United States v. Miller

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0713n.06
Filed: August 16, 2005

NO. 04-4167; 04-4169

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

)
UNITED STATES OF AMERICA, )
Plaintiff-Appellee, )
) ON APPEAL from the United
v. ) States District Court for
) the Southern District of
) Ohio at Dayton.
SUMPTER A. MILLER, )
Defendant-Appellant. )
)

Decided and Filed , 2005.

Before: COOK and DAUGHTREY, Circuit Judges; and HOOD,
District Judge.*

HOOD, District Judge. Following a jury trial in Case No.

3:03-cr-84, Defendant-Appellant Sumpter A. Miller (“Miller”) was

convicted of possessing with the intent to distribute in excess of

five grams of crack cocaine, a Schedule II controlled substance, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). After denying

Miller’s motion for acquittal or, in the alternative, for a new

trial, the district court sentenced him to a term of 92 months

*
The Honorable Joseph M. Hood, Chief United States District
Judge for the Eastern District of Kentucky, sitting by
designation.

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imprisonment. In a second case, Case No. 3:03-cr-45, Miller pled

guilty to one count of conspiracy to possess with the intent to

sell a motor vehicle knowing its identification number had been

tampered with, in violation of 18 U.S.C. § 371. The district court

adopted the sentencing calculations made in the Presentence

Investigation Report (“PIR”) and sentenced Miller to 21 months

imprisonment to be served concurrent to his sentence in Case No.

3:03-cr-84.

On appeal, Miller argues that the district court erred in Case

No. 3:03-cr-84 by admitting officers’ out-of-court statements and

in denying his post-conviction motion. Further, Miller seeks

vacation of his sentence in Case No. 3:03-cr-45 under United States

v. Booker, 125 S. Ct. 738 (2005). For the reasons stated below, we

AFFIRM Miller’s conviction in Case No. 3:03-cr-84. Additionally,

based on the concurrent sentence doctrine, we DECLINE TO ENTERTAIN

Miller’s Booker argument.

FACTUAL AND PROCEDURAL HISTORY

Case No. 3:03-cr-45

On March 19, 2003, a federal grand jury returned a twenty-

three count indictment against Miller and nine co-defendants.

Miller was charged with one count of conspiracy to buy, receive,

possess and obtain control of, with the intent to sell, motor

vehicles knowing that the identification numbers for such vehicles

had been removed, obliterated, tampered with and altered, in

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violation of 18 U.S.C. § 371, and two substantive counts of the

underlying offense, in violation of 18 U.S.C. § 2321(a) and 18

U.S.C. § 2.

On May 26, 2004, Miller appeared with counsel and entered a

plea of guilty to Count 1 of the indictment; the United States

dismissed Counts 8 and 16. The plea of guilty was made pursuant to

a written plea agreement between Miller and the United States.

On September 10, 2004, Miller was sentenced. The district

court adopted the sentencing calculations made in the PIR and

sentenced Miller to a term of 21 months imprisonment to be served

concurrent to the sentence in Case No. 3:03-cr-84. Miller filed a

timely notice of appeal.

Case No. 3:03-cr-84

On July 8, 2003, a federal grand jury returned an indictment

charging Miller with one count of possessing with the intent to

distribute in excess of five grams of crack cocaine, a Schedule II

controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B). On July 16, 2003, Miller appeared with counsel and

entered a plea of not guilty to Count 1 of the indictment.

The matter proceeded to trial on February 23, 2004. At trial,

Dayton Police Detective Becky Rose (“Det. Rose”) testified that on

April 16, 2003, at approximately 7:00 p.m., she received a

telephone call at her residence from Dayton Police Sergeant Dennis

Cheney (“Sgt. Cheney”). Det. Rose testified that Sgt. Cheney

3
provided her with information regarding Miller’s whereabouts;

apparently, Sgt. Cheney received this information from FBI Special

Agent Peter Lakes (“Special Agent Lakes”). As a result of this

telephone call, Det. Rose contacted Special Agent Lakes directly.

Det. Rose testified that Special Agent Lakes also provided her with

information relating to Miller. In response to her conversation

with Special Agent Lakes, Det. Rose made a broadcast over her

portable radio advising dispatch that she had information on a

wanted person. Det. Rose provided Miller’s name, a possible

location, the make and model of a vehicle he was thought to be in,

and a clothing description. Specifically, Det. Rose stated that

Sumpter Andropolis Miller was at the Food City on Germantown,

sitting in a blue GMC Yukon, and wearing a white T-shirt.

