                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0236p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                          No. 06-4583
          v.
                                                      ,
                                                       >
 SHAWN JOSEPH MILLER,                                 -
                             Defendant-Appellant. -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                   No. 06-00166—Donald C. Nugent, District Judge.
                                      Argued: April 30, 2008
                                 Decided and Filed: July 1, 2008
                  Before: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Amy B. Cleary, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for
Appellant. Justin J. Roberts, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for
Appellee. ON BRIEF: Amy B. Cleary, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland,
Ohio, for Appellant. Justin J. Roberts, ASSISTANT UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        GRIFFIN, Circuit Judge. Following a jury trial, defendant Shawn Joseph Miller was found
guilty on two counts of committing wire fraud, in violation of 18 U.S.C. § 1343, two counts of
money laundering, in violation of 18 U.S.C. § 1957, and one count of witness tampering, in violation
of 18 U.S.C. § 1512(b)(3). Thereafter, the district court sentenced Miller to an above-Guidelines
term of 125 months of imprisonment.
         Miller now appeals, raising four claims: (1) his constitutional right to a fair trial was
abridged when he was forced to wear an electronic stun belt during trial; (2) the district court erred
in failing to sua sponte order a mental competency hearing; (3) the evidence offered against him at
trial was insufficient to support the jury’s finding of guilt on the witness tampering charge; and (4)
his sentence was substantively unreasonable. For the reasons set forth below, we affirm Miller’s
convictions and order a limited remand for resentencing for the purpose of correcting Miller’s term
of supervised release.

                                                  1
No. 06-4583               United States v. Miller                                                            Page 2


                                                          I.
       Miller operated two Ohio corporations, McClure, Becker & Associates, Inc. and McClure,
Becker & Ramono Financial, Inc. (collectively “McClure Becker”), that purported to be engaged
in the business of purchasing and selling credit card debt portfolios to brokers and collection
agencies. In conducting this business, McClure Becker maintained a checking account with First
Merit Bank in Sheffield, Ohio. Miller was a signatory on the account.
        Between September 2002 and December 2003, Miller used McClure Becker to defraud
others by selling non-existent and fraudulent debt portfolios. Miller offered for sale to debt brokers
and collection agencies what purported to be credit card portfolios of consumer debtor accounts.
These portfolios were later revealed to be fraudulent, as the supposed debtors did not have debt with
the credit card companies, did not live where stated in the portfolio, or Miller did not own the
portfolios that he sold.
        After receiving wire transfer payments in exchange for the sale of the fraudulent portfolios,
Miller converted the funds into cash and cashier’s checks through the First Merit account. Miller
then mostly used these funds for personal use, including gambling vacations to Las Vegas and
Windsor, Ontario. However, when confronted with the fraudulent nature of his portfolios by clients,
Miller occasionally used the proceeds in a manner consistent with a “ponzi scheme,” applying funds
received from subsequent brokers to pay off previous clients.
        The FBI began investigating Miller in April 2004. Miller apparently learned of the
investigation and, in July 2005, met with Sherry Lynn  Rains, an employee of First Merit Bank who
opened McClure Becker’s account with the bank.1 Miller warned Rains that if she talked to anyone
about the investigation, “including the FBI,” he would sue her for defamation of character. Miller
also stated to Rains that the FBI was not looking into his business. Rains informed Miller that she
had spoken with the FBI in December 2003 and that she had no other information to provide
investigators.
        After the filing of a criminal complaint, Miller was arrested. Because of Miller’s criminal
history, the court placed Miller on house arrest with electronic monitoring. The court appointed
counsel to represent Miller. On June 1, 2006, the Grand Jury returned a five-count superseding
indictment, charging Miller with two counts of committing wire fraud, in violation of 18 U.S.C.
§ 1343, two counts of money laundering, in violation of 18 U.S.C. § 1957, and one count of witness
tampering, in violation of 18 U.S.C. § 1512(b)(3). On July 21, 2006, Miller filed a pro se motion
to remove his court-appointed counsel and to hire a new attorney. After Miller’s then-counsel
acknowledged in a pretrial hearing on the motion that Miller had refused to meet with him, Miller
hired a new attorney, and the trial was continued to August 28, 2006.
       Six days before trial, Miller violated the conditions of his pretrial release by returning to his
home three and one-half hours later than permitted and giving misleading information to his pretrial
services officer. Consequently, the court revoked Miller’s bond pending trial.
        At a pretrial hearing on August 28, Miller complained about the quality of the representation
he was receiving from his newly-hired counsel. Counsel for Miller then stated that he was unable
to represent Miller:
       Your Honor, for purposes of the record, if you will just wait a moment, your Honor,
       I have to look out for my welfare at this point. The Defendant and I just had a
       meeting, which deteriorated to a very violent nature.

