                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     October 31, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 08-5048
 v.                                                    (N.D. Oklahoma)
 WARD LARAY PRICE,                            (D.C. No. 4:89-CR-00091-HDC-1)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      After examining the briefs and 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). The case is

therefore ordered submitted without oral argument.

      In 1989, Ward Laray Price was convicted of conspiracy to distribute

cocaine base (Count 1) and possession of cocaine with intent to distribute (Count

2). United States v. Price (Price I), 945 F.2d 331, 331-32 (10th Cir. 1991). Price


      *
        This order and judgment is not binding precedent except under the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.
was sentenced under the then-mandatory Sentencing Guidelines to life

imprisonment on Count 1 and thirty years’ imprisonment on Count 2, with the

sentences to run concurrently. Id. at 332. Price’s sentence was reversed on direct

appeal based on a procedural error. Id. at 333. On remand, the district court

imposed the same sentence, basing it on a Criminal History Category I and a total

offense level of forty-four. That sentence was affirmed on appeal. United States

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

      On March 10, 2008, Price filed a motion pursuant to 18 U.S.C. § 3582(c)(2)

seeking a reduction in his term of imprisonment. Price’s motion was based on

Amendment 706 which was promulgated by the United States Sentencing

Commission on November 1, 2007. 1 Amendment 706 revised the § 2D1.1(c)

Drug Quantity Table and, consequently, the guidelines ranges applicable to

offenses involving crack cocaine. See U.S.S.G. app. C supp., amend. 706;

U.S.S.G. § 2D1.1(c) (Supp. May 1, 2008). The district court denied Price’s

motion, concluding a reduction in his sentence was not authorized under 18

U.S.C. § 3582(c)(2) because Amendment 706 does not have the effect of lowering

his applicable guideline range. See 18 U.S.C. § 3582(c)(2) (providing a court

may only modify a sentence “in the case of a defendant who has been sentenced

to a term of imprisonment based on a sentencing range that has subsequently been


      1
       Amendment 706 was made retroactive by Amendment 713. See U.S.S.G.
app. C, amend. 713 (Supp. May 1, 2008).

                                        -2-
lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o)” if the

“reduction is consistent with applicable policy statements issued by the

Sentencing Commission”). Price then brought this appeal.

      This court reviews a district court’s decision whether to reduce a sentence

pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion. United States v.

Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996). When a district court’s decision

involves a legal interpretation, however, the review is de novo. United States v.

Todd, 515 F.3d 1128, 1135 (10th Cir. 2008). Here, the district court concluded

Amendment 706 was inapplicable because it did not lower Price’s applicable

guidelines range. See 18 U.S.C. § 3582(c)(2); see also U.S.S.G.

§ 1B1.10(a)(2)(B) (Supp. May 1, 2008) (providing a reduction in a defendant’s

sentence is not authorized pursuant to § 3582(c)(2) if the applicable guidelines

amendment “does not have the effect of lowering the defendant’s applicable

guideline range”). The district court reasoned that “the sentencing Court found

[Price] conspired to distribute in excess of seven kilograms of crack cocaine” and

the base offense level for seven kilograms of crack was unchanged by

Amendment 706.

      Price argues Amendment 706 had the effect of lowering his base offense

level from thirty-six to thirty-four, consequently reducing his applicable

guidelines range from life imprisonment to 360 months to life. As support for

this argument, Price correctly identifies an error in the district court’s

                                          -3-
analysis—when he was sentenced in 1992, the court did not find that he conspired

to distribute seven kilograms of cocaine base.

      Although the Presentence Investigation Report states that Price distributed

seven kilograms of cocaine base, the finding made at his 1992 sentencing was

only that Price had distributed in excess of 500 grams of crack. Price II, 1993

WL 191841, at *1. That finding was based on the following argument made by

the government:

      I know there has been a lot of objections to the amount and the
      finding by the presentence report of seven kilos. Well, it’s not
      important that Your Honor find that there was seven kilos, only that
      you find that there was evidence in the record of over 500 grams, and
      that is a conservative viewpoint, but that is the view point the
      government is adopting in this case, Judge. I’m not saying there
      wasn’t evidence of seven kilos, we think that is also satisfied here if
      you multiply it out, but certainly from Ward Price’s own mouth on
      two occasions, we have evidence of over 500 grams.

