United States Court of Appeals, District of Columbia Circuit
January 5, 2018
from the United States District Court for the District of
Columbia (No. 1:04-cr-00379-2)
M. Hart, appointed by the court, argued the cause and filed
the briefs for appellant.
R. Bates, Assistant U.S. Attorney, argued the cause for
appellee. On the brief were Elizabeth Trosman, Chrisellen R.
Kolb, and Patricia A. Heffernan, Assistant U.S. Attorneys.
Before: Pillard, Circuit Judge, and Edwards and Williams,
Senior Circuit Judges.
Edwards, Senior Circuit Judge
2006, Appellant Frederick Miller and 20 codefendants were
charged in a 100-count indictment alleging a conspiracy to
distribute heroin, cocaine, cocaine base, and phencyclidine
("PCP"). On June 19, 2006, a jury convicted
Appellant of 21 counts of using a communication device to
facilitate a drug-trafficking offense, acquitted him of PCP
distribution and several counts of communications offenses,
and hung on the remaining counts. Appellant was tried for a
second time with respect to the counts on which the jury hung
at the first trial. On November 15, 2006, following his
second trial, a jury found Appellant guilty of narcotics
conspiracy covering heroin, cocaine, and cocaine base, but
not PCP; Racketeer Influenced and Corrupt Organizations Act
("RICO") conspiracy; Continuing Criminal Enterprise
("CCE"); attempt to possess with intent to
distribute heroin; and three counts of unlawful use of a
communication facility. He was found not guilty of attempt to
possess with intent to distribute PCP and five additional
November 28, 2007, the District Court sentenced Appellant on
the counts of conviction from both trials. The court
dismissed the narcotics conspiracy charge against Appellant
as a lesser-included offense of CCE. The court then imposed
concurrent sentences of life imprisonment for the RICO
conspiracy and CCE, and lesser terms of imprisonment on the
Appellant's appeal from the first trial, this court
reversed six telephone count convictions and affirmed the
convictions on the remaining counts. On Appellant's
appeal from the second trial, this court vacated the CCE
conviction for insufficiency of the evidence, reinstated the
drug conspiracy conviction, vacated Appellant's sentence,
and remanded for resentencing.
December 20, 2016, following remand to the District Court,
the Appellant was resentenced as follows: life imprisonment
on the RICO conspiracy; 120 months on the drug conspiracy; 60
months on attempted possession with intent to distribute
heroin; and 48 months each on 18 telephone counts. Appellant
filed a timely notice of appeal on December 30, 2016.
now claims that the District Court erred in its consideration
of the United States Sentencing Guidelines
("Guidelines") in imposing sentencing enhancements
for his possession of a firearm and for serving as an
organizer or leader of criminal activity; in determining the
quantity of drugs used to calculate his base offense level in
sentencing him on a count of narcotics conspiracy; and in
imposing a life sentence on the RICO conspiracy count.
response to Appellant's challenges, the Government
presses two points. The Government argues,
[f]irst, the claims are waived. Appellant did not challenge
drug quantity or the district court's application of
either [sentencing] adjustment in his initial appeal; these
determinations became law of the case, and therefore
appellant should not be permitted to litigate them now.
Second, the district court was not authorized to reconsider
the issues on resentencing because they are beyond the scope
of this Court's remand.
Gov't Br. at 19. The Government's arguments
confusingly conflate three theories: waiver; law of the case;
and the rule that the District Court generally does not have
authority to resentence a defendant de novo when this court
vacates one count of a multicount conviction. As we explain
more fully in the analysis section of this opinion, the
Government's arguments are seriously misguided.
had no reason to raise his present sentencing challenges
during his initial appeal; therefore, he certainly did not
"waive" these claims as the Government suggests.
