U.S. v. Miller

• Decision Date: 09 March 2009
• Docket Number: No. 07-3067.,No. 07-3069.,07-3067.,07-3069.
• Parties: UNITED STATES of America, Appellee, v. Walter Randall MILLER, also known as Randy Miller, Appellant. United States of America, Appellee, v. Walter Randall Miller, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

557 F.3d 910

UNITED STATES of America, Appellee, v. Walter Randall MILLER, also known as Randy Miller, Appellant.

United States of America, Appellee, v. Walter Randall Miller, Appellant.

No. 07-3067.

No. 07-3069.

United States Court of Appeals, Eighth Circuit.

Submitted: June 10, 2008.

Filed: March 9, 2009.

Gary G. Colbath, Jr., AFPD, argued, Rapid City, SD, for appellant.

Mark E. Salter, argued, Sioux Falls, SD, for appellee.

Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.

BOWMAN, Circuit Judge.

In this consolidated appeal, Walter R. Miller argues that the District Court¹ erred by revoking his supervised release and by imposing an unreasonable sentence following the revocation. We affirm.

On March 24, 2003, Miller pleaded guilty to one count of converting mortgaged property and one count of conspiring with his wife, Mary I. Miller, to defraud the United States by failing to file employment-tax returns or pay employment taxes from 1994 to 2002. After accepting Miller's guilty plea on each count, the District Court imposed concurrent sentences of sixteen months' imprisonment followed by three years' supervised release. As a special condition of release for both convictions, Miller was required to "cooperate fully" with the Internal Revenue Service ("IRS") in filing "all tax returns as required by law" ("Special Condition 8") and to "cooperate with the [IRS] in making full payment of all taxes, interest, and penalties" within one year from the commencement of his supervised release ("Special Condition 9"). Js. at 4. Miller did not seek to clarify or revise either special condition.

In December 2006, Probation Officer Tiller filed a petition to revoke Miller's supervised release because, contrary to Special Conditions 8 and 9, Miller had not filed his personal tax return for 2005 nor had he paid his outstanding tax obligation to the IRS. After a hearing, the District Court revoked Miller's supervised release on both the conversion and the employment-tax convictions and sentenced Miller to consecutive terms of fourteen months in prison, followed by concurrent, twenty-month terms of supervised release. The court also re-imposed Special Conditions 8 and 9, and the court added a special condition requiring Miller to pay, jointly and severally with his wife, $2,000 per month toward his IRS debt beginning thirty days after his release from prison ("Special Condition 10"). The court explained that if Miller complied with Special Condition 10, he could avoid future revocation of supervised release for failure to pay his tax obligation.

On appeal, Miller argues that because Special Conditions 8 and 9 were vague, ambiguous, contrary to law, and based on clearly erroneous factual findings, the District Court erred in revoking his supervised release based on a violation of those conditions. Miller also asserts that the District Court erred in revoking his supervised release because the government failed to establish that he violated the conditions of his release. Finally, Miller argues that his sentence is both procedurally flawed and substantively unreasonable.

Miller first argues that the District Court erred in revoking his supervised release based on violations of Special Conditions 8 and 9 because those conditions were vague, ambiguous, and contrary to law. As noted above, however, Miller did not raise any objection to the conditions of his supervised release at the time they were imposed or at any time prior to the filing of the petition for revocation. We reject Miller's attempt to collaterally attack the validity of his underlying sentence in an appeal of the revocation of his supervised release. A defendant may challenge the validity of his underlying conviction and sentence through a direct appeal or a habeas corpus proceeding, not through a collateral attack in a supervised-release revocation proceeding. United States v. Johnson, 11 Fed.Appx. 636, 636 (8th Cir.) ("An appeal from a probation revocation is not the proper avenue through which to attack the validity of the original sentence." (citations and quotation marks omitted)), cert. denied, 534 U.S. 914, 122 S.Ct. 257, 151 L.Ed.2d 187 (2001); cf. United States v. Novak, 217 F.3d 566, 570-71 (8th Cir.) (holding that defendant's failure "to appeal the restitution order to which he now objects" foreclosed consideration of that order on appeal of supervised-release revocation), cert. denied, 531 U.S. 1043, 121 S.Ct. 640, 148 L.Ed.2d 546 (2000); United States v. Evans, 87 F.3d 1009, 1010 (8th Cir.1996) ("Because [defendant] never appealed from that earlier proceeding, we believe that he waived the issue of any legal infirmity in that sentence."); United States v. Warren, 335 F.3d 76, 78 (2d Cir.2003) (holding that "the validity of an underlying conviction or sentence may not be collaterally attacked in a supervised release revocation proceeding and may be challenged only on direct appeal or through a habeas corpus proceeding" and citing cases from four other circuits holding the same).