       1
           Miller and Rains are also loosely related by marriage, as Miller is the nephew of Rains’s ex-husband.
No. 06-4583               United States v. Miller                                                               Page 3


                                                            ***
         I was hoping while he sat in jail he would come to his senses but obviously has not.
         He is hostile to me. I cannot under the ethical situation even sit at the same trial
         table with him. So I have all the evidence here that he needs. I can give it to him
         and let him represent himself.
Despite the attorney’s protestations, the district court denied the attorney’s request to be removed
as counsel. Regarding defendant, the district judge directed that “the Marshals will take whatever
precautions they think are appropriate.”
        The Marshals Service determined that the use of an electronic restraint system was necessary
and received permission from the district court to employ upon Miller a stun belt during trial. The
Marshals provided notice to Miller regarding the use of the stun belt, instructing him that the
“System if activated contains 50,000 volts of electricity” which can result in “Immobilization
causing you to fall to the ground,” the “Possibility of self-defecation,” and the “Possibility of self-
urination.” The instructions provided further that the system would not be activated “simply for
consulting with your legal counsel,” but that it could be triggered by any of the following actions:
“hostile movement or attempted assault,” “tampering with the System,” “attempt to escape custody,”
or “intentional attempt to avoid constant visual contact by the Deputy.” Miller raised no objections
to the use of the stun belt.2
        Following a three-day trial, the jury found Miller guilty on all five counts charged in the
indictment. The Presentence Investigation Report (“PSR”) calculated an advisory Guidelines range
of 84 to 105 months of imprisonment, based on Miller’s offense level score of 22 and criminal
history category VI. The PSR noted further that the maximum term of imprisonment under 18
U.S.C. § 1343 for the wire fraud counts was 20 years.
       At the sentencing hearing, the government sought a sentence of 105 months of imprisonment.
The court, citing Miller’s criminal history and propensity for fraud, sentenced Miller to an above-
Guidelines term of 125 months of imprisonment on counts one and two, and a term of 120 months
on counts three through five, running concurrently.
         Miller now timely appeals his convictions and sentences.
                                                           II.
        Miller first argues that his constitutional right to a fair trial was denied when the district court
forced him to wear a stun belt restraint during trial. Specifically, Miller contends that the court erred
by failing to hold a hearing and make factual findings regarding the need for the physical restraint.
The government argues that because Miller received sufficient notice of the limited number of
actions that could trigger the stun belt and that the stun belt was never visible to the jury, he was not
prejudiced by the use of the stun belt. We agree with Miller that the district court abused its
discretion in failing to hold a hearing and make factual findings regarding the need for the stun belt.
However, after our review for plain error, we hold that error requiring reversal did not occur.




         2
          On November 27, 2006, nearly three months after the conclusion of trial, Miller filed a pro se “Motion to
Declare a Mistrial,” arguing that the use of the stun belt deprived him of his ability to consult with his counsel due to
his concern for being electrocuted. Miller’s motion, however, was untimely, as a motion for a new trial “grounded on
any reason other than newly discovered evidence must be filed within 7 days after verdict or finding of guilty.” FED.
R. CR. P. 33(b)(2).
No. 06-4583           United States v. Miller                                                       Page 4


                                                  A.
        We review the district court’s decision to impose physical restraints on defendant for an
abuse of discretion. Kennedy v. Cardwell, 487 F.2d 101, 107 (6th Cir. 1973). Further, any error in
requiring defendant to be restrained is subject to harmless error review. Ruimveld v. Birkett, 404
F.3d 1006, 1012 (6th Cir. 2005); Lakin v. Stine, 431 F.3d 959, 963 (6th Cir. 2005); see also Bell v.
Hurley, 97 F. App’x 11, 16 (6th Cir. 2004). Where the defendant fails to object to an error at trial,
we review for plain error. FED. R. CR. P. 52(b); United States v. Christman, 509 F.3d 299, 307 n.3
(6th Cir. 2007).
                                                  B.
         The use of physical restraints, such as a stun belt, during trial and the sentencing phase
implicates a defendant’s right to due process. Deck v. Missouri, 544 U.S. 622, 629 (2005). Deck,
and the bulk of federal cases discussing the use of physical restraints during trial and sentencing,
involved traditional methods of securing the accused, such as handcuffs and shackles. Nevertheless,
we now conclude that the “same fundamental issues are implicated in the decision of the district
court” to restrain a defendant through the use of a stun belt. United States v. Waagner, 104 F. App’x
521, 526 (6th Cir. 2004). Accordingly, we hold that “‘a decision to use a stun belt must be subjected
to at least the same close judicial scrutiny required for the imposition of other physical restraints.’”
Id. (quoting Gonzalez v. Pliler, 341 F.3d 897, 901 (9th Cir. 2003)). Further, we caution that such
“physical restraints should be used as rarely as possible.” United States v. Durham, 287 F.3d 1297,
1304 (11th Cir. 2002).
        Because significant interests are implicated by the use of restraints, before ordering the use
of such devices, the trial court must make a “determination, in the exercise of its discretion, that
[restraints] are justified by a state interest specific to a particular trial.” Deck, 544 U.S. at 629.
Twenty-two years before Deck, we explained the proper procedure that a trial court should follow
before permitting the use of restraints:
       The recent cases establish that in order for an appellate court to undertake any
       meaningful review at least the reasons for the trial judge’s actions should be placed
       on the record. Several courts, including this one, have recognized that the physical
       indicia of innocence are so essential to a fair trial that the better practice is to hold
       a hearing so that factual disputes may be resolved and evidence of the facts
       surrounding the decision are made a part of the record.
                                                 ***
       While the cases have laid down no definite rule as to the exact form for an
       evidentiary hearing to determine whether physical restraint is necessary, we think
       that it is preferable, except in cases where the trial process is disrupted in the court’s
       presence, that a formal hearing should be conducted with sworn testimony. In this
       way factual disputes may be resolved and a meaningful record preserved for an
       appeal or for collateral relief.
Kennedy, 487 F.2d at 107, 110 (internal citations omitted). On appeal, Miller argues that the district
court erred in permitting the use of restraints before making any findings regarding the need for such
measures. We agree.
        It appears that the use of the stun belt was triggered by the statement by Miller’s counsel
during the pretrial hearing on August 28 that he had a meeting with Miller that devolved “to a very
violent nature.” Nevertheless, the district court neither held an evidentiary hearing nor received any
evidence regarding the need to restrain Miller. The court did not articulate why it concluded that
No. 06-4583           United States v. Miller                                                    Page 5