During his initial appeal, Appellant's looming mandatory
life sentence for his CCE conviction rendered his present
sentencing challenges fruitless. Given this situation,
Appellant was not obliged to raise arguments on his first
appeal that were merely contingently relevant. Once
Appellant's initial appeal was successful in overturning
the CCE conviction, however, his current sentencing
challenges became relevant for the first time. Therefore, he
gave up nothing during his first appeal.
careful review of the record, we affirm in part, reverse in
part, vacate in part, and remand the case for resentencing
consistent with the following judgments. We hold that
Appellant's challenges to the firearm and
role-in-the-offense enhancements are meritorious because the
District Court plainly erred in applying them. However, we
hold that Appellant's challenge to the drug quantity
determination fails because the District Court adequately
explained its judgment and its findings are supported by the
record. Finally, we vacate and remand the sentence on the
RICO conspiracy count because the parties agree that the
District Court erred in stating that the Guidelines range for
the RICO conspiracy was life, when it was in fact 360 months
noted above, Appellant and 20 codefendants were charged in a
multicount indictment arising from a conspiracy to distribute
heroin, cocaine, cocaine base (also known as
"crack"), and PCP. United States v.
Eiland, 738 F.3d 338, 345 (D.C. Cir. 2013). On July 18,
2004 - after Appellant's arrest but before the alleged
conspiracy ended in September 2004 - the Government executed
a search warrant at his home and found firearms licensed to
him, as well as a glass vial with the odor of PCP and several
bottles of acetone, which can be used to dilute PCP. After
the first trial, a jury convicted Appellant of 21 counts of
using a communication device to facilitate a drug trafficking
offense, acquitted him "of PCP distribution and several
counts of communications offenses, " and "hung on
the remaining counts, " resulting in a mistrial as to
those. Id. Appellant was tried for a second time
"with respect to the counts on which the jury hung at
the first trial." United States v. Miller, 738
F.3d 361, 367 (D.C. Cir. 2013).
second trial, Appellant
was convicted of narcotics conspiracy (Count 1) with regard
to heroin, cocaine, and cocaine base, but not with regard to
PCP; RICO conspiracy (Count 2); CCE (Count 3); attempt to
possess with intent to distribute heroin (Count 5); and three
counts of unlawful use of a communication facility. The jury
found Miller not guilty of attempt to possess with intent to
distribute PCP and five additional communications counts.
Eiland, 738 F.3d at 346. Regarding the narcotics
conspiracy count, the jury specifically found drug amounts
for which Appellant was responsible, "including those
drugs that he actually distributed or possessed with intent
to distribute, and those drugs distributed or possessed with
intent to distribute by co-conspirators which the defendant
knew or reasonably could have foreseen would be distributed
or possessed in furtherance of the conspiracy." Jury
Verdict Form at 20, United States v. Eiland (No.
04-CR-00379) (Dec. 5, 2006), available at
Supplemental Appendix ("S.A.") 15. Those amounts
were "1 kilogram or more of mixtures or substances
containing a detectable amount of heroin, " "5
kilograms or more of mixtures or substances containing a
detectable amount of cocaine, " and "5 grams or
more but less than 50 grams of mixtures or substances
containing a detectable amount of cocaine base."
Id. at 21-22, S.A. 16-17.
the CCE count, the jury found that Appellant conspired to
distribute and possess with intent to distribute mixtures or
substances containing detectable amounts of heroin, cocaine,
and cocaine base. The jury also found that the criminal
enterprise was involved in the distribution of 30 kilograms
or more of heroin and 15 kilograms or more of cocaine.
Although the jury found Appellant guilty on Count Five,
"attempt[ing] to possess with intent to distribute
heroin, " it did not make a specific finding regarding
drug quantity. Id. at 39, S.A. 33.
Presentence Investigation Report for the first trial
("2007 PSR") explained that, "[b]ased on the
jury verdict, Frederick Miller was held accountable for at
least 30 kilograms of heroin and at least 15 kilograms of
cocaine." 2007 PSR at 11, United States v.
Miller (No. CR-04-379-2) (Apr. 16, 2007). Using the
"2006 edition of the Guidelines Manual, in conjunction
with the May 2007 Supplement, " the 2007 PSR grouped all
of the counts under Guidelines § 3D1.2(d) because the
offense level of each count was determined based upon
"the quantity of a substance involved."
Id. at 12. The PSR calculated the base offense level
at 42 "because the offense ...