United States v. Miller

• Decision Date: 31 May 2022
• Docket Number: 20-3084
• Citation: 35 F.4th 807
• Parties: UNITED STATES of America, Appellee v. Frederick A. MILLER, also known as Toby, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

35 F.4th 807

UNITED STATES of America, Appellee

v.Frederick A. MILLER, also known as Toby, Appellant

No. 20-3084

United States Court of Appeals, District of Columbia Circuit.

Argued December 9, 2021

Decided May 31, 2022

Dennis M. Hart, appointed by the court, argued the case and filed the briefs for appellant.

Anne Y. Park, Assistant U.S. Attorney, argued the case for appellee. With her on the brief were Chrisellen R. Kolb and Suzanne Grealy Curt, Assistant U.S. Attorneys.

Before: Henderson and Pillard, Circuit Judges, and Silberman, Senior Circuit Judge.

Karen LeCraft Henderson, Circuit Judge:

Frederick Miller (Miller) was convicted of drug conspiracy-related charges after two trials and three appeals. After our most recent remand for a second resentencing, the district court applied an upward variance and imposed a life sentence. Miller now argues that the district court exceeded the scope of its resentencing mandate and committed procedural and substantive errors in imposing the life sentence. We disagree and therefore affirm Miller's life sentence. In addition, we remand for the correction of several clerical errors in the judgment.

I. BACKGROUND

We have described the full history of Miller's prosecution in his previous appeals, see United States v. Miller , 738 F.3d 361 (D.C. Cir. 2013) ( Miller I ); United States v. Eiland , 738 F.3d 338 (D.C. Cir. 2013) ; United States v. Miller , 890 F.3d 317 (D.C. Cir. 2018) ( Miller II ), and thus we limit our discussion to the facts relevant to this appeal.

Miller and Gerald Eiland (Eiland) headed a massive interstate drug trafficking ring focused in the Washington, D.C. area. Eiland , 738 F.3d at 344–45. Although the conspiracy began in 1999, id. , it is unclear exactly when Miller joined it. The indictment alleges that Miller joined the conspiracy "sometime around the year 2000." Appendix (App.) 105.

At the latest resentencing on review here, the district court, relying on testimony from the second trial, made several findings regarding the extent of the harm caused by the conspiracy. In June 1999, Eiland solicited Brian Lipscombe (Lipscombe)—a longtime drug dealer for Eiland—to kill Sorenson Oruchie (Oruchie), a heroin supplier to whom Eiland owed money. As Lipscombe testified, he agreed and shot Oruchie in the head. Oruchie survived.

On October 12, 2001, the police executed a search of Je Bradford's residence. Bradford supplied the conspiracy with distribution quantities of cocaine. As the police pounded on the door, Bradford called Eiland, who told Bradford that he would "take care of everything." Supplemental Appendix (S.A.) 183. Bradford then threw his cell phone against the wall, breaking it. As Bradford testified, Eiland later went to Bradford's residence to "destroy any cell phone that [Bradford] might have at the apartment and get rid of whatever evidence might be left." S.A. 187–88. Bradford was arrested and subsequently incarcerated at the Charles County (MD) Detention Center.

According to the professional visitor log for the Charles County Detention Center, a "Frederick Miller" from the "D.C. police" visited Bradford on January 1, 2002. S.A. 208. From 2002 until 2005 Miller had a private detective license issued by the District of Columbia Metropolitan Police Department (MPD). Bradford testified that he and Miller met in a private room for a "legal visit" because Miller's license allowed him to visit an inmate without surveillance. S.A. 190–91. Bradford and Miller concluded that a particular associate had turned on Bradford. According to Bradford, Miller said that "it's not fair that you won't be able ... to see your son grow up, ... so [the associate] won't be able to see his son grow up." S.A. 197. Miller also said that he knew where the associate went for his weekly bowling league and where he played with his son. As Bradford explained, Miller "was going to kill him." S.A. 198.

