                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-1781
                                    ___________

United States of America,                *
                                         *
                Appellee,                *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Julie Miller,                            *
                                         *
                Appellant.               *
                                    ___________

                              Submitted: December 12, 2006
                                  Filed: March 26, 2007
                                  ___________

Before BYE, COLLOTON, and BENTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Julie Miller pled guilty to perjury, and the district court1 sentenced her to the
statutory maximum term of 60 months’ imprisonment. This sentence represented a
substantial increase from the advisory guideline range of 18-24 months, and Miller
appeals the sentence. We conclude that the district court gave cogent reasons
demonstrating that the sentence is not unreasonable with regard to 18 U.S.C.
§ 3553(a), and we therefore affirm.


      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
                                           I.

       In January 2001, Douglas DeBruin, Miller’s boyfriend, killed Greg May, who
had lived with Miller and DeBruin for several months. After the murder, Miller and
DeBruin absconded with May’s valuable collection of Civil War memorabilia. Police
apprehended the couple in Arizona in April 2001, and Miller initially pled guilty to
first-degree theft in Iowa state court.

      In a later federal case, Miller pled guilty to interstate transportation of stolen
property. At sentencing in the stolen property case, Miller testified that she did not
know what had happened to May’s body and that her role in covering up the murder
was minimal. The district court found that Miller had “a role” in “disposing of the
body” and “concealing the crime,” and considered those facts at sentencing. The court
imposed a sentence of 37 months’ imprisonment, an increase from the applicable
guidelines range of 12-18 months.

       In April 2004, DeBruin was tried for May’s murder in state court. See State v.
DeBruin, 725 N.W.2d 658, 2006 WL 3017852 (Iowa App. 2006). After the state
granted Miller immunity, she agreed to testify against DeBruin. Miller testified that
she witnessed DeBruin kill May, and then helped him dispose of the body. (R. Doc.
19, at 24-30). She explained that she assisted DeBruin in dragging May’s body
downstairs to the basement laundry room, which had been lined in plastic in
preparation for the murder. After placing May’s body on a washing machine, Miller
participated in draining May’s body of blood and dismembering it. DeBruin used a
chainsaw, while Miller employed a knife. Miller testified that she also drove May’s
car from their home in Bellevue, Iowa, to Dubuque, Iowa, in order to conceal May’s
death. She assisted DeBruin in disposing of May’s dismembered remains, and was
with DeBruin when he encased May’s severed head in a bucket of concrete and later
when he left it in a pothole at a truck stop. (Appellant’s App. 20).



                                          -2-
       Based on the contradictions between Miller’s testimony at DeBruin’s trial and
her prior testimony in the stolen property case, the government obtained an indictment
charging her with perjury. The indictment alleged that Miller gave false testimony in
the earlier case by claiming no knowledge of what happened to May’s body after the
murder, when in fact she assisted DeBruin “in dismembering [May’s] body with a
chain saw, dumping his torso into the Mississippi River, throwing his limbs in a
ravine, and submerging his head in a bucket of cement which the two later left behind
a truck stop in Missouri.” (R. Doc. 3, at 2).

       Miller pled guilty, and the district court sentenced her to the statutory maximum
term of 60 months’ imprisonment, which represented a nine-level increase above the
advisory guideline range. In justifying the sentence, the district court found that
Miller “made numerous false material statements under oath repeatedly to the Court
in order to get a lower sentence” in the stolen property case, and “that she repeatedly
made numerous false material statements to law enforcement in order to protect
herself and her accomplice.” (Statement of Reasons at 4).

                                           II.

       In her brief on appeal, Miller challenges her sentence on two grounds. First,
she argues that the district court failed to follow the post-Booker sentencing procedure
outlined in United States v. Haack, 403 F.3d 997 (8th Cir. 2005). Second, she argues
that her sentence is unreasonable with regard to 18 U.S.C. § 3553(a), because the
bases for the district court’s decision do not justify the sentence and are not supported
by the record.

