United States v. Frederick Miller

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 5, 2018 Decided May 18, 2018
No. 17-3001
UNITED STATES OF AMERICA,
APPELLEE
v.
FREDERICK A. MILLER, ALSO KNOWN AS TOBY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cr-00379-2)
Dennis M. Hart, appointed by the court, argued the cause
and filed the briefs for appellant.
Lauren R. Bates, Assistant U.S. Attorney, argued the cause
for appellee. On the brief were Elizabeth Trosman, Chrisellen
R. Kolb, and Patricia A. Heffernan, Assistant U.S. Attorneys.
Before: PILLARD, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
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EDWARDS, Senior Circuit Judge: In 2006, Appellant
Frederick Miller and 20 codefendants were charged in a 100-
count indictment alleging a conspiracy to distribute heroin,
cocaine, cocaine base, and phencyclidine (“PCP”). On June 19,
2006, a jury convicted Appellant of 21 counts of using a
communication device to facilitate a drug-trafficking offense,
acquitted him of PCP distribution and several counts of
communications offenses, and hung on the remaining counts.
Appellant was tried for a second time with respect to the counts
on which the jury hung at the first trial. On November 15, 2006,
following his second trial, a jury found Appellant guilty of
narcotics conspiracy covering heroin, cocaine, and cocaine
base, but not PCP; Racketeer Influenced and Corrupt
Organizations Act (“RICO”) conspiracy; Continuing Criminal
Enterprise (“CCE”); attempt to possess with intent to distribute
heroin; and three counts of unlawful use of a communication
facility. He was found not guilty of attempt to possess with
intent to distribute PCP and five additional communications
counts.
On November 28, 2007, the District Court sentenced
Appellant on the counts of conviction from both trials. The
court dismissed the narcotics conspiracy charge against
Appellant as a lesser-included offense of CCE. The court then
imposed concurrent sentences of life imprisonment for the
RICO conspiracy and CCE, and lesser terms of imprisonment
on the other counts.
On Appellant’s appeal from the first trial, this court
reversed six telephone count convictions and affirmed the
convictions on the remaining counts. On Appellant’s appeal
from the second trial, this court vacated the CCE conviction for
insufficiency of the evidence, reinstated the drug conspiracy
conviction, vacated Appellant’s sentence, and remanded for
resentencing.
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On December 20, 2016, following remand to the District
Court, the Appellant was resentenced as follows: life
imprisonment on the RICO conspiracy; 120 months on the drug
conspiracy; 60 months on attempted possession with intent to
distribute heroin; and 48 months each on 18 telephone counts.
Appellant filed a timely notice of appeal on December 30,
2016.
Appellant now claims that the District Court erred in its
consideration of the United States Sentencing Guidelines
(“Guidelines”) in imposing sentencing enhancements for his
possession of a firearm and for serving as an organizer or leader
of criminal activity; in determining the quantity of drugs used
to calculate his base offense level in sentencing him on a count
of narcotics conspiracy; and in imposing a life sentence on the
RICO conspiracy count.
In response to Appellant’s challenges, the Government
presses two points. The Government argues,
[f]irst, the claims are waived. Appellant did not
challenge drug quantity or the district court’s
application of either [sentencing] adjustment in his
initial appeal; these determinations became law of the
case, and therefore appellant should not be permitted
to litigate them now. Second, the district court was not
authorized to reconsider the issues on resentencing
because they are beyond the scope of this Court’s
remand.
Gov’t Br. at 19. The Government’s arguments confusingly
conflate three theories: waiver; law of the case; and the rule
that the District Court generally does not have authority to
resentence a defendant de novo when this court vacates one
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count of a multicount conviction. As we explain more fully in
the analysis section of this opinion, the Government’s
arguments are seriously misguided.
Appellant had no reason to raise his present sentencing
challenges during his initial appeal; therefore, he certainly did
not “waive” these claims as the Government suggests. During
his initial appeal, Appellant’s looming mandatory life sentence
for his CCE conviction rendered his present sentencing
challenges fruitless. Given this situation, Appellant was not
obliged to raise arguments on his first appeal that were merely
contingently relevant. Once Appellant’s initial appeal was
successful in overturning the CCE conviction, however, his
current sentencing challenges became relevant for the first
time. Therefore, he gave up nothing during his first appeal.