After hearing the radio broadcast, Officer Chris Smith

(“Officer Smith”) responded to the location and confirmed to

dispatch that defendant Miller was seated in the passenger seat of

a blue Yukon parked next to Food City. Officer Smith observed

Miller as he drove past Food City at approximately 20-25 miles per

hour. Officer Smith testified that he was able to identify Miller

because, prior to the start of his shift, he had reviewed the

district’s current wanted fliers, one of which featured Miller, and

because of prior contacts with Miller. Officer Smith radioed

dispatch advising that he had located Miller; he gave his location

so that other crews could respond. Officer Smith continued past

4
Miller’s location to await additional crews to assist in the

arrest.

Officer Mark Ponichtera (“Officer Ponichtera”), having heard

both Det. Rose’s and Officer Smith’s radio broadcasts, and being

familiar with Miller, immediately headed to Officer Smith’s

location. Both officers then proceeded back to the Food City

location, coordinating their approach. As they drove into an alley

adjacent to Food City, Officers Smith and Ponichtera observed

Miller standing outside the passenger side door of the Yukon. Upon

the officers’ arrival, Miller fled. Officer Ponichtera followed on

foot while Officer Smith attempted to pursue Miller in his cruiser.

Miller crossed Germantown and headed toward the Desoto Bass

housing project which was directly across the street. With Officer

Ponichtera chasing him, Miller ran into a building that housed the

community center of the complex. By this time Officer Smith had

exited his vehicle and joined the foot pursuit. Once inside the

community center, the officers observed Miller run out the exit

door of the storage room in the back of the building. The chase

continued through the housing complex until Officer Ponichtera was

able to apprehend Miller after he unsuccessfully attempted to jump

a fence. Once detained, Officer Smith placed Miller under arrest

on the March 2003 federal charges and patted him down for safety.

Officer Smith recovered approximately $1,200.00 in cash from

Miller’s left front pant pocket, and a set of car keys from his

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right front pant pocket. A subsequent inventory audit established

that the cash amounted to $1,120.00 and was made up of 3 fifty-

dollar bills, 31 twenty-dollar bills, 17 ten-dollar bills, 35 five-

dollar bills, and 5 one-dollar bills. Officer Smith took

possession of the money and the keys and, at the direction of Det.

Rose, transported Miller downtown to the Safety Building.

In the meantime, Officer Ponichtera retraced his steps back to

the parking lot of Food City where he met up with Officers

Ferdelman and Gross who had heard the radio broadcasts and were

securing the Yukon. Once Officer Ponichtera arrived, he contacted

Det. Rose who advised him to have the vehicle towed to the First

District’s secured lot. Det. Rose also asked Officer Ponichtera to

inventory the vehicle. While Officer Ponichtera was unable to

inventory the vehicle because the doors to the vehicle were locked,

the windows were rolled up, and the tow truck driver did not have

a slim jim tool, he did have the car towed to the First District

location, as instructed.

Back at the Safety Building, the cash found on Miller was

logged into the police department’s evidence room, and the keys

were turned over to Det. Rose. Det. Rose asked Miller whether or

not the keys belonged to the Yukon, to which Miller replied, “What

Yukon?”. When Det. Rose explained that she was referring to

Miller’s mother’s blue Yukon, Miller did not respond. After the

interview, Det. Rose secured the keys in the locked drawer of her

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Safety Building office desk.

The next day, April 17, 2003, Det. Rose made arrangements with

an evidence technician to gain access to the secure garage where

the Yukon had been towed in order to inventory the vehicle. Det.

Rose retrieved the keys taken from Miller the previous evening and,

accompanied by Detective Mike Auricchio (“Det. Auricchio”),

traveled to the First District garage. Upon completing an

inspection of the exterior of the vehicle, Det. Rose unlocked the

driver’s side door using one of the keys taken from Miller the

previous night. Having gained access to the vehicle, Det. Rose

climbed into the vehicle via the driver’s side door and reached

across the car to unlock the passenger side door for Det.

