                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 6 2000
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-2104
                                                   (D.C. No. CIV-00-119-SC)
    PETER BRENT IRELAN,                                    (D. N.M.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA , EBEL , and BRISCOE , 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.

         This appeal is taken from an order of the district court denying defendant’s

motion for reduction of sentence pursuant to Amendment 505 of the Sentencing


*
      This order and judgment is not binding precedent, except under the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.
Guidelines, which changed the Drug Quantity Table under USSG § 2D1.1 and

established a lower Offense Level than the one under which defendant alleges

he was sentenced. Defendant contends that he is entitled to consideration for

a reduction in his sentence under USSG § 1B1.10(c) (Amendment 505 covered

by policy statement) and 18 U.S.C. § 3582(c)(2).

      In dismissing this proceeding, the district court referred to the motion as

having been filed under Amendment 509, which is not subject to retroactive

application, and which was, as the court correctly noted, the subject of an earlier

proceeding under 28 U.S.C. § 2255. This action is not based on § 2255, but

rather on 18 U.S.C. § 3582(c)(2).   See United States v. Jordan , 162 F.3d 1, 3

(1st Cir. 1998) (noting sentencing judge’s discretion under § 3582(c)(2) to

consider whether to apply Amendment 505 retroactively to defendant),

cert. denied , 119 S. Ct. 1590 (1999).

      Pursuant to our earlier show cause order, the government has responded and

agrees that the matter should be remanded for proper consideration by the district

court. Accordingly, the judgment of the district court is VACATED and the

matter REMANDED for consideration of defendant’s motion for reduction of

sentence filed pursuant to 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10(c)




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(Amendment 505 covered by policy statement). The mandate shall issue

forthwith.



                                                Entered for the Court



                                                Mary Beck Briscoe
                                                Circuit Judge




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