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this opinion should not be published and is not precedent except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.
3