                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                 DEC 2 2003
                                   TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                           No. 03-6135
 CHARLES ALBERT STANFIEL, III,                         (D.C. No. 97-CR-102-A)
                                                          (W.D. Oklahoma)
          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

      Defendant Charles Albert Stanfiel III appeals the district court’s denial of his

motion to modify sentence filed pursuant to 18 U.S.C. § 3582(c)(2). We affirm.



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Stanfiel entered into a plea agreement and pled guilty to one count of

manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Stanfiel and the

government stipulated that 135.9 grams of methamphetamine were recovered and,

pursuant to U.S.S.G. § 2D1.1(a)(3)(c), the base offense level was determined to be 36.

The court added two points for presence of a firearm, two points for use of a minor to

commit a crime, and two points for obstruction of justice, resulting in a base offense level

of 42 and a criminal history category of 1. On November 17, 1997, the court sentenced

Stanfiel to 360 months’ imprisonment.

       Stanfiel’s conviction was affirmed on direct appeal by this court in United States v.

Stanfiel, No. 97-6422, 1998 WL 886773 (10th Cir. Dec. 21, 1998). He filed a motion to

vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, which was denied.

This court denied a certificate of appealability and dismissed the appeal from that ruling.

United States v. Stanfiel, No. 00-6096, 2001 WL 167271 (10th Cir. Feb. 20, 2001).

       On March 20, 2003, Stanfiel filed his motion to modify sentence, arguing that his

sentence should be reduced as a result of United States Sentencing Commission

Amendment 591 and Amendment 613 and the amended U.S.S.G. § 1B1.2(a) and its

commentary. Stanfiel argued he should have been sentenced to a maximum of 20 years

under § 841, which is not tied to a drug quantity, because drug quantity was not set forth

in his indictment or plea agreement nor did he agree to the stipulation containing drug

quantity at sentencing. The district court denied the motion on April 23, 2003. The court


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concluded that Stanfiel had misinterpreted § 1B1.2(a). Although the amended § 1B1.2(a)

prohibits sentencing a defendant for a more serious offense than contained in a plea

agreement as the result of a stipulation, the court concluded that Stanfiel did not admit to

committing a more serious offense than charged but merely stipulated to the quantity of

drugs involved. The court therefore concluded neither § 1B1.2(a) nor Amendment 613

applied. The court further concluded since Stanfiel was not sentenced pursuant to

U.S.S.G. § 2D1.2, Amendment 591 was not applicable.

       We have reviewed the record on appeal and all of Stanfiel’s filings with this court

and conclude the district court did not err in denying Stanfiel’s motion to modify

sentence. We AFFIRM for substantially the same reasons as stated by the district court in

its order filed April 23, 2003.

                                           Entered for the Court

                                           Mary Beck Briscoe
                                           Circuit Judge




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