                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2006

USA v. Miles
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1454




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"USA v. Miles" (2006). 2006 Decisions. Paper 109.
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ALD-46                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-1454
                                   ________________

                           UNITED STATES OF AMERICA

                                            v.

                                    PHILLIP MILES,

                                            Appellant
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                           (M.D. Pa. Crim. No. 97-cr-00146)
                     District Judge: Honorable William J. Nealon
                    _______________________________________


 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                November 16, 2006

          Before: SLOVITER, CHAGARES and NYGAARD, Circuit Judges.

                              (Filed: December 11, 2006)



                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Philip Miles, a federal prisoner, appeals an order of the United States District

Court for the Middle District of Pennsylvania denying his motion for modification of
sentence pursuant to 18 U.S.C. § 3582(c)(2). Because this appeal does not raise a

substantial question, we will summarily affirm the order of the District Court.

       In 1997, a jury found Miles guilty of conspiracy to distribute a controlled

substance and distribution of a controlled substance in violation of 21 U.S.C. §§ 846,

841(a)(1) and 841(b)(1)(A)(iii). The District Court sentenced Miles to 324 months in

prison. This Court affirmed on direct appeal.

       The District Court denied Miles’ subsequent motion to vacate his sentence

pursuant to 28 U.S.C. § 2255. This Court granted a certificate of appealability on Miles’

ineffective assistance of counsel claims, and then affirmed the denial of relief under

§ 2255. The United States Supreme Court denied Miles’ petition for a writ of certiorari.

       Miles then filed in District Court a motion for modification of sentence pursuant to

18 U.S.C. § 3582(c)(2) claiming that he is entitled to a new sentencing hearing under

United States v. Booker, 543 U.S. 220 (2005). The District Court denied the motion, and

this appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

       Under 18 U.S.C. § 3582(c)(2), the District Court may reduce a 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 . . ..”

As recognized by the District Court, Booker held that the provision of the federal

sentencing statute that made the Sentencing Guidelines mandatory was incompatible with

the Sixth Amendment. Booker, 543 U.S. at 756. While the effect of Booker was to make

the Sentencing Guidelines advisory, id. at 757, Booker did not result in the amendment of

                                             2
any sentencing range. Thus, Booker does not provide a basis for relief under

§ 3582(c)(2). Cf. United States v. McBride, 283 F.3d 612, 616 (3d Cir. 2002) (holding

that Apprendi v. New Jersey, 530 U.S. 466 (2000), did not provide a basis for relief under

§ 3582(c)(2) because it was unrelated to any change in the Sentencing Guidelines).

       Accordingly, we will summarily affirm the order of the District Court.1




   1
    The District Court also noted that under Lloyd v. United States, 407 F.3d 608, 616
(3d Cir. 2005), Booker does not apply retroactively to cases on collateral review. To the
extent Miles sought to collaterally challenge his sentence outside of § 3582(c)(2), he was
required to obtain this Court’s authorization to file a second or successive motion under
§ 2255. This Court, however, has held that Booker does not provide a basis for such
authorization because the Supreme Court has not made Booker retroactive to cases on
collateral review. In re Olopade, 403 F.3d 159, 164 (3d Cir. 2005).