Miller next argues that the District Court erred in revoking his supervised release because the evidence was insufficient to establish that he violated Special Conditions 8 and 9. A district court may revoke a defendant's term of supervised release and impose a sentence of imprisonment if the court finds by a preponderance of the evidence that the defendant violated a condition of his supervised release. 18 U.S.C. § 3583(e)(3). A district court need only find a single violation to revoke a defendant's supervised release. See id. (noting that a district court may revoke supervised release if a defendant "violated a condition" "of that release" (emphasis added)). We review a district court's decision to revoke supervised release for an abuse of discretion and the court's underlying "factual findings as to whether a violation occurred" for clear error. United States v. Ralph, 480 F.3d 888, 890 (8th Cir.2007). The District Court's decision to revoke Miller's supervised release based on his failure to comply with Special Conditions 8 and 9 was amply supported in the record and was well within the court's discretion.

Special Condition 8 required that Miller "cooperate fully with the [IRS] in [the] filing of all tax returns as required by law." Js. at 4. A tax return filed with the IRS that does not contain sufficient information from which the IRS can calculate an accurate tax liability is not a tax return filed "as required by law." See United States v. Marston, 517 F.3d 996, 1001 (8th Cir.2008). In September 2005, Miller filed delinquent personal income tax returns for the years 2000 through 2004 with IRS Officer Pommer, and copies of those returns were admitted into evidence at the revocation hearing. At the time the returns were filed, Miller indicated that "he'd have to file amended returns at a later date and correct" those returns. Tr. of Feb. 27, 2007, Rev. Hr'g at 31. Probation Officer Tiller testified at the hearing that Miller admitted that the 2000 through 2004 returns were "not all correct" and that "mistakes" on those returns would have to be "corrected." Tr. of Feb. 21, 2007, Rev. Hr'g at 41. Moreover, Special Agent Anderson testified that Miller failed to timely file his 2005 personal income tax return and that Miller did not seek or obtain an extension to file that return.² Tr. of Feb. 27, 2007, Rev. Hr'g at 60-61. Miller eventually filed his 2005 personal income tax return in January of 2007. IRS Officer Pommer testified that Miller failed to return telephone calls, respond to written correspondence, or provide timely and complete financial information as requested. IRS Officer Pommer described Miller as "not cooperative" based on Miller's unresponsiveness and reluctance to voluntarily provide pertinent tax information. Id. at 35. Probation Officer Tiller informed the court that he did not believe it was possible to supervise Miller because Miller continued "to display a lack of remorse, empathy, judgment and responsibility and would eventually revert to new law violations." Tr. of June 18, 2007, Sent. Hr'g at 62.

Based on this testimony and a review of the tax returns themselves, the District Court concluded that the 2000 through 2004 filings did not comply with Miller's obligation under Special Condition 8 to file "all tax returns as required by law" because the returns were "not accurate" and were not filed in "good faith." Tr. of Feb. 27, 2007, Rev. Hr'g at 191. Determining that Miller had not complied with Special Condition 8, the court stated that Miller had displayed "absolutely no good faith ..., it's all bad faith" and had "tried to hoodwink the Court, very frankly, with a shell game as to all these different tax returns." Tr. of June 18, 2007, Sent. Hr'g at 63-64. The court explained, "As soon as I saw those [2000 through 2004] tax returns ..., I knew that these were fraudulent tax returns. They weren't worth the paper they were written on." Id. at 64. We cannot say that the District Court clearly erred in finding that Miller violated Special Condition 8, nor can we say that the court abused its discretion in revoking Miller's release based on that violation.

Because the District Court did not abuse its discretion in revoking Miller's supervised release based on a violation of Special Condition 8, we need not consider Miller's arguments with respect to Special Condition 9. See 18 U.S.C. § 3583(e)(3). But even if we were to consider Miller's arguments, we would still conclude that the District Court did not abuse its discretion in revoking Miller's supervised release. Prior to his original sentencing in the conversion and employment-tax cases, Miller deposited $50,000 with the court to be applied to the then $67,000 tax debt related to his employment-tax conviction. Special Condition 9 required that Miller make "full payment of all taxes, interest, and penalties" within one year from the commencement of his supervised release. Js. at 4 (...