United States v. Robert Miller ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2019 Decided March 27, 2020
No. 18-3090
UNITED STATES OF AMERICA,
APPELLEE
v.
ROBERT FRANK MILLER, ALSO KNOWN AS ROBERT FRANKLIN
MILLER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cr-00143-1)
Gregory S. Smith, appointed by the court, argued the cause
and filed the briefs for appellant.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy Curt,
and T. Anthony Quinn, Assistant U.S. Attorneys.
Before: GARLAND and WILKINS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
2
Concurring Opinion filed by Senior Circuit Judge
WILLIAMS.
WILKINS, Circuit Judge: This case comes to us for a
second time. This time, we consider Robert Miller’s claims
that he received ineffective assistance of counsel (IAC) under
Strickland v. Washington, 466 U.S. 668 (1984). In 2007, Miller
was tried and convicted on seven counts of travel fraud and two
counts of wire fraud, and was sentenced to 204 months in
prison. Miller appealed and was appointed new counsel. On
appeal, he challenged both his conviction and his sentence. We
affirmed his direct-review claims, but we remanded for the
district court to consider in the first instance his IAC claims.
United States v. Miller, 799 F.3d 1097 (D.C. Cir. 2015)
(“Miller I”). On remand, Miller asserted IAC claims based on
alleged pretrial, trial, and sentencing errors. After an
evidentiary hearing, the district court denied all of Miller’s IAC
claims. United States v. Miller, No. CR 05-143 (RJL), 2018
WL 6308786 (D.D.C. Dec. 3, 2018). Miller has appealed. We
conclude that Miller has established ineffective assistance with
respect to his claim that trial counsel should have informed the
district court that Miller had lost one year of Maryland state jail
credits while awaiting his federal trial, and we remand for
resentencing. In all other respects, however, we affirm the
judgment of the district court.
I.
A.
Beginning in July 2003, Miller operated a company called
American Funding and Investment Corporation (AFIC),
through which he purported to offer two types of services:
(i) high-yield real estate investments, and (ii) home-buying
3
assistance for people with poor credit. Miller I, 799 F.3d at
1100. He lured investors by promising to “buy and refurbish
foreclosure properties and then resell those properties, at a
profit, to home buyers with poor credit.” Id. Then, he
persuaded prospective home buyers with poor credit to give
him cash “down payments,” promising to help them obtain
mortgages for a home they had preselected. Id. Miller made
hundreds of thousands of dollars from this scheme, but he
never purchased any real estate or secured any mortgages. Id.
Instead, he used the money to “pay rent for AFIC’s office
space, compensate employees, buy office equipment, obtain
newspaper advertisements to attract additional investors, cover
personal and travel expenses, and make partial distributions to
certain investors who demanded repayment.” Id.
On April 6, 2004, Miller learned from a lawsuit filed by an
aggrieved investor that the Secret Service was investigating
this Ponzi-type scheme. Two days later, on April 8, 2004,
Miller directed several AFIC employees to place twenty-two
boxes of files and records into a Ford Explorer that his
secretary, Tonya Smith, had borrowed from her mother and
parked in the building garage in one of the four parking spots
that AFIC paid for. The Secret Service agent investigating the
case, Anthony Saler, learned from an AFIC investor that Miller
was moving files out of the office and that he’d told his
employees not to come in the next day. Concerned that Miller
was trying to flee or destroy evidence, Agent Saler and other
law enforcement officers arrested him at his office on unrelated
outstanding Maryland arrest warrants.
Agent Saler encountered Smith in a different part of the
office building. He asked her where the files were, told her of
Miller’s arrest, and told her that if she didn’t cooperate, she
could be arrested. Smith then told Agent Saler that the boxes
of files were in her mother’s Ford Explorer. After further
4
questioning, Agent Saler told Smith that he needed the files that
night. Believing that she would be arrested if she didn’t
comply, she agreed to drive the Ford Explorer, with the boxes
inside, to the Secret Service’s Washington field office, with
Agent Saler in the car with her. The Secret Service held the
boxes, but did not search them until April 27, 2004, when they
obtained a search warrant. This warrant also authorized the
search of AFIC’s offices.
B.
