United States v. Miller ( 2020 )

18-2352-cr
United States v. Miller
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON
OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1
AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of January, two thousand twenty.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
GERARD E. LYNCH,
Circuit Judge,
LEWIS A. KAPLAN,
District Judge.*
UNITED STATES OF AMERICA,
Appellee,
v. No. 18-2352-cr
THOMAS J. MILLER, aka TJ,
Defendant-Appellant.
For Defendant-Appellant: Yuanchung Lee, Federal Defenders of New
York, Inc., New York, NY.
*
Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
1
For Appellee: Amy Busa, Elizabeth Macchiaverna, Assistant
United States Attorneys, for Richard P.
Donoghue, United States Attorney for the
Eastern District of New York, Brooklyn, NY.
Appeal from a judgment entered on June 18, 2018, in the United States District Court for
the Eastern District of New York (Ross, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED and REMANDED.
Defendant-appellant Thomas J. Miller appeals the district court’s judgment requiring him
to pay $294,630 in restitution. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
Miller pleaded guilty to three counts of wire fraud arising out of a scheme whereby he
would promise to deliver a luxury vehicle, collect payment from a victim, and then fail to deliver
the vehicle or refund the money. In total, Miller collected $290,985 from three victims. The
parties’ plea agreement provided that Miller would pay $290,000 in restitution. The Presentence
Report (“PSR”) calculated the total loss amount as $294,630, chiefly because it included several
thousand dollars allegedly spent by one victim on “expenses related to the investigation or
prosecution of the offense.” PSR ¶ 21. The district court, relying on Lagos v. United States, 138
S. Ct. 1684 (2018), rejected this higher figure and orally ordered restitution of $290,985.1 The
written judgment, however, incorporated the PSR’s calculations and incorrectly stated the
amount of restitution as $294,630. Miller appealed.2
1
As both parties note, the sentencing transcript appears to state erroneously that the total
amount of restitution is $290,983, rather than $290,985.
2
Although Miller’s notice of appeal was filed more than 14 days after judgment was
entered, the government has waived any timeliness argument before this Court, and “a party’s
2
“Where an unambiguous oral sentence conflicts with the written judgment, . . . the oral
pronouncement of sentence must control.” United States v. A-Abras Inc., 185 F.3d 26, 29 (2d
Cir. 1999). “When such a conflict exists, the proper remedy is to remand for amendment of the
written judgment.” United States v. Jacques, 321 F.3d 255, 263 (2d Cir. 2003).
Here, the written judgment does not reflect the sentence as orally pronounced. The
government agrees that remand for correction of this error is appropriate.
Accordingly, we AFFIRM the sentence orally imposed by the district court and
REMAND the case to the district court for it to amend the written judgment accordingly.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
failure to satisfy [the time limits prescribed by] Rule 4(b) does not deprive this Court of
jurisdiction.” United States v. Bradley, 882 F.3d 390, 392 (2d Cir. 2018).
3