      As to the first ground, Miller argues that the district court improperly joined
consideration of the guidelines factors warranting a departure with the statutory
sentencing factors warranting a variance from the advisory guidelines range. See 18
U.S.C. § 3553(a). Haack directs that the district court ordinarily should determine

                                          -3-
first the appropriate guideline range, then decide if the guidelines permit a traditional
departure, and finally determine whether the § 3553(a) factors justify a variance from
this “guidelines sentence.” 403 F.3d at 1002-03. The sentencing transcript reveals
that the district court seemed to fuse the second and third parts of this inquiry, treating
“departure” and “variance” as synonymous. After stating its desire to “depart upward
under [USSG §] 5K2.0,” the district court noted that “a sentence within the advisory
guideline range would not satisfy the statutory factors at 18 U.S.C. § 3553(a),” and
sentenced Miller to the statutory maximum. (S. Tr. II, at 71). The advisory guideline
range, including any guideline departures, remains the “critical starting point” after
Booker, United States v. Mashek, 406 F.3d 1012, 1016 n.4 (8th Cir. 2005), and the
district court’s apparent conflation of departure considerations and variance analysis
was error.

       At oral argument, however, Miller’s counsel conceded that two recent decisions
of this court apply harmless error analysis to similar procedural mistakes at
sentencing. See United States v. Zeigler, 463 F.3d 814, 818 (8th Cir. 2006); United
States v. Hodge, 469 F.3d 749, 756 (8th Cir. 2006). In Zeigler, we affirmed the
sentence imposed by a district court sentence even though it was unclear whether the
court had effected an upward departure under the guidelines or varied from the
guidelines based on § 3553(a). Zeigler, 463 F.3d at 818. Because the defendant
“failed to establish that his ultimate sentence [was] unreasonable,” the district court’s
procedural error proved harmless. Id. In light of this precedent, Miller now
acknowledges that the district court’s procedural error would be harmless, if her
ultimate sentence was not unreasonable. Cf. Hodge, 469 F.3d at 756 (“Although the
district court’s failure to consider departures before considering the § 3553(a) factors
is subject to harmless error analysis and would generally be harmless to the
Government in this situation, it is not harmless here where the Government challenges
the reasonableness of the ultimate sentence.”) (citation omitted).




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       In determining whether a sentence is unreasonable with regard to § 3553(a)
after Booker, we have adopted a proportionality principle. According to Booker, the
reasonableness standard was “intended to further the statutory objectives of ‘honesty,’
‘uniformity,’ and ‘proportionality’ in sentencing, and to help in avoiding excessive
sentencing disparities.” United States v. Maloney, 466 F.3d 663, 668 (8th Cir. 2006)
(quoting Booker, 543 U.S. at 264). We have therefore viewed the advisory guidelines
as a benchmark from which to measure potential disparities, id., and concluded that
“the further the district court varies from the presumptively reasonable guideline
range, the more compelling the justification based on the § 3553(a) factors must be.”
United States v. Bryant, 446 F.3d 1317, 1319 (8th Cir. 2006); see also United States
v. Claiborne, 439 F.3d 479, 481 (8th Cir. 2006) (“How compelling that justification
must be is proportional to the extent of the difference between the advisory range and
the sentence imposed.”), cert. granted, 127 S. Ct. 551 (2006). The Supreme Court is
presently considering in Claiborne whether this approach is consistent with Booker,
but in the meantime, we of course apply our governing precedent.

        In this case, the district court’s sentence effected a nine-level increase from an
advisory range of 18-24 months to the statutory maximum sentence of 60 months.
This is a substantial deviation from the advisory benchmark, but we are persuaded that
it is justified here by exceptional circumstances. Indeed, in the realm of perjury
convictions, this case is almost sui generis. We do not believe the district court’s
imposition of a 60-month term on these facts will lead to excessive sentence
disparities among “defendants with similar records who have been found guilty of
similar conduct.” 18 U.S.C. § 3553(a)(6).

