Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-4-2008
USA v. Miller
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1992
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1992
_________
UNITED STATES OF AMERICA
v.
DAVID MILLER,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D. C. No. 06-cr-00727)
District Judge: Hon. Robert B. Kugler
Submitted under Third Circuit LAR 34.1(a)
on April 11, 2008
Before: SMITH, HARDIMAN and ROTH, Circuit Judges
Opinion filed: August 4, 2008
OPINION
ROTH, Circuit Judge:
David Miller appeals the judgment of sentence imposed on him by the United States
District Court for the District of New Jersey. The issues on appeal are the District Court’s
failure to rule explicitly on Miller’s request for a variance and the reasonableness of the
sentence. For the reasons set forth below, we will affirm the judgment of the District Court.
I. Background and Procedural History
Because the facts are well known to the parties, we will discuss them only briefly
here.
Miller pled guilty to two counts of distribution and possession with intent to distribute
five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §
2. The Presentence Investigation Report indicated that the base offense level for such
violations was 30, pursuant to U.S. Sentencing Guidelines § 2D1.1(c)(5). However, because
Miller was determined to be a career offender within the meaning of U.S.S.G. § 4B1.1,
which established a base level of 34 in his case, the offense level was determined pursuant
to that provision rather than § 2D1.1. The Presentence Investigation Report identified
multiple prior convictions, resulting in a criminal history category of VI.
In a letter brief to the District Court and at Miller’s March 23, 2007, sentencing
hearing, Miller’s attorney requested a variance based on the differential in sentences imposed
for offenses involving crack cocaine and sentences imposed for offenses involving powder
cocaine. Pursuant to U.S.S.G. § 4B1.1, the Guidelines range for Miller’s case was 188 to
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235 months; if the offenses had involved powder cocaine, the Guidelines range would have
been 151 to 188 months. Counsel for the government acknowledged that our decision in
United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), permitted the District Court to consider
the difference between sentences for crack and powder offenses. However, the government
argued that the sentence in this case was driven not by the Guidelines provisions for drug
offenses, but rather by the Guidelines provisions for career offenders. The government noted
that, under the provisions for career offenders, there is only a two-level difference between
the base offense level for powder and that for crack. The government characterized the
resulting difference in sentences as “quite small” and noted that the ranges for powder and
crack offenses in fact overlapped in Miller’s case.
A number of Miller’s relatives spoke on his behalf at sentencing. Miller himself also
addressed the District Court. Following counsel’s arguments and the statements offered by
Miller and his family, the District Court reviewed the § 3553 sentencing factors as they
related to this case, including Miller’s “horrific” criminal history, his drug addiction, and his
repeated lack of respect for the law. The District Court concluded:
I look very dimly on people who make a career out of hurting others and taking
advantage of society in imposing themselves on other members of society and
doing awful things you have done in life to other people.
The Government is asking me to give you a sentence at the top of the
Guidelines, which is almost 20 years, and there’s no parole. . . .
I am influenced by what your family has to say and I’m not going to give you
the maximum.
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The District Court sentenced Miller to 200 months imprisonment on each count, to be served
concurrently, four years of supervised release and imposed a $200 special assessment. The
District Court acknowledged, “[I]t’s a long sentence. But . . . it would have been longer but
for the intervention of your family.” After announcing the sentence, the District Court asked
Miller’s counsel if she had anything further, and she replied that she did not.
Miller appealed. He contends that the District Court erred in failing 1) to rule on his
request for a variance based on the crack/powder differential and 2) to consider the
differential in determining his sentence, thereby rendering the sentence unreasonable.
II. Analysis
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review a sentence under an
abuse-of-discretion standard. Gall v. United States, 128 S.Ct. 586, 597 (2007).
A district court has the discretion to consider the crack/powder differential
incorporated into the Guidelines when imposing a sentence. Kimbrough v. United States,
128 S.Ct. 558, 575 (2007); Gunter, 462 F.3d at 248-49. Miller correctly points out that the
District Court did not explicitly rule on his request for a variance based on the crack/powder
differential. However, in light of the record in this case, we find no significant procedural
error. The record is sufficient that we can determine whether the District Court abused its
discretion. There is no evidence that the District Court erroneously believed that it could not
consider the crack/powder differential in sentencing. The sentence was imposed after our
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decision in Gunter, which Miller briefed in his request for a variance, and the holding of
which the government acknowledged.
The record makes clear that, due to Miller’s criminal history, the District Court
determined that the maximum sentence should apply but for the intervention of Miller’s
family. The record indicates that the District Court was greatly concerned about Miller’s past
criminal conduct; this conduct, not the crack/powder differential, yielded the sentence, and,
as the government argued before the District Court and this Court, the differential is lessened
here by virtue of application of § 4B1.1.
Miller also argues that the District Court’s apparent failure to consider the
crack/powder differential rendered his sentence unreasonable. The record in this case
demonstrates that the District Court adequately considered the § 3553(a) factors in
sentencing. The District Court expressly acknowledged the need to examine the § 3553(a)
factors and discussed those factors in turn.
Arguing that the District Court improperly failed to consider the crack/powder
differential, Miller faults the District Court for finding that “disparity of sentence is not really
an issue.” However, we have explained that “the need to avoid unwarranted sentencing
disparities among defendants with similar records who have been found guilty of similar
conduct,” is distinct from the contrast in crack/powder sentencing. Gunter, 462 F.3d at 239
n.1. The record suggests that the District Court was aware of its ability to consider the
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crack/powder differential. We are satisfied that the District Court gave “meaningful
consideration” to the § 3553 factors.
III. Conclusion
For the reasons set forth above, we will affirm the judgment of the District Court.
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