the use of a stun belt was necessary. Rather, the trial court deferred initially to the Marshals for the
means necessary to prevent any further violent interactions involving Miller, stating “the Marshals
will take whatever precautions they think are appropriate.” Later, the court approved, without
explanation, the Marshals’ decision.
        We have held previously that a district court’s blind adherence to a corrections officer’s
recommendation, without making any individualized determinations or specific findings, amounts
to an abuse of discretion. Lakin, 431 F.3d at 964 (holding that “[a]lthough a trial court might find
a corrections officer’s opinion highly relevant to answering the ultimate inquiry as to whether
shackling is necessary in a particular case, an individualized determination under the due process
clause requires more than rubber stamping that request”). In this case, the district court’s cursory
approval of the use of a stun belt fell far below the individualized determination required by Deck,
Kennedy, and Lakin. By deferring to the Marshals’ judgment, the district court abdicated its
responsibility and thus abused its discretion.
         Additionally, we are troubled by the government’s argument on appeal that the use of a stun
belt was warranted because Miller was facing significant prison time and because Miller had been
evasive and untruthful in a prior hearing before the district court. Although we do not condone
Miller’s behavior with the district court, neither of these factors justifies the use of physical
restraints. As the Court explained in Deck, “the Constitution forbids the use of visible shackles
. . . unless that use is justified by an essential state interest – such as the interest in courtroom
security – specific to the defendant.” 544 U.S. at 624 (internal quotation omitted). In our view,
neither Miller’s lack of honesty nor his potential prison sentence – without evidence indicating that
he posed a threat to courtroom security – suffices as such an essential interest. Were we to accept
the government’s position that the length of Miller’s potential sentence was an adequate basis to
justify the use of the stun belt, the implementation of physical restraints would become essentially
routine in federal drug and firearm prosecutions. This is clearly beyond what the Constitution
permits. Id. at 626.
                                                   C.
        Our conclusion that the district court abused its discretion by failing to hold a hearing and
make findings regarding the need for the stun belt does not end our analysis. Trial errors – even
“non-structural” constitutional errors – are subject to harmless error analysis on review. See Neder
v. United States, 527 U.S. 1, 7-8 (1999); Arizona v. Fulminante, 499 U.S. 279, 306-12 (1991)
(opinion by Rehnquist, C.J.). In Deck, the Supreme Court confirmed that harmless error analysis
applies to the use of physical restraints on a criminal defendant at trial. Deck, 544 U.S. at 635.
        Unlike the defendant in Deck, however, Miller did not object to the use of physical restraints.
Thus, as both parties concede, we review the use of the stun belt for plain error. See United States
v. Fields, 483 F.3d 313, 356 (5th Cir. 2007) (applying plain error review where defendant did not
object to the use of a stun belt at trial). Under a plain error analysis, Miller must show “(1) error (2)
that was obvious or clear (3) that affected defendant's substantial rights and (4) that affected the
fairness, integrity, or public reputation of the judicial proceedings.” United States v. Phillips, 516
F.3d 479, 487 (6th Cir. 2008) (quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008)
(en banc)). This is a heavy burden for Miller to bear, for “the plain error doctrine is to be used
sparingly, only in exceptional circumstances, and solely to avoid a miscarriage of justice.” Phillips,
516 F.3d at 487 (quoting United States v. Cox, 957 F.2d 264, 267 (6th Cir. 1992)).
         Perhaps the most significant consequence of applying plain error review to Miller’s claim
is that the burden of proof is on Miller to prove that he was prejudiced by the use of a stun belt at
trial. United States v. McCreary-Redd, 475 F.3d 718, 723 n.5 (6th Cir. 2007) (noting that “‘in
contrast to harmless error review, plain error review puts the burden of proving a deprivation of
No. 06-4583               United States v. Miller                                                                 Page 6


