United States v. Forestine Miles ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-4213
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Forestine W. Miles, *
*
Appellant. *
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Submitted: June 11, 2007
Filed: August 24, 2007
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Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Between July and September of 2004, an undercover police officer purchased
cocaine from Forestine W. Miles in Kansas City, Missouri. On March 1, 2005, Miles
was indicted on one count of knowingly and intentionally possessing five grams or
more of cocaine base with intent to distribute in violation of 21 U.S.C. § 841 (a)(1)
and (b)(1)(B). Following a psychological evaluation and a competency hearing, the
district court1 adopted the recommendation of the magistrate judge2 and found Miles
competent to proceed to trial. Miles then pled guilty to the sole count of the
indictment without benefit of a plea agreement with the government. After hearing
arguments from both sides, the district court sentenced Miles to 70 months
imprisonment and recommended that he be placed in a facility where he could
participate in a 500-hour drug treatment program. From this sentence, Miles appeals
alleging that the trial court failed to adequately consider the sentencing criteria and the
principles of 18 U.S.C. § 3553. We affirm.
I.
An undercover police officer initially made contact with Miles in July of 2004.
During August and September of 2004, the officer purchased cocaine base and ecstasy
from Miles on several occasions. On August 9th, Miles sold the officer 0.27 grams
of cocaine base and 0.35 grams of ecstacy for $40. Between August 18th and
September 24th, the officer purchased an additional 2.15 grams of cocaine base from
Miles for $145. Miles was arrested on September 27th as he approached the officer’s
car to complete a scheduled transaction for the sale of $1000 worth of cocaine base.
At the time of his arrest, he was in possession of 28.9 grams of cocaine base and 6.8
grams of marijuana. Within a few hours of his arrest, a search warrant was obtained
and executed at Miles’s residence where officers seized an unloaded .380 caliber
semiautomatic handgun, a .380 caliber magazine containing 4 live rounds of
ammunition, and a plastic container containing an additional 15 live rounds of .380
ammunition.
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
2
The Honorable John T. Maughmer, United States Magistrate Judge for the
Western District of Missouri.
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The presentence investigation report (“PSR”) concluded that Miles’s advisory
Guidelines range was 70 to 87 months based on a total offense level of 25 and a
criminal history category of III. The district court conducted Miles’s sentencing
hearing on December 12, 2006.
At the sentencing hearing, counsel for the government argued for a sentence
within the Guidelines range based upon: Miles’s prior felony convictions, including
a 2001 theft conviction; the fact that Miles was on probation for involuntary
manslaughter and leaving the scene of an accident; and, the fact that multiple charges
were pending against Miles, evidenced by (1) a California warrant for his arrest for
possession of cocaine; (2) a Kansas City warrant for possession of marijuana; (3) a
Wyandotte County, Kansas warrant for criminal use of a credit card; and (4) a Jackson
County, Kansas warrant for forgery. By Miles’s own admission, he had been arrested
at least 10 times in his life for selling drugs. The government maintained that Miles
should take responsibility for his actions, and the sentence should reflect Congress’
attempt to control the distribution of drugs. Taking Miles’s mental health history into
account however, the government advised the court that it would not object to a
sentence at the low end of the Guidelines range.
Through counsel, Miles asked for leniency based on his history of diagnosis and
treatment for mental illnesses, namely: chronic posttraumatic stress disorder; major
depressive disorder; poly-substance abuse; and, auditory and visual hallucinations.
Miles’s counsel pointed out that he has a documented history of mental health
diagnoses and treatment dating back to his childhood. Counsel asserted that, although
a state court failure-to-appear warrant was outstanding for Miles, he had not purposely
failed to appear in court. Counsel also noted that Miles had been in custody for nine
months, which is longer than he had ever been incarcerated on any previous occasion.
Miles’s counsel also reminded the court of his mother’s poor health. He requested
that he be ordered to the 500-hour drug treatment program and sentenced to a period
of incarceration below the Guidelines range.
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When Miles personally addressed the court before his sentence was announced,
he apologized to the court and his family. He acknowledged that he had to take
responsibility for his actions and vowed that he could change his ways. He noted that
during his incarceration, he learned how much he could be helped by therapy and
medication. He forgave his mother for the things that happened to him as a child. He
noted that he wanted to “be there for her but [he] can’t.” He also mentioned that he
had a car accident, in which he lost a cousin.