On April 22, 2005, a federal grand jury indicted Miller on
nine counts of travel fraud, 18 U.S.C. § 2314, and two counts
of wire fraud, 18 U.S.C. § 1343. By this time, Miller had
already begun serving an eight- to twelve-year sentence based
on his April 2004 conviction in Maryland state court on four
counts of felony theft. On December 16, 2005, he was
transferred to temporary custody of the United States Marshalls
Service on a federal writ.
Less than a year after the indictment was handed down,
trial counsel moved to suppress the twenty-two boxes seized
from Smith’s car. Miller’s trial counsel and the government
agreed to bifurcate the suppression hearing by first litigating
whether Miller had Fourth Amendment standing to challenge
the search of the Ford Explorer and the seizure of the boxes.
The Secret Service had not obtained a warrant for either action.
Before the hearing, the parties submitted a stipulation that
(1) Smith was Miller’s employee, (2) Smith’s mother was the
owner of the Ford Explorer, (3) Smith had “temporary use of
the vehicle,” (4) the boxes contained AFIC files and Miller’s
personal records, and (5) Miller told Smith to put the boxes in
the Ford Explorer. In addition, Miller’s counsel submitted a
parking payment of $840 establishing that AFIC paid for
parking spots in the garage where the Ford Explorer was
5
parked. Trial counsel did not submit any additional evidence
before or during the suppression hearing to support Miller’s
standing.
After the suppression hearing, but before the court ruled
on the motion, Miller’s trial counsel submitted a “Notice of
Filing,” asking the court to accept a memorandum from the
United States Department of Housing and Urban Development
(HUD), which had been investigating Miller’s real estate
scheme since 2000. This memorandum summarized a HUD
agent’s interview of Smith in January 2006. The government
had produced the HUD memorandum to trial counsel before
the suppression hearing, during pretrial discovery. According
to the HUD memorandum, Smith told the HUD agent that she
had lent the Ford Explorer to Miller—a fact that could help
establish Miller’s standing to challenge the search of the car.
In a minute order, the district court denied Miller’s request to
consider the HUD memorandum despite the memorandum’s
having been submitted out of time.
Several months later, the district court denied the motion
to suppress for lack of standing, without reaching the merits of
the motion. Specifically, the court concluded that Miller had
“fail[ed] to demonstrate an objectively legitimate expectation
of privacy in the vehicle” and that he therefore lacked “standing
to challenge the seizure of the boxes located in that vehicle.”
Miller I, 799 F.3d at 1101.
The case then proceeded to trial. The parties agree that,
because more than seventy non-excludable days passed before
he was brought to trial, a Speedy Trial Act (STA) violation
occurred in this case. 1 See 18 U.S.C. §§ 3161(c)(1),
1
The district court didn’t rule on the motion to suppress until
December 12, 2006, at least 83 non-excludable STA days after the
6
3162(a)(2). Although trial counsel invoked Miller’s STA
rights at arraignment, he did not push for a speedy trial after
that, so the court took no action. Nor did trial counsel ever
move to dismiss the case on STA grounds.
The trial lasted nine days. Over a dozen witnesses testified
against Miller, explaining that they had invested in his
company, never been paid back, and struggled to get a response
from him. Miller’s trial counsel did not put on a defense case.
The jury convicted Miller on all nine counts on November 20,
2007, and on December 10, 2008, the district court sentenced
Miller to 204 months’ imprisonment, to run consecutively to
his eight- to twelve-year Maryland state sentence. He was
returned to Maryland custody on January 7, 2009, but his
detention on a federal writ caused him to lose over a year of
“confinement credits” from Maryland. Trial counsel failed to
bring this fact to the court’s attention at sentencing.
Miller then appealed both his conviction and his sentence,
and we appointed him new counsel. In 2015 we rejected all his
direct-review claims, but, consistent with our general practice,
we remanded for the district court to consider his IAC claims
in the first instance. Miller I, 799 F.3d at 1103-04; see United
States v. Richardson, 167 F.3d 621, 626 (D.C. Cir. 1999)
(explaining that we normally do not resolve IAC claims on
direct appeal unless the trial record conclusively answers the
questions presented).
C.
On remand, Miller asserted various IAC claims. First, he
asserted IAC during the suppression stage, based on trial
indictment, so the disposition of the suppression motion occurred
after the STA violation had taken hold.