substantial rights on the defendant and further requires the defendant to persuade the court that the
error 'seriously affected the fairness, integrity or public reputation of judicial proceedings’”)
(quoting United States v. Valdez, 362 F.3d 903, 908 (6th Cir. 2004)). We hold that Miller has not
met his burden.
        First, Miller makes little effort on appeal to explain how he was prejudiced by the use of the
stun belt. He does contend that he was “forced to sit through his entire jury trial under the constant
threat of having 50,000 volts of electricity shot through his body, knowing that, if the belt was
triggered, a massive electrical shock would force him to the ground and likely cause him to defecate
and urinate on himself” and this threat “stifled [his] ability to communicate with his counsel due to
the threat of being electrocuted.” This argument, however, contradicts the statement made by his
counsel at the close of the trial:
         Your Honor, on behalf of the defendant, we meant to put this on the record before
         the jury came out, but as far as the problems that we had between us, the defendant
         and myself, the Court is well aware of that.
         I want the record to be clear that there were no witnesses given to me by the
         defendant to subpoena or to testify on his behalf. We discussed that, and that’s why
         no witnesses were presented.
         During the trial, he did finally consult with me, and we were able to get along during
         the trial. The Court knows the history of this case, but I want the3record to be clear
         that no witnesses were called because I had no witnesses to call.
(Emphasis added.) Miller did not dispute his counsel’s statement, and there is no evidence in the
record to contradict the attorney’s account that Miller was able to confer with counsel at trial. Thus,
we cannot conclude that Miller was prejudiced in his ability to aid in his own defense at trial.
         On appeal, the government represents that the stun belt was not visible to the jury. However,
the trial record is silent regarding whether the stun belt was visible to the jury at trial. Because
Miller bears the burden of proof   on plain error review, we will not assume without evidence that the
stun belt was visible at trial.4 Consequently, because there is no evidence indicating that the stun
belt was visible to the jury, Miller has not met his burden to show that he was prejudiced in the eyes
of the jury by the use of the physical restraint. United States v. McKissick, 204 F.3d 1282, 1299
(10th Cir. 2000) (holding that where there is no evidence in the record that any member of the jury
noticed the stun belt, the court will not “presume prejudice”); United States v. Mayes, 158 F.3d
1215, 1226-27 (11th Cir. 1998) (where no evidence that restraints were visible, no prejudice);
United States v. Collins, 109 F.3d 1413, 1418 (9th Cir. 1997) (same). See also United States v.
Orris, 86 F. App’x 82, 86 (6th Cir. 2004) (holding that although district court “should have more
clearly stated on the record, based upon facts in the record, the reasons he believed that shackling
Defendant was necessary,” reversal was not appropriate because “there is no indication whatsoever
in the record that the shackling prevented Orris from consulting with his attorney, was ever seen by
the jury, or otherwise prejudiced Orris”); Pearl v. Cason, 86 F. App’x 858, 859 (6th Cir. 2004)


         3
          Earlier, counsel for Miller made a similar reference to his ability to consult with defendant: “I want the Court,
for purposes of the record, or I’ll put it on the record, that the defendant and I had discussed him testifying many times
over, and I explained to him that he has a constitutional right to testify if he chooses to, but because of his record
involved in the case, it was his decision not to testify based on my advice, so the record is clear.”
         4
           The Seventh Circuit has “described the use of a stun belt as a ‘method[] of restraint that minimize[s] the risk
of prejudice’ because it is hidden beneath a defendant’s clothing.” Stevens v. McBride, 489 F.3d 883, 899 (7th Cir. 2007)
(quoting United States v. Brooks, 125 F.3d 484, 502 (7th Cir. 1997)).
No. 06-4583              United States v. Miller                                                           Page 7


