                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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
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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.




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