After careful review of the record, we affirm in part,
reverse in part, vacate in part, and remand the case for
resentencing consistent with the following judgments. We hold
that Appellant’s challenges to the firearm and role-in-the-
offense enhancements are meritorious because the District
Court plainly erred in applying them. However, we hold that
Appellant’s challenge to the drug quantity determination fails
because the District Court adequately explained its judgment
and its findings are supported by the record. Finally, we vacate
and remand the sentence on the RICO conspiracy count
because the parties agree that the District Court erred in stating
that the Guidelines range for the RICO conspiracy was life,
when it was in fact 360 months to life.
I. BACKGROUND
As noted above, Appellant and 20 codefendants were
charged in a multicount indictment arising from a conspiracy
to distribute heroin, cocaine, cocaine base (also known as
5
“crack”), and PCP. United States v. Eiland, 738 F.3d 338, 345
(D.C. Cir. 2013). On July 18, 2004 – after Appellant’s arrest
but before the alleged conspiracy ended in September 2004 –
the Government executed a search warrant at his home and
found firearms licensed to him, as well as a glass vial with the
odor of PCP and several bottles of acetone, which can be used
to dilute PCP. After the first trial, a jury convicted Appellant of
21 counts of using a communication device to facilitate a drug
trafficking offense, acquitted him “of PCP distribution and
several counts of communications offenses,” and “hung on the
remaining counts,” resulting in a mistrial as to those. Id.
Appellant was tried for a second time “with respect to the
counts on which the jury hung at the first trial.” United States
v. Miller, 738 F.3d 361, 367 (D.C. Cir. 2013).
At his second trial, Appellant
was convicted of narcotics conspiracy (Count 1) with
regard to heroin, cocaine, and cocaine base, but not
with regard to PCP; RICO conspiracy (Count 2); CCE
(Count 3); attempt to possess with intent to distribute
heroin (Count 5); and three counts of unlawful use of
a communication facility. The jury found Miller not
guilty of attempt to possess with intent to distribute
PCP and five additional communications counts.
Eiland, 738 F.3d at 346. Regarding the narcotics conspiracy
count, the jury specifically found drug amounts for which
Appellant was responsible, “including those drugs that he
actually distributed or possessed with intent to distribute, and
those drugs distributed or possessed with intent to distribute by
co-conspirators which the defendant knew or reasonably could
have foreseen would be distributed or possessed in furtherance
of the conspiracy.” Jury Verdict Form at 20, United States v.
Eiland (No. 04-CR-00379) (Dec. 5, 2006), available at
6
Supplemental Appendix (“S.A.”) 15. Those amounts were “1
kilogram or more of mixtures or substances containing a
detectable amount of heroin,” “5 kilograms or more of mixtures
or substances containing a detectable amount of cocaine,” and
“5 grams or more but less than 50 grams of mixtures or
substances containing a detectable amount of cocaine base.” Id.
at 21–22, S.A. 16–17.
Regarding the CCE count, the jury found that Appellant
conspired to distribute and possess with intent to distribute
mixtures or substances containing detectable amounts of
heroin, cocaine, and cocaine base. The jury also found that the
criminal enterprise was involved in the distribution of 30
kilograms or more of heroin and 15 kilograms or more of
cocaine. Although the jury found Appellant guilty on Count
Five, “attempt[ing] to possess with intent to distribute heroin,”
it did not make a specific finding regarding drug quantity. Id.
at 39, S.A. 33.
The Presentence Investigation Report for the first trial
(“2007 PSR”) explained that, “[b]ased on the jury verdict,
Frederick Miller was held accountable for at least 30 kilograms
of heroin and at least 15 kilograms of cocaine.” 2007 PSR at
11, United States v. Miller (No. CR-04-379-2) (Apr. 16, 2007).
Using the “2006 edition of the Guidelines Manual, in
conjunction with the May 2007 Supplement,” the 2007 PSR
grouped all of the counts under Guidelines § 3D1.2(d) because
the offense level of each count was determined based upon “the
quantity of a substance involved.” Id. at 12. The PSR calculated
the base offense level at 42 “because the offense involved at
least 30 kilograms of heroin and at least 15 kilograms of
cocaine,” citing Guidelines § 2D1.1(a)(3) and (c)(1). Id.