(finding no prejudice to shackled defendant where defendant “presented no evidence that the jury
saw the shackles at any point” and “presented no evidence to support his conclusory allegations that
the shackles impeded his mental faculties, interfered with communication with his lawyer, detracted
from the dignity of the proceedings, and caused him pain”).
        Finally, Miller does not challenge on appeal the weight or sufficiency of the evidence offered
against him on the wire fraud and money laundering counts.5 Thus, Miller has not shown that his
convictions for these offenses resulted in a miscarriage of justice or suggested that any potential
prejudice may have played a significant part in the jury’s determination of guilt.
        For these reasons, we hold that Miller failed to carry his burden on plain error review to
establish he was prejudiced by the use of the stun belt at trial.
                                                       III.
         Next, Miller argues that the district court should have ordered sua sponte a hearing to
determine whether he was mentally competent to stand trial. We hold that the district court did not
err in failing to order sua sponte a competency hearing.
        Title 18 U.S.C. § 4241(a) requires a district court, if reasonable cause exists to believe that
a defendant is mentally incompetent to stand trial, to order sua sponte a hearing to determine the
defendant’s competency. A criminal defendant is incompetent if he lacks “sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding” or if he does not have
“a rational as well as factual understanding of the proceedings against him.” Drope v. Missouri, 420
U.S. 162, 172 (1975) (internal quotations omitted). In determining a defendant’s competence, the
court considers several factors, including “evidence of a defendant’s irrational behavior, [the
defendant’s] demeanor at trial, and any prior medical opinion on competence to stand trial.” Id. at
180.
       Miller seizes upon a statement made by the district court during a hearing on the morning
before the first day of trial. Responding to difficulties that Miller’s counsel was having in
communicating with his client, the court stated to Miller:
        As I said to you the other day, I have gone through a lot with you. I don’t know what
        is going on in your head or not going on in your head. You have a long record of
        criminal convictions, so you are experienced in this process.
                                                         ***
        You had all the rope that I am going to give you because I could, I suppose, refer you
        and say that there is some mental problem. I don’t know whether there is a mental
        problem with you. There is nothing in the record to indicate that, I don’t know, there
        could be.
        But that means you would be shipped off again at Government expense down to
        Missouri somewhere and put in a mental hospital, and I would then expect you to
        cooperate with the people, the psychologists, social workers, psychiatrists. I have
        no expectation that you would do that based on everything I have seen so far. So you
        have two hours to make amends with your lawyer and be back here.


        5
          As discussed infra, Miller challenges, on First Amendment grounds, the sufficiency of evidence supporting
his conviction for witness tampering.
No. 06-4583            United States v. Miller                                                    Page 8


(Emphasis added.) Miller argues that these passages suggest that the district court doubted Miller’s
competency, therefore triggering the requirement under 18 U.S.C. § 4241(a) to hold a hearing on
Miller’s competence to stand trial. Miller also points to the PSR, in which the probation officer
stated that “this officer believes the defendant needs a mental health evaluation and possibly
counseling. Throughout the defendant’s bond supervision and the investigation conducted by this
officer, Mr. Miller has displayed signs of paranoia and other symptoms which make this
recommendation necessary.”
        Two cases cited by the government in response are instructive. In United States v. Leggett,
162 F.3d 237 (3d Cir. 1998), the Third Circuit rejected the appellant’s claim of incompetency based
on his inability to assist in his own defense. The appellant argued that his incompetency should have
been evident to the district court at a pre-trial hearing in which the defendant sought dismissal of his
counsel because of their inability to communicate. Id. at 242. The court rejected his claim, noting
that the defendant had participated in his own defense and that his “desire to have [his attorney]
discharged was at least partially grounded in what he considered poor strategic decisions on her part
and her failure to get him copies of various evidentiary documents. . . . Leggett’s reasons for seeking
[his attorney’s] discharge stemmed from his relationship with that particular lawyer and did not
seem indicative of a general incapacity to consult with any lawyer.” Id. at 243.
        Likewise, in United States v. Shan Wei Yu, 484 F.3d 979, 985 (8th Cir. 2007), the Eighth
Circuit considered the appellant’s claim that the district court should have ordered a mental
competency hearing because the defendant had been taking prescription medication for mental
health problems and because he had complained to the court about the performance of his attorneys.
On appeal, the court rejected the appellant’s claim, noting that “[n]o party suggested at trial . . . that
Yu was incompetent or unable to understand the proceedings,” and reasoning that “Yu’s complaints
about his attorneys . . . evidence that Yu understood the case against him and was capable of
consulting with counsel.” Id. at 985.
        As these cases demonstrate, a defendant is not rendered incompetent to stand trial merely
because he cannot get along with his counsel or disapproves of his attorney’s performance.
Moreover, although there is evidence in the record that suggests Miller may show signs of paranoia,
such an illness would not necessarily render defendant incompetent to stand trial. United States v.
Davis, 93 F.3d 1286, 1290 (6th Cir. 1996) (“Although there is some suggestion in the record that
the defendant is currently under psychiatric care, even if she were mentally ill, ‘it does not follow
that because a person is mentally ill he is not competent to stand trial.’”) (quoting Newfield v. United
States, 565 F.2d 203, 206 (2d Cir. 1977)).
       The record suggests that the district court’s remark that he didn’t know whether Miller had
a “mental problem” is best interpreted in the context of the court’s exasperation with the difficulties
that Miller had caused the court and his attorneys in the weeks leading to trial. During this same
exchange with Miller, the court reminded Miller that he had previously moved the trial date because
Miller had sought to change attorneys, that the court had – “against [its] better judgment” –
permitted Miller to await trial on house arrest, that Miller had violated the conditions of house arrest,
and that Miller had discovered the resources necessary to retain counsel despite his earlier
statements to the court indicating that he lacked any funds to pay for representation.
        To the extent that these difficulties called into question Miller’s ability to assist in his own
defense, this concern was answered by his attorney’s statement at the conclusion of trial that Miller
did, in fact, consult and assist in his defense at trial, and that Miller had knowingly accepted the
advice given to him by counsel not to testify before the jury. In addition, in a pretrial hearing
regarding a motion to withdraw filed by his first attorney, Miller demonstrated that he understood
the proceedings and their consequences. In response to the court’s question as to how he could
afford to retain his own counsel, Miller stated “I am borrowing the money from five different people.
No. 06-4583                United States v. Miller                                                               Page 9


