IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 97-60326
                       _____________________


          UNITED STATES OF AMERICA,

                               Plaintiff-Appellee,

          v.

          CHESTER DAVID EDWARDS,

                               Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
             for the Northern District of Mississippi
                           (1:93cr008-B)
_________________________________________________________________

                          August 06, 1998

Before KING, SMITH, and PARKER, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Chester David Edwards appeals the

district court’s order denying his motion for a reduction of his

sentence pursuant to 18 U.S.C. § 3582(c).    We vacate the order

and remand the case.

                          I.   BACKGROUND

     Defendant-appellant Chester David Edwards was convicted

after a jury trial on two counts of witness intimidation in

     *
        Pursuant to 5TH CIRCUIT 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that this opinion should not be published and is not precedent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 5TH CIRCUIT
RULE 47.5.4.
relation to a federal probe into Edwards’s marijuana possession

and distribution.   After the trial but before sentencing, Edwards

also pleaded guilty to possession with intent to distribute

marijuana, a lesser-included offense on one count of a

superseding indictment.    The remaining counts of the superseding

indictment were dismissed.

     Applying the Sentencing Guidelines in effect at the time,

the district court treated each of the 388 marijuana plants

involved in Edwards’s offense as equivalent to one kilogram of

marijuana.   See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c) (1993).

Using the figure of 388 kilograms of marijuana, Edwards’s base

offense level for the possession of marijuana count was 26; the

base offense level for the witness-intimidation counts was 22.

See 

2J1.2(c)(1), 2X3.1.      Because the

conviction were grouped together for sentencing purposes pursuant

to § 3D1.2, the offense level for the marijuana count was used as

the offense level for all of the counts of convictions as it was

the highest offense level.    See 

   After the court’s

addition of two offense levels for obstruction of justice and

denial of an adjustment for acceptance of responsibility, Edwards

had a total offense level of 28 and a criminal history category

of I.   These figures resulted in a Guidelines range of seventy-

eight to ninety-seven months of imprisonment.      See 

pt.

A (sentencing tbl.).    The maximum statutory term of imprisonment

for the witness-intimidation counts is not more than ten years

while the maximum term for the marijuana-possession count is not


                                   2
more than five years.    See 18 U.S.C. §§ 1512(b), 1513(b)1; 21

U.S.C. § 841(b)(1)(D).    The district court sentenced Edwards to

seventy-eight months of imprisonment on the witness-intimidation

counts and sixty months of imprisonment on the marijuana-

possession count to be served concurrently.    The district court

also sentenced Edwards to three years of supervised release for

the witness-intimidation counts and five years of supervised

release for the marijuana-possession count, with all of the terms

to be served concurrently.

     On direct appeal, we affirmed Edwards’s conviction and

sentence.   Edwards subsequently filed a 28 U.S.C. § 2255 motion

to vacate, set aside, or correct his sentence, which the district

court denied.   Edwards appealed the denial, but later voluntarily

withdrew his appeal.    Edwards then filed the instant motion

pursuant to 18 U.S.C. § 3582(c)(2) to reduce his sentence based

upon a retroactive amendment to the Sentencing Guidelines and

upon other grounds.    The district court denied the § 3582(c)(2)

motion, and Edwards appeals the denial of this motion.

                           II.   DISCUSSION

     Edwards claims error in the district court’s denial of his

§ 3582(c)(2) motion and its denial of the motion without first




     1
        Section 1513 has been amended since Edwards’s conviction
redesignating subsection (a), under which he was convicted, as
subsection (b).

                                   3
conducting an evidentiary hearing.2   We will address each issue

in turn.