The 2007 PSR increased the offense level two points under
Guidelines § 2D1.1(b)(1) for “Specific Offense Characteristic:
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A dangerous weapon (including a firearm[)] was possessed.”
Id. at 13. It awarded a four-point increase for “Role in the
Offense” pursuant to Guidelines § 3B1.1(a). Id. Because the
adjusted offense level, 48, was the result of the application of
the Guidelines, and it was greater than an offense level of 43,
the 2007 PSR treated the offense level as 43, pursuant to
Guidelines Chapter 5, Part A, paragraph 2. The 2007 PSR
calculated a criminal history category of I. A total offense level
of 43 and a criminal history category of I resulted in a
Guidelines range of life imprisonment. The statutory minimum
sentence for the CCE conviction was life; both the narcotics
conspiracy and the RICO conspiracy carried maximum terms
of life imprisonment; and the unlawful-use-of-a-
communications-facility counts carried maximum statutory
terms of imprisonment of four years.
On November 28, 2007, the District Court sentenced
Appellant on the counts of conviction from both trials. The
court dismissed the narcotics conspiracy charge against
Appellant as a lesser included offense of the CCE count.
Eiland, 738 F.3d at 346. The District Court held that a two-
offense-level increase was appropriate for possession of a
firearm “even though it was legally obtained.” Transcript of
Sentencing at 3, United States v. Miller (No. CR-04-379-2)
(Nov. 28, 2007), S.A. 3. It then imposed “concurrent sentences
of life imprisonment for RICO conspiracy and CCE, and lesser
terms of imprisonment on the other counts.” Eiland, 738 F.3d
at 346.
On appeal from the first trial, this court vacated various
unlawful-use-of-a-communications-facility counts and
affirmed the remaining counts. Miller, 738 F.3d at 387. On
appeal from the second trial, this court concluded that, although
sufficient evidence supported the narcotics conspiracy
conviction, the evidence failed to establish that Appellant
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organized or supervised five people as required for a CCE
conviction. Eiland, 738 F.3d at 356–58. However, we affirmed
and reinstated Appellant’s conviction on Count 1 relating to
narcotics conspiracy, vacated his sentence, and remanded the
case for resentencing. Id. at 361.
The Probation Office issued a revised memorandum
(“revised PSR”) to assist the District Court at resentencing.
Based on the 2015 version of the Guidelines, the base offense
level was predicated upon the narcotics conspiracy count.
Because Guidelines § 2D1.1(a)(5) and (c)(2) state that an
offense involving at least 30 kilograms of heroin and 15
kilograms of cocaine resulted in a marijuana equivalent of
33,000 kilograms, the base offense level was set at 36. Again
adding two points because “[a] dangerous weapon, specifically
a firearm, was possessed” (Guidelines § 2D1.1(b)(1)), and four
points for “Role in the Offense” pursuant to § 3B1.1(a), the
revised PSR calculated the total offense level to be 42. Revised
Re-Sentencing Report, United States v. Miller (No. CR-04-
379-2) (June 16, 2016), available at Appellant’s Appendix
(“A.A.”) 124. With a criminal history of I, the revised PSR
determined that Appellant’s Guidelines range of imprisonment
was 360 months to life.
On December 20, 2016, the District Court resentenced
Appellant as follows: (1) ten years on Count One, narcotics
conspiracy; (2) life on Count Two, RICO conspiracy; (3) five
years on Count Five, attempted possession with intent to
distribute heroin; and (4) four years each on Counts Six, 16–
18, 22, 24, 27, 28, 30, 33, 35, 36, 38, 39, 41, 43, 49, 52, and 53.
In so doing, the District Court found that Appellant was
responsible for the drug quantities underlying the vacated CCE
conviction, i.e., “30 kilograms of heroin, 15 kilograms of
cocaine, and at least five grams of crack.” Transcript of
Sentencing Hearing at 8–10, United States v. Miller (No. CR-
9
04-379-2) (Dec. 20, 2016), A.A. 73–75. The District Court also
applied a two-point firearm enhancement because, based on the
evidence and witness testimony it had seen and heard, the court
determined that Appellant “was in fact in possession of a
firearm during this drug conspiracy.” Id. at 10, A.A. 75. And,
finally, the District Court applied a four-point role-in-the-
offense enhancement because it found that Appellant
“managed or supervised at least one participant who was
criminally responsible for an offense in a criminal activity that
involved five or more participants, or was otherwise
extensive.” Id. at 11, A.A. 76.
