     Case: 10-11132     Document: 00511600613         Page: 1     Date Filed: 09/13/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 13, 2011
                                     No. 10-11132
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BRIAN DEAN MILLER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-111-1


Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
        Brian Dean Miller appeals the 27-month sentence imposed following his
conviction of making threats to kill United States President Barack Obama. He
argues that the district court erroneously applied the six-level “official victim”
adjustment pursuant to U.S.S.G. § 3A1.2 because President Obama was not a
“victim” of the offense and his actions were not “motivated by” President
Obama’s status as a federal official. He also argues that the district court erred



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                    No. 10-11132

by finding that the offense involved more than two threats and applying a two-
level adjustment pursuant to U.S.S.G. § 2A6.1(b)(2).
      Ordinarily, this court reviews a district court’s application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Rodriguez, 602 F.3d 346, 362 (5th Cir. 2010). However, if a defendant
has not preserved an issue for review in the district court, review of the issue is
for plain error. See United States v. Price, 516 F.3d 285, 286-87 (5th Cir. 2008).
To show plain error, Miller must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 129 S. Ct.
1423, 1429 (2009). If he makes such a showing, this court has the discretion to
correct the error but only if it “‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (alteration in original) (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)).
      “To preserve error, an objection must be sufficiently specific to alert the
district court to the nature of the alleged error and to provide an opportunity for
correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Miller’s
objection below to the application of § 3A1.2 was based on his assertion that he
was not “motivated by” President Obama’s status as a government official.
Thus, that argument was properly preserved. See id. However, this objection
would not have alerted the district court to the “victim” argument he raises on
appeal. Therefore, review of that argument is for plain error. See United States
v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003)
      Miller argues that President Obama was not a victim of the underlying
offense because he was not affected directly or indirectly by the offense. He
argues that the victim in this case was society as a whole, which was required
to spend public resources in its investigation of the threat. He further argues
that a generalized public interest does not constitute a “victim” for purposes of
§ 3A1.2.



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                                    No. 10-11132

      The commentary to § 3A1.2 indicates that the President may be considered
a victim for purposes of the adjustment. U.S.S.G. § 3A1.2, comment. (n.5)
(providing that “[i]f the official victim is an exceptionally high-level official, such
as the President or the Vice President of the United States, an upward departure
may be warranted due to the potential disruption of the governmental
function.”). Furthermore, there is no requirement that President Obama be
personally impacted by the threats in order to be considered a victim. See
United States v. Polk, 118 F.3d 286, 289-91 (5th Cir. 1997). Miller argues that
his case is distinguishable from Polk because in that case there were efforts
made to plot and carry out a real bombing, whereas in the instant case, no
efforts were made to carry out his threat. However, § 3A1.2 does not require
that the victim be harmed in any way or even be made aware of the threat. See
Polk, 118 F.3d at 298 (quoting United States v. McCaleb, 908 F.2d 176, 179 (7th
Cir. 1990)). In light of the foregoing, Miller has not shown that the district court
erred by finding that President Obama was a “victim” for purposes of the § 3A1.2
adjustment.
      Miller argues that § 3A1.2 does not apply because his threat was not
motivated by President Obama’s status as a government official. He argues, as
he did below, that his threats were motivated by his desire to provoke an angry
reaction from other posters on Craigslist. He further argues that the district
court’s rejection of his position as inconsistent with his plea reflects a
misunderstanding of the elements of the offense or the application of the
adjustment, or both.
      Contrary to Miller’s assertion, the district court did not reject Miller’s
argument because it was inconsistent with the plea. The district court rejected
Miller’s argument because it agreed with the Government’s argument that the
threats were made against President Obama because of his status as the
President. The district court found that “if you read what Mr. Miller wrote, . . .
it’s just inescapable that paragraph 25 [applying the § 3A1.2 adjustment] is

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                                  No. 10-11132

correct.” The district court also observed that Miller’s argument bordered on a
failure to accept responsibility; however, this inconsistency was not the reason
the district court overruled Miller’s objection. Miller has not demonstrated that
the district court’s finding that his threat was motivated by President Obama’s
official status was clearly erroneous. See Rodriguez, 602 F.3d at 362.
      Finally, Miller argues that the district court erroneously applied a two-
level adjustment pursuant to § 2A6.1(b)(2) based on the determination that the
offense involved more than two threats against President Obama. He argues
that there were only two threats in the record that were directly related to the
offense. Therefore, he argues that there was no basis to apply the enhancement.
      At sentencing, Miller objected to the two-level adjustment on the ground
that the two threats against President Obama should be considered a single
threat because they occurred in close temporal proximity. Because Miller is
making a different argument on appeal, review of his claim is for plain error.
See Medina-Anicacio, 325 F.3d at 643.
      The determination that an offense involved more than two threats under
§ 2A6.1(b)(1) is a factual matter. “Questions of fact capable of resolution by the
district court upon proper objection at sentencing can never constitute plain
error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). As a question of
fact that was capable of resolution by the district court upon proper objection,
the district court’s determination that the offense involved more than two
threats, warranting an increase under § 2A6.1(b)(1) cannot constitute plain
error. See id. In any event, the record establishes that Miller made at least
three threats against President Obama. Accordingly, the district court did not
err by applying the two-level adjustment.
      Miller has not shown any error in the district court’s sentencing
determinations. Thus, the judgment of the district court is AFFIRMED.




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