Auricchio. When doing this, Det. Rose observed a clear plastic

baggie containing what appeared to be crack cocaine in the console

area of the Yukon. Upon further inspection of the vehicle, the

detectives observed a small pocket scale with white powder residue

on it, a second plastic baggie containing what appeared to be crack

cocaine, two men’s leather jackets, and a box of clear plastic

sandwich bags. The scales and baggies containing the white powder

were secured and submitted to the Miami Valley Regional Crime

Laboratory where they tested positive for crack cocaine.

Det. Rose testified that, after finding the above-mentioned

items, she suspended her inventory of the vehicle until the next

day, leaving the vehicle unlocked with the keys in the ignition.

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Det. Rose testified that, while she did not start the vehicle, a

key from the set taken from Miller the night before did in fact fit

into the ignition. The vehicle was towed to Summit Tow Yard.

Det. Rose traveled to Summit Tow Yard the next day to finish

her inventory of the Yukon. Det. Rose testified that, upon

arriving at the yard, she retrieved the keys she’d left in the

Yukon the previous evening - the same keys taken from Miller on

April 16, 2003 - from the front office. Det. Rose was also

provided with three additional keys Summit Towing had found inside

the vehicle. These keys were placed on a separate key ring. After

unsuccessfully trying to open the locked doors of the vehicle with

the keys she had used the night before and the additional keys that

were found inside the vehicle, Det. Rose gained access to the Yukon

by asking one of the tow truck drivers to slim jim it for her.

Upon gaining access to the Yukon, Det. Rose completed her inventory

of the vehicle. On this occasion, Det. Rose recovered, among other

items, a photo of Miller and his girlfriend, Brandi Webster

(“Webster”), Webster’s Trotwood High School ID card, and Webster’s

Blockbuster rental card. In the glove compartment of the vehicle,

Det. Rose found the title and registration, which indicated that

the Yukon was owned by Angela T. Miller, Sumpter Miller’s mother.

To further support its position that Miller was in control of

the 1994 blue GMC Yukon on the night in question, the government

called Detective Rob Rike (“Det. Rike”) to testify about a prior

8
incident involving Miller. Det. Rike testified that on December

13, 2001, in Dayton, Ohio, he and other officers issued a citation

to Miller for reckless operation, driving without an operator’s

license, and driving under suspension. The vehicle Miller was

operating was a 1994 blue GMC Yukon. Det. Rike further testified

that, during the attempted traffic stop, Miller jumped from the

moving vehicle and fled. After catching up to and apprehending

Miller, Det. Rike placed him under arrest for the above-mentioned

traffic offenses and performed a custodial search. In performing

the search, Det. Rike retrieved a baggie of marijuana from Miller’s

sweatshirt pocket. During an inventory of the vehicle - the 1994

blue GMC Yukon - officers recovered a GAP shopping bag that

contained eight bags of bulk marijuana and one bag containing 20

individually packaged ziploc baggies of marijuana. Two additional

baggies of marijuana were recovered from the driver’s door pocket.

In response to the government’s evidence that Miller was in

control of the Yukon on April 16, 2003, defense witness, Victor

Randall Schuyler, an assistant parts manager employed by Bob Ross

Buick, testified that the keys found on Miller, the same keys that

Det. Rose allegedly used to open the door to the Yukon and insert

into the ignition switch, were not in fact keys to a 1994 GMC Yukon

ignition cylinder. The defense also called Antwan Ingram, a friend

of Miller’s who testified that, on April 16, 2003, he had borrowed

the vehicle in question from Angela Miller and was at Food City

9
with Miller’s brother, George Miller.

On March 3, 2004, the jury returned a guilty verdict.

Subsequently, on May 26, 2004, counsel for Miller filed a motion

for judgment of acquittal, or in the alternative, for a new trial

pursuant to Rules 29 and 33 of the Federal Rules of Criminal

Procedure. Finding that there was sufficient evidence from which

a jury could conclude that the drugs found and recovered in the

Yukon were possessed by Miller, the district court denied Miller’s

motion by order dated September 14, 2004. Miller was sentenced to

a term of 92 months imprisonment to be served concurrent to his

sentence in Case No. 3:03-cr-45. A timely notice of appeal was

filed.