7
counsel’s failure to establish his standing to challenge the
search of the Ford Explorer. Second, he asserted IAC based on
counsel’s failure to move for STA dismissal. Third, he asserted
IAC during trial, based on counsel’s failure to call as witnesses
certain investors who Miller had paid back. Fourth, he asserted
IAC claims during sentencing, based on counsel’s failure to
argue for a sentencing reduction in light of the year’s worth of
Maryland confinement credits he lost while awaiting his
federal trial, as well as counsel’s failure to request that the
district court recommend him for a drug rehabilitation
program.
The district court held an evidentiary hearing on the
claims. Only two witnesses testified at the hearing: the defense
called Miller himself, and the government called Miller’s trial
counsel. Nearly a year later, the district court issued an order
and memorandum opinion denying Miller’s IAC claims.
Miller, 2018 WL 6308786, at *1. Miller has appealed. “[W]e
review de novo a denial of an ineffective assistance of counsel
claim.” United States v. Abney, 812 F.3d 1079, 1087 (D.C. Cir.
2016).
II.
The Supreme Court first set forth the requirements for an
IAC claim in Strickland v. Washington, 466 U.S. 668, 693
(1984). To prevail on such a claim, the defendant must show
(1) deficient performance, that “his counsel’s performance fell
below an objective standard of reasonableness,” and
(2) prejudice, that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” United States v. Mohammed, 863
F.3d 885, 889 (D.C. Cir. 2017) (internal quotation marks
omitted). When deciding a Strickland claim, “there is no
reason for a court . . . to approach the inquiry in the same order
8
or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.” Strickland,
466 U.S. at 697. “We review for clear error any findings of
historical fact embedded in the District Court’s conclusions on
deficient performance and prejudice.” United States v. Gray-
Burriss, 920 F.3d 61, 65 (D.C. Cir. 2019) (internal quotation
marks omitted).
A.
Miller first contends that the district court misapplied the
standard for Strickland prejudice in its analysis. The Supreme
Court has explained that the “reasonable probability” a
claimant must prove is “a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. This
standard is less exacting than the preponderance standard. See
id. (“The result of a proceeding can be rendered unreliable, and
hence the proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to have
determined the outcome.”).
Miller argues that our Court adopted a less exacting
standard for showing prejudice in United States v. Mohammed,
where we declared that “[i]n assessing prejudice, the ultimate
question is whether [the defendant] has shown a reasonable
probability that adequate investigation would have enabled
trial counsel to sow sufficient doubt about [a witness’s]
credibility to sway even one juror.” 863 F.3d at 892 (internal
quotation marks omitted). Miller is incorrect, however,
because this is merely a different articulation of the familiar
Strickland prejudice test. To convict a defendant, a federal jury
must unanimously concur in the verdict. Therefore, if an IAC
claimant establishes “sufficient doubt” about the evidence
strong enough to “sway even one juror,” see id., then she has
9
necessarily “undermine[d] confidence in the outcome” under
Strickland.
Miller also contends that the district court “erred in
prospectively declaring that any IAC claims not raised by
Miller will be deemed waived in any future 28 U.S.C. § 2255action,” because appellate counsel (who argued the IAC claims
below) “could not fairly be expected to argue ineffectiveness
against himself.” Appellant’s Opening Br. at 1, 34-35. This
argument lacks merit, however, as the district court merely
stated that “any IAC claims that are now ripe but not presently
before the Court will be considered waived for purposes of any
future § 2255 action.” Miller, 2018 WL 6308786, at *5 n.1.
Because any potential IAC claims based on appellate counsel’s
performance were not “ripe” at the time the district court issued
its decision, the district court did not deem them waived.
B.
Miller next argues that trial counsel rendered ineffective
assistance during the suppression stage. Specifically, he argues
that trial counsel should have timely introduced the HUD
memorandum to establish Miller’s standing to challenge the
search of the Ford Explorer. Here, we conclude that, even
assuming deficient performance, 2 Miller has failed to establish
Strickland prejudice, because the suppression motion would
have failed on the merits.
“Where defense failure to litigate a Fourth Amendment
claim competently is the principal allegation of ineffectiveness,
2
Because we conclude that Miller cannot establish prejudice, we
need not decide whether trial counsel performed deficiently by
failing to introduce the HUD memorandum, which would have
established that Miller had permission from Smith to use the Ford
Explorer. See Strickland, 466 U.S. at 697.
10
the defendant must also prove that his Fourth Amendment
claim is meritorious and that there is a reasonable probability
that the verdict would have been different absent the
excludable evidence in order to demonstrate actual prejudice.”
