United States v. Miller , 165 F. App'x 261 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4976
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HASSAN RICHARD MILLER, a/k/a Ernest Danielle
Smith,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (CR-97-726)
Argued: December 2, 2005 Decided: February 1, 2006
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Jack Bruce Swerling, Columbia, South Carolina, for
Appellant. Marshall Prince, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Jonathan S. Gasser, Acting United States
Attorney, Jimmie C. Ewing, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Hassan Richard Miller appeals his 262-month sentence for
distributing cocaine base in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. For the reasons that follow, we vacate the sentence
of the district court and remand for re-sentencing.
I.
On September 23, 1997, Miller was arrested with an accomplice
during a sale of crack cocaine to an undercover police officer in
Columbia, South Carolina. He was indicted for possession with
intent to distribute “a quantity of cocaine base, commonly known as
‘crack’ cocaine,” in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2. Miller was released to pretrial supervision, but
failed to appear for subsequent proceedings. He was located in
2002 while serving a separate federal sentence for a crime
committed in North Carolina.1
Miller pleaded guilty to the South Carolina charges on May 7,
2003. In his plea colloquy, he admitted that on or about September
23, 1997, he had met an undercover police officer and had shown him
“some crack cocaine” that the police had later seized from him.
Miller’s Presentence Investigation Report (“PSR”) contained a
recommended total offense level of 36. This recommendation was
1
We refer to Miller’s federal sentence for the crime committed
in North Carolina as his North Carolina sentence.
- 2 -
calculated by beginning with U.S.S.G. § 2D1.1(c)(3)’s base offense
level of 34, based upon the 241.64 grams of crack cocaine that the
police claimed to have recovered from Miller and his accomplice.
Two enhancements were added to Miller’s base offense level: (1) a
three-point aggravated assault enhancement under former U.S.S.G. §
3A1.2(b)2 for throwing a juice bottle at a police officer while
fleeing arrest and (2) a two-point obstruction of justice
enhancement under U.S.S.G. § 3C1.1 for absconding from pretrial
supervision. The PSR further contained a recommendation that the
court grant Miller a three-point offense-level reduction under
U.S.S.G. § 3E1.1 for acceptance of responsibility for his crime.
Finally, the PSR contained a recommended criminal history score of
seven, corresponding to criminal history category four.3
At sentencing, the district court adopted the PSR’s
recommended offense level of 36 and criminal history category four.
Miller objected to the aggravated assault enhancement, denying the
2
Former Section 3A1.2(b) of the sentencing guidelines is
currently codified as amended at U.S.S.G. § 3A1.2(c). We cite to
former U.S.S.G. § 3A1.2(b) to reference the earlier version of the
aggravated assault enhancement, not the text currently codified in
that subsection.
3
Pursuant to U.S.S.G. § 4A1.1(a), a 1999 conviction for
conspiracy to distribute cocaine base (the crime for which Miller’s
North Carolina sentence was imposed) accounted for the first three
points of Miller’s recommended criminal history score. Miller
received four additional points under U.S.S.G. § 4A1.1(c), one
point each for a 1992 conviction for driving with a revoked
license, a 1992 conviction for possession of marijuana, a 1993
conviction for possession of marijuana and driving with a revoked
license, and a 1994 conviction for possession of marijuana.
- 3 -
conduct at issue and arguing that, even if the allegations were
true, they would not satisfy the requirements of U.S.S.G. §
3A1.2(b).4 He did not object to the aggravated assault enhancement
on the grounds that it violated his Sixth Amendment right to a jury
trial, nor did he object on any basis to the remaining sentencing
enhancements for drug quantity, obstruction of justice, and prior
convictions.
The district court imposed a sentence of 262 months’
imprisonment, of which 120 months would run concurrently with the
North Carolina sentence.5 The sentence thus equated to an
effective 142 months of imprisonment in addition to the North
Carolina sentence that Miller was already serving.
4
Miller also objected to the assessment of a criminal history
point for his 1992 marijuana possession conviction and to the
assessment of three criminal history points for his 1999 conspiracy
conviction. He appealed the district court’s rulings on those
objections, but notified this court at oral argument that he wished
to abandon those arguments. We therefore do not address them.