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

of imprisonment if the sentencing range upon which the term was

determined is lowered by the Sentencing Commission and if the

reduction is consistent with the applicable policy statements of

the Sentencing Guidelines.   See 18 U.S.C. § 3582(c)(2); United

States v. Boe, 

, 831 (5th Cir. 1997).   The applicable

policy statement is Sentencing Guidelines § 1B1.10, and it


     2
          Edwards also raises several other challenges to his
sentence: (1) the district court erred in its findings regarding
the amount of marijuana attributed to him, which did not have an
adequate factual basis; (2) the district court erred by upwardly
enhancing his offense level pursuant to § 3C1.1 for obstruction
of justice; and (3) the district court erred by denying him a
reduction in his offense level for acceptance of responsibility.
However, a § 3582(c)(2) motion is not the appropriate vehicle for
raising these issues because they do not involve a retroactive
application of a subsequently lowered Sentencing Guidelines
range. See United States v. Shaw, 

, 29 (5th Cir.
1994); United States v. Early, 

, 142 (5th Cir. 1994)
(holding that an unauthorized motion in district court could not
be considered a § 3582(c)(2) motion because the motion did not
address the retroactive application of a Sentencing Guidelines
amendment and should have been dismissed for lack of
jurisdiction); see also U.S. SENTENCING GUIDELINES MANUAL § 1B1.10
application note 2 (1997) (noting that all other Sentencing
Guidelines application decisions besides the application of the
amended guideline remain unaffected); United States v. Adams, 

, 1030-31 (8th Cir. 1997). On appeal, Edwards also
asserts that (1) the district court erred in not reducing his
offense level for being a minor or minimal participant, (2) the
district court erred in considering hearsay evidence at his
sentencing, (3) his counsel was ineffective, (4) he is “‘Actually
innocent’ of the sentence imposed,” and (5) application of
§ 2X1.1 requires a three-level reduction in his offense level.
Even if these issues were cognizable under a § 3582(c)(2) motion,
we will not consider them because Edwards did not raise them
before the district court. See Quenzer v. United States (In re
Quenzer), 

, 165 (5th Cir. 1993).


                                4
designates Amendment 516, the 1995 amendment to § 2D1.1(c) which

reduces the marijuana plant equivalency from 1000 grams to 100

grams per plant, as retroactive.        See U.S. SENTENCING GUIDELINES

MANUAL § 1B1.10(c) (1997); 

amend. 516; see also 

& tbl. note (E); 

.

     The district court’s decision whether to reduce a sentence

under § 3582(c) is reviewed for an abuse of discretion.           See

United States v. Whitebird, 

, 1009 (5th Cir. 1995).

In exercising that discretion, the court is to “‘consider the

sentence it would have originally imposed had the guidelines, as

amended, been in effect at the time.’”        

SENTENCING GUIDELINES MANUAL § 1B1.10(b)).   The district court should

also consider the applicable factors set forth in 18 U.S.C.

§ 3553(a).   See 18 U.S.C. § 3582(c); see also U.S. SENTENCING

GUIDELINES MANUAL § 1B1.10 background.     These factors include (1)

the nature and the circumstances of the offense and the history

and characteristics of the defendant, (2) the need for the

sentence imposed to reflect the seriousness of the offense and to

protect the public from further crimes of the defendant, (3) the

kinds of sentences available, (4) any pertinent Guidelines policy

statement, and (5) the need to avoid unwarranted sentencing

disparities among defendants with similar records found guilty of

similar conduct.    See 18 U.S.C. § 3553(a).

     Edwards argued in his § 3582(c)(2) motion in the district

court that Amendment 516 should be applied to his case to reduce

his sentence.    Amendment 516 to the Sentencing Guidelines treats


                                    5
each marijuana plant as equivalent to 100 grams.      See U.S.

SENTENCING GUIDELINES MANUAL § 2D1.1(c) & tbl. note (E) (1997); 

amend. 516.   Under the amendment, the amount of marijuana

attributable to Edwards would have been 38.8 kilograms, with a

resulting base offense level of 18.    See 

(11).