Sometime in 2003, the FBI began investigating, including surveilling, the Eiland/Miller drug trafficking ring. Eiland , 738 F.3d at 345. At the second trial (regarding Eiland, Miller and two associates), an FBI agent testified that he investigated "drug trafficking that was occurring in the area of 9th and Wahler Place, Southeast, ... up around Draper Elementary School." S.A. 111. Draper Elementary School was at 908 Wahler Place SE, at the intersection of 9th and Wahler Place. During the investigation, the FBI agent identified Eiland and Miller as drug traffickers. From wiretapping Miller's phone, the agent discovered the conspiracy used a residence on the "3800 block of 9th Street, Southeast"—near Draper Elementary School—for meetings related to the drug conspiracy. See S.A. 115–16, 124. There, Eiland fronted street-level dealers thousands of bags of "Spider Man"—a type of heroin—with "[l]ittle dolphin shapes, designs" on each bag. S.A. 129–30, 136. Several street dealers also sold heroin near the school. Indeed, one dealer was arrested on 9th Street with "[77] bags of [heroin] with blue dolphin markings on them," 47 bags of cocaine base and 598 "Ziplocs" of opiates. S.A. 143–45.

The government arrested Eiland and Miller in August 2004. Eiland , 738 F.3d at 345. Miller was charged with various crimes related to distributing heroin, cocaine, crack and phencyclidine (PCP). Id.¹ The first jury convicted Miller on 21 counts, acquitted him on others and hung on the remaining counts. Id.² The district court retried Miller, id. , and the second jury found Miller guilty on the counts alleging narcotics conspiracy, RICO conspiracy, continuing criminal enterprise, heroin distribution and three counts alleging unlawful use of a communication facility, id. at 346.³ The district court sentenced Miller to life imprisonment on both the RICO conspiracy and continuing criminal enterprise counts. Id. Miller then appealed, challenging the procedures and sufficiency of evidence from both trials. From the first trial, we reversed Miller's convictions on counts 19, 20, 34, 40, 46 and 59 for procedural defects and otherwise affirmed. See Miller I , 738 F.3d at 367–68, 387. From the second trial, we found insufficient evidence for the continuing criminal enterprise charge, count 3. Eiland , 738 F.3d at 357–58.⁴ We remanded for Miller's first resentencing and the district court again sentenced Miller to life imprisonment on the RICO conspiracy charge and determinate sentences on the other 21 counts.⁵ Miller appealed.

On appeal from Miller's first resentencing, we concluded that the district court had erred. First, the district court committed "clear error" in finding the Sentencing Guidelines⁶ range for the RICO conspiracy charge to be mandatory life imprisonment. Miller II , 890 F.3d at 324–25. The panel "therefore vacate[d] Appellant's life sentence on the RICO conspiracy count and remand[ed] 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." Id. at 325. The district court made several "clerical errors" in describing the counts. Id. And it "plainly erred by imposing the [firearm] enhancement because it made no factual finding as to any nexus between those firearms and Appellant's drug convictions." Id. at 328. Finally, the court misapplied the "organizer or leader" enhancement after it had found that Miller managed or supervised "at least one participant" only. Id. at 329. Under the Guidelines, "the District Court's factual finding as to Appellant's role justified at most a three-point enhancement, [thus, it] plainly erred by imposing a four-point enhancement." Id.

We remanded for a second resentencing. In Miller II ’s operative conclusion, we stated: "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." Id. at 331.

In district court, both Miller and the government submitted motions regarding the factual predicates for the role-in-the-offense and firearm enhancements. The government argued for enhancements that would have resulted in a Guidelines range with an upper range of life imprisonment and urged the district court to impose life imprisonment. One week before resentencing, however, the government filed a memorandum, stating that it no longer sought both the firearm enhancement and the four-point organizer-or-leader enhancement. The parties therefore did not dispute the proper offense level under the Guidelines. See App. 237 (government and defendant agree on enhancements with total offense level of 39 and Guideline range of 262 to 327). Instead, for the first time, the government argued for an upward variance. Relying in part on information from Miller's 2007 Presentence Investigation Report, the government argued for an upward variance given the Eiland/Miller conspiracy's unusually violent conduct and Miller's earlier arrests. Miller opposed the upward variance.

At the hearing, the government explained why it had not theretofore asked for an upward variance. "[A]t the time of the original sentencing in this case, because [Miller] was given a mandatory life sentence—I don't think that then defense counsel or the Court were really focused on [the facts supporting an upward variance] too much." App. 229; see also App. 232 ("The original PSR, presentence report, indicates that there is no reason for an upward variance. But again, at that point, the parties and the Court [we]re under the impression that we were dealing with a mandatory life sentence; there was no reason to look for a variance."). Defense counsel emphasized that the government first argued for an upward variance only one week before the second resentencing but did not request a continuance.

The district court sentenced Miller to life...