United States v. Milek Mims ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0236n.06
No. 22-1765
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 24, 2023
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee,
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v.
) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
MILEK MIMS,
)
Defendant-Appellant. ) OPINION
)
Before: SUTTON, Chief Judge; LARSEN and MUPRHY, Circuit Judges.
LARSEN, Circuit Judge. Milek Mims was on parole for a state carjacking offense when
he was found with a stolen handgun. Federal authorities charged him with being a felon in
possession of a firearm and he pleaded guilty. At sentencing, the district court calculated Mims’s
criminal history score as seven—including one point for a prior diversionary adjudication under
Michigan’s Holmes Youthful Trainee Act—and sentenced Mims to 71 months’ imprisonment.
The court also ordered Mims’s federal sentence to run consecutively with his undischarged state
court sentence. Mims appeals the calculation of his criminal history and the imposition of the
consecutive sentence. We AFFIRM.
I.
A Michigan state court convicted Milek Mims of carjacking and sentenced him to three to
twenty years in custody. While he was on parole for this conviction, police caught Mims with a
stolen handgun containing twenty live rounds of ammunition. Mims was charged with being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and he pleaded guilty without
No. 22-1765, United States v. Mims
a plea agreement. The Presentence Report (PSR) scored seven points for Mims’s criminal history,
including one point for a misdemeanor adjudicated under a Michigan diversionary program, the
Holmes Youthful Trainee Act (HYTA). Mims’s criminal history score of seven established a
criminal history category of IV, which, combined with his total offense level of twenty-one,
yielded a Sentencing Guidelines range of 57–71 months. Without this criminal history point,
Mims’s criminal history category would have been reduced to III, and his Guidelines range would
have been 46–57 months. See U.S.S.G. Ch. 5, Pt. A.
Mims objected to the PSR’s inclusion of the HYTA adjudication and explained that he
would obtain court records showing that his case had been dismissed without a guilty plea. When
asked at sentencing, however, Mims’s counsel stated that he had been unable to obtain the state
court records without a court order, and that Mims wanted to proceed with sentencing rather than
ask for an adjournment to pursue the records. The district court adopted the PSR in its entirety
and sentenced Mims to 71 months’ imprisonment.
At the time of sentencing, Mims was in state custody; his parole for the state carjacking
conviction had been revoked due to the federal felon-in-possession offense. The state court system
had not yet determined Mims’s sentence for the parole violation, however, and Mims requested
that his federal sentence run concurrently with whatever sentence the state court would impose.
The district court declined that request, concluding that Mims’s federal sentence should run
consecutively to the state sentence. Mims appealed.
II.
Criminal History Score. Mims argues that the district court erred by including one point
for a HYTA adjudication in his criminal history calculation. HYTA is a diversionary program that
allows a Michigan court to assign some criminal defendants “the status of youthful trainee” if the
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defendant “pleads guilty to” certain criminal offenses. Mich. Comp. Laws (MCL) § 762.11(2).
Upon successful completion of the program, the court must “discharge the individual and dismiss
the proceedings,” id. § 762.14(1), and there is no “conviction for a crime,” id. § 762.14(2). Despite
the lack of a conviction, section 4A1.1(c) of the Sentencing Guidelines instructs federal district
courts to add one point to a defendant’s criminal history score for certain “prior sentence[s],” which
include “diversionary disposition[s] . . . where there is a finding or admission of guilt in a judicial
proceeding.” U.S.S.G. § 4A1.1 cmt. 3. “[A] guilty plea under HYTA . . . constitutes a ‘prior
sentence’” for purposes of this Guideline. United States v. Hill, 769 F. App’x 352, 354 (6th Cir.
2019) (citing United States v. Shor, 549 F.3d 1075, 1076–78 (6th Cir. 2008)).
Mims claims that he never pleaded guilty under HYTA, so the Guideline does not apply.
