                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-15-2004

USA v. Miller
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4304




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                                                            NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 02-4304

                          UNITED STATES OF AMERICA,

                                            Appellant

                                             v.

                                EARNEST MILLER,
                                     a/k/a
                                  PAUL JONES
                                     a/k/a
                                EARNEST RUSSELL

                              _____________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Crim. No. 01 CR 00186)
                    District Judge: The Honorable Edwin M. Kosik

                     Submitted pursuant to Third Circuit LAR 34.1
                                   March 22, 2004

               Before: FUENTES, SMITH and GIBSON, Circuit Judges*

                                (Filed: April 15, 2004)

                                  _______________

                             OPINION OF THE COURT
                                ________________



  *
  The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
SMITH, Circuit Judge.

       Defendant Earnest Miller moved for a downward departure at sentencing pursuant

to United States Sentencing Guideline (“U.S.S.G.”) § 4A1.3, contending that his

guideline range as a career offender substantially over-represented the seriousness of his

criminal history. The District Court granted Miller’s motion, effectively eliminating the

career offender enhancement, and sentenced Miller to 41 months imprisonment. The

United States challenges the propriety of the District Court’s departure. For the reasons

set forth below, we will vacate the District Court’s judgment and remand for

resentencing.1

                                             I.

       The facts are uncontested. M iller was indicted on three counts in June 2001.

Count one charged Miller with possession with the intent to distribute heroin and

marijuana. Count two charged Miller with possession with the intent to distribute only

heroin. These first two counts also notified Miller that he had been convicted of a

previous felony drug offense in July 1993 in California. Count three set forth a claim for

criminal forfeiture. Miller pleaded guilty to count two of the indictment on October 11,

  1
   The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b)(3). Miller
argues that this Court=s decision in United States v. McQuilken, 92 F.3d 723, 729 (3d Cir.
1996), bars review of the District Court=s decision to depart. However, McQuilken only
precluded review of a District Court=s decision not to depart. Moreover, this Court has
routinely reviewed a District Court=s decision to depart downward. E.g., United States v.
Sweeting, 213 F.3d 95, 101 (3d Cir. 2000).


                                             2
2001.2

         The presentence report (“PSR”) prepared by the Probation Office established

Miller’s offense level as 18. It awarded him a downward adjustment for acceptance of

responsibility, thereby lowering his offense level to 15. His criminal history category was

V based on convictions for: possession of cocaine base (crack) in November 1989; petty

theft in both January and July 1990; selling cocaine base (crack) in November 1990;

possession of cocaine for sale in November 1992; and criminal conspiracy to commit

possession of controlled substance (marijuana) with the intent to deliver in February

1999. Based on an offense level of 15 and a criminal history score of V, Miller’s

guideline range was 37 to 46 months.

         Because Miller had three prior felony controlled substance offenses, he qualified

as a career offender under U.S.S.G. § 4B1.1. As a result, his offense level was enhanced

from 15 to 29. Miller’s status as a career offender also enhanced his criminal history

score from a category V to category VI. With enhancement, Miller’s guideline range

increased to 151 to 188 months.

         The PSR noted that the only basis for a downward departure was a motion by the

Government for a substantial assistance departure. Neither party objected to the PSR.

Nor was there an indication by defense counsel prior to sentencing that he would seek a

downward departure.

  2
   The first count was dismissed after Miller was sentenced. The record before us does
not reveal the disposition of the forfeiture count.

                                              3
       In a letter to the District Court dated October 3, 2002, Miller related the

circumstances of his upbringing in a poor family in the south, his military service after

high school, his subsequent employment with General Dynamics, his affliction with

depression and use of drugs, his efforts to rehabilitate himself, his setback as a result of

financial and health problems, and his resort to selling drugs. Miller declared that he was

a “small time drug dealer” and asked for the mercy of the Court.

       At sentencing on October 30, Miller’s counsel advised the District Court that

Miller took “no exception to what was contained in the [PSR].” The prosecution

informed the District Court that it was not seeking a departure for substantial assistance

because M iller’s information had not been useful. The District Court then noted that it

had received several communications from M iller, including his October 3 letter.

Because the prosecution had not received a copy of this letter, the District Judge took a

brief recess to allow the prosecution to review the letter, explaining that he “would like

Mr. Casey to have an opportunity to look at it, because having read it, it is obviously a

factor in my mind. And I don’t want you to rush through it . . . .”