This is my life that is on the line here. At the end of the day, he gets to go home and so does
everybody [else]. If I lose, I am going to jail for a long time.” (Emphasis added.)
         Moreover, neither of Miller’s trial attorneys raised any question at or before trial regarding
Miller’s mental health.6 See United States v. Tucker, 204 F. App’x 518, 520 (6th Cir. 2006) (holding
no error in failure to hold competency hearing after noting that “three separate attorneys represented
Tucker and none of them expressed personal concern about Tucker’s competence”). Nor is there
any evidence of mental health problems in the record. Cf. Davis, 93 F.3d at 1290. Rather, the
record shows that Miller was able to consult with his attorney during trial, engage in colloquies with
the district court during pretrial hearings, and make an informed decision regarding his desire to
testify at trial.
       Finally, we note that the bar for incompetency is high: a criminal defendant must lack either
a “sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding” or “a rational as well as factual understanding of the proceedings against him.”
Drope, 420 U.S. at 172 (internal quotations omitted). Because Miller demonstrated that he could
consult with his attorney and that he understood the nature of the proceedings, we conclude that
reasonable cause did not exist regarding whether defendant was competent to stand trial.
Accordingly, we hold the district court did not err in failing to order sua sponte a competency
hearing.
                                                           IV.
       Next, Miller challenges the sufficiency of the evidence offered against him at trial to support
his conviction for witness tampering. He argues that the threat of exercising his right to sue for
defamation is not a threat for purposes of criminal liability under 18 U.S.C. § 1512(b)(3). We
disagree.
        At the close of evidence, Miller moved for acquittal. We review de novo the district court’s
denial of Miller’s motion for acquittal and must determine “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Grubbs, 506 F.3d 434, 438 (6th
Cir. 2007).
        Title 18 U.S.C. § 1512(b) provides:
        Whoever knowingly uses intimidation, threatens or corruptly persuades another
        person, or attempts to do so, or engages in misleading conduct toward another
        person, with intent to . . . (3) hinder, delay, or prevent the communication to a law
        enforcement officer or judge of the United States of information relating to the
        commission or possible commission of a Federal offense or a violation of conditions
        of probation, supervised release, parole, or release pending judicial proceedings
        . . . shall be fined under this title or imprisoned not more than 20 years, or both.


        6
            At the sentencing hearing, Miller’s second trial attorney did question Miller’s mental health:
        I note in the probation report, which is very accurate under the mental health and emotional health
        section, paragraph 62 and 63 sort of sums up to me why Shawn has done the things that he did. His
        attitude in the way he acts, not only the way he’s acted in the courtroom but the way he acted outside
        the courtroom, I think that he does need to be examined. I think he did have some emotional and
        mental problems.
At no point, however, did defendant’s counsel suggest that Miller may have been rendered incompetent to stand trial
due to these mental and emotional problems.
No. 06-4583           United States v. Miller                                                   Page 10