After adding two offense levels for obstruction of justice, the

total offense level for the marijuana-possession count would have

been 20.   The base and total offense level for the two witness-

intimidation counts would also have been 20.     See 

Accordingly, if the amendment were applied, Edwards’s highest

offense level would be 20.    An offense level of 20 and a criminal

history category of I yield a sentencing range of thirty-three to

forty-one months of imprisonment.     See 

pt. A

(sentencing tbl.).

     In denying Edwards’s § 3582(c)(2) motion, the district court

acknowledged Amendment 516’s retroactivity and that it changed

the weight equivalency for marijuana plants.     The district court

stated that

          [i]t is well established that this decision is
     within the discretion of this court. Upon due
     consideration of the record in the underlying criminal
     case and the factors generally considered in imposing
     sentence set forth in 18 U.S.C. § 3553(a), the court
     declines to exercise its discretion.

This statement by the district court failed to indicate in any

way which factors it found relevant to its decision or that it

considered, as required by the Sentencing Guidelines, the

sentence it would have imposed had the amended guideline been in

effect at the time of sentencing.

                                  6
      The government argues that this court can affirm the

district court based upon United States v. Whitebird, 

(5th Cir. 1995).   In Whitebird, we affirmed the district

court’s denial of the defendant’s § 3582(c)(2) motion without

stating any explicit reasons because it implicitly considered the

factors in § 3553(a).    

  However, in Whitebird, the

district court made explicit reference to the motion and the

authorities cited in support and in opposition to the motion.

review of the record in Whitebird made clear

the reasons upon which the district court relied in making its

decision.   The instant case is unlike Whitebird because the

government never responded to Edwards’s motion in the district

court, which would provide an indication as to the factors which

the district court possibly found relevant.    Nor is this case

like United States v. Shaw, 

, 29 (5th Cir. 1994), in

which we affirmed the district court’s denial of a reduction of

sentence based upon the district court’s stated reasons which

made no explicit reference to § 3553(a) or the factors listed

therein.    In Shaw, the stated reasons indicated the relevant

factors that the district court considered in its decision and

that the district court would have imposed the same sentence

under the amended guideline by departing downward to a lesser

degree.    See 

      Without a clear indication in the record regarding the

sentence the district court would have imposed under the amended

guideline or which § 3553(a) factors the district court was


                                  7
implicitly relying upon, we cannot determine whether the district

court considered the sentence under the amended guideline or

relied upon relevant considerations in denying Edwards’s

§ 3582(c) motion.    While the district court need not mechanically

list every consideration in § 3553(a), it must provide a clear

indication in the record “that the court has considered the

relevant matters, and that some reason is stated for the court’s

decision.”    

.

     Edwards also contends that the district court should have

held an evidentiary hearing prior to denying his § 3582(c)(2)

motion.    Section 3582(c)(2) is silent regarding the right to a

hearing.    See 18 U.S.C. § 3582(c)(2); see also United States v.

Townsend, 

, 171-72 (5th Cir. 1995).    Generally, a

district court must hold a hearing only if it is necessary

because the facts are in dispute.     See Dickens v. Lewis, 

, 1255 (5th Cir. 1984).    In deciding a § 3582(c)(2) motion,

the general rule applies requiring a factual dispute before an

evidentiary hearing is necessary applies.    See United States v.

Shackleford, No. 94-50556, slip op. at 8-11 (5th Cir. June 5,

1995) (unpublished)3 (finding that a hearing was unnecessary

because no factual dispute was raised in the district court’s

denial of the § 3582 motion).    Edwards does not allege any

factual disputes, nor does he demonstrate any need for the




     3
        “Unpublished opinions issued before January 1, 1996, are
precedent.” 5TH CIR. R. 47.5.3.

                                  8
district court to conduct an evidentiary hearing on the motion.

See Shackleford, No. 94-50556, slip op. at 11.

                        III.   CONCLUSION

     For the foregoing reasons, we VACATE the district court’s

order and REMAND the case for the district court to reconsider

Edwards’s motion in a manner consistent with this opinion.




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