United States Court of Appeals

                            FOR THE EIGHTH CIRCUIT



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                                 No. 96-1830
                                _____________

United States of America,             *
                                      *
           Plaintiff-Appellee,        *   Appeal from the United States
                                      *   District Court for the
     v.                               *   Eastern District of Missouri.
                                      *
Glynn Wyatt,                          *
                                      *
           Defendant-Appellant.       *


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                             Submitted:   January 14, 1997

                            Filed:   June 9, 1997
                                _____________

Before WOLLMAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.

                               ______________

HANSEN, Circuit Judge.

      Glynn Wyatt appeals the district court's denial of his motion to
reduce his sentence, filed pursuant to 18 U.S.C. § 3582(c)(2) (1994). We
reverse and remand for further proceedings.
      On February 4, 1993, Wyatt pleaded guilty to one count of attempting
to possess with the intent to distribute over 100 marijuana plants, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 (1988). In
exchange for his plea, the government agreed not to file any other criminal
charges for Wyatt's conduct prior to the date of the plea agreement that
involved his controlled substance-related activities in the Eastern
District of Missouri. The government agreed to make known to the court any
cooperation provided by Wyatt but did not promise to file a motion for a
downward departure on that basis.

      At sentencing, July 28, 1993, the district court adopted the
presentence investigation report (PSIR), which attributed 980 marijuana
plants to Wyatt.    Applying the weight-per-plant equivalency conversion
ratio of the 1992 Sentencing Guidelines, the PSIR calculated a base offense
level of 30. See United States Sentencing Commission, Guidelines Manual,
§ 2D1.1(c)* & comment. (backg'd) (Nov. 1992) (instructing courts to treat
each plant as equivalent to one kilogram of marijuana when the total plants
involved exceeds 50 plants, unless the actual weight of the marijuana is
greater). The district court adjusted Wyatt's base offense level, applying
a two-level upward adjustment for the possession of a firearm and a three-
level downward adjustment for acceptance of responsibility, resulting in
an adjusted Guidelines offense level of 29. Wyatt's criminal record placed
him in criminal history category III.      These determinations yielded a
sentencing range of 108 to 135 months of imprisonment. Because Wyatt had
provided the government with substantial assistance, the government moved
for a downward departure below the applicable Guidelines range, pursuant
to USSG § 5K1.1, and below the statutory mandatory minimum sentence,
pursuant to 18 U.S.C. § 3553(e). The district court departed from the
applicable Guidelines range but did not depart below the five-year
statutory mandatory minimum sentence. The court sentenced Wyatt to a 60-
month term of imprisonment, to be followed by four years of supervised
release. We affirmed this sentence on direct appeal. United States v.
Wyatt, 

, 865 (8th Cir. 1994).




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      Effective November 1, 1995, over two years after Wyatt's sentencing
hearing, the United States Sentencing Commission adopted Amendment 516 to
the Sentencing Guidelines, which reduced the weight attributable to each
plant of marijuana for sentencing purposes. USSG App. C, Amend. 516 (Nov.
1995).   See United States v. Risch, 

, 243 (8th Cir. 1996).
Amendment 516 lowered the weight-per-plant ratio from one kilogram per
marijuana plant to 100 grams per plant.       USSG § 2D1.1(c) (Note E) &
comment. (backg'd) (Nov. 1995).      The Sentencing Commission expressly
provided that this amendment applies retroactively, USSG § 1B1.10, p.s.
(Nov. 1995), which gives sentencing courts the discretionary authority to
modify a sentence under 18 U.S.C. § 3582(c)(2). United States v. Adams,

, 1029 (8th Cir. 1997).        "Under section 3582(c)(2), 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, in light of the
factors set forth in 18 U.S.C. § 3553(a), that a reduction is consistent
with applicable policy statements issued by the Commission." United States
v. Williams, 

, 58 (8th Cir. 1996) (citing USSG § 1B1.10(a),
p.s.).

