FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                   December 16, 2015
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 15-6061
 v.                                             (D.C. No. 5:97-CR-00102-F-1)
                                                        (W.D. Okla.)
 CHARLES ALBERT STANFIEL, III,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BACHARACH, and MORITZ, Circuit Judges.


      Defendant-Appellant Charles Albert Stanfiel, III appeals from the denial of

his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Mr.

Stanfiel sought relief following Amendment 782’s enactment in November 2014.

Amendment 782 generally reduces the drug quantity tables in U.S.S.G. § 2D1.1

by two levels. The district court denied the motion, holding that the amendment

did not lower Mr. Stanfiel’s guideline range. United States v. Stanfiel, No. CR-

97-102-F (W.D. Okla. Mar. 26, 2015). Our jurisdiction arises under 28 U.S.C.



      *
        This order and judgment is not binding precedent, except under the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.
§ 1291, and we affirm.



                                    Background

      In 1997, Mr. Stanfiel pled guilty to knowingly and intentionally

manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1). I R. 25.

At Mr. Stanfiel’s sentencing, the parties stipulated that 135.9 grams of actual

methamphetamine were found in the labs used by the defendant. I Supp. R. 68.

In addition to the 135.9 grams, the sentencing court took a “conservative

approach” and made findings that Mr. Stanfiel had manufactured 55 ounces of 89

percent pure methamphetamine during the relevant period. 

This,

the sentencing judge stated, amounted to “48 ounces and a fraction, a fairly-large

fraction, in fact” of methamphetamine. 

      Given the quantity of methamphetamine attributed to Mr. Stanfiel, the

sentencing court assigned him a base offense level of 36. 

the

court added a six-level upward adjustment for possession of a firearm, use of a

minor, and obstruction of justice. 

This placed Mr. Stanfiel at

offense level 42. 

Following the guideline range, the court sentenced

Mr. Stanfiel to 360-months incarceration followed by five years of supervised

release. I R. 62. Mr. Stanfiel appealed the sentencing court’s various findings.

The Tenth Circuit affirmed. United States v. Stanfiel, No. 97-6422, 

, at *4 (10th Cir. Dec. 21, 1998).

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      On November 7, 2014, Mr. Stanfiel filed his motion for sentence reduction

and the district court subsequently appointed the Federal Public Defender’s office

to represent him. Relying upon the factual findings of the district court at

sentencing, the government argued that Mr. Stanfiel was not eligible for a

sentence reduction given the quantity of drugs attributed to him. Mr. Stanfiel

contended he was eligible for a sentence reduction based upon the district court’s

written finding that he manufactured “approximately” 48 ounces of actual

methamphetamine. 

. The district court denied the defendant’s motion,

holding that Amendment 782 did not change his base offense level and therefore,

did not reduce the length of his sentence. United States v. Stanfiel, No. CR-97-

102-F (W.D. Okla. Mar. 26, 2015). This appeal followed.



                                     Discussion

      Our review of the district court’s interpretation of a statute or the

Sentencing Guidelines is de novo. United States v. Acosta-Olivas, 

,

377 (10th Cir. 1995). Our review of a decision to deny a sentence reduction

pursuant to § 3582(c)(2) is for an abuse of discretion. United States v. Sharkey,

, 1238 (10th Cir. 2008). Relying upon an incorrect legal conclusion

or a clearly erroneous finding of material fact constitutes an abuse of discretion.

United States v. Battle, 

, 1317 (10th Cir. 2013).

      Under § 3582(c)(2), federal courts have the authority to modify a

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defendant’s 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 lowered

by the Sentencing Commission.” Ergo, a reduction in a defendant’s term of

imprisonment is not authorized under § 3582(c)(2) when an amendment “does not

have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.

§ 1B1.10(a)(2)(B).

      A.     Amendment 782 Did Not Reduce Mr. Stanfiel’s Base Offense Level

      Mr. Stanfiel’s argument that he is entitled to a reduction in his sentence

requires resolution of the question; what is the correct quantity of

methamphetamine attributable to him – 48 or 48.95 ounces? At sentencing, the

district court determined Mr. Stanfiel had 135.9 grams of actual

methamphetamine and 55 ounces of 89 percent pure methamphetamine. When

converted, this results in 1.523 kilograms of actual methamphetamine. 1 Rather

      1

Amount of methamphetamine from testimony
       55
    x .89
    48.95 ounces of actual methamphetamine

Conversion of ounces to kilograms
     1 ounce = 28.35 grams
       48.95
     x 28.35
     1387.73 grams

        1387.73 (calculated from testimony)
      + 135.9 (stipulated)
      1523.63 grams of methamphetamine

