United States v. Randall Wayne Milner , 688 F. App'x 854 ( 2017 )

Case: 16-14558 Date Filed: 06/05/2017 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14558
Non-Argument Calendar
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D.C. Docket No. 2:07-cr-14028-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDALL WAYNE MILNER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 5, 2017)
Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Case: 16-14558 Date Filed: 06/05/2017 Page: 2 of 3
Randall Milner appeals from his sentence of eight months’ imprisonment
followed by a life term of supervised release, imposed after committing four
violations of the terms of his original supervised release. On appeal, Milner
contends the district court erred by failing to subtract his revocation prison
sentence from the supervised release term, as required by 18 U.S.C. § 3583(h).
After review,1 we affirm.
Milner violated his term of supervised release, so the district court was
authorized to revoke his supervised release and impose a prison term, and to
impose a subsequent additional term of supervised release. See 18 U.S.C.
§ 3583(e)(3), (h). However, a new supervised release term cannot be longer than
“the term of supervised release authorized by statute for the offense that resulted in
the original term of supervised release, less any term of imprisonment that was
imposed upon revocation of supervised release.” 18 U.S.C. § 3583(h). In this
case, the maximum term authorized by statute is life, which Milner concedes. See
21 U.S.C. § 846; 21 U.S.C. § 841(b)(1)(B)(viii). Milner contends the district court
sentenced him to eight months’ imprisonment but failed to subtract that term from
his term of supervised release as required by the plain language of the statute.
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We “review[] de novo the legality of a sentence, including a sentence imposed pursuant
to revocation of a term of supervised release.” United States v. Aimufa, 122 F.3d 1376, 1378
(11th Cir. 1997). However, where, as here, a defendant fails to object to an error before the
district court, we review for plain error. United States v. Sosa, 777 F.3d 1279, 1294 (11th Cir.
2015).
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Case: 16-14558 Date Filed: 06/05/2017 Page: 3 of 3
We find, however, that the district court did not plainly err. Milner’s
lifespan is indefinite, so subtracting his eight-month prison sentence is a practical
impossibility. Our sister Circuits agree. “[I]t is highly unlikely that Congress
expected the subtraction concept to be applied to a lifetime term of supervised
release.” United States v. Cassesse, 685 F.3d 186, 191 (2d Cir. 2012). And
“[b]ecause it is impossible to predict the precise length of any individual’s life, a
sentence of ‘life less two years’ has only conceptual—not practical—meaning.”
United States v. Rausch, 638 F.3d 1296, 1303 (10th Cir. 2011) overruled on other
grounds by United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017);
see also United States v. Crowder, 738 F.3d 1103, 1104 (9th Cir. 2013). Milner’s
proposed literal reading of § 3583(h) is untenable on these facts, and he marshals
no authority to support it.
The district court did not err. Accordingly, we affirm.
AFFIRMED.
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