch was
originally sentenced--§ 2D1.1(c) was amended by replacing the one-kilogram-
per-plant ratio with an instruction to treat each plant "as equivalent to
100 G of marijuana."   U.S.S.G. App. C. amend. 516 (effective Nov. 1, 1995);
see U.S.S.G. § 2D1.1(c) Note (E) & comment. (backg'd.) (1995).          The
Sentencing Commission has expressly designated Amendment 516 as one that
may be applied retroactively.    U.S.S.G. § 1B1.10(c), p.s. (1995).


     Under 18 U.S.C. § 3582(c)(2) (1994), a defendant sentenced to
imprisonment based on a sentencing range subsequently lowered by the
Sentencing Commission may be entitled to a sentence reduction if the
district court determines, after considering the factors set forth in 18
U.S.C. § 3553(a) (1994) (factors to be considering when imposing sentence),
that a reduction is consistent with the applicable policy statements issued
by the Sentencing Commission.    See U.S.S.G. § 1B1.10(a), p.s.; see also
United States v. Auman, 8 F.3d 1268, 1271-72 (8th Cir. 1993) (stating §
3582(c)(2) gives district court discretion to resentence a defendant under
amendments that reduce a guideline sentence that Sentencing Commission has
designated to apply retroactively).       Because § 1B1.10 does not mandate
retroactive application of Amendment 516, but instead gives the District
Court the discretion to resentence under the lowered Guidelines range, we
remand to permit the District Court to consider whether Risch's sentence
should be reduced.   See United States v. Coohey, 11 F.3d 97, 101 (8th Cir.
1993).




                                    -7-
                                   V.


     For the foregoing reasons, we affirm Risch's conviction and the
calculation of his criminal history category.   We remand to the District
Court for consideration of whether Risch's sentence should be reduced in
light of Amendment 516 to the Sentencing Guidelines.


     A true copy.


           Attest:


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




                                  -8-
