                                 No. 96-1442


United States of America,                  *
                                           *
      Appellee,                            *
                                           * Appeal from the United States
        v.         *                       District Court for the Eastern
                                           * District of Missouri.
Charles W. Adams,                          *
                                           *
      Appellant.                           *




                       Submitted:   November 19, 1996

                           Filed:   January 15, 1997


Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS
      SHEPPARD ARNOLD, Circuit Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Charles W. Adams appeals the denial of a motion made pursuant to 18
U.S.C. § 3582(c)(2) to reduce his sentence because of an amendment to the
federal sentencing guidelines applicable to his case.         We reverse and
remand for resentencing.


                                      I.
     When federal drug enforcement agents entered property that Mr. Adams
owned with his wife, they discovered one hundred and ten marijuana plants
growing there.    A seven-count indictment against Mr. Adams, his wife, and
his son for the manufacture and possession of marijuana resulted.       This
indictment was subsequently dismissed, in accordance with the terms of a
plea agreement, and the government filed informations charging Mr. Adams
with the manufacture of seventy-three plants and his son with the
manufacture of thirty-seven plants.             Charges against Mrs. Adams were
dismissed.


        The plea agreement recited that the parties had stipulated "that the
number of marijuana plants manufactured (cultivated) in this case, that are
readily provable by the government as attributable to this defendant,
Charles    W.   Adams,   were   seventy-three    (73)   marijuana   plants."       The
agreement, however, acknowledged, as it had to, that "the sentencing judge
is neither a party to nor bound by this agreement and is free to impose a
sentence up to the maximum penalties as set forth elsewhere in the
agreement."     This is in accordance with U.S.S.G. § 6B1.4(a) and § 6B1.4(d),
which    provide,   respectively,   that   while   "[a]   plea   agreement   may    be
accompanied by a written stipulation of facts relevant to sentencing,"
nevertheless "[t]he court is not bound by the stipulation, but may with the
aid of the presentence report, determine the facts relevant to sentencing."
The presentence report, however, stated simply that "pursuant to the plea
agreement in this case, [the defendant] is accountable for 73 ... plants,"
and the district court sentenced Mr. Adams on that basis.               Therefore,
though the district court made no explicit finding of the number of
marijuana plants in fixing a sentence for the defendant, it implicitly
adopted the number to which the parties had stipulated.                 The court
sentenced Mr. Adams to 30 months in prison, the minimum term in the range
prescribed by the sentencing guidelines at the time.


        Subsequent to Mr. Adams's sentencing, amendment 516 to § 2D1.1(c) of
the sentencing guidelines was passed.             This amendment, which is made
retroactive by virtue of U.S.S.G. § 1B1.10(c), and which gives a court the
authority to modify a sentence under 18 U.S.C. § 3582(c)(2), see U.S.S.G.
§ 1B1.10(a), changed the weight equivalence of a marijuana plant for
sentencing purposes from one kilogram to one hundred grams.              Mr. Adams
filed




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two motions urging the court to reconsider his sentence in light of the
amendment.   The court, asserting in part that "[h]ad the defendant been
held accountable for the entire 110 marijuana plants, the statutorily
required minimum term of imprisonment would have been five years," denied
both motions.


                                        II.
     Mr. Adams's appeal appears to us to reduce to an argument that the
district court considered some things that it should not have and did not
consider other things that it should have, when it denied his motion to
have his sentence reduced.     We find no merit in the second proposition, but
find sufficient merit in the first to remand for resentencing.


                                         A.
     We start with the question of what part the one hundred and ten
plants   played   in   the   court's   decision   to   deny    Mr.   Adams's   motion.
Mr. Adams believes that in deciding whether to apply the relevant amendment
retroactively, the district court revisited its earlier determination that
he was responsible for only seventy-three plants.         Mr. Adams believes that
this was error for a number of reasons, but before we consider them, we are
obliged to determine whether the district court did indeed regard the deal
that Mr. Adams had made with the government with respect to the number of
plants relevant to the matter of resentencing.


     While the matter is not entirely free from doubt, we believe that
Mr. Adams is correct in concluding that the district court weighed the fact
that the charges against him had been reduced in determining whether to
apply the amended sentencing guideline to him.                The court stated that
"[h]ad the defendant been held accountable for the entire one hundred ten
marijuana plants, the statutorily required minimum term of imprisonment
would have been five years pursuant to 21 U.S.C. § 841(b)(1)(B)."                  The
court then




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observed that as "a result of the plea agreement, no minimum term resulted
and the guideline imprisonment range was reduced."    The court also stated
that Mr. Adams "received adequate consideration in his plea bargaining
which the court approved."      It seems apparent to us that the court was
indicating that Mr. Adams might well in fact have been responsible for more
than seventy-three plants and that he had gotten a break when the charges
were reduced.


