UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 05-5177
WARD LARRAY PRICE,
Defendant - Appellant.
ORDER
Filed March 15, 2006
Appellant’s motion to modify the Opinion dated February 14, 2006, is
granted. The modified Opinion is filed nunc pro tunc to February 14, 2006, and is
attached to this order.
Entered for the Court
Elisabeth A. Shumaker, Clerk
By:
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
February 14, 2006
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 05-5177
WARD LARRAY PRICE,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 89-CR-91-HDC)
Submitted on the briefs: *
Jack Marwood Short, Tulsa, Oklahoma, for Defendant-Appellant Ward Larray
Price, pro bono.
David E. O’Meilia, United States Attorney, and Kevin Danielson, Assistant
United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee United States of
America.
Before HARTZ, EBEL and TYMKOVICH, Circuit Judges.
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
EBEL, Circuit Judge.
Defendant-Appellant Ward Larray Price appeals the district court’s denial
of his motion to reduce his life sentence. Exercising jurisdiction under
28 U.S.C. § 1291, we AFFIRM.
BACKGROUND
We briefly review Price’s history in this court before turning to the present
appeal. Price was convicted by a jury on two counts: (1) conspiracy to distribute
cocaine base in violation of 21 U.S.C. § 846 and (2) possession with intent to
distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(ii). On appeal, we affirmed his conviction but remanded the case
for resentencing based on a procedural error. United States v. Price, 945 F.2d
331, 333 (10th Cir. 1991). After resentencing, Price again appealed, and we
affirmed his sentence. United States v. Price, Nos. 92-5033 & 92-5041, 1993 WL
191841, at *4 (10th Cir. June 4, 1993) (unpublished). Price then filed a motion in
the district court pursuant to 28 U.S.C. § 2255 to vacate, set-aside, or correct his
sentence. The district court denied his motion and his request for a certificate of
appealability (“COA”); we also denied his request for a COA and dismissed his
appeal. United States v. Price, Nos. 97-5069 & 97-5124, 1998 WL 694501, at *6
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(10th Cir. Oct. 6, 1998) (unpublished). In 2000, Price sought leave to file a
second 28 U.S.C. § 2255 petition, a request we denied.
The subject of the present appeal is the district court’s denial of Price’s
motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). Price argued
that the Supreme Court’s decision in United States v. Booker, 543 U.S. 220
(2005), which severed the portions of the United States Sentencing Guidelines
that made them mandatory, “indirectly lowered” the sentencing range under which
he was sentenced and thus conferred on the district court authority to reduce his
sentence under § 3582. The district court disagreed, finding that § 3582(c)(2)
only authorizes a reduction when the Sentencing Commission reduces the range.
Price timely appealed.
DISCUSSION
Section 3582(c)(2) provides that a
court may not modify a term of imprisonment once it has been imposed
except that . . . [,] in the case of a defendant who has been sentenced to
a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission pursuant to
28 U.S.C. 994(o), upon motion of the defendant or the Director of the
Bureau of Prisons, or on its own motion, the court may reduce the term
of imprisonment, after considering the factors set forth in section
3553(a) to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.
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By the terms of the statute, then, the court only has authority to modify a sentence
when the range has been lowered “by the Sentencing Commission pursuant to 28
U.S.C. [§] 994(o).” 1
We have explained that “‘[a] district court is authorized to modify a
[d]efendant’s sentence only in specified instances where Congress has expressly
granted the court jurisdiction to do so.’” United States v. Green, 405 F.3d 1180,
1184 (10th Cir. 2005) (quoting United States v. Blackwell, 81 F.3d 945, 947 (10th
Cir. 1996)) (emphasis added). Thus, even if Booker could be read to be an
implicit lowering of Price’s sentencing range, § 3582(c)(2) only expressly allows
a reduction where the Sentencing Commission, not the Supreme Court, has
1
28 U.S.C. § 994(o) provides that
[t]he [Sentencing] Commission periodically shall review and revise, in
consideration of comments and data coming to its attention, the
guidelines promulgated pursuant to the provisions of this section. In
fulfilling its duties and in exercising its powers, the Commission shall
consult with authorities on, and individual and institutional
representatives of, various aspects of the Federal criminal justice
system. The United States Probation System, the Bureau of Prisons, the
Judicial Conference of the United States, the Criminal Division of the
United States Department of Justice, and a representative of the Federal
Public Defenders shall submit to the Commission any observations,
comments, or questions pertinent to the work of the Commission
whenever they believe such communication would be useful, and shall,
at least annually, submit to the Commission a written report
commenting on the operation of the Commission’s guidelines,
suggesting changes in the guidelines that appear to be warranted, and
otherwise assessing the Commission’s work.
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lowered the range. We therefore agree with the district court that Booker does
not provide a basis for a sentence reduction under § 3582(c). 2
CONCLUSION
For the foregoing reasons, the decision of the district court is AFFIRMED.
Price’s motion to proceed in forma pauperis on appeal is GRANTED.
2
All of our sister circuits to consider whether Booker is relevant to a
motion for a reduction of a sentence under § 3582(c)(2) have reached the same
conclusion. See United States v. Rolle, No. 05-7554, 2006 WL 177596, at *1 (4th
Cir. Jan. 25, 2006) (unpublished) (“Rolle sought relief based on the Supreme
Court’s decision in [Booker]. The relief Rolle seeks is unavailable under
§ 3582(c)(2).”); United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005)
(“Booker is a Supreme Court decision, not a retroactively applicable guideline
amendment by the Sentencing Commission. Therefore, Booker is inapplicable to
§ 3582(c)(2) motions.”); United States v. Sanchez, 140 F. App’x 409, 410 (3d Cir.
2005) (unpublished) (“[Section] 3582(c)(2) permits a reduction of sentence as a
result of a subsequent amendment of the Guidelines by the Sentencing
Commission, not based on a decision of the Supreme Court that is unrelated to an
actual amendment of the Guidelines.”); Hayes v. United States, 141 F. App’x 463,
464 (7th Cir. 2005) (unpublished) (“18 U.S.C. § 3582(c)(2)[] authorizes an inmate
to file a motion to reduce a sentence based on a subsequent amendment to the
guidelines, not based on new case law.”); United States v. Privette, 129 F. App’x
897, 899 (5th Cir. 2005) (“Booker is inapplicable to review of the denial of
Privette’s § 3582(c)(2) motion. By its plain language, § 3582(c)(2) is not
implicated by a decision of the Supreme Court that is unrelated to an actual
amendment of the guidelines.”).
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