United States v. Miller, Taryll ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-2978
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TARYLL MILLER,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:03CR000180-001—John Daniel Tinder, Judge.
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ARGUED APRIL 19, 2006—DECIDED JUNE 7, 2006
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Before COFFEY, EASTERBROOK, and MANION, Circuit
Judges.
EASTERBROOK, Circuit Judge. Taryll Miller was convicted
of distributing cocaine and sentenced to 300 months’
imprisonment. He contends that statements he made to the
police should have been suppressed as involuntary, but the
district court’s findings of fact make that argument frivo-
lous. Miller was twice given Miranda warnings be-
fore saying anything, and the district court concluded that
the police did not engage in any coercive tactics that
would spoil the voluntariness of the statements Miller made
in his car and at his home. Miller contends that the police
threatened to arrest his girlfriend and put their child in
2 No. 05-2978
foster care if he did not confess; the judge found otherwise,
and that conclusion is not clearly erroneous.
According to Miller, the district judge acted inconsistently
by excluding statements he made at the police station while
allowing the prosecutor to use the statements he had made
earlier in his car and at his home. The judge concluded that,
at the station, the police had threatened to arrest him and
his girlfriend if he asked for an attorney or exercised his
right to remain silent, and that this threat made his
statements involuntary. There is no factual inconsistency:
the judge concluded that the threat had been made at the
police station but not earlier. See United States v. Adeyeye,
359 F.3d 457, 462 (7th Cir. 2004). And if there is legal
inconsistency, Miller is the beneficiary, because the judge
should have allowed all of the statements to be admitted
into evidence.
The police offered Miller a way to retain his freedom:
come clean and cooperate in the investigation of his sup-
pliers and customers. If Miller chose silence plus counsel,
implying an adversarial stance—as the police told him he
had every right to do—the natural consequence was
immediate custody and prosecution for Miller and his
girlfriend. The police had probable cause to arrest them
both, for the house they shared contained not only illegal
drugs but also illegal weapons (including an AK-47 assault
rifle). Miller chose to pledge cooperation and both were
left at liberty, just as the police had promised. Miller was
not prosecuted until after he reneged on his pledge to help
the investigation.
A choice between cooperation and freedom, on the one
hand, and silence followed by custody and prosecution, on
the other, is a common one. This is the real choice many
suspects face whether or not the police lay it out it in so
many words; clear articulation of the options makes a
choice better informed and thus more rather than less
No. 05-2978 3
voluntary. That’s why we held in Johnson v. Trigg, 28 F.3d
639 (7th Cir. 1994), that a promise to release the sus-
pect’s mother from custody if he confesses does not make
his statement involuntary; if the police have good ground
for holding the mother, the information adds to the op-
tions at the suspect’s disposal. Cf. Arizona v. Fulminante,
499 U.S. 279 (1991); Colorado v. Connelly, 479 U.S. 157(1986); Miller v. Fenton, 474 U.S. 104 (1985). Suspects are
not entitled to full information, see Ohio v. Robinette, 519
U.S. 33 (1996); Schneckloth v. Bustamonte, 412 U.S. 218(1973), but can’t complain when they get it and learn that
some of the options are unpalatable.
An objectively unwarranted threat to arrest or hold a
suspect’s paramour, spouse, or relative without probable
cause could be the sort of overbearing conduct that society
discourages by excluding the resultant statements. See
Lynumn v. Illinois, 372 U.S. 528 (1963) (which we under-
stood in Johnson to demonstrate that hostage-taking is
unduly coercive). But a factually accurate statement that
the police will act on probable cause to arrest a third
party unless the suspect cooperates differs from taking
hostages. Cf. Hartman v. Moore, 126 S. Ct. 1695 (2006)
(probable cause for criminal accusation defeats a claim
for damages based on retaliatory prosecution). Miller
has not given us any reason to doubt that the police accu-
rately stated what they would do if he clammed up, and he
does not deny that the Constitution would have allowed
them to carry out that plan, for they had probable cause to
arrest both Miller and his girlfriend. This is not to say that
candor always is essential; a modicum of trickery is tolera-
ble during criminal investigations. See United States v.
Ceballos, 302 F.3d 679, 694-95 (7th Cir. 2002); Holland v.
McGinnis, 963 F.2d 1044, 1055 (7th Cir. 1992); United
States v. Rutledge, 900 F.2d 1127, 1130-31 (7th Cir. 1990).
How far agents may go to mislead is not in question here,
however, for they told Miller the (unwelcome) truth.
4 No. 05-2978
Requiring the police to keep their plans secret could not
help suspects: if Miller had been unable to make a deal
by offering information and cooperation, then both adult
occupants of the place where the drugs and guns were found
could have been arrested; their arrests would have made it
necessary to institutionalize their child or place him in
foster care unless relatives were available and willing to
assist. Miller was able to keep his girlfriend and child
together by providing information and a promise of coopera-
tion. The choice that the police extended—cooperate and
remain free, or be silent and enter custody together with
the confederate in his household—made him better off than
official reticence and his own ignorance of consequences
would have done. An offer that makes the recipient better
off cannot be condemned as coercive. See Henn v. National
Geographic Society, 819 F.2d 824 (7th Cir. 1987). It would
be unthinkable to have a legal rule requiring the police to
say, in response to a suspect’s inquiry: “We are forbidden to
tell you what will happen to you, your girlfriend, and your
child if you decline to cooperate.”