Appellant filed a timely notice of appeal on December 30,
2016.
II. ANALYSIS
A. Standard of Review
Under Gall v. United States, 552 U.S. 38 (2007), we
review sentences in a two-step process pursuant to which
procedural challenges are reviewed for an abuse of discretion.
First, we must “ensure that the district court committed no
significant procedural error such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines
range.” Id. at 51. Next, if the District Court decision is
procedurally sound, we then review it for substantive
reasonableness, “tak[ing] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range. If the sentence is within the Guidelines
range, the appellate court may, but is not required to, apply a
presumption of reasonableness.” Id.
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“When a defendant fails to raise objections at sentencing,
we review only for plain error.” United States v. Mack, 841
F.3d 514, 525 (D.C. Cir. 2016). “Under the plain error
standard, we will correct a district court’s error only if (1) there
is in fact an error to correct; (2) the error is plain; (3) it affects
substantial rights; and (4) it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Mahdi, 598 F.3d 883, 888 (D.C. Cir. 2010).
“[W]e review a sentencing court’s factual determinations
for clear error.” In re Sealed Case, 552 F.3d 841, 849 (D.C.
Cir. 2009).
B. Appellant’s Sentencing Challenges
1. Stipulated Errors by the District Court
The parties agree that the District Court erred when, at
resentencing, it treated Appellant’s Guidelines range for the
RICO conspiracy count as life rather than 360 months to life.
At the initial sentencing, Appellant’s Guidelines range for the
RICO conspiracy was life due to the mandatory life sentence
on his CCE count. After our decision in Eiland, however, in
which we vacated Appellant’s CCE conviction and remanded
the case for resentencing, the Guidelines range for Appellant’s
RICO conspiracy count fell to 360 months to life. We therefore
vacate Appellant’s life sentence on the RICO conspiracy count
and remand to the District Court with instructions to resentence
Appellant on the RICO conspiracy count in light of the correct
Guidelines range of 360 months to life.
Because the District Court must reevaluate the RICO
conspiracy sentence, we need not reach Appellant’s argument
that the now-vacated life sentence for that count was
substantively unreasonable due to “erroneous factual
assumptions” made by the District Court. Appellant’s Br. 21–
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22. Nor do we need to assess Appellant’s claim that the District
Court’s resentencing decision was “in fatal conflict” with the
court’s 120-month sentence on the narcotics conspiracy count.
Id. at 22.
The parties have also identified clerical errors in the
District Court’s written judgment regarding Counts Two and
Five. The judgment erroneously states that Count Two charged
CCE and that Count Five charged “Communications Facility
Narcotic - Distribute.” Judgment, United States v. Miller (No.
CR-04-379-2) (Dec. 28, 2016), A.A. 86. But as the verdict form
from the second trial establishes, those counts charged RICO
conspiracy and attempted possession with intent to distribute
heroin, respectively. On remand, the District Court will be
required to correct the judgment to reflect the actual charges of
conviction.
____________________
We now turn to the points of disagreement between the
parties. The District Court’s calculation of Appellant’s new
sentence incorporated sentencing adjustments for drug
quantity, firearm possession, and Appellant’s role in the
offense. Appellant challenges these adjustments. The
Government, in turn, argues that Appellant’s challenges should
not be heard for three reasons: they have been waived; they are
barred by law of the case; and they are beyond the District
Court’s remit to resentence only insofar as the initial sentence
was affected by the vacatur. We will consider the
Government’s arguments first because they raise threshold
objections to our consideration of Appellant’s claims.
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2. Law-of-the-Case Doctrine, Waiver, and the Authority
of the District Court to Resentence on Remand
It is worth noting at the outset that, as we explained in
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir.
1995), the law-of-the-case doctrine is “analytically distinct”
from waiver and forfeiture. Further, as we explain below,
waiver is distinct from forfeiture.
The Government argues that law-of-the-case doctrine bars
Appellant’s challenges to the issues he raises here because he
could have raised them – but did not – in his initial appeal. The
Government is mistaken.
“[T]he law of the case doctrine does not apply where an
issue was not raised before the prior panel and thus was not
decided by it.” Yesudian ex rel. U.S. v. Howard Univ., 270 F.3d
969, 972 (D.C. Cir. 2001); see also 18B WRIGHT, MILLER &
COOPER, FEDERAL PRACTICE AND PROCEDURE § 4478 (2d ed.