The court then made the following finding: “The transcript at trial clearly

demonstrates, and the court believes that it is reliable that the amount exceeded

the 500 grams, and therefore the court so finds that it did in fact so exceed the

500 grams.” (emphasis added). When Price challenged the finding on direct

appeal, this court interpreted the district court’s ruling the same way Price does in

this appeal. We concluded the court did not clearly err “in finding by a

preponderance of the evidence that Mr. Price and his co-conspirators distributed

in excess of 500 grams of crack cocaine.” Id.




                                          -4-
      Pursuant to the Drug Quantity Table, as revised by Amendment 706,

offenses involving 500 grams of cocaine base are assigned a base offense level of

thirty-four, two levels lower than the base offense level of thirty-six used to

determine Price’s applicable guidelines range at his sentencing. See U.S.S.G.

§ 2D1.1(c)(3) (Supp. May 1, 2008). Thus, Price is correct that Amendment 706

has the effect of lowering his applicable guidelines range to 360 months to life.

The district court erred when it concluded otherwise, leading to the court’s failure

to exercise its discretion under § 3582(c)(2).

      The government makes two arguments in defense of the district court’s

ruling. First, the government asserts the district court’s conclusion that Price’s

applicable guidelines range was unchanged by Amendment 706 was based on a

new finding that Price was responsible for seven kilograms of cocaine base. 2 The

government also argues the district court did not abuse its discretion even if

Amendment 706 reduced Price’s base offense level because the court’s conclusion

that Price’s conduct involved seven kilograms of cocaine, rather than the 500

grams determined by the court at the 1992 sentencing, provided an ample basis to

deny Price’s motion. See United States v. Mueller, 27 F.3d 494, 497 n.5 (10th

Cir. 1994) (stating a court’s power under § 3582(c)(2) is discretionary and a

defendant “is not entitled to an automatic reduction”).

      2
        The government has not identified any support for the proposition that a
district court considering a § 3582(c)(2) motion can make factual findings that
differ from the findings made by the sentencing court.

                                          -5-
      The problem with both of the government’s arguments is that they

mischaracterize the district court’s ruling. The court did not make any new

factual findings or draw new conclusions about the quantity of drugs involved in

the conspiracy. Instead, it simply stated, “The sentencing Court found [Price]

conspired to distribute in excess of seven kilograms of crack cocaine.” Thus, the

court’s decision was based on its erroneous conclusion that the sentencing court

found the conspiracy in which Price participated was responsible for distributing

at least seven kilograms of crack cocaine, not a new determination the conspiracy

distributed seven kilograms. The government’s arguments fail because they are

premised on the erroneous position that the district court determined Price’s

offense of conviction involved seven kilograms of cocaine base.

      Because the district court’s error led to its failure to exercise the discretion

granted it under § 3582(c)(2), we reverse the order denying Price’s Motion to

Modify Term of Imprisonment and remand for further proceedings not

inconsistent with this opinion. 3 We deny Price’s request for appointment of

counsel to represent him on appeal as moot. 4

      3
       Our disposition of this appeal renders it unnecessary to consider Price’s
argument that the district court erred by not applying United States v. Booker, 543
U.S. 220 (2005) when it considered his § 3582(c)(2) motion. See United States v.
Hicks, 472 F.3d 1167 (9th Cir. 2007) (holding that when a defendant’s sentence
qualifies for reconsideration pursuant to § 3582(c)(2), the resentencing must be
conducted in conformity with Booker).
      4
          Because the issue is not before us, we express no opinion on whether the
                                                                       (continued...)

                                          -6-
                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




      4
        (...continued)
district court must appoint counsel for Price on remand. See United States v.
Robinson, No. 08-10424, 2008 WL 4150128, at *5 (5th Cir. Sept. 10, 2008)
(discussing the constitutional and statutory questions involved in the issue and
then appointing counsel “in the interest of justice”); see also United States v.
Olden, No. 08-5060, 2008 WL 4596336, at *3 (10th Cir. Oct. 15, 2008)
(unpublished disposition) (concluding there is no constitutional right to counsel
for the purpose of bringing a § 3582(c)(2) motion).

                                        -7-
