65 F.3d 169 (6th Cir. 1995), 94-5763, U.S. v. Miller
| Citation | 65 F.3d 169 |
| Docket Number | 94-5763. |
| Date | 31 August 1995 |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Billy Jerome MILLER, Defendant-Appellant. |
Page 169
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)
On Appeal from the United States District Court for the Middle District of Tennessee, No. 93-00095; John T. Nixon, Chief Judge.
M.D.Tenn.
AFFIRMED.
Before: RYAN and SILER, Circuit Judges; and MILES, Senior District Judge [*] .
MILES, Senior District Judge.
Billy Jerome Miller appeals his sentence imposed after he entered a plea of guilty to multiple counts arising out of a scheme involving the theft of checks from the United States mail. For the reasons to follow, we AFFIRM.
I
On August 4, 1993, a federal grand jury sitting in the Middle District of Tennessee returned a 32-count indictment charging Billy Jerome Miller and six other individuals with various offenses arising out of a scheme in which social security and Tennessee Department of Human Services checks were stolen from the United States mails and cashed at retail establishments. The indictment charged Miller with eight counts of unlawful possession of the checks, in violation of 18 U.S.C. §§ 1708 and 2, and three counts of unlawful forgery of endorsements on the treasury checks, in violation of 18 U.S.C. § 495.
Miller was released on bond pending trial. As one of the conditions of his release, Miller agreed not to change his address or move without permission of the court. In signing the appearance bond, Miller provided an address of 69 Creighton Avenue, Nashville, Tennessee.
On October 26, 1993, the district court issued an order setting the case for trial on November 30, 1993. On November 19, 1993, Miller's appointed counsel filed a motion for continuance. In her motion, she alleged that she had sent several letters to Miller at his given address and had received no response. Counsel further alleged that she had therefore been unable to consult with her client regarding the case. The district court granted the continuance.
During Miller's release, on January 3, 1994, the Davidson County General Sessions Court of Nashville, Tennessee issued an arrest warrant charging Miller with aggravated robbery. According to the warrant, Miller had held up an acquaintance at gun point and stolen two rings from her. Subsequently, the district court granted a motion by the government to revoke Miller's bond on the basis that he was an unlikely candidate for appearance at trial. Miller was re-arrested pending trial.
On March 24, 1994, Miller entered a plea of guilty to seven counts of the indictment, which included four counts of possession of stolen mail (Counts 6, 13, 21, and 28) and three counts of forgery (Counts 18, 19, and 20). On June 3, 1994, the district court sentenced Miller to twenty months imprisonment, with credit to be given of five months for the time that Miller had been jailed pending trial. Miller filed this timely appeal.
II
Miller argues that the district court erred in applying a two-level upward adjustment to his guideline sentence for obstruction of justice. "We review a district court's factual findings which underlie the application of a guideline provision for clear error." United States v. Garner, 940 F.2d 172, 174 (6th Cir.1991). However, we determine de novo whether those facts as found by the district court warrant the application of a particular guideline provision. Id.
The relevant guideline provides as follows:
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
United States Sentencing Commission, Guidelines Manual, § 3C1.1 (Nov.1992). This section applies to conduct such as "willfully failing to appear, as ordered, for a judicial proceeding[.]" Id., comment. (n. 3(e)). The application notes state that "[o]bstructive conduct can vary widely in nature, degree of planning, and seriousness." Id., comment. (n. 2). Miller argues that there is no evidence that he "willfully" obstructed justice because the government presented no proof that he had notice of the trial date. He further argues that he did not fail to appear for a judicial proceeding because his counsel obtained a continuance of the trial.
The district court adopted the presentence report, which concluded that an enhancement for obstruction of justice was warranted because Miller had "failed to appear as ordered for a judicial proceeding ... willfully impeding the administration of justice during the prosecution of the instant offense." Presentence Investigation Report at 8, ¶ 32.
Miller concedes that his counsel sent him two undeliverable letters attempting to notify him of the trial date. Appellant's Brief at 8. Although he contends that he was not aware of the trial date because he did not receive the letters,...
To continue reading
Request your trial