18 U.S.C. § 1512(b)(3). See also United States v. Khatami, 280 F.3d 907, 911 (9th Cir. 2002) (“By
its terms, § 1512(b) prohibits four specific categories of conduct directed toward witnesses:
(1) intimidation, (2) physical force, (3) threats, and (4) corrupt persuasion.”).
        Miller argues that his statement to witness Sherry Lynn Rains that he would sue her for
defamation if she spoke with the FBI regarding its investigation of defendant cannot be considered
a “threat” within the meaning of § 1512 because he has the legal right to initiate legal proceedings.
His argument, however, is seriously flawed because it rests upon an inaccurate assumption.
Although Miller claims that he has the right to file a defamation claim against Rains, “there is no
constitutional right to file frivolous litigation.” Wolfe v. George, 486 F.3d 1120, 1125 (9th Cir.
2007) (observing that “[j]ust as false statements are not immunized by the First Amendment right
to freedom of speech, . . . baseless litigation is not immunized by the First Amendment right to
petition”). The problem with his argument is that Miller threatened to sue Rains for defamation
solely on the basis of her cooperation with the FBI, regardless of the veracity of Rains’s statements
to investigators. Miller has no right to institute baseless legal proceedings for the purpose of
harassment, and cannot hide behind the First Amendment to shield him from prosecution under
§ 1512.
        Although we have not had many opportunities to discuss § 1512, we find United States v.
Bryant, 966 F.2d 1454 (Table), 1992 WL 133018 (6th Cir. June 12, 1992), instructive. In Bryant,
the defendant William Ackison, the Ironton (OH) chief of police, was convicted on two counts of
tampering with a witness, in violation of § 1512(b)(1) and § 1512(c)(2). The underlying incidents
occurred during an FBI investigation into the conduct of a fellow Ironton police officer, in the course
of which the FBI informed Ackison that it would be interviewing all of the Ironton officers. Id. at
*3. Ackison responded by sending a memorandum to the entire police department, which informed
officers of the investigation and stated that “[n]o personnel of this department has to talk to [the FBI
investigator] if they do not wish to.” Id. Several members of the police department testified that
they interpreted the memorandum to mean that Ackison did not want Ironton officers to speak to the
FBI, and two officers testified that Ackison either stated explicitly, or implied suggestively, that they
would be fired if they cooperated with the FBI investigation. Id. On review of the sufficiency of
the evidence, this court held that “there was abundant evidence to support all of the convictions of
both defendants,” including Ackison. Id. at *4.
         Like Ackison, Miller ordered Rains not to cooperate with an ongoing investigation and stated
that negative pecuniary effects would occur if she disobeyed his direction. On cross-examination,
Rains testified that she considered Miller’s order to be a threat, explaining that Miller “threatened
to take me to court and sue me for defamation of character. If that’s a threat, then yes, that’s a
threat.”
       We hold that, viewing the evidence in the light most favorable to the government, the jury
could have reasonably accepted Rains’s testimony that Miller’s statement was a threat and could
have reasonably inferred that it was made for the purpose of preventing communication to the FBI
in connection with its investigation of Miller. Miller’s conviction is affirmed.
                                                   V.
        Finally, Miller argues that his sentence was unreasonable. Miller raises two arguments.
First, Miller contends that the district court erred in imposing a four-year term of supervised release,
as the statutory maximum provided in 18 U.S.C. § 3583(b)(2) is three years of supervised release.
The government concedes this error and acknowledges that a limited remand for resentencing is
necessary to correct the district court’s mistake.
No. 06-4583              United States v. Miller                                                            Page 11


        Second, Miller argues that the court erred by sentencing Miller to a term that exceeded the
Guidelines, contending that the court placed too much weight on Miller’s criminal history to justify
the sentence. We review Miller’s sentence for reasonableness, using an abuse-of-discretion standard
to determine whether the sentence is reasonable. United States v. Carter, 510 F.3d 593, 600 (6th
Cir. 2007) (citing Gall v. United States, 128 S. Ct. 586, 594-95 (2007)). “In reviewing a challenge
to the length of an outside-guidelines sentence, [the court] may ‘take the degree of variance into
account and consider the extent of a deviation from the Guidelines,’” but it “‘must give due
deference to the district court’s decision that the § 3553(a) factors . . . justify the extent of the
variance.’” United States v. Smith, 516 F.3d 473, 477-78 (6th Cir. 2008) (quoting Gall, 128 S. Ct.
at 595, 597). We conclude that the court did not abuse its discretion in sentencing Miller to a term
of 125 months of imprisonment.
        Before sentencing, the probation office calculated an advisory Guidelines range of 84 to 105
months. Neither party disputes that this calculation was correct.7 At the sentencing hearing, counsel
for the government suggested that “there is a lot of argument to be made to sentence Mr. Miller
much higher than the advisory guideline range,” but ultimately the government requested a sentence
of 105 months. Nevertheless, the district court exceeded the government’s recommendation,
sentencing Miller to a term of 125 months of imprisonment. The court explained:
         I’m not going to count up all the prior convictions because you have 21 points, but
         realistically you could have a lot more. And I don’t know how many felony
         convictions, but there are probably 15 or 20 felony convictions, or even more if we
         added up all the counts. That gives me an idea that there is a huge long history of
         fraud. And somehow you’re not getting it. I know when you said you were 19 you
         were young, but then you go to jail a little bit. You get out, you’re 23, and you do
         some more, and you get out and do some more.
         You get into the state system, and this is what happens, and for good or for bad that’s
         why we have Sentencing Guidelines in Federal Court, because in the state system the
         judges can pretty much, in the cases of this nature, can do pretty much what they
         want. And you make a very good presentation. And I’m sure the judges were
         somewhat sympathetic and gave 18 months and running 8 or 10 or 12 counts or cases
         together was a stiff sentence. In fact, it turned out to be nothing like that at all
         because it didn’t dissuade you from your conduct.
         Now we’re in a situation I can give you 20 years on counts 1 and 2. And that under
         some circumstances you know that might seem to be appropriate because you need
         to be stopped. You need to be stopped committing this type of activity. You know
         how to use the computer. You have access to people’s financial records. You’re
         good at all this. You have to take steps back and say you can’t do this anymore. I’m
         not quite sure how to stop you.
         I tried to be fair in all my dealings with you. But I also have an obligation under the
         law to take into consideration everything that the Guidelines and that 3553 says that
         I must take into consideration. And I have to agree with Mr. Roberts, and that is that
         a sentence within the guideline range would be a sentence that would extend an
         extraordinary amount of mercy under all of the facts and all of the circumstances in
         the case. Under 3553(a) it appears to me that your long and extensive continuing

