UNITED STATES v. MILLER (2021)

United States Court of Appeals, Eighth Circuit.2021-08-25No. No. 20-2361

Summary · law.co

Holding. The district court's 100-month sentence was affirmed.

Tray Miller pleaded guilty to being a felon in possession of a firearm and received a 100-month prison sentence. On appeal, Miller challenged multiple aspects of his sentencing calculation, arguing that his prior drug conviction should not have qualified as a controlled substance offense under the sentencing guidelines, that the four-level enhancement for a firearm with an obliterated serial number was improper, and that the trial judge failed to adequately explain why a downward variance was not granted.

The court rejected each of Miller's challenges. Regarding the drug conviction classification, the court found that existing circuit precedent clearly established that the guidelines properly include inchoate offenses like aiding and abetting within the definition of controlled substance offenses, and that a recent Supreme Court decision on guideline interpretation did not disturb this holding. On the serial number enhancement, the court upheld the trial judge's factual finding that the revolver's serial number had been deliberately ground out rather than naturally eroded, and therefore the four-level increase properly applied. Finally, the court concluded that while judges should normally address nonfrivolous sentencing arguments, the trial judge's silence on Miller's variance request did not constitute reversible error because the judge had reviewed the argument and was entitled to reject it without extensive on-the-record explanation.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether prior state drug conviction qualifies as controlled substance offense for guideline purposes when statute permits inchoate liability
Whether four-level enhancement for obliterated serial number applies when evidence suggests deliberate alteration rather than natural deterioration
Whether trial court must explicitly address defendant's request for downward sentencing variance on the record

Procedural posture

Miller appealed his guilty plea conviction and 100-month sentence for felon in possession of a firearm.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

[Unpublished]

Tray Miller pleaded guilty to unlawful possession of a firearm as a previously convicted felon. The district court

sentenced him to 100 months’ imprisonment. Miller appeals his sentence, and we affirm.

Miller was arrested at his home in June 2019. During the execution of a search warrant, officers recovered two handguns—a Smith & Wesson revolver and a Hi-Point pistol. A grand jury charged Miller with unlawful possession of a firearm as a previously convicted felon, see 18 U.S.C. § 922(g)(1), and he pleaded guilty. At sentencing, the district court calculated an advisory guideline range of 100 to 120 months’ imprisonment, and sentenced Miller at the bottom of the range.

On appeal, Miller first contests the district courts calculation of his advisory guideline sentencing range. The district court applied a base offense level of 20 after determining that Miller previously had sustained a conviction for a “controlled substance offense” under Iowa Code § 124.401(1)(c). See USSG §§ 2K2.1(a)(4)(A), 4B1.2(b). Miller argues that a violation of the Iowa statute does not constitute a controlled substance offense because the statute permits convictions for inchoate offenses. Although the guideline commentary provides that “controlled substance offense” includes the offenses of aiding and abetting, conspiring, and attempting to commit such an offense, id. § 4B1.2, comment. (n.1), Miller maintains that the commentary is invalid. This argument is foreclosed by circuit precedent. United States v. Brown, 1 F.4th 617, 620-21 (8th Cir. 2021) (per curiam); United States v. Merritt, 934 F.3d 809, 811 (8th Cir. 2019); United States v. Williams, 926 F.3d 966, 971 (8th Cir. 2019); see United States v. Mendoza-Figueroa, 65 F.3d 691, 693-94 (8th Cir. 1995) (en banc). Miller suggests that Kisor v. Wilkie, ––– U.S. ––––, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019), undermined our circuit precedent, but Kisor reaffirmed existing law on the legal force of guideline commentary. Id. at 2411 n.3, 2422; see United States v. Lewis, 963 F.3d 16, 23-24 (1st Cir. 2020). We note that the Sentencing Commission has published a proposed amendment to § 4B1.2 that would resolve the disagreement among the circuits on this issue. See Sentencing Guidelines for United States Courts, 83 Fed. Reg. 65400, 65412-15 (proposed Dec. 20, 2018) (to be codified at USSG § 4B1.2). Miller also contends that the scope of accomplice liability under Iowa law broadens Iowa Code § 124.401(1) beyond the definition of “controlled substance offense,” but this argument is foreclosed by United States v. Boleyn, 929 F.3d 932, 938-40 (8th Cir. 2019).

Miller next challenges the district courts application of a four-level increase for his possession of a firearm with an “altered or obliterated serial number.” USSG § 2K2.1(b)(4)(B). He concedes that one firearm lacked a serial number, but argues that the increase applies only when the obliteration was caused by “human hands” rather than a natural process like rusting. The text of the guideline does not call for proof of an intentional human act; it says only that the increase applies if the firearm “had an altered or obliterated serial number.” Id. In any event, the district court found that the revolvers serial number was removed in a manner “thats inconsistent with the natural occurrence of rust.” A law enforcement officer testified that part of the guns frame was “ground out a little bit,” and that “rust” would not have caused the void. The district court agreed, observing that “if one were to see rust so deep that you could obliterate a serial number through oxidation, you would expect it to be even across the entire surface of the weapon.” That finding is not clearly erroneous.

Miller also complains that the district court failed to address his argument that a two-level downward variance was appropriate because the four-level increase for an obliterated serial number enhancement is outdated and lacks an empirical basis. Miller did not object to the adequacy of the district courts explanation for the sentence, so we review only for plain error. United States v. Chavarria-Ortiz, 828 F.3d 668, 670-71 (8th Cir. 2016); see Fed. R. Crim. P. 52(b). While a judge “will normally” address reasons for rejecting a defendants nonfrivolous argument, Rita v. United States, 551 U.S. 338, 357, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), “not every reasonable argument advanced by a defendant requires a specific rejoinder by the judge.” United States v. Gray, 533 F.3d 942, 944 (8th Cir. 2008). And the absence of comment on an argument “does not mean that it was not considered.” United States v. Black, 670 F.3d 877, 881 (8th Cir. 2012). Here, the district court reviewed the sentencing memorandum that included Millers argument for a variance, and heard Millers argument at sentencing that technological developments make it easier to recover obliterated serial numbers. The district court evidently was not convinced and decided to follow the recommendation of the Sentencing Commission. Miller did not object on procedural grounds and ask the court to address the matter at the hearing. The absence of a specific response was not an obvious procedural error, and Miller has not shown a reasonable probability that the sentence would have been different if the district court had added an explanation on the record.

The judgment of the district court is affirmed.

FOOTNOTES

. The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa.

PER CURIAM.