He says that the underlying criminal charge, for malicious use of a telecommunications device,
was dismissed without a guilty plea. The district court disagreed. We review “a district court’s
factual findings concerning a defendant’s criminal history category . . . under the clearly erroneous
standard of review.” United States v. Adkins, 729 F.3d 559, 569 (6th Cir. 2013) (citation omitted).
We find no clear error.
The PSR explained that Mims had been sentenced to 30 days’ custody before his case was
dismissed under HYTA and that “HYTA convictions . . . require an admission [of] guilt.” Two
law enforcement databases also showed that Mims’s misdemeanor charge had been dismissed
following a HYTA designation, further indicating to the district court that “there had to have been
a guilty plea.” The district court did not err by relying on these sources. A sentencing court may
“rely entirely on the PSR” unless the defendant “produce[s] some evidence that calls the reliability
or correctness of the alleged facts into question.” Adkins, 729 F.3d at 570 (citation omitted). A
“bare denial” will not do. Id. Mims failed to provide any evidence during the sentencing hearing
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to show that his case had been dismissed without a guilty plea. And Mims’s counsel stated that
Mims “want[ed] to go forward with sentencing” rather than pursue an adjournment and a court
order to obtain the state court records.
Mims counters that he could not have received a HYTA designation because HYTA
requires individuals in the program to be placed on probation “for not more than 2 years,” MCL
§ 762.13(3), but there “was no room for a term of probation” in the roughly 40-day span between
his initial arrest and the dismissal of his case. Mims is right about the probation requirement. But
he fails to account for the 30 days he “served” in custody before his case was dismissed. Under
Michigan law, a term of custody is an optional condition of probation. See MCL § 771.3(2)(a).
The district court did not err by including one criminal history point for the HYTA adjudication.
Consecutive Sentences. Next, Mims argues that the district court’s decision to run his
sentence consecutively to his state court sentence was procedurally unreasonable. “When a
defendant is serving an undischarged prior sentence, the district court may impose a consecutive
or concurrent sentence.” United States v. Berry, 565 F.3d 332, 342 (6th Cir. 2009) (citing
18 U.S.C. § 3584). In making this determination, the district court must consider the § 3553(a)
factors and the “relevant Guidelines recommendations and policy statements” in U.S.S.G. § 5G1.3.
Id. Because Mims objected to the imposition of a consecutive sentence at sentencing, we review
for abuse of discretion. United States v. Simons, 752 F. App’x 291, 296 (6th Cir. 2018) (citing
Berry, 565 F.3d at 342).
Mims suggests that the district court misunderstood the law. As Mims casts the record, the
district court declined to choose whether to run the federal sentence consecutively to the state
sentence without understanding that the federal default rule is for the sentences to run
consecutively. See 18 U.S.C. § 3584(a). And, having made that mistake, the district court further
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failed to appreciate its duty to address the § 3553(a) factors with respect to the consecutive
sentence. Mims is wrong on both fronts. The record reveals that, after a lengthy discussion with
defense counsel, the district court made an affirmative election to impose a consecutive sentence.
And the court was not obligated to reiterate the § 3553(a) factors when deciding whether to run
Mims’s sentence consecutively or concurrently with his undischarged state court sentence. Rather,
all that is required is that the court “make[] generally clear the rationale under which it has imposed
the consecutive sentence.” United States v. Johnson, 640 F.3d 195, 209 (6th Cir. 2011) (quoting
United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998)). Here, the district court did just that.
The court considered the § 3553(a) factors when it sentenced Mims to 71 months’ imprisonment.
And it made its rationale for imposing the consecutive sentence “generally clear” by explaining
that Mims had committed the federal crime while on parole for the state crime, thus offending the
law of two separate sovereigns. See Johnson, 640 F.3d at 209. The court explained that when
Mims was on parole for the Michigan offense, “he had a chance to stay under relative freedom,
[but] chose to violate the law again so” he had a “heftier price to pay when you take into account
both the federal and state sentences.” The district court concluded that “under all the
circumstances,” a “consecutive sentence” was “just punishment.” That was an adequate
explanation, and we see no abuse of discretion.
***
We AFFIRM.
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