United States v. Miller , 264 F. App'x 298 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4363
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. (0:97-cr-726-CMC-1)
Submitted: October 17, 2007 Decided: February 15, 2008
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Jack B. Swerling, LAW OFFICES OF JACK B. SWERLING, Columbia, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Kevin F. McDonald, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hassan Richard Miller pled guilty in 2003 to possession
with intent to distribute crack cocaine and was originally
sentenced to 262 months imprisonment. Miller appealed, claiming
that his sentence violated United States v. Booker, 543 U.S. 220(2005), and United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). This court agreed and vacated Miller’s sentence for
resentencing consistent with those opinions.
On remand, the district court conducted a resentencing
hearing and determined that Miller’s total offense level remained
at 36, which included a three-level enhancement for assaulting a
police officer under U.S. Sentencing Guidelines Manual (USSG)
§ 3A1.2(b) (2002).1 With a criminal history category IV, Miller’s
resulting guideline range remained at 262-327 months imprisonment.
After Miller’s attorney argued for a sentence below his original
262-month sentence, the district court stated:
I agree it is a lengthy prison sentence. I considered
that. I just don’t see any circumstances that warrant a
different sentence than the sentence I imposed then. I
gave him ten years concurrent, which is pretty generous.
And even though it is a long sentence, although he has a
long sentence, it could have been a lot longer.
So, pursuant to the Sentencing Reform Act of 1984,
it is the judgment of the court that [Miller] is hereby
committed to the custody of the Bureau of Prisons to be
1
The “official victim” enhancement was amended, effective
November 1, 2004, providing now for a six-level, versus a three-
level, enhancement. See USSG App. C, Amend. 663; USSG § 3A1.2(c)
(2004).
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imprisoned for a term of 262 months; 120 months of which
is to run concurrently with the undischarged term of
imprisonment that you are now serving under the
provisions of 5G1.3C.
Miller noted a timely appeal.
Miller first argues that the district court clearly erred
in finding that he committed an aggravated assault on a law
enforcement officer warranting an enhancement under USSG
§ 3A1.2(b). We review the district court’s factual finding on this
issue for clear error. United States v. Harrison, 272 F.3d 220,
223 (4th Cir. 2001).
At the time of Miller’s original sentencing, USSG
§ 3A1.2(b) provided for a three-level enhancement if “during the
course of the offense or immediate flight therefrom, the defendant
. . . , knowing or having reasonable cause to believe that a person
was a law enforcement or corrections officer, assaulted such
officer in a manner creating a substantial risk of serious bodily
injury.” Application Note 4(A) further provided that this section
“applies in circumstances tantamount to aggravated assault . . .
against a law enforcement officer.” The evidence established that,
at the time of his arrest, Miller threw a juice bottle (which he
had just purchased from a convenience store) at one of the
arresting officers and hit him in the head. Regardless of the
extent of the officer’s actual injury, we find that the district
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court did not clearly err in finding that the enhancement applied
because there was a substantial risk of serious injury.2
Next, Miller argues that the sentence imposed is
unreasonable because, inter alia, the district court failed to
consider the requisite factors enumerated in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2007). We find insufficient evidence in the
record to show Miller is in error.
This court reviews a district court’s sentence for
reasonableness. Hughes, 401 F.3d at 546-47. “Consistent with the
remedial scheme set forth in Booker, a district court shall first
calculate (after making the appropriate findings of fact) the range
prescribed by the guidelines.” Id. at 546. Next, the district
court must consider this range in conjunction with other relevant
factors under the guidelines and § 3553(a) and impose a sentence.
Id. The sentence must be “within the statutorily prescribed range
and . . . reasonable.” Id. at 546-47 (citations omitted). “[A]
sentence within the proper advisory Guidelines range is
presumptively reasonable.” United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006) (citations omitted); see also Rita v. United
States, 127 S. Ct. 2456, 2462-69 (2007) (upholding application of
rebuttable presumption of reasonableness to within-guidelines
2
Indeed, while the evidence of the injuries suffered by the
officer who Miller assaulted is somewhat sparse--no doubt at least
in part because he had died prior to Miller’s sentencing--another
officer testified in a related proceeding that the victim officer
was left with a scar that remained visible long after the incident.
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sentence). “[A] defendant can only rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and
citation omitted), cert. denied, 127 S. Ct. 3044 (2007).
A post-Booker sentence may be unreasonable for procedural
or substantive reasons. “A sentence may be procedurally
unreasonable, for example, if the district court provides an
inadequate statement of reasons or fails to make a necessary
factual finding.” United States v. Moreland, 437 F.3d 424, 434
(4th Cir.) (citations omitted), cert. denied, 126 S. Ct. 2054(2006). While a district court must consider the various factors
listed in § 3553(a) and explain its sentence, it need not
“robotically tick through § 3553(a)’s every subsection” or
“explicitly discuss every § 3553(a) factor on the record.”
Johnson, 445 F.3d at 345. “This is particularly the case when the
district court imposes a sentence within the applicable Guidelines
range.” Id. (citation omitted).
However, “a district court’s explanation should provide
some indication (1) that the court considered the § 3553(a) factors
with respect to the particular defendant; and (2) that it has also
considered the potentially meritorious arguments raised by both
parties about sentencing.” Montes-Pineda, 445 F.3d at 380(citations omitted). “[I]n determining whether there has been an
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adequate explanation, [the court does] not evaluate a court’s
sentencing statements in a vacuum.” Id. at 381. Rather, “[t]he
context surrounding a district court’s explanation may imbue it
with enough content for [the court] to evaluate both whether the
court considered the § 3553(a) factors and whether it did so
properly.” Id.
On the record before us, we are unable to discern whether
the district court considered the § 3553(a) factors or whether it
did so properly. Accordingly, we vacate Miller’s sentence and
remand for resentencing in order to allow the district court to
articulate its reasons in imposing sentence.3 We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
3
We note that the district court sentenced Miller prior to our
decisions in Johnson and Montes-Pineda, and thus did not have the
benefit of the guidance provided by those cases. We further note
that the district court is free on remand to impose the same
sentence or a different one; nothing in this opinion should be read
to suggest that we have formed any view regarding the appropriate
outcome of Miller’s resentencing.
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