PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WARD LARRAY PRICE,

Defendant - Appellant.	No. 05-5177

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.

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.

EBEL, Circuit Judge.

Defendant-Appellant Ward Larray Price appeals the district court's denial of his motion to reduce his 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 United States v. Price, Nos. 92-5033 & 92-5041, 1993 WL 191841, at *4 (10th Cir. June 4, 1993) (unpublished).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 United States v. Price, Nos. 97-5069 & 97-5124, 1998 WL 694501, at *6 (10th Cir. Oct. 6, 1998) (unpublished).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.

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 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.