         7
           Miller does argue, with regard to his sufficiency-of-the-evidence challenge to the witness tampering
conviction, that he should not have received a two-point increase for obstruction of justice. Because we conclude that
there was sufficient evidence to support the conviction, however, Miller’s argument is not well-taken. Miller has not
identified any other miscalculations in the PSR.
No. 06-4583           United States v. Miller                                                 Page 12


       history of fraudulent activity without stop, respite, other than when you are locked
       up, would give me a reason to vary in an upward direction.
       What I am going to do, Count 1 and Count 2 I am imposing, placing you in the
       custody of the Bureau of Prisons to be imprisoned for 125 months, and Counts 3, 4,
       5, 120 months, all to run concurrent with each other, followed by four years of
       supervised release. And there is a $100 special assessment to be paid on each count
       of the conviction.
The court then ordered Miller to pay $225,453.09 in restitution.
        Miller argues that the court placed disproportionate weight on his criminal history and that
his criminal background was an inadequate basis for the court to exceed the Guidelines. However,
as the government asserts, we have repeatedly approved upward departures from the Guidelines
when the sentencing court concludes that the Guidelines calculation does not adequately reflect the
defendant’s criminal history. See United States v. Smith, 474 F.3d 888, 893-94 (6th Cir. 2007)
(affirming sentence of 57 months after upward departure, from range of 30-37 months, pursuant to
U.S.S.G. § 4A1.3); United States v. Matheny, 450 F.3d 633, 640-41 (6th Cir. 2006) (affirming
sentence of 36 months of imprisonment where upper limit of Guidelines range was 30 months).
Moreover, these cases pre-date Gall, in which the Supreme Court emphasized the discretion given
to district courts in making sentencing determinations and pointed out the structural advantages
possessed by the district court that justifies this discretion:
       The sentencing judge is in a superior position to find facts and judge their import
       under § 3553(a) in the individual case. The judge sees and hears the evidence, makes
       credibility determinations, has full knowledge of the facts and gains insights not
       conveyed by the record. The sentencing judge has access to, and greater familiarity
       with, the individual case and the individual defendant before him than the
       Commission or the appeals court. Moreover, district courts have an institutional
       advantage over appellate courts in making these sorts of determinations, especially
       as they see so many more Guidelines sentences than appellate courts do.
Gall, 128 S. Ct. at 597-98 (internal quotations and citations omitted).
         In the wake of Gall, we have continued to emphasize the deference owed to a district court’s
assessment of the § 3553(a) factors. See Smith, 516 F.3d at 478 (“[i]n view of the deference [the
appellate court] owe[s] the district court’s assessment that the § 3553(a) factors justify the extent
of the variance,” affirming sentence of 72 months, despite Guidelines range of 41-51 months, where
the district court justified sentence due to defendant’s “‘previous record of fraudulent conduct’” and
defendant’s “‘additional fraudulent conduct’ committed when released on bond”) (internal
quotations omitted); United States v. Grossman, 513 F.3d 592, 596 (6th Cir. 2008) (“Measured by
Gall’s requirements and above all by Gall’s deference to district court judges at sentencing, the
district did not commit reversible error in reducing Grossman’s sentence from 120 months to 66
months.”).
         Here, the district court considered both Miller’s lengthy criminal history and the
consequences of his fraud. The court referenced testimony by a Mr. Applebaum, whose wife was
a victim of the fraud and “became so much depressed and got to a point where she didn’t think she
could go on, and in fact killed herself.” The court remarked that it found this testimony “very
persuasive.” Thus, the court considered not only Miller’s history and characteristics, see 18 U.S.C.
§ 3553(a)(1), but also the nature and circumstances of the offense, and the need for the sentence to
reflect the seriousness of the offense and to provide just punishment. § 3553(a)(2)(A). Moreover,
the court’s remark that Miller “need[s] to be stopped [from] committing this type of activity” reflects
No. 06-4583           United States v. Miller                                                Page 13


its consideration of the need to protect the public from further crimes committed by defendant.
§ 3553(a)(2)(C).
       Finally, we note that at the sentencing hearing, Miller’s counsel did not identify any basis
warranting a shorter sentence. Rather, after acknowledging Miller’s “long background,” counsel
“ask[ed] the Court to be as lenient as possible, certainly, to not go outside the Guidelines, and also
consider a departure from the Guidelines.” Counsel continued: “I’m going to ask the Court to do
what the Court feels is right with him, you know all about his background, you’ve seen him in action
and seen him in Court, and hand out an appropriate sentence like the Court always does.” Thus, at
sentencing, Miller did not provide any counterweight to counteract his lengthy criminal history.
        Accordingly, we hold that the district court did not abuse its discretion in sentencing Miller
to a term of 125 months of imprisonment.
                                                 VI.
        For these reasons, we affirm Miller’s convictions and remand for resentencing, limited to
correcting the length of Miller’s term of supervised release.
