                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 18-2337
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                  GREGORY MILLER,
                                              Appellant
                                    ____________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. No. 1:12-cr-00325-001)
                         District Judge: Hon. Robert B. Kugler

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 23, 2019

     Before: CHAGARES and BIBAS, Circuit Judges, and SÁNCHEZ,* Chief District
                                   Judge.

                                 (Filed: March 15, 2019)
                                      ____________

                                       OPINION**
                                      ____________




*
 The Honorable Juan R. Sánchez, Chief District Judge of the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
**
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SÁNCHEZ, Chief District Judge.

       Gregory Miller appeals the District Court’s judgment revoking a term of

supervised release and imposing a sentence of fourteen months. The District Court

revoked Miller’s supervised release after it found he violated the condition of his release

requiring residence at a re-entry facility for eight months. Miller was prematurely

discharged from the facility for violating a rule prohibiting unaccounted for medication

after eight Oxycodone pills went missing from his prescription bottle while the bottle was

in his custody and control. Miller claims the evidence presented at the violation of

supervised release hearing was insufficient to support the District Court’s finding that

Miller was responsible for the missing pills. Because the District Court had sufficient

evidence to support its conclusion, we will affirm.

                                             I.

       In 2012, Miller was convicted of bank robbery and sentenced to 84 months of

imprisonment and 3 years of supervised release. His term of supervised release began on

March 1, 2017. On April 23, 2018, Miller was arrested and detained for ignoring his

probation officer’s directives. On May 1, 2018, he pleaded guilty to failing to answer his

probation officer’s inquiries and follow instructions. His supervised release was revoked,

and he was sentenced to one month of imprisonment and one year of supervised release

with a special condition that he reside for eight months in a Residential Re-entry Center

(RRC).

       On May 21, 2018, Miller was released to his designated RRC. Nine days later, on

May 30, 2018, Miller’s probation officer filed a petition to revoke Miller’s supervised

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release, alleging that Miller violated the terms of his release because he was discharged

from the RRC for failure to account for eight Oxycodone pills he had been prescribed.

       A violation of supervised release hearing was held on June 12, 2018. At the

hearing, William Burns, a van driver for the RRC where Miller was placed, testified that

he took Miller to a pharmacy to fill a prescription for thirty Oxycodone pills. Burns did

not accompany Miller inside the pharmacy and waited approximately half an hour for

Miller to return to the van with his prescription. Burns then drove Miller directly to the

RRC.

       Anthony Rodriguez, a manager at the RRC, testified that once Miller returned to

the RRC, he collected the Oxycodone and secured it so he alone could access it.

Rodriguez did not retrieve the medication until the following morning when Miller

requested to take it. After retrieving the medication, Rodriguez and another manager

took it to the medication room to be counted and administered. While counting the pills,

they discovered that eight pills were missing. Rodriguez immediately reported this

finding to his supervisor.

       Stacey Cossaboon, the RRC Director, testified that after she was notified about the

missing pills, her staff investigated the discrepancy with both Miller and the pharmacy.

The pharmacy confirmed that the prescription bottle it provided Miller contained thirty

Oxycodone pills. Miller also provided a statement to the RRC denying responsibility for

the missing medication. The RRC, however, found Miller responsible for the missing

pills and expelled him before he completed his required eight months.



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       Consistent with his statement, at the hearing Miller denied taking the pills and

pleaded ignorance. He also confirmed he alone entered the pharmacy to pick up the

prescription and admitted to being unable to account for missing narcotics medication

earlier in 2018.

       On the basis of this evidence, the District Court found by a preponderance of the

evidence that Miller violated the condition of his supervised release requiring residence at

a re-entry facility. Its finding was premised on the RRC having adequate grounds to

remove Miller from its facility because eight Oxycodone pills “went missing” while they

were in his “custody and control.” App. 87.

                                              II.

       The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3583(e). We

have appellate jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Whether

there is sufficient evidence to establish a violation of a condition of supervised release is

reviewed for clear error. United States v. Bagdy, 764 F.3d 287, 290 (3d Cir. 2014);

United States v. Poellnitz, 372 F.3d 562, 565 n.6 (3d Cir. 2004).

                                             III.

       Miller contends the District Court erred in finding he was in violation of the terms

of his supervised release because the evidence was insufficient to establish he was

responsible for the missing pills. He relies on United States v. Cicirello, 301 F.3d 135

(3d Cir. 2002), to argue the evidence presented was insufficient. In Cicirello, the district

court applied a sentencing enhancement “for the transfer of a firearm ‘with knowledge,

intent or reason to believe that it would be used or possessed in connection with another

                                              4
felony offense’” when the record only showed that a firearm transfer took place and

resulted in the defendant receiving a certain amount of money. Id. at 137, 141. Based on

the evidence presented, however, we found that the Government had failed to show any

facts from which an inference could be drawn concerning the defendant’s knowledge,

intent or reason to believe the guns at issue would be used in connection with another

felony. Id. at 141-42. We therefore reversed application of the sentencing enhancement.

Id. at 143.

       Unlike in Cicirello, the District Court here had sufficient evidence to give rise to

the inference that eight Oxycodone pills disappeared while under Miller’s custody and

control. First, Miller spent approximately thirty minutes alone inside the pharmacy,

which had dispensed 30 Oxycodone pills to him. Second, Miller had these pills in his

possession from the time he received them until he arrived at the RRC. And third, after

Miller arrived at the RRC, Rodriguez retrieved these pills from Miller and secured them

until they were counted the following morning. The District Court also heard from

Miller and Rodriguez and resolved any inconsistencies between their testimony in the

Government’s favor. Although there is no direct evidence supporting the finding that the

pills disappeared while in Miller’s possession, circumstantial evidence is enough to

support such an inference. See United States v. Douglas, 885 F.3d 145, 151 (3d Cir.

2018) (affirming district court’s factual determination based on circumstantial evidence

alone). We will therefore affirm the District Court’s finding that the eight Oxycodone

pills “went missing” while under Miller’s “custody and control,” App. 87, which was the

basis for Miller’s removal from the RRC.

                                              5
                                            IV.

       For the foregoing reasons, we will affirm the District Court’s judgment that Miller

violated the terms of his supervised release and its sentence.




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