United States v. Tray Miller ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2361
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Tray Everett Miller,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: May 10, 2021
Filed: August 25, 2021
[Unpublished]
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Before COLLOTON, WOLLMAN, and KOBES, Circuit Judges.
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PER CURIAM.
Tray Miller pleaded guilty to unlawful possession of a firearm as a previously
convicted felon. The district court1 sentenced him to 100 months’ imprisonment.
Miller appeals his sentence, and we affirm.
Miller was arrested at his home in June 2019. During the execution of a search
warrant, officers recovered two handguns—a Smith & Wesson revolver and a
Hi-Point pistol. A grand jury charged Miller with unlawful possession of a firearm
as a previously convicted felon, see 18 U.S.C. § 922(g)(1), and he pleaded guilty. At
sentencing, the district court calculated an advisory guideline range of 100 to 120
months’ imprisonment, and sentenced Miller at the bottom of the range.
On appeal, Miller first contests the district court’s calculation of his advisory
guideline sentencing range. The district court applied a base offense level of 20 after
determining that Miller previously had sustained a conviction for a “controlled
substance offense” under Iowa Code § 124.401(1)(c). See USSG §§ 2K2.1(a)(4)(A),
4B1.2(b). Miller argues that a violation of the Iowa statute does not constitute a
controlled substance offense because the statute permits convictions for inchoate
offenses. Although the guideline commentary provides that “controlled substance
offense” includes the offenses of aiding and abetting, conspiring, and attempting to
commit such an offense, id. § 4B1.2, comment. (n.1), Miller maintains that the
commentary is invalid. This argument is foreclosed by circuit precedent. United
States v. Brown, 1 F.4th 617, 620-21 (8th Cir. 2021) (per curiam); United States v.
Merritt, 934 F.3d 809, 811 (8th Cir. 2019); United States v. Williams, 926 F.3d 966,
971 (8th Cir. 2019); see United States v. Mendoza-Figueroa, 65 F.3d 691, 693-94
(8th Cir. 1995) (en banc). Miller suggests that Kisor v. Wilkie, 139 S. Ct. 24001
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
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(2019), undermined our circuit precedent, but Kisor reaffirmed existing law on the
legal force of guideline commentary. Id. at 2411 n.3, 2422; see United States v.
Lewis, 963 F.3d 16, 23-24 (1st Cir. 2020). We note that the Sentencing Commission
has published a proposed amendment to § 4B1.2 that would resolve the disagreement
among the circuits on this issue. See Sentencing Guidelines for United States Courts,
83 Fed. Reg. 65400, 65412-15 (proposed Dec. 20, 2018) (to be codified at USSG
§ 4B1.2). Miller also contends that the scope of accomplice liability under Iowa law
broadens Iowa Code § 124.401(1) beyond the definition of “controlled substance
offense,” but this argument is foreclosed by United States v. Boleyn, 929 F.3d 932,
938-40 (8th Cir. 2019).
Miller next challenges the district court’s application of a four-level increase
for his possession of a firearm with an “altered or obliterated serial number.” USSG
§ 2K2.1(b)(4)(B). He concedes that one firearm lacked a serial number, but argues
that the increase applies only when the obliteration was caused by “human hands”
rather than a natural process like rusting. The text of the guideline does not call for
proof of an intentional human act; it says only that the increase applies if the firearm
“had an altered or obliterated serial number.” Id. In any event, the district court
found that the revolver’s serial number was removed in a manner “that’s inconsistent
with the natural occurrence of rust.” A law enforcement officer testified that part of
the gun’s frame was “ground out a little bit,” and that “rust” would not have caused
the void. The district court agreed, observing that “if one were to see rust so deep
that you could obliterate a serial number through oxidation, you would expect it to
be even across the entire surface of the weapon.” That finding is not clearly
erroneous.
Miller also complains that the district court failed to address his argument that
a two-level downward variance was appropriate because the four-level increase for
an obliterated serial number enhancement is outdated and lacks an empirical basis.
Miller did not object to the adequacy of the district court’s explanation for the
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sentence, so we review only for plain error. United States v. Chavarria-Ortiz, 828
F.3d 668, 670-71 (8th Cir. 2016); see Fed. R. Crim. P. 52(b). While a judge “will
normally” address reasons for rejecting a defendant’s nonfrivolous argument, Rita v.
United States, 551 U.S. 338, 357 (2007), “not every reasonable argument advanced
by a defendant requires a specific rejoinder by the judge.” United States v. Gray, 533
F.3d 942, 944 (8th Cir. 2008). And the absence of comment on an argument “does
not mean that it was not considered.” United States v. Black, 670 F.3d 877, 881 (8th
Cir. 2012). Here, the district court reviewed the sentencing memorandum that
included Miller’s argument for a variance, and heard Miller’s argument at sentencing
that technological developments make it easier to recover obliterated serial numbers.
The district court evidently was not convinced and decided to follow the
recommendation of the Sentencing Commission. Miller did not object on procedural
grounds and ask the court to address the matter at the hearing. The absence of a
specific response was not an obvious procedural error, and Miller has not shown a
reasonable probability that the sentence would have been different if the district court
had added an explanation on the record.
The judgment of the district court is affirmed.
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