United States v. Gerald Miner ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3567
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Gerald Miner, *
*
Appellant. *
___________
Submitted: September 12, 2003
Filed: October 9, 2003
___________
Before BYE, FAGG, and HANSEN, Circuit Judges.
___________
FAGG, Circuit Judge.
The Government charged Gerald Miner with eight drug and gun-related
offenses. The indictment alleged that on January 6, 1993, Miner was a felon in
possession of a firearm (Count I), possessed with intent to distribute crack cocaine
(Count II), and used or carried a firearm in relation to a drug trafficking crime (Count
III); that on June 3, 1993, Miner was a felon in possession of a firearm (Count IV);
that on November 29, 1993, Miner was felon in possession of ammunition (Count V);
and that on February 11, 1994, Miner was felon in possession of a firearm (Count
VI), possessed with intent to distribute cocaine (Count VII), and used or carried a
firearm in relation to a drug trafficking crime (Count VIII). A jury convicted Miner
on all counts. At sentencing, the Government dismissed Count III. The district court
grouped the remaining offenses under U.S.S.G. § 3D1.2. Miner did not object to the
grouping. Following U.S.S.G. § 3D1.3(a) and note 3, the court then took the highest
offense level (32) of the counts in the group (Count V), and added conduct
enhancements based on all the behavior within the grouped counts. Adding three
levels under U.S.S.G. § 3A1.2 (official victim) and two levels under U.S.S.G. § 3C1.2
(reckless endangerment during flight) for Miner’s conduct during a police chase on
February 11, 1994, the district court calculated a total offense level of 37 for Miner,
and given Miner’s criminal history category of five, sentenced Miner to 420 months
in prison.
Miner appealed his convictions and sentence, and we affirmed. United States
v. Miner, 108 F.3d 967 (8th Cir. 1997). We held the sentencing guidelines required
cross-referencing of Miner’s gun-related crimes, U.S.S.G. § 2K2.1(c)(1), the district
court properly applied U.S.S.G. §§ 2X1.1 and 2A2.1(a)(1) based on its finding Miner
committed assault with intent to commit murder, and the district court properly
increased Miner’s offense level under U.S.S.G. § 3A1.2 for assaulting a police officer
when he rammed his car into a police roadblock, and under U.S.S.G. § 3C1.2 for
chase-related conduct that created a risk of serious injury to other drivers and
pedestrians. 108 F.3d at 970.
After we affirmed the district court’s denial of Miner’s motion for a new trial
based on newly discovered evidence, United States v. Miner, 168 F.3d 496 (8th Cir.
1999), Miner filed a motion to vacate his sentence under 28 U.S.C. § 2255. The
district court denied the motion on all grounds, including Miner’s challenge to the
grouping of the counts at sentencing, except the limited issue that Miner’s sentence
exceeded the twenty year maximum on Counts II and VII. See 21 U.S.C. § 841(a)(1).
We denied Miner’s motion for a certificate of appealability (COA) based on the
grouping of the counts for sentencing purposes. At the limited resentencing on
Counts II and VII, the district court grouped Counts I, II, IV, V, VI, and VII, again
-2-
used the highest offense level of 32 from Count V, and again applied the conduct
enhancements under U.S.S.G. §§ 3A1.2, 3C1.2. The district court did not group
Count VIII because the statute mandates a consecutive sentence. See id. § 3D1.1(b).
Although the district court determined a guideline range of 324-405 months, the
district court did not apply U.S.S.G. § 5G1.2(d), which states that when the maximum
sentence on the count carrying the highest statutory maximum (here, either Count II
or VII, each of which carries a 20-year statutory maximum) is less than the total
punishment, the sentence imposed on one or more of the other counts shall be
imposed consecutively to produce a sentence equal to the total punishment. See
United States v. Diaz, 296 F.3d 680, 684 (8th Cir. 2002) (en banc). Instead, the
district court imposed all the grouped-count sentences to run concurrently with each
other resulting in a 240 month sentence, at least seven years less than the punishment
range of 324-405 months required by the Guidelines. The Government did not appeal
the district court’s error, however. We thus turn to Miner’s challenges to the
resentencing.
Miner first argues the district court committed error in increasing his offense
level under U.S.S.G. §§ 3A1.2 and 3C1.2 because the February 1994 conduct
underlying those enhancements (arising from the police chase) has no factual
connection to Count V, the charge that Miner was a felon in possession of
ammunition (arising from Miner’s shooting of a man) in November 1993. Miner
argues Count V should not have been grouped with the other counts. These
“arguments are precluded because they raise or are essentially based on arguments”
we resolved in Miner’s earlier appeal and in the denial of a COA. United States v.
Logan, 333 F.3d 876, 878 (8th Cir. 2003) (per curiam).
Miner next contends he should receive only a two-level increase under §
2A2.1(b)(1) for the severity of the victim’s injury in computing the offense level for
Count V. Before resentencing, Miner acknowledged his offense level for Count V
required application of § 2A2.1, the offense guideline for assault with intent to
-3-
commit murder. We held as much in Miner’s earlier appeal. See 108 F.3d at 970.
Miner’s current contention regarding the enhancement for the guideline’s specific
offense characteristics appears to be beyond the scope of the district court’s remand
and could have been raised in Miner’s first appeal. In any event, the contention fails.
Section 2A2.1(b)(1)(A) requires the addition of four levels to the guideline’s base
offense level if “the victim sustained permanent or life-threatening bodily injury.”
The victim’s permanent scar from removal of a bullet from his neck and the presence
of a bullet inside his body supports the permanent injury enhancement of U.S.S.G. §
2A2.1(b)(1)(A). United States v. Cree, 166 F.3d 1270, 1272 (8th Cir. 1999)
(permanent facial scarring supports permanent injury enhancement); United States v.
Phillips, 239 F.3d 829, 848 (7th Cir. 2001) (same).
Miner last asserts there is no evidence to establish his responsibility for crack
cocaine seized on December 30, 1992. Because the inclusion of the cocaine had no
impact on Miner’s resulting sentence or the calculation of the guidelines range, we
decline to consider this assertion.
We thus affirm Miner’s sentence.
_____________________________
-4-