2002) (“Actual decision of an issue is required to establish the
law of the case. Law of the case does not reach a matter that
was not decided. As compared to claim preclusion, it is not
enough that the matter could have been decided in earlier
proceedings.”).
In addition, even if Appellant had raised with the District
Court before the first appeal the matters now at issue and that
court had addressed them, this court would nevertheless be able
to review them now. As the Supreme Court recently observed,
“[t]he doctrine [of law of the case] may describe an appellate
court’s decision not to depart from a ruling, but it does not
‘limit the court’s power.’” Musacchio v. United States, 136 S.
Ct. 706, 716 (2016) (quoting Messenger v. Anderson, 225 U.S.
436, 444 (1912)).
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An appellate court’s function is to revisit matters
decided in the trial court. When an appellate court
reviews a matter on which a party failed to object
below, its review may well be constrained by other
doctrines such as waiver, forfeiture, and estoppel, as
well as by the type of challenge that it is evaluating.
But it is not bound by district court rulings under the
law-of-the-case doctrine.
Musacchio, 136 S. Ct. at 716 (emphasis in original).
Given that Appellant’s sentencing challenges here have
not been previously decided by any court, let alone this one,
law-of-the-case doctrine does not apply.
In an apparent effort to avoid this well-established
doctrine, the Government looks to our decision in United States
v. Thomas, 572 F.3d 945 (D.C. Cir. 2009). To the extent that
Thomas may appear to be at odds with Yesudian and our en
banc decision in LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir.
1996), Yesudian and LaShawn control. See Sierra Club v.
Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). And, in any
event, the Supreme Court’s decision in Musacchio puts the
matter to rest. Law-of-the-case doctrine applies only to issues
upon which decisions were actually rendered, and is inapposite
where an issue merely went unraised.
The Government also argues that Appellant’s drug
quantity and enhancement challenges were “waived” when he
failed to press two of them (quantity and role-in-the-offense) at
his initial sentencing, or any of them in his initial appeal. The
Government’s understanding of waiver is wrong.
“The terms waiver and forfeiture—though often used
interchangeably by jurists and litigants—are not synonymous.”
Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17
14
n.1 (2017). “[F]orfeiture is the failure to make the timely
assertion of a right[;] waiver is the ‘intentional relinquishment
or abandonment of a known right.’” United States v. Olano,
507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938)); see also EDWARDS & ELLIOTT, FEDERAL
STANDARDS OF REVIEW 99 (3d ed. 2018). As the government
does not contend that Appellant took steps we could reasonably
understand as an intentional relinquishment of his quantity and
enhancement challenges, Appellant never “waived” any of his
claims in this case.
Nor did Appellant forfeit these claims. The challenges
Appellant now raises would have been fruitless before Eiland
vacated his CCE conviction, as that conviction had a statutory
mandatory minimum sentence of life that could not have been
reduced even had he argued and won on the issues now
presented. Compare 21 U.S.C. § 848 (2012) (providing for a
life sentence when two additional elements are satisfied), with
Jury Verdict Form at 37, Eiland, S.A. 31 (special jury verdict
finding Appellant guilty of those two elements). The
Government’s position that Appellant had reason to raise these
issues on his initial appeal because success could have reduced
his Guidelines sentence range is simply incorrect. So long as
the CCE conviction was in place, no amount of Guidelines
range reduction could have lowered Appellant’s sentence
below the statutory minimum of life. The Government does not
dispute this.
Instead, the Government argues that Appellant had reason
to raise his current sentencing challenges on his initial appeal
because of the possibility they would become relevant if this
court heeded his challenge to the CCE conviction. Our case law
holds otherwise. See, e.g., United States v. Melgar-Hernandez,
832 F.3d 261, 270 (D.C. Cir. 2016) (finding that a defendant
could raise an argument made “newly relevant” by a retroactive
15
amendment to the Guidelines, and noting that to hold otherwise
would “engender an incentive for defense lawyers to raise
highly contingent objections in the district court, which would
result in a waste of judicial resources in the long run”). Here,
Eiland animated Appellant’s present challenges by vacating
the CCE conviction (and its attendant mandatory life sentence)
that had temporarily rendered these challenges useless.
