UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. RODNEY MILLER, Defendant–Appellant. No. 12-2032 (D.C. No. 1:97-CR-00731-BB-1) (D. N.M.)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and MATHESON , Circuit Judges.

Rodney Miller, a federal prisoner serving a 262-month sentence for distribution of crack cocaine, appeals the denial of his moti on to reduce his sentence under 18 U.S.C. § 3582(c)(2). His counsel moves for leave to withdraw in a brief filed pursuant to Anders v. California, 386 U.S. 738 ( 1967). Exercising jurisdiction under 28 U.S.C. § 1291, we

* After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a )(2) and 10th Cir. R. 34 .1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### July 12, 2012

Elisabeth A. Shumaker Clerk of Court- 2- dismiss the appeal and grant counsel’s motion to withdraw.

I In 1998, Miller pled guilty to possession with intent to di stribute 50 grams or more of a mixture and substance containing cocain e base. Because Miller fell within the career offender provision of U.S.S.G. § 4B1.1, his United States Senten cing Guidelines range was 262 to 327 months’ imprisonment. The di strict court sentenced him to the low end of that range. In 2007, the United States Sentenci ng Commission amended the Guidelines by “adjust[ing] downward by two levels the ba se offense level assigned to quantities of crack cocaine.” United States v. Sharkey, 543 F.3d 1236, 1237 (1 0th Cir. 2008). Based on these amendments, Miller sought a reduc tion of his sentence under 18 U.S.C. § 3582(c)(2). However, the district court de termined that Miller was not eligible for resentencing because his sentence was dictat ed by the career offender guideline, which had not changed. See United States v. Miller, 348 F. App’x 384, 385-86 (10th Cir. 2009). We affirmed. Id. at 387. In 2010, the Commission fu rther reduced the base offe nse level for quantities of crack cocaine pursuant to the Fair Sentenci ng Act. U.S.S.G., App. C, Amendment 750 (Nov. 1, 2011). Again, Miller sought to re duce his sentence under § 3582(c)(2), and the district court found him ineligible because he was sentenced under the career offender provision. Miller appealed to this court, and we appointed counsel, who now moves for- 3- leave to withdraw asserting there are no issu es of merit in this appeal. The court provided Miller an opportunity to file a pro se brief; howev er, Miller declined to do so.

II An attorney may seek leav e to withdraw if, after conscientiously examining a case, he or she determines that an appeal would be wholly frivolous. Anders, 386 U.S. at 744. Under these circumstances, counsel must s ubmit a brief highligh ting any potentially appealable issues. If the court determines that the appeal is in fact frivolous based on its independent review of the record, we will gr ant the request to wit hdraw and dismiss the appeal. Id. We agree with counsel that there is no non-frivolous ground upon which to proceed on Miller’s appeal. M iller’s sentence is based on his status as a career offender, not on a sentencing range lowered by Amendmen t 750. He is therefore ineligible for relief under § 3582(c)(2). See Sharkey, 543 F. 3d at 1239; see also U.S.S.G. Manual, App. C, at 394, Amendment 7 50 (stating that sentences for career offenders, dictated by § 4B1.1, “are unaffected” by the Amendment).

III Because we are not presented with an y meritorious grounds for appeal, we- 4- GRANT counsel’s request to withdraw and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge