               REVISED, August 1, 1997
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                             No. 96-31228


                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                 VERSUS


                               JOHN BOE

                                                   Defendant-Appellant.


          Appeal from the United States District Court
              For the Eastern District of Louisiana
                          July 11, 1997


Before KING, DUHÉ, and WIENER, Circuit Judges.

DUHÉ, Circuit Judge:

     John Boe appeals the district court’s denial of his post-

conviction motion for reduction of sentence.          For reasons that

follow, we vacate and remand for resentencing.
                              BACKGROUND

     Appellant John Boe pleaded guilty to manufacturing marijuana

within 1,000 feet of a school, in violation of 21 U.S.C. §

841(a)(1) and 21 U.S.C. § 860.    In January 1992, the district court

sentenced Boe to 80 months of imprisonment to be followed by 8

years of supervised release.

     In January 1996, Boe moved for modification of his sentence

pursuant to 18 U.S.C. § 3582(c)(2), requesting that his sentence be
reduced   in    light   of    a   1995    amendment    to    U.S.S.G.         §   2D1.1

(“Amendment 516").       The district court denied the motion.                     Boe

unsuccessfully moved for reconsideration, and he now appeals.

                                   DISCUSSION

     Section 3582(c)(2) permits a district court to reduce a term

of imprisonment when it is based upon a sentencing range that has

subsequently     been   lowered     by   an   amendment      to   the    Sentencing

Guidelines, if such a reduction is consistent with the policy

statements issued by the Sentencing Commission.                   See 18 U.S.C. §

3582(c)(2).     The applicable policy statement is U.S.S.G. § 1B1.10,

see United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir.

1997), and      it   dictates     that   Amendment    516    is   designated          for

retroactive application.          See U.S.S.G. § 1B1.10(c).

     Having      determined       that   Amendment     516    may       be    applied

retroactively, we note that the decision whether to reduce a

sentence is left to the sound discretion of the trial court.                      Thus,

we review for abuse of discretion only.                See United States v.

Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995).               In exercising this

discretion, the sentencing court is guided by U.S.S.G. § 1B1.10(b),

which instructs the court to “consider the sentence that it would

have imposed” had Amendment 516 been in effect at the time the

defendant      was   originally     sentenced.        Further,      18       U.S.C.    §

3582(c)(2) directs the sentencing court to consider the numerous

factors set forth in 18 U.S.C. § 3553(a) when determining the

defendant’s sentence.           See Whitebird, 55 F.3d at 1009 (listing

certain of the applicable factors).


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      Amendment 516 had the effect of reducing Boe’s net offense

level from 28 to 20.       Calculation of Boe’s pre- and post-Amendment

516   imprisonment   ranges      is   relatively   straightforward.      The

applicable Guideline for the crime of manufacturing marijuana

within 1,000 feet of a school, in violation of 21 U.S.C. §

841(a)(1) and 21 U.S.C. § 860, is U.S.S.G. § 2D1.2.            That section

sets the base offense level at “2 plus the offense level from §

2D1.1 applicable to the quantity of controlled substances directly

involving a protected location . . . .”            U.S.S.G. § 2D1.2(a)(1).

Section 2D1.1 contains the Drug Quantity Table, which ascertains

the base offense level relative to the quantity of controlled

substances manufactured by the defendant.           In this case, Boe was

convicted of manufacturing 574 marijuana plants.           At the time of

his sentencing--prior to Amendment 516--the notes to § 2D1.1

provided that each marijuana plant was equivalent to 1 kilogram of

marijuana. The Drug Quantity Table provides that a crime involving

574 kilograms of marijuana has a base offense level of 28.               See

U.S.S.G. § 2D1.1(c)(6). In addition, the Presentence Report stated

that Boe’s offense level should be decreased by 2 points for

acceptance of responsibility.          Thus, at the time of his original

sentencing, Boe’s net offense level was 28 (2 from § 2D1.2, plus 28

from § 2D1.1, minus 2 for acceptance of responsibility).           Finally,

Boe’s criminal history category was I.         A net offense level of 28

and a criminal history category of I results in an imprisonment

range of 78-97 months.       See U.S.S.G. ch. 5, pt. A.        The district

court   sentenced    Boe    to   80   months   imprisonment,    within   the


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appropriate      range    at     the    time    of   the      original    sentencing

determination.

      In   1995,      however,    the    Sentencing     Commission       promulgated

Amendment 516, which provides that, in offenses involving marijuana

plants, the defendant’s sentence should be based upon the greater

of:   (1) the actual weight of the usable marijuana, or (2) 100

grams per plant.       See U.S.S.G. App. C, Amendment 516 (Nov. 1, 1995)

(amending the notes and commentary to U.S.S.G. § 2D1.1).                     Because

there is no evidence that the Government measured the actual weight

of usable marijuana seized from Boe, each plant is equivalent to

100 grams of marijuana.            As noted above, Boe manufactured 576

plants,    and   at    100   grams      per    plant,   the    quantity    of   drugs

manufactured is equal to 57.6 kilograms.                The Drug Quantity Table

provides that 57.6 kilograms of marijuana carries a base offense

level of 20.     See U.S.S.G. § 2D1.1(c)(10).              Thus, upon application

of Amendment 516, Boe’s net offense level is 20 (2 from § 2D1.2,

plus 20 from § 2D1.1, minus 2 for acceptance of responsibility).