                                         -4-
than engaging in an independent calculation to determine that 89 percent of 55

equals 48.95 ounces of methamphetamine, Mr. Stanfiel urges us to begin with the

sentencing court’s conclusion that the quantity amounts to “approximately 48

ounces of actual methamphetamine.” I R. 60. Were we to embark along this

path, Mr. Stanfiel would only be responsible for 1.497 kilograms of actual

methamphetamine. 2

      Under the 1995 version of the drug quantity table, a base offense level of

36 was assigned to individuals with at least 1 kilogram but less than 3 kilograms

of methamphetamine (actual). U.S.S.G. § 2D1.1(c)(2) (1995). Amendment 782

modified this, assigning a base offense level of 34 to individuals with at least 500

grams but less than 1.5 kilograms of methamphetamine (actual). U.S.S.G.

§ 2D1.1(c)(3) (2014). The updated table also assigns a base offense level of 36 to

at least 1.5 kilograms but less than 4.5 kilograms of methamphetamine (actual).

Therefore, using Mr. Stanfiel’s suggested calculation,


      1,000 grams = 1 kilogram
      1523.63 / 1000 = 1.523 kilograms of methamphetamine
      2

           48
      x 28.35
      1360.80 grams

       1360.8 (using calculation suggested by the defendant)
      + 135.9 (stipulated amount)
      1496.70 grams

      1496.70 / 1000 = 1.497 kilograms of actual methamphetamine

                                        -5-
Amendment 782 would reduce his base offense level to 34. Mr. Stanfiel’s

suggested calculation, however, cannot be reconciled with the sentencing court’s

findings.

      In both oral and written findings, the district court provided the numbers

supporting its calculation: “about 55 ounces of approximate 89 percent pure

methamphetamine.” I R. 59. The district court estimated that the completed

calculation came out to “approximately 48” or “48 and a fraction, a fairly large

fraction.” I R. 60, I Supp. R. 89. Under the Sentencing Guidelines then in effect,

the precise fraction would not have changed the outcome and therefore, was not

emphasized. The district court’s failure to specify the precise fraction does not

preclude us from using the numbers provided in the findings to determine that the

quantity equates to 48.95. See 

(“[A] district court may

look to its previous findings, . . . to make supplemental calculations of drug

quantity at resentencing if such calculations are necessary to ‘determine the

amended guideline range that would have been applicable’ in light of a retroactive

Guideline amendment.” (quoting U.S.S.G. § 1B1.10(b)(1))). When using 48.95

ounces to determine the amount of methamphetamine attributable to Mr. Stanfiel,

his base offense level remains 36 and therefore he is not entitled to relief under §

3582(c)(2).




                                         -6-
      B.     The Ex Post Facto Clause Does Not Apply Here

      A law violates the ex post facto clause when it “makes more burdensome

the punishment for a crime, after its commission.” Collins v. Youngblood, 

, 38 (1990). Mr. Stanfiel argues the one possible ground for the district

court’s denial of his motion was its reliance on the presentence investigation

report (PSR). In the PSR, Mr. Stanfiel’s base offense level was calculated by

converting methamphetamine into the marijuana equivalent. II R. 18–19.

Assuming, arguendo, that this was the basis for the district court’s ruling, Mr.

Stanfiel asserts it violates the ex post facto clause because the drug equivalency

tables have increased since the time of his initial sentencing. This argument

misunderstands the role of the ex post facto clause in a § 3582(c)(2) proceeding.

      When a retrospective increase in an applicable guideline range “creates a

sufficient risk of a higher sentence,” an ex post facto violation arises. Peugh v.

United States, 

, 2084 (2013). That is not the situation presented in

this case. First, even if the court were to use the drug equivalency tables, Mr.

Stanfiel’s sentence would remain unchanged. Therefore, the principle enunciated

in Peugh is inapplicable. There is no risk Mr. Stanfiel will face a higher

sentence. Second, cases that arise under § 3582(c)(2) by their nature have no

“bearing on the ex post facto clause, because [they] cannot increase a

punishment.” United States v. Diggs, 

, 645 (7th Cir. 2014). A

change in a drug equivalency table that renders a defendant ineligible for a

                                         -7-
reduction in his sentence is not the same as an increase in punishment and

therefore, not an ex post facto clause violation. See e.g., United States v. Waters,

, 681 (9th Cir. 2014) (holding that although the application of an

updated version of the sentencing guidelines may have prevented the defendant

“from benefitting from recent reductions in” drug penalties, “because application

of the amendments would not increase the punishment for his crime over what

was imposed when he was sentenced, there is no ex post facto problem”).


      AFFIRMED.
                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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