United States v. Gregory Miller

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2337
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UNITED STATES OF AMERICA
v.
GREGORY MILLER,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1:12-cr-00325-001)
District Judge: Hon. Robert B. Kugler
Submitted Under Third Circuit L.A.R. 34.1(a)
January 23, 2019
Before: CHAGARES and BIBAS, Circuit Judges, and SÁNCHEZ,* Chief District
Judge.
(Filed: March 15, 2019)
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OPINION**
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*
The Honorable Juan R. Sánchez, Chief District Judge of the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SÁNCHEZ, Chief District Judge.
Gregory Miller appeals the District Court’s judgment revoking a term of
supervised release and imposing a sentence of fourteen months. The District Court
revoked Miller’s supervised release after it found he violated the condition of his release
requiring residence at a re-entry facility for eight months. Miller was prematurely
discharged from the facility for violating a rule prohibiting unaccounted for medication
after eight Oxycodone pills went missing from his prescription bottle while the bottle was
in his custody and control. Miller claims the evidence presented at the violation of
supervised release hearing was insufficient to support the District Court’s finding that
Miller was responsible for the missing pills. Because the District Court had sufficient
evidence to support its conclusion, we will affirm.
I.
In 2012, Miller was convicted of bank robbery and sentenced to 84 months of
imprisonment and 3 years of supervised release. His term of supervised release began on
March 1, 2017. On April 23, 2018, Miller was arrested and detained for ignoring his
probation officer’s directives. On May 1, 2018, he pleaded guilty to failing to answer his
probation officer’s inquiries and follow instructions. His supervised release was revoked,
and he was sentenced to one month of imprisonment and one year of supervised release
with a special condition that he reside for eight months in a Residential Re-entry Center
(RRC).
On May 21, 2018, Miller was released to his designated RRC. Nine days later, on
May 30, 2018, Miller’s probation officer filed a petition to revoke Miller’s supervised
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release, alleging that Miller violated the terms of his release because he was discharged
from the RRC for failure to account for eight Oxycodone pills he had been prescribed.
A violation of supervised release hearing was held on June 12, 2018. At the
hearing, William Burns, a van driver for the RRC where Miller was placed, testified that
he took Miller to a pharmacy to fill a prescription for thirty Oxycodone pills. Burns did
not accompany Miller inside the pharmacy and waited approximately half an hour for
Miller to return to the van with his prescription. Burns then drove Miller directly to the
RRC.
Anthony Rodriguez, a manager at the RRC, testified that once Miller returned to
the RRC, he collected the Oxycodone and secured it so he alone could access it.
Rodriguez did not retrieve the medication until the following morning when Miller
requested to take it. After retrieving the medication, Rodriguez and another manager
took it to the medication room to be counted and administered. While counting the pills,
they discovered that eight pills were missing. Rodriguez immediately reported this
finding to his supervisor.
Stacey Cossaboon, the RRC Director, testified that after she was notified about the
missing pills, her staff investigated the discrepancy with both Miller and the pharmacy.
The pharmacy confirmed that the prescription bottle it provided Miller contained thirty
Oxycodone pills. Miller also provided a statement to the RRC denying responsibility for
the missing medication. The RRC, however, found Miller responsible for the missing
pills and expelled him before he completed his required eight months.
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Consistent with his statement, at the hearing Miller denied taking the pills and
pleaded ignorance. He also confirmed he alone entered the pharmacy to pick up the
prescription and admitted to being unable to account for missing narcotics medication
earlier in 2018.
On the basis of this evidence, the District Court found by a preponderance of the
evidence that Miller violated the condition of his supervised release requiring residence at
a re-entry facility. Its finding was premised on the RRC having adequate grounds to
remove Miller from its facility because eight Oxycodone pills “went missing” while they
were in his “custody and control.” App. 87.
II.
The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3583(e). We
have appellate jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Whether
there is sufficient evidence to establish a violation of a condition of supervised release is
reviewed for clear error. United States v. Bagdy, 764 F.3d 287, 290 (3d Cir. 2014);
United States v. Poellnitz, 372 F.3d 562, 565 n.6 (3d Cir. 2004).
III.
Miller contends the District Court erred in finding he was in violation of the terms
of his supervised release because the evidence was insufficient to establish he was
responsible for the missing pills. He relies on United States v. Cicirello, 301 F.3d 135(3d Cir. 2002), to argue the evidence presented was insufficient. In Cicirello, the district
court applied a sentencing enhancement “for the transfer of a firearm ‘with knowledge,
intent or reason to believe that it would be used or possessed in connection with another
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felony offense’” when the record only showed that a firearm transfer took place and
resulted in the defendant receiving a certain amount of money. Id. at 137, 141. Based on
the evidence presented, however, we found that the Government had failed to show any
facts from which an inference could be drawn concerning the defendant’s knowledge,
intent or reason to believe the guns at issue would be used in connection with another
felony. Id. at 141-42. We therefore reversed application of the sentencing enhancement.
Id. at 143.
Unlike in Cicirello, the District Court here had sufficient evidence to give rise to
the inference that eight Oxycodone pills disappeared while under Miller’s custody and
control. First, Miller spent approximately thirty minutes alone inside the pharmacy,
which had dispensed 30 Oxycodone pills to him. Second, Miller had these pills in his
possession from the time he received them until he arrived at the RRC. And third, after
Miller arrived at the RRC, Rodriguez retrieved these pills from Miller and secured them
until they were counted the following morning. The District Court also heard from
Miller and Rodriguez and resolved any inconsistencies between their testimony in the
Government’s favor. Although there is no direct evidence supporting the finding that the
pills disappeared while in Miller’s possession, circumstantial evidence is enough to
support such an inference. See United States v. Douglas, 885 F.3d 145, 151 (3d Cir.
2018) (affirming district court’s factual determination based on circumstantial evidence
alone). We will therefore affirm the District Court’s finding that the eight Oxycodone
pills “went missing” while under Miller’s “custody and control,” App. 87, which was the
basis for Miller’s removal from the RRC.
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IV.
For the foregoing reasons, we will affirm the District Court’s judgment that Miller
violated the terms of his supervised release and its sentence.
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