                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  March 12, 2013
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 12-6197
                                               (D.C. No. 5:97-CR-00017-M-1)
 v.                                                   W.D. Oklahoma
 HAROLD EUGENE COMBS,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this court 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).

Accordingly, the case is ordered submitted without oral argument.

      In 1997, Harold Combs was convicted on multiple counts relating to a

conspiracy to distribute crack and powder cocaine in Oklahoma City, Oklahoma.

United States v. Combs, No. 97-6219, 1998 WL 17767, at *1 (10th Cir. Jan. 20,

      *
        This order and judgment is not binding precedent except under the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.
1998). At sentencing, the district court found Combs was responsible for, inter

alia, 8.787 kilograms of cocaine base. This quantity resulted in a base offense

level of 38. U.S.S.G. § 2D1.1(c)(1) (1997). After making additional findings

relating to Combs’s offense conduct, the court determined his total offense level

was forty-two, his criminal history category was I, and his guidelines range was

360 months to life. The court imposed a 360-month sentence.

      Combs thereafter filed the instant 18 U.S.C. § 3582(c)(2) motion. Combs

argued his sentence should be modified based on changes made to the United

States Sentencing Guidelines by Amendment 750. See United States v. Torres-

Aquino, 334 F.3d 939, 940 (10th Cir. 2003) (“Under 18 U.S.C. § 3582(c)(2), a

court may reduce a previously imposed sentence if the Sentencing Commission

has lowered the applicable sentencing range and ‘such a reduction is consistent

with applicable policy statements issued by the Sentencing Commission.’”).

Amendment 750 retroactively “altered the drug-quantity tables in the Guidelines,

increasing the required quantity to be subject to each base offense level.” United

States v. Osborn, 679 F.3d 1193, 1194 (10th Cir. 2012) (quotation omitted).

      Amendment 750 raised the minimum amount of cocaine base qualifying for

an offense level of thirty-eight to 8.4 kilograms. See U.S.S.G. § 2D1.1(c)(1).

Combs’s conspiracy offense involved 8.787 kilograms of cocaine base which, at

the time of his sentencing, corresponded to a base offense level of thirty-eight.

Because Combs’s offense conduct involved more than 8.4 kilograms of cocaine

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base, his base offense level was not altered by Amendment 750. The district

court concluded it did not have authority under § 3582(c)(2) to grant Combs the

relief he sought because Amendment 750 did not have the effect of lowering his

applicable guidelines range. See U.S.S.G. § 1B1.10(a)(2); United States v.

McGee, 615 F.3d 1287, 1291-92 (10th Cir. 2010) (holding that a district court has

the power to modify a sentence pursuant to § 3582(c)(2) only if a defendant’s

original sentence is based on a sentencing range lowered by an amendment to the

Sentencing Guidelines).

      Proceeding pro se, Combs appeals the district court’s ruling that he is not

eligible for resentencing pursuant to § 3582(c)(2). Having reviewed the record,

the appellate briefs, and the applicable law, we conclude the district court was

undisputably correct in concluding it lacked authority to grant Combs’s

§ 3582(c)(2) motion. 1 Furthermore, given that the record conclusively

demonstrates the district court lacked power under § 3582(c)(2) to reduce



      1
        Combs’s appellate arguments focus on his contention the district court’s
original drug quantity finding is incorrect because it is based on a flawed method
of converting powder to crack cocaine. This court has made clear, however, that
these types of arguments amount to a collateral attack on the original sentence
that cannot be raised in a § 3582(c)(2) proceeding. United States v. Torres-
Aquino, 334 F.3d 939, 941 (10th Cir. 2003) (“An argument that a sentence was
incorrectly imposed should be raised on direct appeal or in a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.”). For that reason,
Combs’s request that this court take judicial notice of the United States
Sentencing Commission’s Report to Congress on Cocaine and Federal Sentencing
Policy is hereby denied.

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Combs’s sentence, the district court did not abuse its discretion in denying

Combs’s request for an evidentiary hearing. Accordingly, the district court’s

disposition of Combs’s motion is affirmed.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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