FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 12, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee, No. 12-2032
(D.C. No. 1:97-CR-00731-BB-1)
v. (D. N.M.)
RODNEY MILLER,
Defendant–Appellant.
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 motion 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 would not materially assist 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 argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
dismiss the appeal and grant counsel’s motion to withdraw.
I
In 1998, Miller pled guilty to possession with intent to distribute 50 grams or more
of a mixture and substance containing cocaine base. Because Miller fell within the career
offender provision of U.S.S.G. § 4B1.1, his United States Sentencing Guidelines range
was 262 to 327 months’ imprisonment. The district court sentenced him to the low end
of that range.
In 2007, the United States Sentencing Commission amended the Guidelines by
“adjust[ing] downward by two levels the base offense level assigned to quantities of
crack cocaine.” United States v. Sharkey, 543 F.3d 1236, 1237 (10th Cir. 2008). Based
on these amendments, Miller sought a reduction of his sentence under 18 U.S.C.
§ 3582(c)(2). However, the district court determined that Miller was not eligible for
resentencing because his sentence was dictated 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 further reduced the base offense level for quantities of
crack cocaine pursuant to the Fair Sentencing Act. U.S.S.G., App. C, Amendment 750
(Nov. 1, 2011). Again, Miller sought to reduce 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
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leave to withdraw asserting there are no issues of merit in this appeal. The court
provided Miller an opportunity to file a pro se brief; however, Miller declined to do so.
II
An attorney may seek leave 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 submit a brief highlighting 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 grant the request to withdraw and dismiss the
appeal. Id.
We agree with counsel that there is no non-frivolous ground upon which to
proceed on Miller’s appeal. Miller’s sentence is based on his status as a career offender,
not on a sentencing range lowered by Amendment 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 750 (stating that sentences for career offenders, dictated by §
4B1.1, “are unaffected” by the Amendment).
III
Because we are not presented with any meritorious grounds for appeal, we
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GRANT counsel’s request to withdraw and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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