United States v. Kelvin Miller , 358 F. App'x 750 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3917
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Kelvin Miller, * [UNPUBLISHED]
*
Defendant - Appellant. *
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Submitted: September 25, 2009
Filed: December 7, 2009
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Before MURPHY, BRIGHT, and RILEY, Circuit Judges.
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PER CURIAM.
Kelvin Miller appeals his conviction for being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1) on the grounds that: (1) there was insufficient
evidence to sustain his conviction; (2) the district court1 improperly applied sentence
enhancements under the United States Sentencing Guidelines (“USSG”) §§ 3C1.1 and
3C1.2; (3) the district court erred in denying his motion for a downward departure or
variance; and (4) the district court failed to adequately consider the 18 U.S.C. §
3553(a) factors. We affirm.
1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
After viewing the evidence in the light most favorable to the verdict, see United
States v. Urick, 431 F.3d 300, 303 (8th Cir. 2005), we conclude the evidence is
sufficient to show Miller possessed a firearm. Two police officers testified they
observed Miller carrying a weapon as he ran through a St. Louis residential
neighborhood. One of the officers testified that Miller pointed that weapon at him
during the chase. An officer also testified that after Miller was arrested, he admitted
to throwing this weapon in a nearby backyard. Officers subsequently found the
weapon in that location. This evidence is sufficient to sustain Miller’s conviction for
being a felon in possession of a firearm.
We also conclude the district court properly imposed an obstruction of justice
enhancement under USSG § 3C1.1 based on Miller’s repeated denials at trial that he
possessed a weapon. See United States v. Flores, 362 F.3d 1030, 1037 (8th Cir. 2004)
(“Committing perjury at trial constitutes an obstruction of justice within the meaning
of § 3C1.1.”). The record also indicates that the district court applied the
enhancement only after conducting its own independent evaluation of all the evidence.
See United States v. Kessler, 321 F.3d 699, 703 (8th Cir. 2003). That evidence
strongly showed that Miller lied while on the witness stand when he denied possessing
the weapon, and the district court did not err in enhancing his sentence.
Similarly, evidence supports the district court’s imposition of a sentence
enhancement for creating a risk of death or injury during flight under USSG § 3C1.2.
Miller admitted he fled from police, jumped out of a moving vehicle which later
struck a parked car, led police officers on a foot chase through a residential
neighborhood, and persistently disregarded officers’ commands to stop. The record
also shows that Miller carried a loaded weapon during the chase and pointed it at a
police officer, which resulted in the officer shooting Miller. This factual background
justifies the enhancement for reckless endangerment under USSG § 3C1.2. See
United States v. Bates, 561 F.3d 754, 757 (8th Cir. 2009).
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The district court also did not err in denying Miller’s request for a downward
departure from the guideline sentence based on Miller’s claims of diminished capacity
and mental health problems. After reviewing the sentencing record, it is evident that
the district court considered Miller’s request, but concluded the guideline sentence
was appropriate and Miller had not established his case was sufficiently atypical to
warrant a lesser sentence. See United States v. Lee, 553 F.3d 598, 601 (8th Cir.
2009).
Finally, the district court did not err in imposing a guideline sentence rather
than one pursuant to 18 U.S.C. § 3553(a). We have carefully reviewed the record and
conclude the district court properly considered the § 3553(a) factors and did not abuse
its discretion in sentencing Miller to 96 months’ imprisonment.
Accordingly, we affirm.
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