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Here, the
district court concluded that even if Miller had proved standing
to challenge the search of the Ford Explorer and the seizure of
the boxes inside, he would have failed at suppressing the boxes,
because there was “probable cause to believe that [the boxes]
contained evidence of Miller’s suspected fraud in the form of
AFIC files, which Miller was in the process of moving to evade
law enforcement scrutiny.” Miller, 2018 WL 6308786, at *8.
We agree.
“Probable cause exists where the facts and circumstances
within an officer’s knowledge and of which he had reasonably
trustworthy information are sufficient in themselves to warrant
a man of reasonable caution in the belief that an offense has
been or is being committed.” Safford Unified Sch. Dist. No. 1
v. Redding, 557 U.S. 364, 370 (2009) (internal quotation marks
and alterations omitted). “Authorities may conduct a
warrantless search of a motor vehicle if they have probable
cause to believe it contains contraband or evidence of a crime.”
United States v. Lawson, 410 F.3d 735, 740 (D.C. Cir. 2005).
And police do not need probable cause to search an entire
vehicle in order to search a container inside the vehicle for
which there is probable cause to search. California v. Acevedo,
500 U.S. 565, 573 (1991). Moreover, officers may, as they did
here, “seize a container and hold it until they obtain a search
warrant.” Id. at 575.
In concluding that the suppression motion would have
failed, the district court relied on an affidavit signed by Agent
Saler in support of the application for a warrant to search the
Ford Explorer. Miller complains that this affidavit is undated,
11
preventing us from determining whether Agent Saler knew
those facts at the time he searched the car. However, we agree
with the district court that “had the issue been litigated at the
suppression stage, the Government likely would have
established that by April 8 Agent Saler knew all—or at least
the vast majority of—the facts set out in the affidavit.” Miller,
2018 WL 6308786, at *7. It is undisputed that Agent Saler had
been investigating Miller for several weeks when he seized the
boxes. And in the course of that investigation, he questioned
many witnesses, including AFIC investors and former AFIC
employees. In addition, Agent Saler had been in contact before
the seizure with Maryland law enforcement officials and HUD,
who were both investigating Miller for fraud. Finally, Agent
Saler knew that Miller had told employees not to come to work
and was packing up boxes of files and putting them in a vehicle.
The sum of that information establishes probable cause, and
because the Secret Service had probable cause for the search,
trial counsel’s failure to introduce the HUD memorandum did
not cause Miller any prejudice under Strickland.
Miller also argues that the district court “failed to address
[his] separate, independent trespass basis for suppression.”
Appellant’s Opening Br. at 39. He argues that the trespass
theory of the Fourth Amendment, “which requires a warrant
(not just probable cause) to enter property, should have barred
[Agent] Saler’s physical intrusion onto Miller’s parking space
to even access this vehicle.” Id. We agree with the government
that Miller forfeited this argument, because he did not
adequately present it in the IAC hearing below. See JA.833,
846; Trudel v. SunTrust Bank, 924 F.3d 1281, 1285 (D.C. Cir.
2019) (“Because plaintiffs failed to raise this argument below,
they have forfeited it.”).
Finally, Miller argues, in a single conclusory sentence, that
the automobile exception to the warrant requirement is not
12
applicable here because the car “was moved before any boxes
were unloaded.” Appellant’s Opening Br. at 39. “Because this
argument was raised in the opening brief only summarily,
without explanation or reasoning,” we deem it waived. See
City of Waukesha v. E.P.A., 320 F.3d 228, 251 n.22 (D.C. Cir.
2003).
C.
Miller also asserts that his trial counsel rendered
ineffective assistance by failing to move for dismissal based on
the STA violation. It is undisputed that an STA violation
occurred and that trial counsel failed to move for STA
dismissal. However, even assuming that trial counsel’s
performance was deficient, 3 we conclude that Miller’s STA-
based claim fails because he cannot establish prejudice under
Strickland.
The Speedy Trial Act “establishes a general rule: if a
defendant is not brought to trial within seventy days of
indictment, the court ‘shall’ dismiss the indictment ‘on motion
of the defendant.’” Miller I, 799 F.3d at 1104 (quoting 18
U.S.C. § 3162(a)(2)). “In the event of an STA violation, the
district court retains discretion to determine ‘whether to
dismiss the case with or without prejudice’ based on three
statutory factors.” Id. (quoting § 3162(a)(2)). “In the case of a
dismissal without prejudice, the government has six months
from the date of dismissal to secure the return of a new
indictment.” Id. (citing § 3288).
