                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                             NOT PRECEDENTIAL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.



                                               3
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



                                              4
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




                                                 5
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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