5
We note that at sentencing the district court declared that
it wished for Miller to serve only “60 months consecutive.”
However, it then ordered 142 months of the 262-month sentence to be
served consecutively to Miller’s North Carolina sentence. The
court therefore apparently did not mean that Miller should serve
only 60 additional months after completing his North Carolina
sentence. Rather, the district court intended for 60 months of
Miller’s 180-month North Carolina sentence not to be served
concurrently with his new sentence in this case. The district
court’s determination that Miller should serve 120 months of the
180-month North Carolina sentence concurrently with his new
sentence satisfies us that we have properly interpreted the court’s
intention in this regard.
- 4 -
For the first time on appeal, Miller now argues that the
district court contravened United States v. Booker, 125 S. Ct. 220(2005), by enhancing his sentence beyond the statutory maximum
available based only on Sixth Amendment-compliant findings of fact.
Specifically, Miller challenges the court’s findings that he
possessed a specific quantity of drugs, that he committed an
aggravated assault on a police officer, and that he obstructed
justice. In addition to his Sixth Amendment challenge, Miller
disputes the district court’s findings of fact with respect to his
aggravated assault enhancement, arguing that the evidence was
insufficient to support the court’s finding that he had thrown a
juice bottle at a police officer. He further alleges that the
district court improperly interpreted former U.S.S.G. § 3A1.2(b) to
include the conduct that the court attributed to Miller.
II.
We first address Miller’s Sixth Amendment challenge to the
drug quantity enhancement. Because he did not raise this issue
below, this court reviews his objection for plain error. See
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing
Fed. R. Crim. P. 52(b)). Plain error exists if the district court
committed (1) an error that (2) is plain, (3) prejudiced Miller’s
substantial rights, and (4) absent reversal “would result in a
miscarriage of justice, such as when . . . the error seriously
- 5 -
affects the fairness, integrity or public reputation of judicial
proceedings.” See Hughes, 401 F.3d at 547-48, 555 (citations
omitted).
A.
Following our framework for plain error review, we first
consider whether the district court committed an error. We have
previously held that Booker error satisfies this first prong of the
plain error standard of review. Hughes, 401 F.3d at 547. A Booker
error has infected Miller’s sentence if the sentence exceeded the
applicable statutory maximum based solely upon the facts “admitted
by the defendant,” the facts “proved to a jury beyond a reasonable
doubt,” or the facts of a prior conviction. See Booker, 125 S. Ct.
at 756.
At the time of Miller’s sentencing, the then-mandatory federal
sentencing guidelines prescribed a sentencing range applicable to
his conduct and criminal history, the upper limit of which
constituted the statutory maximum to which Miller could be
sentenced absent a valid upward departure. To determine the
applicable sentencing range, the district court applied offense
level 36 and criminal history category four. Miller’s sentence of
262 months’ imprisonment was based on the sentencing range of 262
to 327 months’ imprisonment that corresponded to that offense level
- 6 -
and criminal history category. See U.S. Sentencing Guidelines
Table, ch. 5, pt. A, 18 U.S.C. (2000).
We conclude that the district court’s finding that Miller was
responsible for 241.64 grams of cocaine base was, by itself,
sufficient to increase his sentence beyond the statutory maximum
that would have applied absent that finding.6 Applying all of the
district court’s sentencing enhancements except for the enhancement
for drug quantity, the Sentencing Table produces total offense
level seventeen and criminal history category four.7 See id. This
application of the guidelines corresponds to a recommended range of
37 to 46 months’ imprisonment. See id. Miller’s actual sentence
of 262 months thus far surpasses the maximum statutorily authorized
sentence absent the drug quantity enhancement.