3
Because we conclude that Miller cannot establish prejudice for his
STA-based claim, we do not consider the parties’ arguments about
whether trial counsel was deficient in this regard.
13
In United States v. Marshall, 669 F.3d 288, 293-95 (D.C.
Cir. 2011), we held that failing to move for STA dismissal in
light of a clear-cut violation prejudiced the defendant. We left
open, however, whether such a failure would constitute
Strickland prejudice if the district court would have dismissed
the indictment without prejudice, allowing the government to
re-indict within six months. Id. at 295 (“Because the
government raised this argument for the first time at oral
argument, we decline to consider it.”). Accordingly, in Miller
I, we instructed the district court to first determine “whether, in
the event of a successful STA objection, the case would have
been dismissed with or without prejudice.” 799 F.3d at 1104–
05. Failing to move for what would have been a with-prejudice
dismissal obviously demonstrates prejudice, but we instructed
that “if the [district] court concludes that it would have
dismissed without prejudice, thus leaving room for a retrial, the
court will need to assess the implications of such a dismissal
under Strickland’s prejudice standard.” Id.
1.
Miller first argues, as he did in Miller I, that a without-
prejudice dismissal, standing alone, constitutes Strickland
prejudice. In Miller I, he argued that “a dismissal without
prejudice would itself demonstrate Strickland prejudice,”
without the need for further factfinding. Id. at 1105. He renews
this argument here, contending that even if the dismissal had
been without prejudice, Miller would have at least preserved
for appeal the issue of whether a without-prejudice dismissal
was warranted. This is true. See Marshall, 669 F.3d at 295(finding Strickland prejudice, in part, because “raising the
[STA] issue would at least have preserved it for appeal, and
thus [the defendant] would have secured dismissal of the
indictment, later if not sooner”).
14
The district court rejected this argument by incorrectly
concluding that Miller could have raised the issue on direct
appeal through plain error review. See Miller, 2018 WL
6308786, at *12 n.8 (“Miller’s suggestion of prejudice from the
attendant failure to preserve the STA violation for appellate
review . . . fails because meritorious STA claims are
mechanical in nature and ‘will always be plain to a reviewing
court and will always affect substantial rights.’”) (quoting
United States v. Taplet, 776 F.3d 875, 880–81 (D.C. Cir.
2015)). But the only way to appeal a failure by trial counsel to
move for STA dismissal is through an IAC claim. That is so,
because failing “to move for dismissal prior to trial or entry of
a plea of guilty or nolo contendere shall constitute a waiver of
the right to dismissal.” 18 U.S.C. § 3162(a)(2). And we have
held that due to the potential for gamesmanship by the defense,
plain-error review is unavailable for claims based on failing to
move for STA dismissal. Taplet, 776 F.3d at 879–81
(explaining that defendants would “have an incentive to
withhold meritorious non-excludable time in their motions to
dismiss on the chance that if their trials go badly, plain error
review of an STA claim will act as a one-time reset button”).
Indeed, we recognized in Miller I that, because “Miller never
sought a dismissal on STA grounds before the district court,”
any “STA challenge he might bring on [direct] appeal … is
waived.” 799 F.3d at 1104 (citing Taplet, 776 F.3d at 879–81).
However, the fact that Miller would have preserved for
appeal the issue of whether a dismissal should have been with
prejudice is not, by itself, sufficient to establish Strickland
prejudice. After all, such an appeal would have been subject to
abuse-of-discretion review. See id. (“In the event of an STA
violation, the district court retains discretion to determine
‘whether to dismiss the case with or without prejudice’ based
on three statutory factors.”). And Miller presents no reason to
believe that, had counsel moved for STA dismissal, the district
15
court would have abused its discretion in dismissing without
prejudice. 4 Indeed, given that Miller’s crimes were very
serious and that the trial delay was not attributable to the
government, we conclude that the district court would have
been well within its discretion to dismiss without prejudice.
See 18 U.S.C. § 3162 (requiring the district court to consider
“the seriousness of the offense; the facts and circumstances of
the case which led to the dismissal; and the impact of a
reprosecution on the administration of this chapter and on the
administration of justice”).