ANALYSIS

I. Sufficiency of the Evidence/Manifest Weight of Evidence

In his first assignment of error, Miller contends that the

trial court erred by denying his motions for judgment of acquittal

and for a new trial when there was insufficient evidence to support

the conviction and the verdict was contrary to the weight of the

evidence. Whether viewed under a sufficiency of evidence standard,

Jackson v. Virginia, 443 U.S. 307, 319 (1979), or a manifest weight

of evidence standard, United States v. Ashworth, 836 F.2d 260, 266

(6th Cir. 1988), Miller contends that the evidence that he

constructively possessed crack cocaine was inadequate to support a

conviction.

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 When considering a challenge to the sufficiency of evidence to

sustain a conviction on direct appeal, the relevant question is

whether,... “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 319(emphasis in original). The Court must

view all evidence and resolve all reasonable inferences in favor of

the government. Id; see also, United States v. Searan, 259 F.3d

434, 441 (6th Cir. 2001). Because the issue is one of legal

sufficiency, the Court may neither "independently weighs the

evidence, nor judges the credibility of witnesses who testified at

trial.” United States v. Talley, 164 F.3d 989, 996 (6th Cir.

1999). Neither may the Court substitute its judgment for that of

the jury. United States v. Hilliard, 11 F.3d 618, 620 (6th Cir.

1993). Finally, it must be remembered that "circumstantial

evidence alone can sustain a guilty verdict and ... [such] evidence

need not remove every reasonable hypothesis except that of guilt."

United States v. Stone, 748 F.2d 361, 362 (6th Cir. 1984).

In reviewing the denial of a motion for a new trial under Fed.

R. Crim. P. 33, an appellate court is “limited to examining the

evidence produced at trial to determine whether the district

court’s determination [that the verdict is not against the manifest

weight of evidence] was a clear and manifest abuse of discretion.”

Ashworth, 836 F.2d at 266 (citations omitted). Unlike the district

court, the appellate court does not sit as a “thirteenth juror” to

11
judge the credibility of witnesses and weigh the evidence. Id.

In order to convict a defendant under 21 U.S.C. § 841(a)(1),

the government must prove beyond a reasonable doubt that the

defendant (1) knowingly, (2) possessed a controlled substance, (3)

with intent to distribute it. United States v. Jackson, 55 F.3d

1219, 1225 (6th Cir. 1995) (citing, United States v. Peters, 15

F.3d 540, 544 (6th Cir. 1994)). Miller argues that the evidence

presented at trial was insufficient to establish the second of the

three elements - that he possessed a controlled substance, to wit,

crack cocaine. In the context of criminal law, possession can be

shown through knowingly having dominion and control over an object.

United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973). This

theory has come to be known as “constructive possession,” and

numerous courts have relied on it to support convictions for

illegal possession of controlled substances. See United States v.

Gibbs, 182 F.3d 408, 424 (6th Cir. 1999)(holding that the

government is not required to prove actual possession of a

controlled substance, because constructive possession is sufficient

to establish a violation of §§ 841(a)(1)); see also United States

v. Hill, 142 F.3d 305 (6th Cir. 1998); United States v. Reed, 141

F.3d 644 (6th Cir. 1998). Like actual possession, constructive

possession may be proved by circumstantial evidence. Craven, 478

F.2d at 1333.

At trial the government offered evidence tending to prove the

12
following facts:

(1) Immediately prior to the officers’ arrival at Food City,

Miller was the sole occupant of the 1994 blue GMC Yukon;

(2) No one else was seen in the vehicle at any time;

(3) When the officers arrived, Miller fled;

(4) When Miller was apprehended, officers recovered

approximately $1,200.00 in small denominations;

(5) The 1994 blue GMC Yukon was owned by Miller’s mother;

(6) Miller’s girlfriend’s personal belongings were found in

the 1994 blue GMC Yukon; and,

(7) Miller had prior connections with the 1994 blue GMC

Yukon.1

Taken together, the above facts provide ample evidence for a

rational juror to conclude that Miller “possessed” the crack

cocaine found in the 1994 blue GMC Yukon.

The government’s evidence, however, did not go unanswered.

The defense rebutted the government’s position that Miller was the

only one in the vehicle on the night in question with testimony

1
In admitting this 404(b) evidence, the Court admonished the
jury to use it only for the limited purpose of proving the
element of “intent to distribute.” (J.A. at 1245.) The Court
made clear that the jury was not to use evidence of Miller’s
prior drug sales out of the 1994 blue GMC Yukon as evidence that
he “possessed” the crack cocaine found in the 1994 blue GMC Yukon
on April 16, 2005. (J.A. at 1245.) Accordingly, while the
government contends that this evidence is indicative of guilt,
the defendant is correct in asserting that it cannot be a basis
to support the government’s position that Miller possessed the
crack cocaine recovered from the vehicle.