The same principle applies to the Government’s argument
that under United States v. Wyche, 741 F.3d 1284, 1294 & n.9
(D.C. Cir. 2014), the District Court could rely on undisputed
facts in the 2007 PSR because Appellant did not challenge drug
quantity or the supervisory-role enhancement at his initial
sentencing. Wyche stated no such categorical rule. Wyche cites
United States v. Pinnick, which merely observed that, “[u]nder
most circumstances, a sentencing court may rely on undisputed
facts in a presentence report to conclude that the defendant
committed any extraneous acts offered as relevant conduct.” 47
F.3d 434, 437 (D.C. Cir. 1995) (emphasis added). As we noted
in United States v. Saro, 24 F.3d 283, 291 (D.C. Cir. 1994),
there is no “categorical rule” barring plain error review of
factual findings in presentence reports merely because they
have not been the subject of a timely objection.
Indeed, Wyche itself allowed a formerly inert sentencing
issue to be raised because changed circumstances had given
that issue life. The case involved a defendant (Wyche) who
argued, among other things, that because his initial sentencing
had included a finding that he was responsible for 500 grams
or more of cocaine base, and because the Government had not
at that time attempted to demonstrate that he was responsible
for more than 500 grams of cocaine base, the Government
could not upon resentencing challenge the drug quantity
finding. Wyche, 741 F.3d at 1293–94. This court observed that
the Government’s challenge was not precluded because, at the
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time of Wyche’s initial sentencing, “500 grams of cocaine base
triggered the highest base offense level for cocaine base
crimes,” and, having established that Wyche was responsible
for at least 500 grams, “the Government was not required to
prove—and had no reason to argue—that Wyche was
responsible for any amount of cocaine base over 500 grams.”
Id. (emphasis in original). Revisions to the Guidelines
postdating the initial sentencing, however, changed the base
offense level such that there were potential offense level
increases tied to proof of quantities over 500 grams of cocaine
base, which for the first time gave the Government reason to
argue the issue. Id.
Finally, the Government argues that this court’s remand
for Appellant’s resentencing did not authorize the District
Court to reconsider drug quantity or either of the sentencing
adjustments at issue here. In support of this claim, the
Government cites United States v. Blackson, 709 F.3d 36 (D.C.
Cir. 2013). That case enumerates the district court’s
“resentencing authorit[ies] under a remand order that . . .
contains no express instructions regarding which issues the
district court may consider.” Id. at 40. However, Blackson
makes it clear that when facing such a remand, “under Whren,
the district court may also consider ‘such new arguments or
new facts as are made newly relevant by the court of appeals’
decision—whether by the reasoning or by the result.’” Id.
(quoting United States v. Whren, 111 F.3d 956, 960 (D.C. Cir.
1997)). As explained above, Eiland’s vacatur of Appellant’s
CCE conviction made his present sentencing challenges newly
relevant, thereby satisfying Blackson.
In sum, we reject the Government’s threshold claims that
seek to limit our review of Appellant’s sentencing challenges.
As we have explained, the Government’s arguments are
17
seriously misguided and find no support in controlling
precedent.
____________________
In the ensuing analysis, we will address the parties’ claims
with respect to The Firearm Enhancement, The Role-in-the-
Offense Enhancement, and The Drug Quantity Findings.
To the extent that the Government is asserting that
Appellant forfeited his sentencing challenges, the issue is
relevant only insofar as a forfeited challenge would be subject
to plain error review. Even if plain error applied here, however,
the outcome would be the same: As detailed below, Appellant’s
challenges to the firearm and role-in-the-offense enhancements
are sustained because the District Court’s application of those
enhancements constituted plain error that affected Appellant’s
substantial rights and seriously affected the fairness of judicial
proceedings. See United States v. King-Gore, 875 F.3d 1141,
1147 (D.C. Cir. 2017). Appellant’s challenge to the drug
quantity finding fails (regardless of the applicable standard of
review) because the District Court’s determination is
sufficiently explained and supported by the record. Wyche, 741
F.3d at 1294 n.9 (“[W]e may affirm [a district] court’s [drug]
quantity finding ‘on any ground supported in the record.’”
(quoting United States v. Taylor, 627 F.3d 674, 676 (7th Cir.
2010))).