       Following the recess, Miller’s counsel asked for a departure under U.S.S.G. §

4A1.3 on the basis that M iller’s criminal history over-represented the seriousness of his

past criminal conduct. Counsel pointed out that without the career offender enhancement

Miller’s guideline range was 37 to 46 months. The prosecution opposed M iller’s request

for a downward departure, reiterating the fact that Miller qualified as a career offender



                                              4
because he had three, not just two, felony drug convictions. In addition, the prosecution

pointed out that Miller’s criminal history demonstrated that he had been selling drugs

over the course of ten years.

       The District Court granted Miller’s motion and sentenced him to 41 months

imprisonment. The 41 month term was within the 37 to 46 month sentencing range that

would have been applicable under the PSR in the absence of the career offender

enhancement. The District Court simply relied on the original PSR calculation which

used an offense level of 15 and a criminal history category of V, and eliminated the §

4B1.1 enhancement.

       Prior to announcing the term of imprisonment, the District Court noted that Miller

came from “a poor background,” had served in the military, and was intelligent and

articulate. The Court explained that “while the Government has certainly a valid

argument that this would not be a classic case for departure, based on the fact that one’s

history over-represents the seriousness of the crime with which she’s [sic] charged, I’m

inclined to tip the scales in favor of this Defendant.”

       The Judgment entered thereafter indicated that the departure was based on the

District Court’s finding that “pursuant to U.S.S.G. §§ 4A1.3 and 5K2.0, the guidelines

over-represent the seriousness of the defendant’s offense and his criminal history.” The

government filed this timely appeal.

                                              II.



                                              5
       In United States v. Koon, 518 U.S. 81, 98 (1996), the Supreme Court declared that

“a district court’s decision to depart from the Guidelines . . . will in most cases be due

substantial deference, for it embodies the traditional exercise of discretion by a sentencing

court.” The government asserts, however, that a de novo standard of review is applicable

pursuant to 18 U.S.C. § 3742(e), as amended by the Prosecutorial Remedies and Other

Tools to End the Exploitation of Children Today Act of 2003 (“PROTECT Act”). Pub. L.

108-21, Title IV, § 401(d), 117 Stat. 650, 670. Miller disagrees and contends that the

PROTECT Act’s de novo review standard cannot be applied retroactively. For purposes

of this appeal, we need not decide whether the PROTECT Act’s de novo standard may be

retroactively applied. Regardless of whether we review for an abuse of discretion or

under a de novo standard, we conclude that the judgment must be vacated.

                                             III.

       The government argues that Miller met the qualifications of a career offender

under U.S.S.G. § 4B1.1 and that a downward departure under U.S.S.G. § 4A1.3 was not

appropriate. In the government’s view, M iller’s criminal history was not unusual in

comparison to other career offenders. In addition, the government asserts that the only

bases identified by the District Court for departure under U.S.S.G. § 5K2.0 were factors

that the Guidelines have explicitly characterized as prohibited or discouraged factors.

A.     Departures Under U.S.S.G. 4A1.3 for Over-Representing the Seriousness of
       the Defendant’s Criminal History

       Guideline 4A1.3(b) provides that “if reliable information indicates that the

                                              6
defendant’s criminal history category substantially over-represents the seriousness of the

defendant’s criminal history or likelihood that the defendant will commit other crimes, a

downward departure may be warranted.” Subsection (c)(2) further specifies that the court

shall specify in writing the “specific reasons why the applicable criminal history category

substantially over-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(c)(2). The

Application Notes for § 4A1.3 indicate that consideration should be given to not only the

number of previous offenses, but also the nature and vintage of these offenses. U.S.S.G.

§ 4A1.3, Application Note 3.

       Here, the able District Judge did not set forth on the record an explanation for his

conclusion that Miller’s guideline range over-represented either the seriousness of his

criminal history or the likelihood that he would commit other crimes. Indeed, scrutiny of

the record reveals several factors that militate against a downward departure. First and

foremost is the undisputed fact that Miller qualified as a career offender under U.S.S.G. §

4B1.1 because he had three, not just two, felony drug convictions. It is also undisputed

that, before the career offender enhancement was even applied, Miller’s criminal history

category was V out of a possible VI. That score was based on six convictions, spanning

from 1989 when he was 32 years of age to 1999 when he was 41 years of age. Of the six

convictions, four involved drugs.