      The nature and circumstances of Miller’s perjury offense are undoubtedly
aggravating. See 18 U.S.C. § 3553(a)(1). While Miller maintained during her
prosecution for interstate transportation of property stolen from Greg May that she did
not know what had happened to May’s body, the evidence in the perjury case painted
a dramatically different picture. The district court found that Miller assisted DeBruin

                                           -5-
in dragging May’s body to a laundry room that had been lined with plastic, lifting the
body on to a washing machine, draining blood from the body, systematically
dismembering the body, wrapping the body parts in plastic, and loading the body parts
into DeBruin’s vehicle. The court found that Miller assisted in disposing of May’s
body by leaving the torso in the Mississippi River, abandoning his arms and legs in
a roadside ditch in Iowa, and placing May’s dismembered head – embedded in a
bucket of wet cement – in a pothole in the parking lot of a Missouri truck stop. The
court further observed that Miller drove May’s car away from his residence to
Dubuque, Iowa, and then to Aurora, Illinois, to conceal May’s death and to give
DeBruin and her time to flee the scene of the crime. (T. Tr. 384-88; Statement of
Reasons at 4).

       The district court concluded that Miller’s perjury in the stolen property case
“very seriously” obstructed justice, and had “much more serious implications than the
usual perjury offense.” (S. Tr. II, at 72; Statement of Reasons at 4). The court cited
the consequences that “evidence that could have been preserved to prove the murder
dissipated with the passage of time, and law enforcement was unable to recover body
parts and other evidence of murder that could have been located if Miller had been
truthful at her original sentencing hearing.” (Statement of Reasons at 4). The court
found that not only did Miller’s perjury “impede the administration of justice,”
securing for her a lower sentence in the stolen property case and resulting in the
dissipation of evidence, “but her lies prolonged the suffering and the anguish of the
victim’s family who had been seeking answers about the victim’s death and the
location of his body so he could be properly buried.” (Id.). With respect to the history
and characteristics of the defendant, see § 3553(a)(1), the court found that Miller is
a “very dangerous person,” and that she had received no criminal sanctions for her
role following May's death – which the court characterized as an “accessory after the




                                          -6-
fact to a murder” – other than some portion of a 19-month upward departure in the
stolen property case.2 (Id.).

       Miller argues that the record does not support the district court’s finding that
Miller’s perjury enabled her to escape greater punishment in the stolen property case.
At the sentencing hearing in the earlier proceeding, the district court stated that in
departing upward from the guideline range, it had “considered that [Miller] did have
a role in disposing of the body, concealing the crime, and concealing the crime for
which she was convicted.” (S. Tr. I, at 136). The first upward departure, however,
was also premised on other factors, namely, that the stolen property had significant
historical value, and that some of the stolen articles were family keepsakes not capable
of valuation or replacement. (Id.). Given the disturbing truth about Miller’s deep
involvement in dismembering May’s body and concealing the murder, we see no basis
to reject the statement of the district judge, who conducted both sentencing
proceedings, that false testimony from Miller in the earlier proceeding produced a
shorter sentence in that case.

       Miller also contends that the record does not support the district court’s finding
that Miller is a “very dangerous person,” because other evidence presented by Miller
suggested that she was a non-violent person during most of her life. We review the
district court’s finding of fact for clear error. United States v. Willis, 433 F.3d 634,
636 (8th Cir. 2006). While the court did not find that Miller participated directly in
the murder of Greg May, the absence of such a finding did not preclude a


      2
       While the district court did not elaborate on its statement that Miller was an
accessory after the fact to the murder of Greg May, or determine Miller’s advisory
guideline sentence on that basis, we note that the sentencing guidelines provide for an
offense level of 30 for a defendant whose relevant conduct involves serving as an
accessory after the fact to a first degree murder. USSG §§ 2X3.1(a)(1), (2), 2A1.1(a),
1B1.3. An offense level of 30 and criminal history category of II would provide for
a term of imprisonment well in excess of 60 months. Id., Ch. 5, Pt. A.

                                          -7-
determination that Miller was very dangerous. Miller assisted in draining a corpse of
blood and dismembering it (she with a knife, her accomplice with a chainsaw), thus
making it more difficult to detect and resolve a violent crime, and the district court
found that “[n]o one could engage in the type of conduct that she engaged in without
posing a serious risk to the public.” (S. Tr. II, at 72). Other aspects of Miller’s history
may reflect a non-violent character during other phases of her life, but in view of
Miller’s conduct in the aftermath of May’s murder, we are not left with the definite
and firm conviction that the district court made a mistake in finding that Miller was
very dangerous.

       Given the exceptional facts of this perjury case, we conclude that the sentence
imposed was not unreasonable with regard to § 3553(a). Accordingly, the judgment
of the district court is affirmed.
                          ______________________________




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