United States of America, Plaintiff-appellee, v. Steven Brian Long, Defendant-appellant, 15 F.3d 1093 (9th Cir. 1994)

MEMORANDUM^** 

Steven Brian Long, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to reduce his sentence imposed following a guilty plea to importing a listed precursor chemical (phenylacetic acid) used to manufacture methamphetamine in violation of 21 U.S.C. § 960(d) (2). He was originally sentenced pursuant to U.S.S.G. Sec. 2D1.4 on October 10, 1990. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and we affirm.

Long argues the district court erred by not retroactively applying U.S.S.G. Sec. 2D1.11 (Nov. 1991) which presumably would yield a lower base offense level in this case. This argument is foreclosed by our decision in United States v. Foster, 985 F.2d 466, 470 (9th Cir.) (" [T]he Sentencing Guidelines have not made section 2D1.11 retroactive."), amended on other grounds, 995 F.2d 882 (1993). To the extent Long urges the panel to reconsider Foster, we note that a panel not sitting en banc lacks the authority to overrule a prior decision of this court. See United States v. Lucas, 963 F.2d 243, 247 (9th Cir. 1992).

AFFIRMED.