13
from Antwan Ingram. Ingram testified that he had driven the

vehicle to the Food City location on April 16, 2003, and that

George Miller, Defendant’s brother, was in the front passenger seat

that night. The defense also presented evidence that the keys

found on Miller on April 16, 2003, were not the keys to the 1994

blue GMC Yukon. Counsel for Miller argues that the government

presented insufficient evidence to establish that Miller exercised

dominion and/or control over the drugs found in the vehicle and

that Miller’s mere proximity to the vehicle is not enough to

sustain a conviction. While defense counsel’s statement regarding

proximity is accurate, the jury in this case drew acceptable

inferences from the evidence presented to find that the drugs found

in the 1994 blue GMC Yukon belonged to Miller and were under his

dominion and control. Jurors are entitled to choose from among

reasonable constructions of evidence of drug possession presented

at trial. See United States v. Forrest, 17 F.3d 916, 919 (6th Cir.

1994).

From an examination of all the evidence adduced at trial,

viewed in the light most favorable to the government, we conclude

that a reasonable jury could have found beyond a reasonable doubt

that Miller possessed with the intent to distribute in excess of

five grams of crack cocaine, a Schedule II controlled substance, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). For the same

reasons, we find that the district court did not abuse its

14
discretion in finding that the verdict was not against the manifest

weight of the evidence.

II. Evidentiary Rulings

Miller’s second assignment of error relates to the admission

of statements made by Sgt. Cheney and Agent Lakes to Detective Rose

regarding Miller’s location on the night in question. Miller

asserts that the district court erred in allowing Det. Rose to

testify to the content of her conversations with Sgt. Cheney and

Agent Lakes and in allowing Officers Smith and Ponichtera to

testify about Det. Rose’s radio broadcast.

Ordinarily, a district court’s evidentiary determinations are

reviewed under an abuse of discretion standard. Gibbs, 182 F.3d at

429. However, when a party objects to the admission of evidence on

specific grounds in the trial court, but on appeal asserts

different grounds for challenging the admission, the court reviews

for plain error. United States v. Evans, 883 F.2d 496, 499 (6th

Cir. 1989) (citing, United States v. Johnson, 772 F.2d 407, 409

(8th Cir. 1983)). At trial, Miller objected to the admission of

Sgt. Cheney’s and Agent Lakes’ out-of-court statements based on

hearsay.2 In his Rule 29/33 motion, the same evidence was objected

to on the basis of a Sixth Amendment confrontation clause

2
The objection was overruled. The district court found that
the statements were not being admitted for the truth of the
matter asserted, but rather to explain Det. Rose’s actions in
response to the information received.

15
violation.3 (J.A. at 157.) Nowhere below, however, did Miller

raise the argument that he now raises in this appeal, namely that

admitting the statements into evidence violates Rule 403 of the

Federal Rules of Evidence. Accordingly, this Court will review the

evidentiary ruling for plain error. “To establish plain error, a

defendant must show that: (1) an error occurred in the district

court; (2) the error was obvious or clear; (3) the error affected

the defendant’s substantial rights; and (4) this adverse impact

seriously affected the fairness, integrity, or public reputation of

the judicial proceedings.” United States v. Emuegbunam, 268 F.3d

377, 406 (6th Cir. 2001).

Federal Rule of Evidence 403 permits the exclusion of relevant

evidence if its probative value is substantially outweighed by the

danger of unfair prejudice. Viewing the record as a whole, it

cannot be said that the district court’s admission of this now-

disputed testimony rises to the level of plain error. Sgt.

Cheney’s and Agent Lakes’s out-of-court statements regarding

Miller’s location was integral in explaining to the jury how and

why Miller was apprehended. Furthermore, Officer Smith’s and

Ponichtera’s testimony regarding Det. Rose’s radio broadcast

informed the jury how the Officers became involved in the case and

3
When an out of court statement is not offered to prove the
truth of the matter asserted, the Confrontation Clause is not
implicated. Tennessee v. Street, 471 U.S. 409, 413-414 (1985);
United States v. Martin, 897 F.2d 1368, 1372 (6th Cir. 1990).