3. The Firearm Enhancement
The District Court imposed a two-point sentencing
enhancement under Guidelines § 2D1.1(b)(1) for Appellant’s
possession of a firearm based on a postarrest search of
Appellant’s home that yielded licensed firearms, a glass vial
with the odor of PCP, and several bottles of acetone, which can
18
be used to dilute PCP. “The applicability of a specific offense
characteristic, such as section 2D1.1(b)(1), depends on whether
the conduct at issue is ‘relevant’ to the offense of conviction.”
United States v. Bell, 795 F.3d 88, 105 (D.C. Cir. 2015)
(quoting United States v. Pellegrini, 929 F.2d 55, 56 (2nd Cir.
1991)). To that end, courts have held that, before applying a
firearms enhancement, “a nexus must be shown between the
weapon and the criminal act.” United States v. Pineda, 981
F.2d 569, 573 (1st Cir. 1992). The District Court plainly erred
by imposing the enhancement because it made no factual
finding as to any nexus between those firearms and Appellant’s
drug convictions, which related to heroin, cocaine, and cocaine
base, as Appellant was acquitted of the PCP counts.
Instead, the District Court limited its factual finding
justifying the enhancement to a statement that “Mr. Miller was
in fact in possession of a firearm during this drug conspiracy.”
Transcript of Sentencing Hearing at 10, United States v. Miller
(No. CR-04-379-2) (Dec. 20, 2016), A.A. 75. While we see no
clear error in this finding, it merely identifies parallel conduct,
and fails to articulate a nexus between the firearms and the
offenses at issue. The Government’s citation to Application
Note 11 to Guidelines § 2D1.1 is unavailing. While Note 11
states that “[t]he enhancement should be applied if the weapon
was present, unless it is clearly improbable that the weapon was
connected with the offense,” that principle does not obviate the
“nexus” requirement enunciated in Pineda. 981 F.2d at 573.
4. The Role-in-the-Offense Enhancement
The District Court imposed a four-point sentencing
enhancement under Guidelines § 3B1.1(a) for Appellant’s role
in the offense, finding that he “managed or supervised at least
one participant who was criminally responsible for an offense
in a criminal activity that involved five or more participants, or
19
was otherwise extensive.” Transcript of Sentencing Hearing at
11, United States v. Miller (No. CR-04-379-2) (Dec. 20, 2016),
A.A. 76. But Guidelines § 3B1.1(a)’s four-point enhancement
applies only when the defendant “was an organizer or leader
of a criminal activity that involved five or more participants or
was otherwise extensive” (emphasis added). The District
Court’s finding that Appellant managed or supervised such
activity instead tracks the language of Guidelines § 3B1.1(b),
which says: “If the defendant was a manager or supervisor (but
not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive, increase
by 3 levels.” Because the District Court’s factual finding as to
Appellant’s role justified at most a three-point enhancement, it
plainly erred by imposing a four-point enhancement.
In reaching this conclusion, we mean to address only the
misfit between the District Court’s finding and its
enhancement, not the evidentiary support for the finding as to
Appellant’s role.
5. The Drug Quantity Findings
“Under the Sentencing Guidelines, a district court
determines a defendant’s sentencing range by calculating the
defendant’s base offense level. A base offense level, in turn, is
derived from a defendant’s ‘relevant conduct.’ For drug
offenses, ‘relevant conduct’ includes the quantity of drugs
involved in the offense.” United States v. Burnett, 827 F.3d
1108, 1120 (D.C. Cir. 2016).
At Appellant’s resentencing, the District Court “agree[d]
with Mr. Miller that it must make a reasonable foreseeability
finding and determine the amount of drugs attributable to Mr.
Miller.” Transcript of Sentencing Hearing at 10, United States
v. Miller (No. CR-04-379-2) (Dec. 20, 2016), A.A. 75. In so
20
doing, it “consider[ed] the conduct underlying the CCE
conviction” and determined, based on “the testimony at trial
and the evidence presented at trial,” that Appellant was
responsible for “the entire amount of drugs underlying” that
conviction, i.e. “30 kilograms of heroin, 15 kilograms of
cocaine, [and] five grams of crack.” Id. at 9–10, A.A. 74–75.
