United States v. Patrick Miller ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0188n.06
No. 13-6637
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 10, 2015
UNITED STATES OF AMERICA, )
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
PATRICK MILLER, ) TENNESSEE
)
Defendant-Appellant. )
BEFORE: BATCHELDER and WHITE, Circuit Judges; COX, District Judge.*
PER CURIAM. Patrick Miller, a federal prisoner, appeals the sentence imposed for his
conviction of conspiring to distribute cocaine base. Miller entered a guilty plea to this charge
and was sentenced to the 120-month statutory mandatory minimum sentence in effect as of the
date of his sentencing, June 4, 2010. Miller later filed a motion to vacate his sentence, pursuant
to 28 U.S.C. § 2255, arguing in part that his counsel was ineffective in failing to file a notice of
appeal at his request. The district court granted the motion in part, vacated the original
judgment, and reimposed the same sentence, also filing a notice of appeal on Miller’s behalf.
Before this court, Miller argues that the failure to apply the Fair Sentencing Act (FSA) to
his sentence violates the Eighth Amendment and the Due Process and Equal Protection Clauses
of the Constitution. He acknowledges that we rejected these arguments in United States v.
*
The Honorable Sean F. Cox, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 13-6637
United States v. Miller
Blewett, 746 F.3d 647, 658–60 (6th Cir. 2013) (en banc), cert. denied, 134 S. Ct. 1779 (2014),
but states that he wishes to preserve these issues for further review.
Miller also argues that, because his sentence was reimposed after the August 3, 2010,
enactment of the FSA, the Act should apply in his case. Again, he acknowledges that this court
has held that the district court must use the pre-FSA penalties when resentencing on remand
where the original sentence was imposed prior to the Act’s effective date. See United States v.
Hughes, 733 F.3d 642, 645 (6th Cir. 2013). His reliance on United States v. King, 691 F.3d 939,
941 (8th Cir. 2012), is unpersuasive, as the court there held that reimposition of the sentence was
the proper remedy where a motion to vacate is granted to allow for the filing of an appeal. The
Eighth Circuit noted that post-sentencing conduct could be considered, but Miller is not making
that argument.
Accordingly, as this court’s precedent indicates that the reimposition of the original
sentence was proper in this case and does not offend the Constitution, we affirm the district
court’s judgment.
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