16
how, ultimately, as a result of Miller’s apprehension, the crack

cocaine was discovered and seized from the Yukon. It is clear from

the record that the probative value of the evidence was not

substantially outweighed by the risk of unfair prejudice under Rule

403.

Accordingly, based on a review of the record, we find that the

district court did not plainly err in admitting the testimony to

which the defendant now objects.

III. Application of the Sentencing Guidelines

Finally, Miller contends that the district court erred in

determining his offense level for sentencing purposes in Case No.

3:03-cr-45. Specifically, Miller challenges the application of two

sentence enhancements that resulted in his base offense level of

eight being raised to an offense level of twelve. These

enhancements were made pursuant to sections 2B6.1(b)(1)(B) and

2B6.1(b)(3) of the Guidelines. Miller objects to the enhancements,

arguing that they were based on facts neither proved to a jury nor

admitted by Miller.

While this case was pending on appeal, the Supreme Court

issued its decision in United States v. Booker. “In Booker, the

Supreme Court concluded that the Sixth Amendment prevents federal

judges from making factual determinations that increase a

defendant’s sentence on the basis of facts not reflected in the

jury’s verdict.” United States v. Davidson, 409 F.3d 304, 309 (6th

17
Cir. 2005) (citing Booker, 125 S. Ct. at 745-47, 756). Further,

the Court expressly stated that its decision in Booker must be

applied “to all cases on direct review.” Booker, 125 S. Ct. at

769. Because the case sub judice was pending on direct review when

Booker was decided, the holdings of Booker are applicable.

In the case sub judice, the district court relied on judge-

found facts to apply two sentence enhancements - a two level

enhancement under section 2B6.1(b)(1)(B) based upon its

determination that the combined retail value of the vehicles was in

excess of $5,000.00, and a four level enhancement under section

2B6.1(b)(3) based upon its determination that the offense involved

an organized scheme to steal vehicles or vehicle parts. Thus,

based on facts that were neither presented to a jury nor admitted

by Miller, the applicable sentencing range was increased from a

base offense level of eight to an offense level of twelve resulting

in a 21-month sentence. The district court ordered that the

sentence was to run concurrent to the 92-month sentence handed down

in Case No. 3:03-cr-84.

Although not briefed, we believe (and appellant’s counsel

conceded at oral argument) that the concurrent sentence doctrine,

which is a discretionary doctrine, applies to the issue sub judice.

See Benton v. Maryland, 395 U.S. 784, 787-93 (1969); Barnes v.

United States, 412 U.S. 837, 848, n.16 (1973); Dale v. Haeberlin,

878 F.2d 930, 935, n.3 (6th Cir. 1989). A court should exercise

18
its discretion not to review an issue where it is clear that there

is no collateral consequence to the defendant and the issue does

not otherwise involve a significant question meriting

consideration. Dale, 878 F.2d at 935 n.3. Having upheld Miller’s

conviction in Case No. 3:03-cr-84, and considering Miller received

a concurrent and longer sentence on that count, the concurrent

sentence doctrine allows the Court to decline to address Miller’s

sentencing challenge. See United States v. Smith, 601 F.2d 972,

973-74 (8th Cir. 1979). (The concurrent sentence doctrine permits

courts to avoiid reaching the merits of a claim attacking fewer

than all multiple concurrent sentences if success on the claim

would not change the term of imprisonment.). Because the

challenged sentence runs concurrently with the sentence in Case No.

3:03-cr-84, the challenged sentence has no harmful impact on

Miller’s prison term. Additionally, because there is no likely

collateral consequence, we find no significant legal issue to

compel our attention. Accordingly, while noting that affirmance of

Miller’s conviction in Case No. 3:03-cr-84 does not moot the issues

he raises as to the alleged sentencing violations in Case No. 3:03-

cr-45, Dale, 878 F. 2d 935 n.3, pursuant to the collateral sentence

doctrine, we decline as a discretionary matter to reach them.

CONCLUSION

For the reasons stated herein, we AFFIRM the judgment of the

district court in Case No. 3:03-cr-84. Additionally, based on the

19
concurrent sentence doctrine, we DECLINE TO ENTERTAIN Miller’s

Booker argument.

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