Now we turn to the penalty for Miller’s crimes. When
imposing sentence, the district judge took into account
testimony at another trial. The informant who led the police
to Miller was murdered, and Miller’s uncle was convicted of
that crime. The district court considered the transcript of
the uncle’s testimony at that trial. Although the transcript
is not in the appellate record—a shortcoming for which
Miller is responsible, see Fed. R. App. P. 10(a)—the appel-
late briefs tell us that Miller’s uncle named him as an
accessory in the murder. Miller contends that the court’s
consideration of this transcript violates the Constitution,
because the uncle was not subject to cross-examination at
his sentencing. See Crawford v. Washington, 541 U.S. 36(2004). But Crawford rests on the confrontation clause of
the sixth amendment, which the Supreme Court has held
does not apply to sentencing. Williams v. New York, 337
No. 05-2978 5
U.S. 241 (1949). We therefore concluded in United States v.
Roche, 415 F.3d 614, 618 (7th Cir. 2005), that Crawford
does not make hearsay inadmissible once guilt has been
established.
Nor does the combination of Crawford with United States
v. Booker, 543 U.S. 220 (2005), change the rules of evidence
at sentencing. See United States v. Luciano, 414 F.3d 174,
179 (1st Cir. 2005); United States v. Martinez, 413 F.3d 239,
243-44 (2d Cir. 2005); United States v. Brown, 430 F.3d 942,
943 (8th Cir. 2005). The remedial portion of Booker deprives
the Sentencing Guidelines of their quality as “laws,” a step
that enables judges to resolve factual disputes as they did
before that decision. See United States v. Watts, 519 U.S.
148 (1997). By statute, “[n]o limitation shall be placed on
the information concerning the background, character, and
conduct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose
of imposing an appropriate sentence.” 18 U.S.C. §3661.
Judges should not lean on unreliable hearsay, but testi-
mony in another trial, subject to cross-examination in open
court, is among the most reliable kinds of hearsay. Miller
was free to call his uncle to the stand in his own sentencing
if he wanted to pursue this subject, but he chose not to do
so; perhaps he thought that this would open the door to
details that he preferred the judge not to learn. Nor did
Miller offer any other evidence on the subject of the infor-
mant’s murder, or ask the United States to produce any
person for examination as a hostile witness. The
court offered him an opportunity to test his uncle’s state-
ments in a way that could sift fact from fiction; the decision
not to use this opportunity squelches Miller’s argument
based on the due process clause. See United States v. Atkin,
29 F.3d 267 (7th Cir. 1994). His argument rests (as it must
given his decision not to put his uncle’s testimony in the
appellate record) on the proposition that hearsay never can
be used in sentencing, and that proposition is wrong.
6 No. 05-2978
Even without treating Miller as an accomplice to murder,
the Sentencing Guidelines prescribed a range of 324 to 405
months. The district judge refused to apply the Guidelines
as written, however. Following 21 U.S.C. §841(b)(1)(B),
which was enacted in 1986, the Guidelines have treated 1
gram of crack cocaine the same as 100 grams of powder
cocaine since their inception. In 1995 the Sentencing
Commission announced amendments that would have
equated the sentences for powder and crack cocaine, while
leaving in place the differential mandatory minimum
sentences that are beyond the Commission’s remit. That
proposal, however, was disapproved under the procedure
specified by 28 U.S.C. §994(p) when both Houses of Con-
gress passed, and the President signed, legislation cancel-
ing the revision. Pub. L. 104-38, 109 Stat. 334 (1995).
In 1997 the Commission issued a report asking Congress
to change the statute or at least allow it leeway over
sentences that exceed the mandatory minimums; the
legislature took no action. In 2002 the Commission again
recommended that Congress reduce the ratio, this time
suggesting 20-to-1 if not lower. United States Sentencing
Commission, Cocaine and Federal Sentencing Policy (2002).
Congress once again did not enact legislation implementing
this proposal, but the district judge declared that Booker
had freed the judiciary to adopt the Commission’s 2002
recommendation on its own. Disagreeing with Congress’s
decisions of 1986 and 1995, the district judge employed a
20-to-1 conversion and recalculated the range as 262 to 327
months. He selected the sentence of 300 months from
within that range (implying that he gave little if any weight
to the possibility that Miller had contributed to the infor-
mant’s murder).
Although 300 months is below the actual Guideline range,
Miller contends that the sentence nonetheless is unreason-
ably high. He maintains that crack and powder cocaine
should be treated as identical, as the Commission proposed
No. 05-2978 7
in 1995, and as he sees it a 1-to-1 ratio would have reduced
the applicable sentencing range to 210 to 262 months.