The district court sentenced Miles to 70 months in prison with 5 years
supervised release. Miles was also ordered to comply with the standard conditions of
release adopted by the district court and the following additional special conditions
of release: successful participation in a substance abuse counseling program, including
urinalysis, sweat patch or breathalizer testing; successful participation in a mental
health counseling program as approved by the probation office; submission of his
person, residence, office or vehicle to a search by probation upon reasonable suspicion
of contraband; abstinence from consuming or possessing alcoholic beverages, beer or
3.23 percent beer; and, satisfaction of any warrants or pending charges within the first
90 days of supervision. The district court recommended that Miles be designated for
the 500-hour residential substance abuse treatment program in the Bureau of Prisons
and advised Miles that the Bureau of Prisons has “many other kinds of treatment
programs for you so that you can maintain the progress that you’ve made.”
II.
Miles argues that the district court sentenced him to 70 months in prison
without adequately considering the sentencing criteria set forth in 18 U.S.C. § 3553or addressing his request for a sentence below the advisory Guidelines range. We
review a district court’s sentence for reasonableness, which is akin to the standard of
abuse of discretion. See United States v. Cadenas, 445 F.3d 1091, 1094 (8th Cir.
2006) (sentence reviewed using reasonableness standard); United States v. Hadash,
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408 F.3d 1080, 1083 (8th Cir. 2005) (equating reasonableness with abuse of
discretion). When reviewing a sentence, we first look to the applicable Guidelines
range because a sentence within the Guidelines range is presumptively reasonable.
See United States v. Watson, 480 F.3d 1175, 1176-77 (8th Cir. 2007), petition for
cert. filed, (U.S. July 31, 2007)(No. 07-5683). “[A] court of appeals may apply a
presumption of reasonableness to a district court sentence that reflects a proper
application of the Sentencing Guidelines.” United States v. Peck, No. 06-4187, 2007
WL 2229865 at *6 (8th Cir. Aug. 6, 2007) (quoting Rita v. United States, 127 S. Ct.
2456, 2462 (2007)). Because the district court properly calculated the advisory
Guidelines range for Miles, and because it sentenced Miles within that range, Miles’s
sentence is presumptively reasonable. Id. However, this presumption may be rebutted
by the factors listed in section 3553(a). Cadenas, 445 F.3d at 1094.
Specifically, Miles alleges that because the district judge did not make reference
to the section 3553(a) factors or acknowledge the advisory nature of the Guidelines,
the criteria were not considered and the district court was not aware that the
Guidelines range was advisory. The government argues that because the court heard
argument from both sides as to the appropriate sentence, the section 3553(a) criteria
mentioned by counsel for the parties while addressing the district court was sufficient
to establish that the district court considered those factors. The United States Supreme
Court stated in Rita that the district court is not required to provide a lengthy
explanation when sentencing a defendant. Rita, 127 S. Ct. at 2468. Because the
sentencing record demonstrates that the district court heard extensive arguments from
Miles’s counsel and the government, it is apparent from the record that the district
court properly considered Miles’s mental health, his history of drug addiction, his
request for drug treatment, and his mother’s health issues, in determining that the
sentence of 70 months was a proper sentence. See Rita, 127 S. Ct. at 2469 (“The
record makes clear that the sentencing judge listened to each argument . . . [and]
considered the supporting evidence.”). The district court also heard Miles’s counsel’s
verbal reminder that the Guidelines are advisory in nature. Likewise, the district court
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heard and considered the government’s arguments with respect to the nature and
circumstances of the offense and Miles’s criminal history. See 18 U.S.C. §
3553(a)(1).
Further evidence of the district court’s consideration of the arguments made by
counsel is the court’s sentencing recommendation that Miles be designated for the
500-hour residential substance abuse treatment program in the Bureau of Prisons and
other mental health treatment programs available to help him maintain the progress
he had made as of the date of his sentencing, which was specifically requested in
argument before the district court. While a sentencing court should state enough to
satisfy an appellate court that it has considered the arguments of the parties and to
establish a reasoned basis for exercising its legal decision-making authority,
application of the Guidelines to a particular case does not necessarily require lengthy
explanation by the sentencing court. Rita, 127 S. Ct. at 2468. Although we know of
no reason why the district court could not have more specifically addressed the section
3553(a) factors in explaining the sentence, we find that the sentence in this case
reflects the district court’s consideration of the arguments of counsel and provides
sufficient evidence of the district court’s consideration of the section 3553 factors.
Miles also argues that the district court failed to address or consider his request
for a sentence below the Guidelines range. When “[t]he record makes clear that the
sentencing judge listened to each argument[,] . . . considered the supporting
evidence[,] . . . was fully aware of defendant’s various [mental] ailments[,] and
imposed a sentence that takes them into account,” we cannot find that the sentence
was in error or that the district court failed to address or consider the request for a
sentence below the Guidelines range. Rita, 127 S. Ct. at 2469.
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III.
For the foregoing reasons, we affirm the conviction and sentence.
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