Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Miller

United States Court of Appeals, District of Columbia Circuit

May 18, 2018

United States of America, Appellee
v.
Frederick A. Miller, also known as Toby, Appellant

          Argued January 5, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:04-cr-00379-2)

          Dennis M. Hart, appointed by the court, argued the cause and filed the briefs for appellant.

          Lauren 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.

          OPINION

          Edwards, Senior Circuit Judge

         In 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 communications counts.

         On 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 other counts.

         On 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.

         On 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.

         Appellant 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.

         In 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.

         Appellant 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.

         After 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 to life.

         I. Background

         As 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).

         At his 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.

         Regarding 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.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.