United States v. John Marshall ( 1996 )

___________
No. 96-1601
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
John R. Marshall, *
* [PUBLISHED]
Appellant. *
___________
Submitted: September 3, 1996
Filed: September 11, 1996
___________
Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
___________
PER CURIAM.
John Marshall appeals from the sixty-month sentence imposed by the
District Court1 after it granted his motion for resentencing. We affirm.
This is the third appeal following Marshall's guilty plea to
manufacturing and possessing with intent to manufacture in excess of 100
marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)
(1994). After the government appealed Marshall's initial sentence, we
reversed and remanded for resentencing. United States v. Marshall, 998
F.2d 634, 635 (8th Cir. 1993). On remand, the District Court sentenced
Marshall to eighty-seven months imprisonment and a five-year term of
supervised release. We affirmed, rejecting Marshall's arguments that (1)
the United States
1
The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska.
Sentencing Guidelines' treatment of fifty or more marijuana plants was
arbitrary and capricious and thus violated his due process rights, and (2)
the District Court erred in calculating the number of marijuana plants
involved. United States v. Marshall, 28 F.3d 801, 802 (8th Cir. 1994).
Marshall subsequently filed a motion for reconsideration of
resentencing, based on a November 1995 retroactive amendment to U.S.S.G.
§ 2D1.1. This amendment established a presumptive weight of 100 grams of
marijuana per marijuana plant.2 See U.S.S.G. App. C, Amend. 516 (Nov.
1995); U.S.S.G. § 1B1.10(c) (Amendment 516 to be applied retroactively).
The District Court granted Marshall's motion, imposed the minimum sixty-
month sentence required by 21 U.S.C. § 841(b)(1)(B) (1994), and reimposed
the five-year term of supervised release.
On appeal, Marshall argues that Amendment 516 made the statutory
minimum sentence arbitrary and capricious, that he should not have received
a Guidelines enhancement for possessing a firearm, and that the five-year
term of supervised release was arbitrary and capricious.
We conclude that the District Court properly resentenced Marshall to
sixty months imprisonment. Amendment 516 could not be applied to lower
Marshall's sentence below the statutory mandatory minimum. See U.S.S.G.
§ 5G1.1(c)(2); United States v. Silvers, 84 F.3d 1317, 1325 (10th Cir.
1996). We have previously held that section 841(b)(1)(B)(vii) and its
concomitant mandatory minimum sentence provision are constitutional, see
United States v. Coones, 982 F.2d 290, 292 (8th Cir. 1992), and we conclude
that Amendment 516 did not render it unconstitutional, cf. United States
v.
2
This presumptive weight is to be followed unless the actual
weight of usable marijuana is greater than 100 grams per plant.
See U.S.S.G. App. C., Amend. 516 (Nov. 1995).
-2-
Stoneking, 60 F.3d 399, 402-03 (8th Cir. 1995) (en banc) (finding that
Sentencing Commission could not establish new mandatory minimum sentences
by amending Guidelines, and that dual weight method for offenses involving
LSD did not violate due process because it was rational basis for
punishment), cert. denied, 116 S. Ct. 926 (1996).
We do not consider Marshall's other arguments, which should have been
raised during his earlier appeal. See United States v. Kress, 58 F.3d 370,
373-74 (8th Cir. 1995). In any event, these other arguments are
immaterial, as the District Court imposed the mandatory minimum sentence
and not the recommended Guidelines sentence.
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-