The District Court also explained its determination that
Appellant had occupied a managerial role in the conspiracy,
citing Eiland’s holding that there was sufficient evidence for a
jury to rationally find that Appellant, in tandem with Gerald
Eiland, managed Darius Ames and supervised Charles Brown
and Tyrone and Timothy Thomas in various drug trafficking
activities. As Eiland held, “[t]he government’s evidence at trial
showed that Eiland and Miller organized an extensive drug
ring”; “[t]he evidence revealed a wide-ranging drug operation
headed by Eiland and Miller”; and “Miller and Eiland were key
participants in all of the [conspiracy’s] acts, arranging for the
purchase and distribution of cocaine, heroin, and crack.” 738
F.3d at 344–45, 359.
Appellant advances several arguments to challenge the
District Court’s determination of drug quantity, none of which
is persuasive.
Appellant first argues that Eiland’s vacatur of the CCE
count for insufficient proof that he supervised a fifth person
necessarily implies that he cannot be held responsible for the
entire quantity of drugs the jury specially found connected to
that now-vacated conviction. We disagree. Appellant need not
have supervised another participant in the drug trafficking
scheme in order to be deemed responsible for drug quantities
tied to that participant. “In a drug conspiracy, the amount of
drugs attributable to any one codefendant as ‘relevant conduct’
for guidelines purposes is limited to the reasonably foreseeable
transactions in furtherance of that codefendant’s ‘jointly
21
undertaken criminal activity.’” Wyche, 741 F.3d at 1292
(quoting United States v. Easter, 553 F.3d 519, 523 (7th Cir.
2009)).
Appellant also suggests that the District Court’s quantity
finding is infirm because it simply relied on the jury’s special
finding of drug quantity that underlay the now-vacated CCE
conviction. But as Appellant’s counsel conceded at
resentencing, the District Court could make the same finding
as the jury verdict without relying on the jury verdict itself, and
the District Court explicitly agreed with Appellant that it must
make a finding as to the drug quantity reasonably foreseeable
by and therefore attributable to him. It then made such a finding
based on its own view of the evidence and testimony
corroborating Appellant’s managerial role, and cited to this
court’s holdings in Eiland to the same effect. We have no
reason to question the District Court’s determination that
Appellant’s and his co-defendants’ reasonably foreseeable
transactions involved 30 kilograms or more of heroin and 15
kilograms or more of cocaine.
Appellant next argues that the District Court failed to make
individual findings regarding the drug quantity reasonably
foreseeable to him. Appellant appears willing to countenance
foreseeability as to only those drugs he was convicted of
possessing, or for which there is evidence he personally
handled or transferred. Appellant is mistaken in his view. As
we held in Wyche:
A court may rely “on evidence of a defendant’s
relationship to and involvement with the conspiracy
in order to draw permissible inferences regarding”
the scope of his agreement to the conspiratorial
conduct “and the foreseeability of his
coconspirators’ conduct.” Thomas, 114 F.3d at 260.
22
If the defendant plays a managerial role in a drug
conspiracy, coordinates drug distribution with other
managers of the conspiracy and shares in the
conspiracy’s profits, he may be held responsible for
the entire drug quantity attributable to the conspiracy
during the time he was a participant.
Wyche, 741 F.3d at 1292–93. The District Court permissibly
applied these principles here and concluded, based on its (as
well as Eiland’s) assessment of the evidence of Appellant’s
managerial role, that Appellant was a manager of the
conspiracy and responsible for the entire drug quantity
underlying the vacated CCE conviction.
Finally, Appellant argues that the District Court did not
adequately explain its reasoning for the drug quantity decision.
We disagree. As we have explained above, the District Court
took care to cite to the evidence and testimony upon which it
relied, as well as to this court’s detailed holdings in Eiland, to
support its conclusion regarding Appellant’s managerial role in
the drug conspiracy. Based on its view of the record, the
District Court found that the full drug quantity associated with
Appellant’s vacated CCE conviction could be attributed to him
for the drug conspiracy count. That finding was sufficiently
explained and supported by the record.
23
III. CONCLUSION
For the reasons set forth above, we affirm the District
Court’s drug quantity calculation. We reverse and remand for
resentencing the District Court’s four-point enhancement for
Appellant’s role in the offense, the court’s two-point firearm
enhancement, and Appellant’s sentence for the RICO
conspiracy. We also vacate the clerical errors in the judgment
on Counts Two and Five, and remand these matters for
correction by the District Court.
So ordered.