2.
Next, Miller argues that, under the circumstances of this
case, failing to obtain a without-prejudice dismissal caused him
prejudice under Strickland.
Where, as here, a dismissal would have likely been without
prejudice, the defendant must establish a reasonable probability
that either he wouldn’t have been re-indicted or that he would
have obtained a more favorable outcome on re-indictment.
United States v. McLendon, 944 F.3d 255, 262 (D.C. Cir.
2019). However, a defendant cannot rest on a parade of
hypotheticals to establish Strickland prejudice. See id. (“We
acknowledge that the government might have refused to
4
In a footnote, Miller asserts that it would be “premature” to present
arguments “for why a STA dismissal should have been granted with
prejudice in this case” and instead attempts to incorporate by
reference arguments he made to that effect in the district court.
Appellant’s Opening Br. at 43 n.18. We do not consider such
arguments. Davis v. Pension Ben. Guar. Corp., 734 F.3d 1161, 1167
(D.C. Cir. 2013) (parties may not “incorporat[e] argument[s]
presented in the district court, . . . as this would circumvent the
court’s rules, . . . regarding the length of briefs”) (citing D.C. CIR. R.
32(a)).
16
reindict, a grand jury might have returned a different
indictment, the government might have offered a plea
agreement, or a new jury might have been unable to reach a
verdict[.] . . . [S]uch hypotheticals are insufficient to undermine
our confidence in the outcome of the proceedings[.]”). Rather,
the defendant needs concrete evidence to establish a reasonable
probability that “the outcome of the criminal prosecution
would be different.” Id. Such a showing is difficult, but can
be made in myriad ways, including through evidence that: the
government would not have re-indicted or would have offered
a more favorable plea agreement, see id.; the statute of
limitations would have run on one or more of the charges, see
United States v. Taylor, 487 U.S. 326, 342 (1988); United
States v. Rushin, 642 F.3d 1299, 1312–13 (10th Cir. 2011)
(Holmes, J., concurring); or a key witness has become
unavailable, see Campbell v. United States, 364 F.3d 727, 731
(6th Cir. 2004).
Miller does not allege (nor does the record support) any
such circumstances. Rather, he points to two unique
circumstances that he argues establish Strickland prejudice in
this case.
First, Miller argues that, upon re-indictment, trial counsel
would have “corrected his mistakes by presenting timely
evidence of Miller’s standing” to suppress the boxes in the Ford
Explorer. Appellant’s Opening Br. at 43-44. True as this may
be, we have already concluded that Miller’s suppression
motion would have failed on the merits. Thus, the fact that he
would have obtained a new suppression hearing upon
reindictment is insufficient to show a reasonable probability
that the outcome of his re-prosecution would have been
different. See McLendon, 944 F.3d at 262.
17
Second, Miller argues that the failure to move for STA
dismissal increased his time in federal prison. Specifically, he
notes that he was transferred from Maryland state custody to
federal authorities on a federal writ and that “[d]uring the 896
days of delay between this indictment and trial, [he] lost over a
year of good time credits he otherwise would have earned in
Maryland custody.” Appellant’s Opening Br. at 44. He further
notes that the district court concluded that a dismissal without
prejudice would have “prodded the Government and the Court
to move quickly to trial.” Id. (citing Miller, 2018 WL 6308786,
at *12). Accordingly, he argues that, if his counsel had moved
for STA dismissal, his trial upon reindictment would have
“taken place quickly, and [he] could have been returned to
Maryland state custody where he could earn additional good
time credits, and as a result, he would now be getting out of
federal prison sooner, since his federal consecutive sentence
did not begin until his Maryland state custody ended.” Id. at
45 (emphasis omitted).
We conclude that this argument is too speculative to
establish Strickland prejudice. Indeed, even if trial counsel had
moved for dismissal as soon as the violation occurred, and even
if the government had moved as quickly as possible to re-indict
him, there is little reason to believe that Miller would have
spent less time in federal custody than he did in fact. If
anything, he would have likely spent more time in federal
custody, as the government would have been forced to re-do
much of the pretrial proceedings to that point, including re-
litigating the suppression motion. See McLendon, 944 F.3d at
262.
D.
