United States v. Floyd Miller

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4553
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FLOYD LEWIS MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:11-cr-00164-3)
Submitted: December 28, 2012 Decided: February 1, 2013
Before MOTZ, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for
Appellant. Joseph Franklin Adams, OFFICE OF THE UNITED STATES
ATTORNEY, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Floyd Lewis Miller appeals his conviction and ninety-
seven month sentence following a guilty plea to conspiracy to
distribute oxycodone, in violation of 21 U.S.C. § 846 (2006).
In accordance with Anders v. California, 386 U.S. 738 (1967),
Miller’s counsel has filed a brief certifying that there are no
meritorious issues for appeal but questioning the district
court’s findings regarding the quantity of drugs attributable to
Miller for sentencing purposes, the court’s refusal to grant
Miller a departure or variance based on his age and poor health,
and whether Miller’s sentence is unreasonably disparate when
compared with the sentences of his co-conspirators. Although
notified of his right to do so, Miller did not file a
supplemental pro se brief. Finding no error, we affirm.
We review Miller’s sentence for reasonableness, using
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). We must first review for significant
procedural errors, including improperly calculating the
Guidelines range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, sentencing under clearly erroneous facts, or
failing to adequately explain the sentence. Id. at 51; United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). Only if we
find a sentence procedurally reasonable may we consider its
substantive reasonableness. United States v. Carter, 564 F.3d
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325, 328 (4th Cir. 2009). A sentence within a properly-
calculated Guidelines range is presumed reasonable. United
States v. Powell, 650 F.3d 388, 395 (4th Cir.), cert. denied,
132 S. Ct. 350 (2011).
We review Miller’s claim that the district court erred
in relying on the testimony of his co-conspirator when
determining the quantity of drugs properly attributed to Miller
for sentencing purposes for clear error. United States v.
Layton, 564 F.3d 330, 334 (4th Cir. 2009). Further, when, as
here, a district court’s factual findings at sentencing are
based on witness testimony, we grant great deference to the
court’s credibility determinations. Id. Applying these
standards, and recognizing that the district court adopted a
relatively conservative finding of the drug quantity
attributable to Miller, we find no error, clear or otherwise.
Further, we lack authority to review the district
court’s refusal to grant Miller a departure unless the refusal
was based on the mistaken belief that it lacked the power to do
so. United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008).
Here, there is no indication of such a mistake. Moreover, the
district court cited numerous considerations that counseled for
a within-Guidelines range sentence and, therefore, did not abuse
its discretion in refusing Miller’s request for a variance. See
United States v. Hammond, 698 F.3d 679, 681 (8th Cir. 2012) (per
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curiam) (reviewing refusal to grant variance for abuse of
discretion).
Similarly, we find no error in the district court’s
refusal to sentence Miller more leniently than his co-
conspirators. Although 18 U.S.C. § 3553(a)(6) directs the
district court to consider disparities in sentencing when
imposing sentence, a district court has “extremely broad
discretion when determining the weight to be given each of the
§ 3553(a) factors.” United States v. Jeffery, 631 F.3d 669, 679
(4th Cir.), cert. denied, 132 S. Ct. 187 (2011). The district
court here offered a sufficiently individualized explanation for
Miller’s sentence and did not abuse its discretion. See United
States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007) (reasons
court articulates for a given sentence need not be couched in
precise terms of § 3553(a) so long as they can be matched to
factor appropriate for consideration and are clearly based on
the defendant’s individual circumstances).
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm Miller’s conviction and sentence. This court
requires that counsel inform Miller, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Miller requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may
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move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Miller. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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