*After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 8 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDWARD LEROY PRICE,

Defendant-Appellant.

No. 96-3279

(D.C. No. 93-40039-01-DES)

(D. Kan.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and KELLY, Circuit Judges.

Defendant-Appellant, Edward Leroy Price (“Price”) appeals his sentence

imposed under the United States Sentencing Guidelines for his conviction of

conspiracy to possess methamphetamine with intent to distribute in violation of

21 U.S.C. § 846. Price’s counsel has determined that Price’s appeal is wholly
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frivolous. Accordingly, counsel has filed both a motion to withdraw as attorney

of record and a corresponding Anders brief outlining Price’s argument. See

Anders v. California, 386 U.S. 738 (1967).

Upon review of Price’s’s arguments, we find the appeal wholly frivolous. 

Therefore, we grant counsel’s request and affirm Price’s sentence. 

BACKGROUND

After being convicted possession of methamphetamine with intent to

distribute in violation of 21 U.S.C. § 846, and of possession of 2.25 kilograms of

marihuana in violation of 21 U.S.C. § 841(a)(1), the district court sentenced Price

to life imprisonment for the methamphetamine conviction, and to 240 months for

the marihuana conviction. (ROA, Vol. I, Doc #51, at 2). Price appealed his

sentence to this court and argued that under 21 U.S.C. § 841(b)(1)(D), the

maximum penalty for a conviction involving less than 50 kilograms of marihuana

for a person with Price’s criminal history is 120 months. See United States v.

Price, 75 F.3d 1440 (10th Cir.), cert. denied, 116 S. Ct. 1889 (1996). We agreed

and remanded the case to the district court “with instructions to vacate the

marijuana sentence and conduct further sentencing proceedings consistent with

this opinion.” Id. at 1446.

Consistent with our mandate in Price, the district court vacated its earlier

sentence for the marihuana conviction and resentenced Price to 120 months, to be
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served concurrently with the life sentence earlier imposed for the

methamphetamine conviction. (ROA, Vol. I, Doc #83, at 2). Price now appeals.

In his Anders brief, Price’s counsel only addressed the issue of whether the

district court improperly sentenced Price for his marihuana conviction. With

regard to that issue, Price’s counsel related that he “can no find no issues which

merit the attention of this Court that have not already been decided in [Price, 75

F.3d 1440].” (Anders Brief, at 3). Pursuant to Anders, we provided Price with a

copy of counsel’s Anders brief and allowed him time “to raise any points that he

chooses.” Anders, 386 U.S. at 744. In his pro-se petition, Price claimed that the

district court improperly sentenced him with regard to the methamphetamine

conviction as well as with regard to the marihuana conviction. Specifically, Price

argued that the sentencing court sentenced him to life for the methamphetamine

conviction upon finding that Price had two prior felony drug convictions when

Price, in fact, had only been convicted once before.

In its response brief, the government pointed out that Price had failed to

make a single argument with regard to how the district court erred in resentencing him to 120 months for the marihuana conviction. Price agreed with

the government in his reply brief and conceded the propriety of the marihuana

sentence. (Pro se reply brief, at 3). Thus, the only issue before us now concerns

the sentenced imposed for the methamphetamine conviction.
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 Anders provides that if we find Price’s appeal wholly frivolous, we should

grant counsel’s request to withdraw and proceed to a decision on the merits. Only

“if [we] find any of the legal points arguable on their merits (and therefore not

frivolous) [must we], prior to decision, afford the indigent the assistance of

counsel to argue the appeal.” Anders, 386 U.S. at 744. Upon review of Price’s

arguments, we find the appeal wholly frivolous. Accordingly, we grant counsel’s

request to withdraw as attorney of record, and proceed to a decision on the merits.

DISCUSSION

Price argues that the district court’s imposition of a life sentence for his

methamphetamine conviction constitutes plain error because it was predicated

upon a finding of two prior felony drug convictions when Price had only been

convicted once before. We conclude that we are without jurisdiction to review

Price’s challenge to the methamphetamine sentence.

Price made his “single conviction” argument below before the first appeal. 

At that time, the district court relied upon our holding in United States v. Pace,

981 F.2d 1123, 1131-32 (10th Cir. 1992) to find “that the prior offenses of which

the defendant was convicted were separate criminal episodes and did not amount

to a single act of criminality . . . . They shall therefore be counted as separate

prior convictions for purposes of increasing the defendant’s sentence under 21
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U.S.C. § 841.” (ROA, 2nd supp. Vol II, at 10-11). When Price appealed his

sentence to this court the first time, Price did not challenge the district court’s

finding of separate criminal episodes. Price limited his appeal to three issues: (1)

whether the district court erred in denying a motion to suppress; (2) whether the

government complied with Rule 16, Fed. R. Crim. P.; and (3) whether the district

court erred in sentencing defendant to 240 months for the marihuana conviction. 

See Price, 75 F.3d at 1441.

A panel of this court affirmed “the district court’s pretrial suppression and

discovery rulings” and remanded “with instructions to vacate the marijuana

sentence and conduct further sentencing proceedings consistent with this

opinion.” Id. at 1446. Thus, the prior convictions issue was not raised by Price

on his first appeal, and our remand to the district court was limited to the

marihuana conviction. 

We cannot review Price’s challenge at this point because we lack

jurisdiction to review challenges raised for the first time on a second appeal

where the remand from the first appeal does not reopen the entire order. United

States v. Webb, 98 F.3d 585, 589 (10th Cir. 1996), cert. denied, 1997 WL 49021

(Feb. 24, 1997); see also United States v. Fiallo-Jacome, 874 F.2d 1479, 1481-82

(11th Cir. 1989) (holding that issues that a criminal defendant failed to raise in a

first appeal generally may not be raised in a second appeal). This is because
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“‘[t]he grant of remand on appeal does not reopen the order appealed from;

instead, remand commences a new proceeding which will ultimately terminate in

another final order. The first final order cannot be challenged in an appeal of the

second final order.’” Id. (quoting United States v. Mendes, 912 F.2d 434 (10th

Cir. 1990)).

CONCLUSION

For the foregoing reasons, we AFFIRM the district court. Moreover, we

GRANT counsel’s request to withdraw on the grounds that Price’s appeal is

without merit.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge