                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 15, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 09-5041
 v.                                            (D.C. No. 89-CR-00091-TCK-1)
                                                         (N.D. Okla.)
 WARD LARAY PRICE,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges. **



      Defendant-Appellant Ward Laray Price appeals from the district court’s

order denying in part his motion for a reduced sentence pursuant to 18 U.S.C.

§ 3582(c)(2). Mr. Price’s appointed appellate counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738, 744 (1967), and moved to withdraw. We

forwarded a copy of the Anders brief to Mr. Price. He filed two responses, which

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
we considered fully. Our jurisdiction arises under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). For the reasons set forth below, we dismiss the appeal and

grant counsel’s motion to withdraw.

      In 1989, a jury convicted Mr. Price of a multiple objective conspiracy in

violation of 21 U.S.C. § 846, specifically conspiring (1) to distribute 50 grams or

more of a mixture or substance containing cocaine base (crack), 1 and (2) to

possess with an intent to distribute more than five hundred grams of cocaine

(powder cocaine) 2 (together, Count 1). See United States v. Price (Price I), 945

F.2d 331, 331-32 (10th Cir. 1991). On a second count, the same jury found Mr.

Price guilty of possession of one kilogram of cocaine with intent to distribute

(Count 2). 3 Id. at 332. He was sentenced to life imprisonment on Count 1, and

30 years on Count 2 to run concurrently. Id. On direct appeal, the sentence was

reversed because the district court did not rule on various objections to the factual

accuracy of the presentence report. Id. at 333. On remand, the district court

imposed the same sentence based upon an offense level of 44 and criminal history

category of I and the Tenth Circuit affirmed the sentence. See United States v.

Price (Price II), No. 92-5033, 1993 WL 191841 at *1 (10th Cir. June 4, 1993)

(unpublished).


      1
          This violated 21 U.S.C. §§ 841(a) and 841(b)(1)(A)(iii).
      2
          This violated 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii).
      3
          This violated 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii).

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       Subsequently, the United States Sentencing Commission reduced the

offense level applicable to most crack cocaine offenses by two levels. See U.S.

Sentencing Guidelines Manual app. C, amend. 706 (Supp. May 1, 2008) (revising

crack cocaine guidelines); U.S. Sentencing Guidelines Manual app. C, amend.

713 (Supp. May 1, 2008) (making Amendment 706 retroactive). Mr. Price then

moved for modification of his Count 1 sentence pursuant to 18 U.S.C. §

3582(c)(2). The district court denied the motion after finding that the applicable

amendment had not lowered the guideline range given the drug quantity involved,

and we reversed. See United States v. Price (Price V), 298 F. App’x 779, 780

(10th Cir. 2008) (unpublished). Mr. Price filed another motion requesting

modification, counsel was appointed, and the district court modified Mr. Price’s

sentence on Count 1 from life to 360 months, the lowest end of the amended

sentencing range. Id. at 782; United States v. Price, No. 89-CR-0091-001-TCK,

2009 WL 909633 at *1 (N.D. Okla. Mar. 30, 2009). Mr. Price unsuccessfully

sought further modification of his Count 1 sentence “to establish a lesser

guideline range based on powder as opposed to crack cocaine.” Price, 2009 WL

909633 at *2.

      Mr. Price appeals, claiming that the jury was not adequately instructed that

it had to find cocaine base in order to return a guilty verdict on Count 1, and

therefore he should be sentenced on the basis of the most lenient alternative. Mr.

Price’s appointed appellate counsel filed an Anders brief, suggesting that no

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meritorious issues existed for appeal because of the limited nature of proceedings

under § 3582(c)(2) and U.S.S.G. § 1B1.10, and moved to withdraw. Anders Br. at

6-7. The government declined to respond. On June 9, 2009, we informed Mr.

Price that he could respond to his counsel’s brief. See 10th Cir. R. 46.4(B)(2).

      Mr. Price argues that the district court should have applied the lower

sentencing guidelines for powder cocaine. Aplt. Response to Tenth Circuit Court

of Appeals Letter at 2-3 (“Aplt. Resp. Br.”); Aplt. Response to Government’s

Notice at 1 (“Aplt. Reply Br.”). He claims that his sentence “could only be based

on the most lenient of the two” Count 1 crack and powder cocaine sentences

“because the jury was not instructed that it had to find guilt of the [crack] cocaine

base in order to return a guilty verdict.” Aplt. Resp. Br. at 2. Mr. Price argues

that the district court compounded this error by modifying his original sentence

without correcting it. Aplt. Resp. Br. at 5. Mr. Price’s “original life sentence

exceeds the maximum that the statute permits for a Cocaine [powder-]only

conspiracy.” Aplt. Reply Br. at 1.

      18 U.S.C. § 3582(c)(2) requires that any reduction of the term of

imprisonment be consistent with the Sentencing Commission’s policy statements.

U.S.S.G. § 1B1.10 instructs the sentencing judge to apply only the amended

guideline and “leave all other guideline application decisions unaffected.”

U.S.S.G. § 1B1.10(b)(1). “Regardless of whether the sentence imposed is inside

or outside the Guidelines range, the appellate court must review the sentence

                                          -4-
under an abuse-of-discretion standard.” Gall v. United States, 128 S. Ct. 586, 597

(2007).

      The district court found no ambiguity in Count 1 triggering lenity. Our

remand order, and prior trial court decisions, established Mr. Price’s drug

quantity at 500 or more grams of cocaine base (crack). Price, 2009 WL 909633 at

*2 (citing Price V, 298 F. App’x at 781). Therefore, the district court did not err

in sentencing Mr. Price on Count 1. Price V, 298 F. App’x at 781.

      In any event, the district court correctly determined that it lacked authority

under § 3582 to modify Mr. Price’s sentence based upon anything other than the

amended guideline. Price, 2009 WL 909633 at *2 (citing United States v.

Rhodes, 549 F.3d 833 (10th Cir. 2008), cert. denied, 129 S.Ct. 2052 (2009)). See

also United States v. Williams, 575 F.3d 1075, 1077, 1079 (2009) (reaffirming

Rhodes). After modifying Mr. Price’s sentence based upon the amended

sentencing guideline, the district court lacked the power to review his other claim.

      In Anders, the Supreme Court held that if appointed counsel “finds his case

to be wholly frivolous, after a conscientious examination of it, he should so

advise the court and request permission to withdraw.” 386 U.S. at 744. Counsel

must submit to the court a brief addressing “anything in the record that might

arguably support the appeal.” Id. When counsel submits an Anders brief

accompanied by a motion to withdraw, we “conduct a full examination of the

record to determine whether defendant's claims are wholly frivolous.” United

                                         -5-
States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If we concur in counsel’s

evaluation of the case, we may grant the request to withdraw and dismiss the

appeal. Anders, 386 U.S. at 744.

      After reviewing the record, we agree with counsel’s assessment that no

meritorious issues exist on appeal. Mr. Price cannot attack the procedural or

substantive reasonableness of his amended sentence because, within its power, the

district court granted his motion for modification and sentenced him within the

amended guideline range. See United States v. Kristl, 437 F.3d 1050, 1055 (10th

Cir. 2006). Nor does Mr. Price have a right to modification under Booker or its

progeny. See United States v. Rhodes, 549 F.3d 833, 839-40 (10th Cir. 2008);

United States v. Price (Price IV), 438 F.3d 1005, 1007 (10th Cir. 2006).

      We therefore DISMISS Mr. Price’s appeal. We GRANT counsel’s motion

for leave to withdraw.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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