890 F.3d 317
D.C. Cir.2018Background
- Frederick A. Miller was prosecuted in a multicount indictment for a drug conspiracy; after two trials he was convicted of a narcotics conspiracy (heroin, cocaine, cocaine base), RICO conspiracy, CCE (later vacated), attempted possession with intent to distribute heroin, and multiple communications-facility counts.
- At first sentencing (2007) the PSR attributed at least 30 kg heroin and 15 kg cocaine to Miller, applied a +2 firearm enhancement and a +4 role-in-offense enhancement, and computed an offense level resulting in life imprisonment (the CCE statutory minimum was life).
- This Court later vacated the CCE conviction for insufficient evidence of supervising five persons, reinstated the narcotics conspiracy conviction, vacated the sentence, and remanded for resentencing.
- At resentencing (Dec. 20, 2016) the district court attributed the drug quantities underlying the vacated CCE (30 kg heroin, 15 kg cocaine, ≥5 g crack) to Miller, reapplied a +2 firearm enhancement and a +4 role enhancement, and sentenced Miller to 120 months on the narcotics conspiracy and life on RICO (written judgment miscoded some counts).
- On appeal from resentencing Miller contested the firearm and role enhancements, the drug-quantity attribution, and the RICO life sentence; the government argued waiver/law-of-the-case and that the remand did not permit relitigation of these issues.
Issues
| Issue | Miller's Argument | Government's Argument | Held |
|---|---|---|---|
| Firearm enhancement (U.S.S.G. §2D1.1(b)(1)) | Enhancement lacked a demonstrated nexus between the firearms found at Miller’s home and the drug offenses (he was acquitted of PCP-related counts). | Issues were ripe for review on remand; enhancements based on PSR facts were permissible. | Reversed: court plainly erred because district court did not make/find a nexus tying the firearms to the convicted narcotics conspiracy. |
| Role-in-offense enhancement (U.S.S.G. §3B1.1) | Miller argued the +4 organizer/leader increase was unsupported; at most any supervision supported a +3 manager/supervisor increase. | Remand allowed reconsideration; initial proceedings foreclosed nothing. | Reversed: district court’s finding matched a manager/supervisor role, not organizer/leader, so +4 was plain error (should be at most +3). |
| Drug-quantity attribution for narcotics conspiracy | Miller argued district court improperly attributed the full quantities tied to the vacated CCE and failed to make adequate individual foreseeability findings. | Government maintained district court could rely on PSR and prior verdict and that findings were within its authority on remand. | Affirmed: district court sufficiently explained and supported attributing 30 kg heroin, 15 kg cocaine, and ≥5 g crack to Miller based on managerial role and foreseeability. |
| RICO sentence (Guidelines range) | Miller argued the written Guidelines range/life sentence was erroneous given vacatur of CCE; sought correction. | Government conceded the district court misidentified the Guidelines range. | Vacated and remanded: correct Guidelines range for RICO is 360 months to life; sentence vacated for resentencing; clerical errors in judgment to be corrected. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (sets procedural and substantive review framework for sentencing)
- Musacchio v. United States, 136 S. Ct. 709 (2016) (law-of-the-case does not strip appellate power to revisit district-court rulings; doctrine applies only to issues actually decided)
- United States v. Eiland, 738 F.3d 338 (D.C. Cir. 2013) (prior panel opinion addressing sufficiency of evidence for CCE and factual findings about Miller’s managerial role)
- United States v. Wyche, 741 F.3d 1284 (D.C. Cir. 2014) (addresses attribution of drug quantity and when issues become newly relevant on resentencing)
- United States v. Blackson, 709 F.3d 36 (D.C. Cir. 2013) (explains district court authority on remand to consider issues made newly relevant by appellate decision)
- Olano v. United States, 507 U.S. 725 (1993) (distinguishes waiver from forfeiture and describes plain-error review)
- United States v. Pineda, 981 F.2d 569 (1st Cir. 1992) (recognizes requirement of a nexus between weapon and the offense before applying firearm enhancement)