A net offense level of 20 and a criminal history category of I

yield an imprisonment range of 33-41 months.                   See U.S.S.G. ch. 5,

pt. A.

      There is, however, a statutory mandatory minimum sentence of

5 years (60 months) for the crime of manufacturing more than 100

plants of marijuana.           See 21 U.S.C. § 841(b)(1)(B)(vii).                The

Guidelines instruct that “[w]here a statutorily required minimum

sentence is greater than the maximum of the applicable guideline

range, the statutorily required minimum sentence shall be the


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guideline sentence.”      U.S.S.G. § 5G1.1(b); see also United States

v. Marshall, 95 F.3d 700, 701 (8th Cir. 1996) (stating that

Amendment 516 could not lower the defendant’s sentence below the

60-month statutory mandatory minimum). Based on the foregoing, Boe

asserts that his sentence should be reduced from the 80-month

sentence that he originally received to the 60-month mandatory

minimum sentence.

     The district court denied Boe’s § 3582 motion for reduction of

sentence and also his motion for reconsideration. In denying Boe’s

motion for reconsideration, the court noted that 18 U.S.C. §

3553(b) permits departure from the applicable Guidelines range if

the court finds “that there exists an aggravating or mitigating

circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission.”        18 U.S.C. § 3553(b).

In this case, the district court found that Boe’s criminal history

assessment did not adequately reflect the seriousness of his past

criminal conduct, for Boe had been convicted of a drug crime in

1979 that did not result in the assessment of criminal history

points because it did not occur within the applicable time period.

See U.S.S.G. § 4A1.2(e).      The district court thus concluded that

U.S.S.G. § 4A1.3 permits upward departure in such a situation, and

held that the decision not to reduce Boe’s sentence to 60 months

was well within its authority.

     There is, however, a serious flaw in the district court’s

reasoning.   As     the   court   noted,   the   inclusion   of   the   1979

conviction in Boe’s criminal history assessment would increase


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Boe’s criminal history category to II. Under the Guidelines, a net

offense level of 20 and a criminal history category of II results

in an imprisonment range of 37-46 months--well below the statutory

mandatory   minimum   of   60   months   and    far   below   Boe’s   80-month

sentence.   See U.S.S.G. ch. 5, pt. A.         In fact, an 80-month term of

imprisonment would correspond to a net offense level of 20 and a

criminal history category of VI, see id., far higher than the

criminal history category of II that the district court found to be

applicable.

       The district court’s decision to depart upward, pursuant to §

4A1.3, to a sentence appropriate for a criminal history category of

VI is directly at odds with our en banc decision in United States

v. Lambert, 984 F.2d 658 (5th Cir. 1993).             Although we recognized

in Lambert that a district court may be justified in departing

upward, pursuant to § 4A1.3, to a sentence that reflects a much

higher criminal history category than the one seemingly applicable

under the Guidelines, we held that:

       When making such a departure, the district court should
       consider each intermediate criminal history category before
       arriving at the sentence it settles upon; indeed, the court
       should state for the record that it has considered each
       intermediate adjustment. Further, it should explain why the
       criminal history category as calculated under the guidelines
       is inappropriate and why the category it chooses is
       appropriate.

Id. at 662-63.     We cautioned that the district court need not

mechanically discuss each intermediate criminal history category,

for in most cases the district court’s reasons for rejecting the

intermediate categories “will clearly be implicit.”               See id. at

663.

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     Contrary to the teaching of Lambert, however, the district

court did not explicitly state why it rejected the intermediate

categories and sentenced Boe commensurate with a criminal history

category of VI, and it is not implicit from the court’s order or

the record as a whole why it did so.     Indeed, the court itself

specifically stated that Boe was deserving of a criminal history

category of II, far below that of VI.   We therefore cannot discern

why the district court refused to reduce Boe’s current 80-month

sentence to the 60-month statutory minimum.   In such a situation,

we have no choice but to vacate the district court’s sentencing

decision and remand for resentencing.

     We note that if the district court is unable or unwilling on

remand to justify use of a criminal history category of VI,

Appellant has served the statutory minimum sentence and is eligible

for immediate release.       We, therefore, shorten the delay for

application for rehearing to one week and order our mandate issued

then if no rehearing is applied for.     We also urge the district

court, in view of the peculiar circumstances of this case, to take

it up as soon as possible on remand.

     VACATED and REMANDED.




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