We further note that the drug quantity enhancement is not
immune from the Sixth Amendment’s requirements because a jury did
6
This circuit has considered all allegedly erroneous
sentencing enhancements cumulatively when determining whether those
enhancements violate the Sixth Amendment, see, e.g., Hughes, 401
F.3d at 547, rather than requiring each error to state a violation
standing on its own. However, because we find that Miller’s drug
quantity enhancement by itself warrants re-sentencing, we do not
address his additional sentencing enhancements. Therefore, for the
purpose of determining the total offense level and criminal history
category that would have applied to Miller absent the drug quantity
enhancement, we assume without deciding that these additional
challenged sentencing enhancements were valid.
7
In analyzing Miller’s Booker claim, we do not factor his
three-level deduction under Section 3E1.1 into our calculation of
the offense level that would have applied to him absent the drug
quantity enhancement. See United States v. Evans, 416 F.3d 298,
300 n.4 (4th Cir. 2005).
- 7 -
not find, nor did Miller admit, that he was responsible for 241.64
grams of crack cocaine, and because the drug quantity is not a fact
of a prior conviction. First, because Miller pleaded guilty, no
jury ever made any findings of fact with respect to his conduct.
Second, at his plea colloquy, Miller admitted only that he offered
to sell an undercover officer “some crack cocaine.” Miller’s
admission thus did not establish a minimum quantity of the drug for
which he was responsible. Rather, his admission established only
that he distributed, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2, an amount of crack cocaine greater than zero grams.
Such a statement is insufficient to constitute an admission that
Miller was responsible for 241.64 grams of the drug. Finally, the
district court referred to no prior convictions to establish the
drug quantity applicable to this case.
Because Miller’s sentence was enhanced beyond the statutory
maximum based on a drug quantity not found by a jury beyond a
reasonable doubt or admitted by him, and because that drug quantity
is not a fact of a prior conviction, the sentence violated the
Sixth Amendment.8 This violation constitutes error under the first
prong of the plain error standard.
8
As we noted in United States v. Hughes, 401 F.3d 540, 545 n.4
(4th Cir. 2005), “[w]e of course offer no criticism of the district
judge, who followed the law and procedure in effect at the time of
[the defendant’s] sentencing.”
- 8 -
B.
We now consider whether Miller’s challenge to the drug
quantity enhancement satisfies the second, third, and fourth prongs
of the plain error standard. We begin by noting that this circuit
has already decided that allegations of Booker Sixth Amendment
error raised for the first time on appeal state plain error that,
if prejudicial, warrants re-sentencing. Hughes, 401 F.3d at 555-
56. Because Miller has alleged a cognizable Booker error, he has
demonstrated that the error is plain (prong 2) and that it warrants
exercise of the court’s discretion to reverse his sentence (prong
4). See id.We further find that Miller’s objection to the drug quantity
enhancement alleges an error that was prejudicial, satisfying the
third prong of the plain error standard. We note that the district
court ordered 120 months of Miller’s 262-month sentence to run
concurrently with his North Carolina sentence, reducing Miller’s
sentence in this case to an effective 142 months. However, we need
not decide here whether the concurrent portion of his sentence is
relevant to our prejudice analysis on plain error review. Miller’s
sentence would be prejudicial under Hughes even without counting
the portion served concurrently with his North Carolina sentence.
As we have noted, his sentencing range without the drug quantity
enhancement would have been 37 to 46 months, well below the 142
months that were imposed consecutive to his North Carolina
- 9 -
sentence. Our opinion in Hughes makes clear that our prejudice
analysis must at a minimum include any additional time in prison
that a defendant receives from the sentence under review. See
Hughes, 401 F.3d at 548-52. We therefore hold that Miller’s
sentence demonstrates prejudice under the third prong of the plain
error standard.
III.
The Sixth Amendment error with respect to the drug quantity
enhancement warrants re-sentencing; review of Miller’s remaining
sentencing objections would not result in any modification of that
relief. We therefore decline to reach his remaining Booker
objections concerning enhancements for obstruction of justice and
aggravated assault of a police officer. For the same reason, we
will not review Miller’s statutory objections to the aggravated
assault enhancement.
IV.
We find that the drug quantity enhancement increased Miller’s
sentence beyond the statutory maximum authorized by the facts to
which he admitted and the facts of his prior convictions.
Accordingly, the judgment of the district court is
VACATED AND REMANDED.
- 10 -