Miller next argues that trial counsel provided ineffective
assistance by failing to call as trial witnesses investors who’d
18
been paid back. 5 We disagree. As trial counsel explained at
the evidentiary hearing, allowing these witnesses to testify
would have helped prove the government’s case: “the investors
who got paid back got paid back for a reason, because they
hounded Mr. Miller and threatened to call law enforcement.”
JA.815. Because there was a sound, strategic reason not to call
these witnesses, we conclude Miller has failed to overcome the
“strong presumption” that trial counsel’s performance was
within an “objective standard of reasonableness.” See
Strickland, 466 U.S. at 688-89
E.
Finally, Miller asserts ineffective assistance based on trial
counsel’s performance at sentencing. He alleges two specific
deficiencies.
First, Miller argues that trial counsel should have
requested that the court recommend to the Bureau of Prisons
(BOP) that he be placed in the “Residential Drug Abuse
Program” (RDAP). There is no dispute that Miller was eligible
for RDAP. But Miller concedes that BOP retains absolute
discretion over whether to place a defendant in RDAP. Thus,
a district court’s recommendation is not dispositive. Indeed,
trial counsel testified that, while he “definitely” should have
made the request, a recommendation from the court merely
5
The district court concluded that Miller had “abandon[ed]” his trial-
based claim, because the “proposed conclusions of law” section of
Miller’s brief failed to address it. Miller, 2018 WL 6308786, at *14.
However, Miller raised this issue in his post-remand motion
identifying his IAC claims, briefed it at length in the proposed
“findings of fact” section of his brief, and argued it during the post-
hearing oral argument. We therefore reject the government’s
contention that this claim is not properly before us. See Govt’s Resp.
Br. at 63 n.5.
19
“helps” place a defendant in the program. JA.353. As a result,
even assuming that trial counsel’s failure to ask the district
court for an RDAP recommendation fell below an objective
standard of reasonable performance, Miller has failed to show
a reasonable probability that he would have actually been
placed in RDAP had he received a recommendation from the
district court.
Second, Miller argues that trial counsel should have
notified the court that his being detained on a federal writ
prevented him from earning over a year of confinement credits
towards his Maryland state sentence. Failing to do so, Miller
argues, caused the district court to believe that his Maryland
sentence was one year shorter than it actually was. On this
point, we agree with Miller.
At sentencing, trial counsel explained that, because Miller
had already served four years of his Maryland state sentence,
only four to eight years of that sentence remained. (Recall that
Miller had received an eight- to twelve-year Maryland
sentence.) However, trial counsel neglected to inform the court
that Miller’s detention on a federal writ while awaiting trial
deprived him of the opportunity to earn approximately one year
of Maryland confinement credits. His pretrial custody
occurred in a federal facility, so he could not earn certain
Maryland credits—such as for participating in a work detail—
against the Maryland sentence during that time. See, e.g., Md.
Code Ann., Corr. Servs. § 3-705 (providing for work credits).
The government does not dispute that this error fell below an
objective standard of reasonable performance.
On remand, the district court concluded that this error did
not prejudice Miller, because “even if Miller’s counsel had
notified [the court] during sentencing of this Maryland jail
credit issue, it wouldn’t have made a difference to the sentence
20
[the court] gave him, which was crafted to be a fair sentence
for Miller’s federal case.” Miller, 2018 WL 6308786, at *14
(quotations and alterations omitted). Whether Maryland
affords Miller credit for his time in federal custody, the district
court explained, “is up to Maryland.” Id. Not so.
The district court would not have been permitted to
disregard the fact that Miller’s detention on a federal writ
caused him to lose one year of Maryland state jail credits. Had
it done so, its conclusion would have been procedurally
unreasonable. See 18 U.S.C. § 3553(a); United States v.
Flores, 912 F.3d 613, 618 (D.C. Cir. 2019). As we explained
in Miller I, the Sentencing Guidelines in effect at the time of
Miller’s sentencing provided that a “sentence . . . may be
imposed to run concurrently, partially concurrently, or
consecutively to the prior [sentence] to achieve
a reasonable punishment for the instant offense.” 799 F.3d at
1107 (citing U.S.S.G. § 5G1.3(c) (2008)). Thus, in order to
determine whether a consecutive sentence is “reasonable,” a
sentencing court must know what the other sentence is and
consider whether the federal sentence, when combined with the
state sentence, is necessary to achieve a reasonable
punishment. U.S.S.G. § 5G1.3(c) (2008). To be sure, the
district court knew that Miller faced an “indeterminate”
sentence in Maryland. See Miller I, 799 F.3d at 1107. But to
craft a reasonable sentence, it would have needed to consider
that there was an extra year at the bottom of that indeterminate
range. 6
6
We take no position on the 18 U.S.C. § 3585(b) issues Judge
Williams raises in his concurrence, because these issues were not
raised below or briefed on appeal.
