FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 17, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
19-3179
v. (No. 2:10-CR-20129-KHV-5)
(D. Kan.)
ANDREW J. PRICE,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
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This appeal involves eligibility of the defendant, Mr. Andrew Price,
for a sentence reduction. In district court, Mr. Price was convicted and
sentenced on drug charges. After the sentencing, the U.S. Sentencing
Commission modified the sentencing guidelines, prompting Mr. Price to
move for a reduction in his sentence. The government conceded that Mr.
*
We conclude that oral argument would not materially help us in
deciding the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
So we have decided the appeal based on the record and the parties’ briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate under Fed. R. App. P. 32.1(a) and 10th Cir. R.
32.1(A).
Price was eligible for a sentence reduction, but the district court disagreed
and dismissed Mr. Price’s motion. On appeal, Mr. Price argues that the
district court supplied a legally invalid reason for dismissing his motion.
The government agrees with Mr. Price, as do we.
In district court, Mr. Price was sentenced to 20 years in prison for
conspiring to distribute and possess with intent to distribute powder
cocaine and crack cocaine. At the time of sentencing, the base-offense
level was 38 for defendants bearing responsibility for 4.5 kilograms or
more of crack cocaine. U.S. Sentencing Guidelines Manual § 2D1.1(c)(1)
(2010) (amended 2014). After the sentencing, the U.S. Sentencing
Commission modified the guidelines, retroactively increasing the threshold
for a base-offense level of 38 from 4.5 kilograms of crack cocaine to 25.2
kilograms. See U.S. Sentencing Guidelines Manual supp. app. C, amend.
782 (2018) (effective Nov. 1, 2014) (increasing drug quantity thresholds);
id. amend. 788 (authorizing retroactive application).
Mr. Price moved for a sentence reduction. He would be eligible for a
reduction only if the modification to the guidelines reduced his base-
offense level below 38. 18 U.S.C. § 3582(c)(2); U.S. Sentencing
Guidelines Manual § 1B1.10 (2018). Under the modified guideline, Mr.
Price would not qualify for a base-offense level of 38 unless he bore
responsibility for at least 25.2 kilograms of crack cocaine.
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The district court found Mr. Price responsible for at least 25.2
kilograms of cocaine, and he challenges the validity of this finding. In
reviewing that finding, we apply the abuse-of-discretion standard. United
States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013). The district court
abused its discretion if it committed an error of law. Id.
We conclude that the district court committed an error of law. The
court explained its finding by referring to the probation office’s estimate
of the total weight of crack cocaine distributed through the entire network
of coconspirators. But Mr. Price could bear responsibility only for the
weight of crack cocaine that he
was directly involved with or
could reasonably foresee within the scope of the criminal
activity that he had undertaken.
United States v. Figueroa-Labrada, 720 F.3d 1258, 1265 (10th Cir. 2013);
see U.S. Sentencing Guidelines Manual § 1B1.3, cmt. n.3 (2018). Given
this limitation, the district court had to “make particularized findings
about[] the scope of the specific agreement the individual defendant joined
in relation to the conspiracy as a whole.” Figueroa-Labrada, 720 F.3d at
1265 (quoting United States v. Melton, 131 F.3d 1400, 1404 (10th Cir.
1997)) (cleaned up).
The court did not determine how much of the crack cocaine to
attribute to Mr. Price. In the absence of such a determination, the court
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could not pin responsibility on Mr. Price for at least 25.2 kilograms of
crack cocaine.
When pleading guilty, Mr. Price didn’t object to the probation
office’s determination that “this case involved 4.5 kilograms or more” of
crack cocaine. R. vol. 3, at 51. But this weight was far under the new
threshold for a base-offense level of 38: 25.2 kilograms of crack cocaine.
In dismissing Mr. Price’s current motion, the district court observed
that the probation office had attributed at least 37 kilograms of crack
cocaine to Mr. Price. But that weight reflects the drug quantities handled
by the entire network of conspirators. 1 The court never determined the
weight that Mr. Price had directly handled or that he could have foreseen.
In relying on the estimate of at least 37 kilograms, the district court
reasoned that it couldn’t revisit the probation office’s determination from
the presentence report. But when the probation office determined the drug
quantity, this determination wouldn’t have mattered because the guideline
range would have stayed the same even with a much lower drug weight.
Indeed, the probation office’s estimate of the drug weight didn’t become an
issue until the United States Sentencing Commission modified the
1
Mr. Price also challenges the basis for the district court’s estimate of
the total drug weight involved in the conspiracy. He argues that the district
court clearly erred through unreliable extrapolations. But we conclude that
the district court committed an error of law, so we don’t need to consider
Mr. Price’s assertion of clear error as to this factual finding.
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guidelines, retroactively increasing the threshold for a base-offense level
of 38.
Without making particularized findings as to the weight of crack
cocaine attributable to Mr. Price, the district court could not properly
apply the modified guideline. Acknowledging the lack of particularized
findings, the government concedes that the court erred in concluding that
Mr. Price was ineligible for a sentence reduction. See United States v.
Figueroa-Labrada, 720 F.3d 1258, 1264 (10th Cir. 2013) (“A sentencing
court must make particularized findings to support the attribution of a
coconspirator’s actions to the defendant . . . whether or not the defendant
asks it do so or disputes the attribution.”). We agree and reverse and
remand for the district court to reconsider Mr. Price’s motion.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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