Changing the crack-to-powder ratio need not have this
effect, however. The Commission proposed a different ratio
but not necessarily lower penalties. If Congress had ac-
cepted the Commission’s proposal, it could have reduced the
conversion factor by raising the sentences for powder
cocaine while leaving sentences for crack alone, or it could
have raised powder sentences while reducing crack sen-
tences so that the two ranges converged midway.
A more fundamental problem with Miller’s position—
with the district court’s as well—is that the judiciary is
not free to replace Congress’s approach with one that it
deems superior. See, e.g., Neal v. United States, 516 U.S.
284 (1996); Chapman v. United States, 500 U.S. 453 (1991).
By legislative decision, the 100-to-1 ratio appears in the
Guidelines as well as the statute, and we have held that the
choice is a constitutional one. See United States v. Spencer,
160 F.3d 413 (7th Cir. 1998); United States v. Westbrook,
125 F.3d 996, 1010 (7th Cir. 1997); United States v. Law-
rence, 951 F.2d 751, 753-56 (7th Cir. 1991).
Although the district judge thought that Booker relieves
the judiciary of any need to respect these rules—and Miller
wants this court to take even greater liberties than the
district judge did—the Supreme Court did not alter any
substantive norms in that decision. As we pointed out in
United States v. Cannon, 429 F.3d 1158 (7th Cir. 2005),
when holding that Booker does not permit district judges to
disregard mandatory minimum sentences or change the
treatment of recidivist offenders, all that Booker does is
specify the appropriate decision maker (the jury) and the
burden of persuasion (beyond a reasonable doubt) for facts
that affect statutory maximum penalties.
The Supreme Court did not alter which facts (once found)
have what legal consequences. See also, e.g., United States
8 No. 05-2978
v. Duncan, 413 F.3d 680, 683 (7th Cir. 2005); United States
v. Rivera, 411 F.3d 864, 866-67 (7th Cir. 2005); United
States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005); McReynolds
v. United States, 397 F.3d 479, 481 (7th Cir. 2005). That is
why both courts of appeals that have considered this issue
have held that after Booker district judges are obliged to
implement the 100-to-1 ratio as long as it remains part of
the statute and the Guidelines. See United States v. Pho,
433 F.3d 53 (1st Cir. 2006); United States v. Eura, 440 F.3d
625 (4th Cir. 2006). Cf. United States v. Cawthorn, 429 F.3d
793, 802-03 (8th Cir. 2005) (ratio not “unreasonable” as the
Booker remedial majority used that term).
We held in United States v. Gipson, 425 F.3d 335 (7th Cir.
2005), that defendants are not entitled to a deviation from
the statutory ratio. Now we add, in agreement with Eura
and Pho, that district judges must continue to carry out the
legislative choice, even though there may be powerful
reasons for change.
Booker does make the Guidelines advisory rather than
binding, so after computing the sentencing range accord-
ing to the statute and Guidelines a judge has discretion
to impose a reasonable sentence that is outside the range
(provided that statutory minimum penalties are respected).
What makes a sentence “reasonable,” however, depends on
the specifics of the case at hand; 18 U.S.C. §3553(a), which
lists the factors that control after Booker, does not include
a factor such as “the judge thinks the law misguided.”
Section 3553(a)(6) tells judges to take account of “the need
to avoid unwarranted sentence disparities among defen-
dants with similar records who have been found guilty of
similar conduct”, but a judge is not a free agent when
assessing whether a difference is “unwarranted”: that
question, like many others, depends on legal rules. Thus we
held in United States v. Boscarino, 437 F.3d 634 (7th Cir.
2006), that one properly established Guideline range may
not be treated as an “unwarranted” disparity compared with
No. 05-2978 9
some other valid sentence (say, one that includes a discount
for a guilty plea or cooperation with the prosecution).
“Sentencing disparities are at their ebb when the Guide-
lines are followed, for the ranges are themselves designed
to treat similar offenders similarly. That was the main goal
of the Sentencing Reform Act. The more out-of-range
sentences that judges impose after Booker, the more
disparity there will be. A sentence within a properly
ascertained range therefore cannot be treated as unreason-
able by reference to §3553(a)(6).” 437 F.3d at 638. United
States v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006),
and United States v. Galicia-Cardenas, 443 F.3d 553 (7th
Cir. 2006), apply that rule by holding that differences
created by fast-track programs in some districts, conducted
under statutory authority, are not “unwarranted.” So, too,
differences called for by §841(b)(1)(B) and supported by the
protocols that U.S.S.G. §2D1.1 prescribes for comparing
different weights and kinds of illegal drugs are not “unwar-
ranted.” The warrant for these differences lies in decisions
taken by Congress and the Sentencing Commission.
Miller should give thanks that the United States did not
file a cross-appeal. Had it done so, then as in Eura and Pho
resentencing under the statutory ratio would have been
required. As it is, the prosecutor was content with Miller’s
300-month sentence, and the lack of a cross-appeal protects
him against any increase. See El Paso Natural Gas Co. v.
Neztsosie, 526 U.S. 473, 479-82 (1999); Rivera, 411 F.3d at
867. He is not entitled to any further reduction.
AFFIRMED
10 No. 05-2978
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-7-06