21
III.
Consistent with this opinion, we reverse the judgment of
the district court insofar as it rejected Miller’s sentencing-based
IAC claim, and we remand for resentencing. In other all
respects, we affirm.
WILLIAMS, Senior Circuit Judge, concurring:
I join the court’s opinion in full. I write only to express
my thoughts regarding the complexities of Miller’s original
sentencing and my understanding of how these complexities
will impact his resentencing.
By the time the federal government prosecuted Miller, he
had already been convicted of a state offense in Maryland and
was serving time in the state’s penitentiary. To further federal
prosecution, Maryland authorities transferred Miller to federal
custody in the District of Columbia in response to a writ of
habeas corpus ad prosequendum.
Being held in federal custody had the direct effect of
extending Miller’s total time in incarceration by about a year
(precision will require fact-finding in the district court). The
Maryland legislature has adopted a generous prison credits
scheme, wherein inmates receive credits against their sentence
for various forms of good behavior. See, e.g., Md. Code Ann.,
Corr. Servs. § 3-705 (providing for work credits). It appears to
be undisputed that because Miller came from Maryland on a
writ of habeas corpus ad prosequendum, his period of federal
custody on the writ counted only against his Maryland sentence
and was not credited against his federal sentence as it would
have been automatically if the custody had related directly and
only to the federal case. See 18 U.S.C. § 3585(b); see also
Pickett v. Warden McKean FCI, 726 F. App’x 104, 106 (3d Cir.
2018) (“The BOP was . . . correct in not awarding credit for
time served by [a defendant] while on loan to federal authorities
pursuant to a writ of habeas corpus ad prosequendum.”). Thus,
for the three years that Miller was in federal custody that federal
law ascribed to his Maryland sentence, he lost the chance to
earn Maryland credits.
2
But because ineffective trial counsel never pointed it out,
the district court never learned that Miller’s federal prosecution
caused him to lose Maryland credits and thus spend roughly an
extra year in jail. And when the district court did learn about
the lost credits in the hearing below, it declared that it didn’t
matter: According to the district court, it would nonetheless
have given Miller the same 204-month federal sentence, credits
or no credits. As the court explains, the district court’s analysis
constitutes procedural error.
In most cases where a district court commits procedural
error by refusing to consider a necessary factor, the district
court can correct its oversight by reevaluating that sentence in
light of the missed factor. If it finds the factor insignificant in
the total constellation of relevant considerations, it is free to re-
impose the original sentence.
But time is different from unquantifiable sentencing
factors, such as a defendant’s character or the nature of an
offense. Here time was mishandled in the initial sentencing
because the district court, thanks to the ineffective assistance of
counsel, did not make an adjustment for the fact that Miller’s
federal charges had the direct effect of extending his total time
in prison by a year. As counsel put it below, Miller will serve
“an extra year of served time [that] is caused by this case, by
him being writted in and being in federal custody instead of
state custody during the time that he was serving Maryland
incarceration.” J.A. 904.
In order to reach a sentence reflecting the desired total
period of time thought suitable for the federal charge, the
district court needs to make an adjustment for direct effects that
Miller’s federal custody had on the state sentence. See 18
U.S.C. § 3553(a); U.S.S.G. § 5G1.3(c) (2008) (now codified at
U.S.S.G. § 5G1.3(d)). To do otherwise would take away “an
extra year of this man’s life . . . simply because of the fortuity
3
[] that he is here on paper, federal paper, in this system instead
of that system.” J.A. 905.
Because this case comes to us as an ineffective assistance
of counsel claim, we know what federal sentence the court
sought to give (204 months) and how much it actually gave
(approximately 216 months—the sum of the 204 months that
the district expressly intended and approximately a year added
by the federal custody for the Maryland proceedings).
Computing the Maryland credits Miller likely lost will
require facts and some estimation, as the credits depend on an
inmate’s actions, such as performing a work detail. Without a
corresponding reduction, Miller’s federal sentence would
remain unreasonable because it would be self-contradictory.