      Pursuant to section 3582(c)(2), Wyatt sought a reduction in his
sentence, asking the district court to apply the new 100 gram-per-plant
equivalency ratio retroactively. Wyatt stated that under the new amendment
his adjusted offense level would be 23, yielding a sentencing range of 57
to 71 months of imprisonment rather than his original range of 108 to 135
months. Wyatt's original sentence of 60 months is well within the new
Guidelines range he asserts. Nevertheless, he seeks a sentence reduction
because at the original sentencing, the government moved for a departure
below the Guidelines range and below the statutory mandatory minimum, and
the district court departed well below the Guidelines range. Consequently,
Wyatt argues that applying Amendment 516 entitles him to a new point from
which departure should occur, and he argues that he is entitled to a
departure from this new Guideline range (and necessarily below the
statutory mandatory minimum sentence) proportionally equal to the departure
granted at the original sentencing.




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      In opposition to Wyatt's motion, the government noted that Wyatt has
already benefited from a reduced sentence because his originally imposed
60-month sentence is approximately 50 per cent less than the applicable
Guidelines range at the time of his original sentencing. The government
noted also that Wyatt is subject to a five-year statutory mandatory minimum
sentence because the quantity of marijuana plants he was held accountable
for exceeded 100. The government argued that, while it originally moved
for a departure below the Sentencing Guidelines range and below the
mandatory minimum sentence, it would not have done so had the current
amendment been effective at the time of the original sentencing.        The
government also argued that the value of Wyatt's assistance no longer
warrants departure and that Wyatt's potential value as a witness was
seriously compromised by his subsequent escape from prison. Additionally,
the government argued that its decisions not to charge Wyatt with an 18
U.S.C. § 924(c) firearms violation (mandating a consecutive five-year
sentence) and not to file notice of Wyatt's status as a repeat drug
offender (mandating a minimum ten-year, rather than five-year, sentence)
were made in reliance on an expected Guidelines range of 108 to 135 months.
For these reasons, the government asserted that a further reduction to
Wyatt's sentence was not warranted.

      The district court denied Wyatt's motion to reduce his sentence in
a handwritten, one-line ruling endorsed on the government's response to
Wyatt's motion. The court stated, the "motion to reduce sentence is denied
for the reasons set out in the [government's] response." (Appellant's App.
F.) Wyatt appeals, arguing that the district court erred in denying the
motion because by adopting the government's response, the court considered
facts contrary to those in the record at the time of Wyatt's original
sentencing and inappropriately considered facts that occurred subsequent
to the time of the original sentencing.

      To determine whether and to what extent a sentence reduction is
warranted on the basis of an amendment designated to apply retroactively,
the Guidelines instruct the sentencing court to consider what sentence it
would have imposed had the retroactive




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amendment been in effect at the time the defendant was sentenced. USSG
§ 1B1.10(b), p.s. To determine the amended Guideline range, the court must
substitute only the retroactive amendment for the corresponding Guideline
provision that applied at the time of the defendant's original sentencing.

comment. (n.2). All other Guideline application decisions
remain unaffected.    

stated that it is "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."

. After determining the amended Guideline range and
considering where the court would have sentenced the defendant had the new
range been in effect at the time of the original sentencing, the court must
consider the factors set forth in section 3553(a) and make a discretionary
determination of whether to reduce the defendant's term of imprisonment.
18 U.S.C. § 3582(c)(2). See United States v. Coohey, 

, 101 (8th
Cir. 1993) (USSG 1B1.10 does not mandate retroactive application but gives
the sentencing court discretion to reduce the sentence). Section 3553(a)
provides a list of relevant factors to consider in every sentencing
determination, including the nature and circumstances of the offense, the
history and characteristics of the defendant, the need for the sentence to
reflect the seriousness of the offense and to protect the public from
further crimes, the kinds of sentences available, and any pertinent policy
statement issued by the Sentencing Commission. 18 U.S.C. § 3553(a).

      Reduced to its essence, a motion to modify a sentence under
section 3582(c) occasioned by a retroactive amendment which alters a
previous Guideline range, requires a district court to make two distinct
determinations. First, by substituting only the amended sentencing range
for the originally determined sentencing range, and leaving all other
previous factual decisions concerning particularized sentencing factors
(e.g., role in the offense, obstruction of justice, victim adjustments,
more than minimal planning, acceptance of responsibility, number of plants,
etc.) intact, the district court must determine what sentence it would have
imposed had the new sentencing range been the range at the time of the
original sentencing. Second, having made the first




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determination, the district court must consider that determination together
with the general sentencing considerations contained in section 3553(a)
and, in the exercise of its thus informed discretion, decide whether or not
to modify the original sentence previously imposed.

