14‐4297
United States v. Miller
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 21st day of March, two thousand sixteen.
PRESENT: CHESTER J. STRAUB,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA,
Appellee,
v. 14‐4297
SHERIEKA SMALLING,
Defendant,
KWAN MILLER,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR DEFENDANT‐APPELLANT: Kwan Miller, pro se, Loretto, Pennsylvania.
FOR APPELLEE: Mary Margaret Dickman, Varuni Nelson,
Douglas M. Pravda, Assistant United States
Attorneys, for Robert L. Capers, United States
Attorney for the Eastern District of New York,
Brooklyn, New York.
Appeal from the United States District Court for the Eastern District of
New York (Weinstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Defendant‐appellant Kwan Miller, proceeding pro se, appeals the denial of
his post‐judgment motions to reduce his restitution obligation and to amend his
presentence investigation report (ʺPSRʺ). We assume the partiesʹ familiarity with the
underlying facts, procedural history of the case, and issues on appeal.
The issues raised by this appeal are pure questions of law, which we
review de novo. United States v. Barresi, 361 F.3d 666, 671 (2d Cir. 2004). Although the
district court did not explain its reasons for denying Millerʹs motions, we may affirm
ʺon any ground which finds support in the record.ʺ Beth Israel Med. Ctr. v. Horizon Blue
Cross & Blue Shield of New Jersey, Inc., 448 F.3d 573, 580 (2d Cir. 2006).
Miller argues that his restitution obligation should be reduced to account
for insurance payments received by his victims. The receipt by victims of compensation
from insurers, however, does not provide a basis for reducing Millerʹs restitution
obligation. Under the Mandatory Victims Restitution Act (the ʺActʺ), any compensation
‐ 2 ‐
a victim receives from insurance with respect to a loss does not lessen the defendantʹs
obligation to pay restitution. See 18 U.S.C. § 3664(j)(1).1 Although § 3664(j)(2) of the Act
requires that the amount of a defendantʹs restitution be reduced to account for a victimʹs
later recovery for the same loss, that provision, by its express terms, is limited to
recovery of compensatory damages in a federal or state proceeding, and is inapplicable
to insurance payments. Id. § 3664(j)(2).2 Contrary to Millerʹs argument on appeal, this
does not create a ʺdouble recovery,ʺ because restitution payments will be apportioned
between the victims and the insurers pursuant to § 3664(j)(1). Accordingly, the district
court did not err in denying Millerʹs motion to reduce his restitution obligation.
Miller next argues that the district court erred in denying his motion to
amend his PSR to redact his youthful offender adjudications, which he alleges have
been used by the Bureau of Prisons (ʺBOPʺ) to deny him access to an early release
incentive. Miller first moved pursuant to Federal Rule of Criminal Procedure 32 to
amend the PSR in a letter dated August 28, 2014, and repeated the request in a
subsequent letter dated November 4, 2014. Rule 32 allows parties to object to a PSR
1 Section 3664(j)(1) provides: ʺIf a victim has received compensation from
insurance or any other source with respect to a loss, the court shall order that restitution be paid
to the person who provided or is obligated to provide the compensation, but the restitution
order shall provide that all restitution of victims required by the order be paid to the victims
before any restitution is paid to such a provider of compensation.ʺ
2 Section 3664(j)(2) provides: ʺAny amount paid to a victim under an order of
restitution shall be reduced by any amount later recovered as compensatory damages for the
same loss by the victim in (A) any Federal civil proceeding; and (B) any State civil proceeding,
to the extent provided by the law of the State.ʺ
‐ 3 ‐
prior to sentencing, but does not provide a basis for amending a PSR after the
imposition of sentence. See United States v. Giaimo, 880 F.2d 1561, 1563 (2d Cir. 1989)
(ʺRule 32, standing alone, does not give a district court jurisdiction to correct
inaccuracies in a [PSR] report after a defendant has been sentenced.ʺ). Accordingly, the
district court did not have jurisdiction to amend Millerʹs PSR pursuant to Rule 32
following the imposition of his sentence.3
To the extent that Miller seeks to challenge the BOPʹs determination of his
ineligibility for early release, such a challenge must be brought in a separate proceeding
pursuant to 28 U.S.C. § 2241 after exhaustion of administrative remedies. See Levine v.
Apker, 455 F.3d 71, 78 (2d Cir. 2006) (ʺA challenge to the execution of a sentence ‐‐ in
contrast to the imposition of a sentence ‐‐ is properly filed pursuant to § 2241.ʺ); Carmona
v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (ʺ[A] challenge to the execution
of [a prisonerʹs] sentence rather than the underlying conviction, is properly brought via
an application for a writ under § 2241.ʺ). Such a proceeding must be brought against
the BOP in the district in which Miller is incarcerated, which, at present, is not within
this Circuit. See Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004) (ʺWhenever a § 2241 habeas
3 Even if the district court did have authority to amend Millerʹs PSR post‐
sentencing, we note that Miller did not object to the inclusion of his youthful offender
adjudications during sentencing, and did not raise the issue until approximately five months
after the April 1, 2014 entry of judgment. It was well within the district courtʹs discretion to
deny Millerʹs untimely motion, where there was no error in including the information in his
PSR for consideration at sentencing. See United States v. Matthews, 205 F.3d 544, 546‐49 (2d Cir.
2000) (stating that an adjudication under the New York youthful offender statute may be
included in a PSR).
‐ 4 ‐
petitioner seeks to challenge his present physical custody within the United States, he
should name his warden as respondent and file the petition in the district of
confinement.ʺ).
We have reviewed Millerʹs remaining arguments and conclude they are
without merit. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
‐ 5 ‐