       It is true that there is a two-year interval between M iller’s November 1990 and his



                                             7
November 1992 convictions, and an interval of six plus years between the November

1992 and the February 1999 convictions. These intervals, however, are attributable in

part to the fact that Miller was incarcerated for periods of time as a result of the

revocation of probation. The sentences Miller received early on in his career were lenient

and consisted of probation. It is while Miller was on probation that he committed several

of the crimes set forth in the PSR criminal history. Although Miller was not on probation

when he was charged in 1999 with conspiracy to possess with the intent to deliver, that

offense was committed within a year of his release from prison. In short, Miller flouted

the terms of his probation and was not deterred from committing additional offenses by

the fact that he had been convicted or incarcerated. Recidivism was, therefore, a realistic

possibility upon Miller’s release from prison for the instant offense.

       While Miller may have characterized himself as a “small time drug dealer,” the

quantities of drugs for which he was convicted increased over the years. For example,

early on, in 1989, Miller was arrested after selling crack and was charged with

possession. At that time, 1.41 grams of crack were recovered. Miller sold 0.2 grams of

crack to an undercover officer in November 1990. In 1999, Miller possessed nine plastic

bags of “red devils” and 29 plastic bags of marijuana. In this case, Miller possessed

280.7 grams of marijuana and 8.3 grams of heroin.

       In sum, Miller’s initial criminal history category of V indicated a serious criminal

history. After consideration of the nature of Miller’s convictions and the fact that Miller



                                              8
was not deterred from committing other crimes while on probation, we conclude that

there is no support in the record for the District Court’s conclusion that Miller’s guideline

range over-represented either his criminal history or the likelihood that Miller would

commit additional crimes upon release from prison for the instant offense.

B.     Departure Under § 5K2.0

       A departure under U.S.S.G. § 5K2.0 is separate and distinct from a departure under

§ 4A1.3. Guideline 5K2.0 provides that a sentencing court may depart from the

applicable guideline range in cases not involving child crimes and sexual offenses if

       the court finds, pursuant to 18 U.S.C. § 3553(b)(1), that there exists . . . [a]
       mitigating circumstance . . . of a kind, or to a degree, not adequately taken
       into consideration by the Sentencing Commission in formulating the
       guidelines that, in order to advance the objective set forth in 18 U.S.C. §
       3553(a)(2), should result in a sentence different from that described.

U.S.S.G. § 5K2.0(a)(1). In Koon, the Supreme Court observed that the “Commission

chose to prohibit consideration of only a few factors, and not otherwise to limit, as a

categorical matter, the considerations that might bear upon the decision to depart.” 518

U.S. at 94. The Koon Court specifically listed the factors that were “never [to] be bases

for departure (race, sex, national origin, creed, religion, socioeconomic status, 1995

U.S.S.G. § 5H1.10; lack of guidance as a youth, § 5H1.12; drug or alcohol dependence, §

5H1.4; and economic hardship, § 5K2.12).” Id. at 93 (emphasis added). In addition to

these prohibited factors, Koon recognized that the sentencing guidelines listed both

discouraged and encouraged factors. The Supreme Court observed that the discouraged



                                               9
factors included a “defendant’s family ties and responsibilities, 1995 U.S.S.G. § 5H1.6,

his or her education and vocational skills, § 5H1.2, and his or her military, civic,

charitable, or public service record, § 5H1.11.” Id. at 94 (emphasis added). The Koon

Court pointed out that the “Commission does not view discouraged factors ‘as necessarily

inappropriate’ bases for departure but says they should be relied upon only ‘in exceptional

cases.’” Id. at 95 (citing 1995 U.S.S.G. ch. 5, pt. H, intro. comment). Similarly, an

encouraged factor might be a basis for departure, “but only if it is ‘present to a degree

substantially in excess of that which ordinarily is involved in the offense.’” Koon, 518

U.S. at 95 (citing U.S.S.G. § 5K2.0).

       Neither the District Court nor M iller identified any encouraged factor that would

warrant the downward departure granted in this case. Our review reveals nothing which

fills that void. Although the District Court cited before granting Miller’s motion for

departure his “poor background,” his military service, and the fact that he was intelligent,

articulate, and able to “stand on his own two feet,” none of these factors can support a

departure inasmuch as they are either a prohibited or discouraged factor under the

Guidelines. See U.S.S.G. §§ 5H1.10; 5H1.11; 5H1.2. Although Koon recognizes that

discouraged factors may be a basis for departure in exceptional cases, this case is not

exceptional. Koon, 518 U.S. at 95. As a result, this record is devoid of any facts

warranting a downward departure under U.S.S.G. § 5K2.0.

                                             IV.



                                             10
      Because there are no facts in this record to support the District Court’s downward

departure under U.S.S.G. § 4A1.3 or U.S.S.G. § 5K2.0, we will vacate the judgment of

the District Court and remand for resentencing.
