NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0315n.06
No. 16-6724 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. BRANDON L. MILLER, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

BEFORE: GIBBONS, ROGERS, and DONALD, Circuit Judges.

PER CURIAM. Brandon L. Miller appeals th e district court’s or der 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 l ack of jurisdiction. Miller pleaded guilty to cons piracy to distribute and posse ss 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 pill s and 630 15-milligram oxycodone pills, the equivalent of approximately 317 kilograms of ma rijuana, which corresponded to a base offense level of 26 under the 2011 guidelines. Based on a to tal offense level of 23 and a criminal history category of VI, the district c ourt calculated Miller’s guideline s range as 92 to 115 months ofNo. 16-6724, United States v. Miller

- 2 - imprisonment. The district court sentenced M iller to 96 months of imprisonment followed by three years of supervised release. In 2014, Miller filed a pro se motion for a sentence reduction purs uant to 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the sent encing guidelines, which amended USSG § 2D1.1’s drug quantity table to re duce the base offense level for most drug offenses by two levels. Miller asserted that a two-level re duction 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 whet her and to what extent to re duce his sentence. Acknowledging Miller’s eligibility for a sentence reduction, the district court denied hi s motion after considering his post-sentencing conduct and th e sentencing factors under 18 U.S. C. § 3553(a). In concluding that no reduction was appropriate , the district court noted Mill er’s prison disciplinary record, particularly his use of Suboxone while in custo dy, and his substantial criminal history. Three months later, Miller file d a motion for reconsideration, asserti ng that his disciplinary infractions were non-violent and that he ha d been incident-free since ente ring the Residential Drug Abuse Program. The district court denied Miller’s motion, again concludi ng that no reduction was appropriate. This appeal followed. 1

1 Miller’s § 3582(c)(2) motion fo r a sentence reduction is cons idered a continuation of his criminal case and is therefore subject to the f ourteen-day deadline for fi ling a notice of appeal. United States v. Brown , 817 F.3d 486, 488-89 (6 th 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 filedNo. 16-6724, United States v. Miller

- 3 - “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). Pu rsuant 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 Co mmission,” 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 consis tent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582( c)(2). The statute es tablishes 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 re viewed for reasonableness under United States v. Booker , 543 U.S. 220 (2005). According to Miller, the district court’s decision was pro cedurally unreasonable because the district court failed to provide an adequate explanation and substantively unreasonable because the district court gave an unr easonable amount of weight to certain factors. As the government points out, our jurisdicti on to consider the ap peal of a § 3582(c)(2) determination comes from 18 U.S.C. § 3742, whic h authorizes our review “only where the resulting sentence ‘(1) was imposed in violation of law; (2) wa s imposed as a result of an

his motion for reconsideration three months af ter 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, “w e 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. .No. 16-6724, United States v. Miller

- 4 - incorrect application of the sentencing guidelines; (3 ) is greater than the sentence specified in the applicable guideline range; or (4) was imposed fo r 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 ‘violati on of law’ that § 3742(a)(1) would aut horize 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 overru le 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.