               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 95-50405
                        (Summary Calendar)



UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,


                               versus


PAUL WAYNE AKERS,

                                            Defendant-Appellant.



          Appeal from the United States District Court
                for the Western District of Texas
                         (SA-94-CR-263-1)


                            June 19, 1996


Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:*


     Defendant-Appellant    Paul   Wayne    Akers   appeals   his   jury

conviction for manufacturing marijuana and maintaining a place to

manufacture a controlled substance in violation of 21 U.S.C.

§ 841(a)(1) and 846, as well as the sentence imposed following


     *
       Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
conviction. On appeal Akers contends that the district court erred

in   refusing   to    suppress   evidence,    contending    that   helicopter

flights over his property were unlawful, as was the sweep search of

the property thereafter, and that the subsequently obtained warrant

was likewise invalid.       In addition to the suppression issue, Akers

contends   that      the   district   court   erred    by   denying   a   jury

instruction on simple possession of marijuana as a lesser included

offense, in determining the number of marijuana plants involved in

the offense, and in denying relief under 18 U.S.C. § 3582(c)(2) as

to the amount of marijuana on which his sentence should be based.

      We have carefully reviewed the arguments and applicable law as

proffered to us in the briefs of counsel, and have likewise

reviewed the record, and we are convinced that the district court

committed no reversible error in refusing to grant Akers’ motions

to suppress, in denying the jury charge on simple possession, or in

determining the number of marijuana plants involved for purposes of

sentencing.

      Nevertheless, as acknowledged by both the government and

Akers, he is entitled to have his sentence vacated and to be

resentenced, pursuant to 18 U.S.C. § 3582(c)(2), in light of

retroactive amendments to the Guidelines.             At the time Akers was

sentenced, the notes to § 2D1.1(c)(4) specified that, in offenses

involving more than 50 marijuana plants, each plant should be

counted as one kilogram of marijuana. The November 1995 Guidelines

amended the notes and commentary to § 2D1.1 to provide that, in all

                                       2
offenses involving   marijuana   plants,    the   defendant’s   sentence

should be based on the greater of (1) the actual weight of the

usable marijuana, or (2) 100 grams per plant.         U.S.S.G. App. C,

Amendment 516 (Nov. 1, 1995).         Moreover, Amendment 516 applies

retroactively.   § 1B1.10(a) and (c) (1995).

     We therefore affirm Akers’ conviction but vacate his sentence

and, pursuant to § 3582(c)(2), remand this case to the district

court for resentencing in light of the retroactive amendments to

the notes and commentary to § 2D1.1.

AFFIRMED as to conviction; VACATED as to sentence, and REMANDED for

resentencing.




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