United States v. Brandon Miller , 697 F. App'x 842 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0315n.06
No. 16-6724
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 07, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
BRANDON L. MILLER, ) TENNESSEE
)
Defendant-Appellant. )
BEFORE: GIBBONS, ROGERS, and DONALD, Circuit Judges.
PER CURIAM. Brandon L. Miller appeals the district court’s order denying his motion
for reconsideration of the denial of his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2). As set forth below, we dismiss Miller’s appeal for lack of jurisdiction.
Miller pleaded guilty to conspiracy to distribute and possess with intent to distribute
oxycodone in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. Miller admitted
responsibility for 1,260 30-milligram oxycodone pills and 630 15-milligram oxycodone pills, the
equivalent of approximately 317 kilograms of marijuana, which corresponded to a base offense
level of 26 under the 2011 guidelines. Based on a total offense level of 23 and a criminal history
category of VI, the district court calculated Miller’s guidelines range as 92 to 115 months of
No. 16-6724, United States v. Miller
imprisonment. The district court sentenced Miller to 96 months of imprisonment followed by
three years of supervised release.
In 2014, Miller filed a pro se motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) based on Amendment 782 to the sentencing guidelines, which amended USSG
§ 2D1.1’s drug quantity table to reduce the base offense level for most drug offenses by two
levels. Miller asserted that a two-level reduction resulted in a guidelines range of 77 to 96
months of imprisonment and asked the district court to reduce his sentence to 77 months. The
district court appointed counsel, who filed a supplemental motion on Miller’s behalf. In
response, the government agreed that Miller was eligible for a sentence reduction and that his
amended guidelines range was 77 to 96 months of imprisonment. The government pointed out
Miller’s disciplinary infractions for committing mail abuse and using drugs, and deferred to the
district court’s discretion whether and to what extent to reduce his sentence. Acknowledging
Miller’s eligibility for a sentence reduction, the district court denied his motion after considering
his post-sentencing conduct and the sentencing factors under 18 U.S.C. § 3553(a). In concluding
that no reduction was appropriate, the district court noted Miller’s prison disciplinary record,
particularly his use of Suboxone while in custody, and his substantial criminal history. Three
months later, Miller filed a motion for reconsideration, asserting that his disciplinary infractions
were non-violent and that he had been incident-free since entering the Residential Drug Abuse
Program. The district court denied Miller’s motion, again concluding that no reduction was
appropriate. This appeal followed.1
1
Miller’s § 3582(c)(2) motion for a sentence reduction is considered a continuation of his
criminal case and is therefore subject to the fourteen-day deadline for filing a notice of appeal.
United States v. Brown, 817 F.3d 486, 488-89 (6th Cir. 2016); see Fed. R. App. P. 4(b)(1)(A). A
motion for reconsideration in a criminal case must be filed within the fourteen-day period for
filing an appeal. United States v. Correa-Gomez, 328 F.3d 297, 299 (6th Cir. 2003). Miller filed
-2-
No. 16-6724, United States v. Miller
“A district court may modify a defendant’s sentence only as authorized by statute.”
United States v. Watkins, 625 F.3d 277, 280 (6th Cir. 2010). Pursuant to § 3582(c)(2), when a
defendant “has been sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission,” the district 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.” 18 U.S.C. § 3582(c)(2). The statute establishes a two-step
approach: (1) the court must first determine whether the defendant is eligible for a sentence
reduction, and (2) if the defendant is eligible, “[t]he court may then ‘consider whether the
authorized reduction is warranted, either in whole or in part, according to the factors set forth in
§ 3553(a).’” United States v. Thompson, 714 F.3d 946, 948-49 (6th Cir. 2013) (quoting Dillon v.
United States, 560 U.S. 817, 826 (2010)).
Miller contends that the district court’s denial of his motion for a sentence reduction at
the second step should be reviewed for reasonableness under United States v. Booker, 543 U.S.
220 (2005). According to Miller, the district court’s decision was procedurally unreasonable
because the district court failed to provide an adequate explanation and substantively
unreasonable because the district court gave an unreasonable amount of weight to certain factors.
As the government points out, our jurisdiction to consider the appeal of a § 3582(c)(2)
determination comes from 18 U.S.C. § 3742, which authorizes our review “only where the
resulting sentence ‘(1) was imposed in violation of law; (2) was imposed as a result of an
his motion for reconsideration three months after the denial of his motion for a sentence
reduction. Miller’s untimely motion for reconsideration did not toll the time or restart the clock
for filing a notice of appeal. See Brown, 817 F.3d at 489. Because Rule 4(b)(1)’s appeal
deadline is not jurisdictional, “we are not required to dismiss late-filed criminal appeals unless
the government has raised the issue,” United States v. Gaytan-Garza, 652 F.3d 680, 681 (6th Cir.
2011), which the government has not done in Miller’s case. .
-3-
No. 16-6724, United States v. Miller
incorrect application of the sentencing guidelines; (3) is greater than the sentence specified in the
applicable guideline range; or (4) was imposed for an offense for which there is no guideline and
is plainly unreasonable.’” United States v. Bowers, 615 F.3d 715, 723 (6th Cir. 2010) (quoting
United States v. Moran, 325 F.3d 790, 792 (6th Cir. 2003)). We have held, as Miller concedes,
that “a defendant’s allegation of Booker unreasonableness in a § 3582(c)(2) proceeding does not
state a cognizable ‘violation of law’ that § 3742(a)(1) would authorize us to address on appeal.”
Id. at 727. Miller argues that we should reconsider our holding in Bowers, citing cases from
outside this circuit. But we will not overrule a prior published decision of a panel. See United
States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996). Miller makes no other argument regarding
the denial of his motion for a sentence reduction.
Accordingly, we DISMISS Miller’s appeal for lack of jurisdiction.
-4-