     Mr. Adams maintains that this was error, first of all, because
revisiting its earlier determination of the amount of marijuana that he was
manufacturing runs afoul of the sentencing guidelines' injunction that in
deciding whether to apply an amendment retroactively the district court
"shall substitute only the amendment[] ... for the corresponding guideline
provision[] that [was] applied when the defendant was sentenced," leaving
"[a]ll other guideline application decisions ... unaffected."   See U.S.S.G.
§ 1B1.10, application note 2.   Mr. Adams argues that these provisions have
reference, in part, to previous factual decisions by the district court
relevant to sentencing, and thus that these provisions prohibit the
district court from reconsidering those factual decisions.   We reject this
contention.   We think it plain that the application note merely states what
is in any case necessarily so -- that any provision of the guidelines that
is not amended remains the same.    In other words, the application note is
saying that all other applicable guidelines remain unaffected by the
amendments.     The reference is to decisions with respect to what other
guidelines are applicable and to their meaning, not to prior factual
findings.


     We do, however, believe for other reasons that the district court was
bound by its previous determination with respect to the number of marijuana
plants that was relevant to Mr. Adams's sentence.      In the first place,
although the finding is perhaps not




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technically res judicata, it is unusual, for efficiency reasons if no
other, for trial courts to revisit factual findings.            In the second place,
the district court had already made a finding that the seventy-three plants
for    which   Mr.   Adams   was   going   to    be   held   responsible   "adequately
reflect[ed] the seriousness of the actual offense behavior," else the court
could not have approved the reduction in the charges against Mr. Adams at
all.     See U.S.S.G. § 6B1.2(a).           In the third place, the sentencing
guidelines direct a district court in situations like the present one to
"consider the sentence that it would have imposed had the amendment[] ...
been in effect" at the time of the original sentencing.               See U.S.S.G. §
1B1.10(b).     We think it implicit in this directive that the district court
is to leave all of its previous factual decisions intact when deciding
whether to apply a guideline retroactively.


       We therefore conclude that the court erred in taking into account the
possibility that Mr. Adams was in fact responsible for more than seventy-
three plants when deciding whether to reduce his sentence.


                                           B.
       Mr. Adams also contends that the district court erred by neglecting
to consider certain matters that the statutes required it to consider.
Specifically, he points to language in 18 U.S.C. § 3582(c)(2), see also
U.S.S.G. § 1B1.10, background, which provides that courts may reduce a
sentence pursuant to a retroactive amendment "after considering the factors
set forth in section 3553(a) to the extent they are applicable."                  That
section, of course, comprises the considerations a court must weigh in the
original act of sentencing.        See 18 U.S.C. § 3553(a).


       We know of no authority that requires a court mechanically to list
every consideration of § 3553(a) when it sentences a defendant




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in the first instance.         What is important is that there is evidence that
the court has considered the relevant matters, and that some reason is
stated for the court's decision.          See United States v. McCarthy, 97 F.3rd
1562, 1577 (8th Cir. 1996) (court is required to state reasons, but not to
examine each factor listed in guidelines, or to explain what weight it
gives to each, when departing downward from the sentencing range).


     This case involves not a sentencing in the first instance, but a
decision    by   the   court    whether    to    resentence.     We   think    that   the
requirements imposed on a court to explain itself in this context could
hardly be more rigorous than those applicable to an original sentencing.
The law asks a court to consider the factors of § 3553(a) "to the extent
... applicable."       We are satisfied that the court in this case, by
mentioning several considerations that are found in § 3553(a), was aware
of the entire contents of the relevant statute.                That the court in this
case did not mention the specific considerations that Mr. Adams feels were
particularly relevant to his case is not evidence that the court was not
aware of those considerations.       Nor was it a reversible error.           On remand,
we would simply direct the court's attention to the considerations listed
in § 3553(a), and remind it of its duty to weigh them in reaching its
decision.


                                          III.
     We therefore remand this case for resentencing in accordance with the
views contained in this opinion.


     A true copy.


             Attest:


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




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