                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    October 6, 2009
                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 08-2299
    v.                                         (D.C. No. 1:97-CR-00731-BB-1)
                                                          (D. N.M.)
    RODNEY MILLER,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.



         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). The district court determined that

although Amendments to the United States Sentencing Guidelines (Guidelines)



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
lowered certain base offense levels for crack cocaine offenses, Mr. Miller was not

eligible for resentencing because he was sentenced as a career offender. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      On April 7, 1998, Mr. Miller pleaded guilty to possessing with intent to

distribute fifty grams or more of a mixture or substance containing cocaine base

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). The plea agreement

stated that the government would file an Information giving notice for eligibility

for imposition of a sentence under the enhanced penalty provisions of 21 U.S.C.

§§ 841(b)(1)(A) and 851. Additionally, the plea agreement stated that the

mandatory minimum sentence was twenty years’ imprisonment. Mr. Miller’s

presentence report calculated a base offense level of 34, after accounting for

acceptance of responsibility, a career offender enhancement under Guidelines

§ 4B1.1, and a criminal history category of VI. His Guidelines sentencing range

was 262 to 327 months’ imprisonment, and the district court sentenced him to the

low end of that range at 262 months’ imprisonment. 1

      On November 1, 2007, “[t]he Guidelines, through Amendment 706,

generally adjusted 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). Through Amendments 712 and 713, Amendment 706 became


1
      Mr. Miller did not appeal. The district court dismissed his motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.

                                         -2-
retroactive on March 3, 2008. United States v. Rhodes, 549 F.3d 833, 835 (10th

Cir. 2008), cert. denied, 129 S. Ct. 2052 (2009).

      On October 27, 2008, Mr. Miller, proceeding pro se, sought reduction of

his sentence under § 3582(c)(2) based on the Amendments. Additionally, he

argued that the Guidelines are merely advisory in light of United States v. Booker,

543 U.S. 220 (2005); Kimbrough v. United States, 552 U.S. 85 (2007); and Gall v.

United States, 552 U.S. 38 (2007), and that the district court must treat the

Guidelines as advisory when resentencing him under § 3582(c)(2). The district

court appointed counsel for Mr. Miller. Three days after the government

responded to Mr. Miller’s motion for reduction of his sentence, the district court

denied the motion. That same day, appointed counsel moved to reconsider, noting

the fact that Mr. Miller had not had an opportunity to reply. Ten days later,

Mr. Miller also filed a notice of appeal. After the district court granted the

motion to reconsider in a text only entry, we granted Mr. Miller’s motion to

remand and abated this appeal pending further district court proceedings.

Mr. Miller then filed in district court a combined reply, a supplement to his pro se

§ 3582(c)(2) motion for reduction of sentence, and a request for reconsideration

of the district court’s decision. The district court again denied the motion for

reduction of sentence, holding that the Amendments are inapplicable to

Mr. Miller due to his career offender classification. Mr. Miller filed an amended

notice of appeal. We lifted the abatement.

                                          -3-
      Mr. Miller argues that although he was sentenced as a career offender, his

sentence should be reduced under § 3582(c)(2) based on retroactive application of

the crack cocaine Amendments. Also, he contends that under Booker and later

cases the district court must treat the Guidelines as advisory upon resentencing

under § 3582(c)(2).

      “We review de novo the district court’s interpretation of a statute or the

sentencing guidelines. We review for an abuse of discretion a district court’s

decision to deny a reduction in sentence under 18 U.S.C. § 3582(c)(2).” Sharkey,

543 F.3d at 1238 (citation and quotation marks omitted). Since this case is not a

direct appeal or an appeal from the denial of § 2255 relief, Mr. Miller’s motion

for reduction of sentence depends only on § 3582(c)(2). See Sharkey, 543 F.3d at

1238. Section 3582(c)(2) permits a court to reduce a sentence if the sentencing

range has been lowered by the Sentencing Commission.

      Mr. Miller’s sentence, however, is not based on a sentencing range that has

been lowered. As we held in Sharkey, “Amendment 706 ha[s] no effect on the

career offender guidelines in § 4B1.1” and therefore a reduction in sentence is not

authorized under § 3582(c)(2). Sharkey, 543 F.3d at 1239. Furthermore, Sharkey

recognized that “the Booker line of cases [does not] provide[] a separate basis for

relief under § 3582(c)(2).” Sharkey, 543 F.3d at 1239; see also Rhodes, 549 F.3d

at 840 (concluding “that Booker simply has no bearing on sentencing modification

proceedings conducted under § 3582(c)(2)”).

                                         -4-
      Despite acknowledging Sharkey, Mr. Miller cites authority from other

circuits that he argues is contrary to Sharkey. “We[, however,] are bound by the

precedent of prior panels absent en banc reconsideration or a superseding contrary

decision by the Supreme Court.” See United States v. Mitchell, 518 F.3d 740, 752

n.14 (10th Cir. 2008) (quotation marks omitted).

      Mr. Miller has filed a motion to supplement his opening brief. His request

is based on three attachments to his motion: (1) a Memorandum of the Justice

Department; (2) a statement of an Assistant Attorney General before the United

States Senate Committee on the Judiciary Subcommittee on Crime and Drugs; and

(3) a letter from the West Virginia United States Attorney to the chief judge of

the West Virginia District Court. These attachments indicate that the government

seeks to eliminate the disparity in sentencing in crack and powder cocaine cases.

The government’s new policy in sentencing proceedings in cases involving crack

cocaine, including career-offender cases, is to treat crack cocaine and powder

cocaine quantities the same as a starting point in analyzing a variance.

Mr. Miller, however, acknowledges that the government does not intend any

changes to apply retroactively. Indeed, both the Justice Department’s

memorandum and the letter of the West Virginia United States Attorney state that

this policy change does not authorize reductions in sentences beyond what is

authorized by § 3582(c)(2) and the Amendments.




                                         -5-
       Typically, we do not consider materials outside the district court record.

See United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000). And we

decline to exercise our inherent equitable authority to do so in this case. See id.

(recognizing inherent equitable power to supplement record). In any event, the

new materials would not change the outcome of this case, since the new policy

does not apply retroactively. Thus, we deny Mr. Miller’s motion to supplement

his brief.

       The judgment of the district court is AFFIRMED. Mr. Miller’s motion to

supplement his brief is DENIED.


                                                     Entered for the Court



                                                     Wade Brorby
                                                     Senior Circuit Judge




                                          -6-