      In this case, the district court's one-line ruling, denying the
motion to reduce the sentence "for the reasons stated in the [government's]
response," (Appellant's App. F), completely omits the first step of the
decision-making process prescribed by the Guidelines. As noted above, the
first step requires the sentencing court to consider what sentence it would
have imposed had the retroactive amendment been in effect at the time the
defendant was sentenced. USSG § 1B1.10(b), p.s. The district court's
cryptic denial of the motion gives no indication to this court that the
district court considered this factor.      A sentencing court abuses its
discretion by not considering a relevant factor that should have been given
significant weight. See United States v. McNeil, 

, 300 (8th
Cir.) (noting the sentencing court also abuses its discretion by
considering and giving significant weight to an improper factor or by
considering all proper factors but making a clear error in judgment), cert.
denied, 

(1996). The denial of Wyatt's motion for a sentence
reduction, absent any indication that the district court considered what
would have been an appropriate sentence under the retroactive amendment,
constitutes an abuse of discretion. On remand, the district court must
consider what sentence it would have imposed had the amendment been in
effect at the time of the original sentencing.

      Because we remand for reconsideration of Wyatt's motion for a
sentence reduction, we will briefly address Wyatt's arguments that the
district court considered improper factors in denying his motion to modify.
Wyatt contends that the district court should not have considered what
other charges the government might have been able to file had it not
entered the plea agreement. While we agree that the district court should
not speculate about what charges the government chose not to pursue, the




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district court is free to consider the complete nature of the defendant's
crime pursuant to section 3553(a).

      Wyatt also argues that the district court erred by not granting his
motion to modify his original sentence because, although his original
departure-driven sentence is within the new amended sentencing range, the
court is bound to honor its original decision to grant a departure, and to
now depart from the amended Guidelines range based upon Wyatt's prior
substantial assistance. We disagree. The Guidelines instruct that when
a district court considers what sentence it would have imposed had the
amendment been in effect at the time of the original sentencing, the court
considers the amended Guidelines provision, but "[a]ll other guideline
application decisions remain unaffected." USSG § 1B1.10 comment (n.2).
A discretionary decision to depart from the Guidelines range on the basis
of substantial assistance made at the original time of sentencing is not
a "guideline application decision" that remains intact when the court
considers the new Guideline range. 

court's discretionary
decision of whether to depart from the new amended Guidelines range based
upon Wyatt's prior substantial assistance is not dictated or mandated by
either its prior decision to depart or by the extent of its prior
departure, because "the benefit accruing from a lowered sentencing range
is independent of any substantial-assistance considerations." 

.     The district court retains unfettered discretion to
consider anew whether a departure from the new sentencing range is now
warranted in light of the defendant's prior substantial assistance.

      Finally, Wyatt argues that the district court erred by considering
his subsequent escape, for which he was independently prosecuted and
sentenced. For purposes of considering where in the new Guidelines range
the court would have sentenced Wyatt, the subsequent escape is not a
relevant factor. However, it is appropriate for the district court to
consider his escape as relevant to the defendant's nature and
characteristics when determining whether ultimately to grant the motion to
modify his sentence. The factors of section 3553(a) are relevant to the
district court's ultimate




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determination of whether to grant or deny the motion to modify Wyatt's
sentence, after the court first considers what sentence it would have
imposed had the retroactive amendment been in effect at the time of the
original sentencing.

      While "[w]e know of no authority that requires the court mechanically
to list every consideration" when it considers a sentencing reduction, the
district court must state reasons for its decision and there must be some
indication that the court has considered the relevant factors. 

.     In this case, the district court merely adopted the
government's entire response as its reason for denying Wyatt's motion to
reduce his sentence. As discussed above, that response gives no indication
that the district court first considered what sentence it would have
imposed had the amendment applied at the time of the original sentencing.
This is not to say that the district court must grant the motion to reduce
Wyatt's sentence on remand. Regardless of the outcome of the motion, in
order for this court to conclude that the district court appropriately
exercised its discretion, the record must give some indication that the
district court took into its discretionary decision the considerations
required by the Guidelines.

      For the reasons stated above, we reverse the judgment of the district
court and remand for reconsideration of Wyatt's section 3582(c)(2) motion.


     A true copy.

           Attest:

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




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