                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 07-3073
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
Mary I. Miller,                        *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: June 10, 2008
                                Filed: March 9, 2009
                                 ___________

Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

      Mary I. Miller appeals the sentence imposed by the District Court1 after
revocation of her probation. We affirm.

      On March 24, 2003, Miller pleaded guilty to one count of conspiring with her
husband, Walter Randall Miller, to defraud the United States by failing to file
employment-tax returns or pay employment taxes from 1994 to 2002. The District
Court sentenced Miller to five years of probation. The court imposed special

      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
conditions of release requiring Miller to "cooperate fully" with the Internal Revenue
Service ("IRS") in filing "all tax returns required by law" ("Special Condition 9") and
to "cooperate with the [IRS] in making full payment of all taxes, interest, and
penalties" and "pay all amounts due to the IRS as finally determined" ("Special
Condition 10"). J. at 3.

        In December 2006, Miller's probation officer filed a petition to revoke Miller's
supervised release because, in violation of Special Conditions 9 and 10, Miller had not
filed her personal tax return for 2005 nor had she paid her outstanding tax obligation
to the IRS. The District Court revoked Miller's supervised release and sentenced her
to thirteen months in prison followed by thirty-two months of supervised release. The
court re-imposed the terms described in Special Conditions 9 and 10, which were
renumbered Special Conditions 8 and 9, respectively, and the court added a special
condition requiring Miller to pay, jointly and severally with her husband, $2,000 per
month toward her IRS obligations beginning thirty days after her release from prison
("New Special Condition 10"). The court explained that if Miller complied with New
Special Condition 10, she could avoid future revocation of supervised release for
failure to pay her IRS obligations.

       Miller first argues that the District Court abused its discretion by imposing New
Special Condition 10 because the condition did not delineate a set amount of
restitution owed to the IRS, it encompassed IRS obligations that were unrelated to her
employment-tax conviction, and it included interest and penalties on those unrelated
IRS obligations. We review for abuse of discretion a district court's decision to
impose certain terms and conditions of supervised release. United States v. Boston,
494 F.3d 660, 667 (8th Cir. 2007).

      The District Court did not abuse its discretion by requiring as a condition of
Miller's release that she comply with the tax laws and pay the IRS $2,000 per month
toward her outstanding tax obligations as finally determined by the IRS. See United

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States v. Ramsey, 992 F.2d 831, 833 (8th Cir. 1993) (concluding that district court did
not abuse its discretion by requiring defendant to comply with federal income tax
laws); 18 U.S.C. § 3583(d) (requiring sentencing courts to order as a condition of
supervised release that a defendant refrain from committing a federal, state, or local
crime); cf. United States v. Mitchell, 429 F.3d 952, 961–62 (10th Cir. 2005) (holding
that an order requiring the defendant to keep current on unrelated restitution
obligations is not "restitution" but rather a requirement to obey the law). Specifically,
Miller's contention that New Special Condition 10 does not comport with the
Mandatory Victim Restitution Act is unavailing. New Special Condition 10 does not
impose a restitution requirement; it imposes a requirement that Miller comply with the
tax laws—including the payment of her outstanding tax obligations.2 See United
States v. Braxtonbrown-Smith, 278 F.3d 1348, 1356 (D.C. Cir.) (finding meritless the
defendant's argument that an order to pay delinquent taxes was an improper restitution
order because the tax obligation was established by the Internal Revenue Code), cert.
denied, 536 U.S. 932 (2002); United States v. Iverson, No. 95-4185, 1996 WL
656578, at *2 (10th Cir. Nov. 12, 1996) (holding that special condition ordering
defendant to "pay all back taxes owed" was not an order of restitution but an order to
obey the tax laws); United States v. Huguenin, No. 94-1119, 1994 WL 390112, at *2
(1st Cir. July 22, 1994) (noting that condition requiring defendant to "file delinquent
and future tax returns, as well as pay any tax due" simply required compliance with
the law); United States v. Hatchett, 918 F.2d 631, 644 (6th Cir. 1990) (holding that
conditioning probation on payment of all back taxes was nothing more than an order
to "comply with the law"), cert. denied, 501 U.S. 1223 (1991); United States v. Schiff,
876 F.2d 272, 275 (2d Cir. 1989) (holding that condition directing payment of all
"legally required" taxes was "neither overbroad nor vague" and "mandate[d] no more
than the law require[d]"). Moreover, New Special Condition 10 is reasonably related

      2
       During the revocation hearing, both the parties and the District Court used the
term "restitution" to refer generally to Miller's duty to pay her outstanding tax
obligation to the IRS. Importantly, the District Court does not characterize this tax
obligation as "restitution" in the revocation judgment.

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to the circumstances of Miller's offense, involves no greater deprivation of liberty than
is reasonably necessary to deter Miller's criminal conduct, and is designed to protect
the public from additional crimes by Miller. See 18 U.S.C. § 3583(d). The District
Court did not abuse its discretion by conditioning Miller's release on her compliance
with the tax laws and her payment of $2,000 per month toward her outstanding tax
obligations.

        Miller next argues that the District Court abused its discretion by imposing a
thirteen-month sentence of imprisonment after revoking her probation. We review a
district court's revocation sentencing decisions using the same standards that we apply
to initial sentencing decisions. United States v. Cotton, 399 F.3d 913, 916 (8th Cir.
2005). In reviewing for abuse of discretion, we must first ensure that the court
committed no significant procedural error, such as improperly calculating the sentence
under the Guidelines, failing to consider relevant 18 U.S.C. § 3553(a) sentencing
factors, imposing a sentence based on clearly erroneous facts, or failing to adequately
explain the reasons for the sentence imposed. See Gall v. United States, 128 S. Ct.
586, 597 (2007). Once we are satisfied that the sentencing decision is free of
significant procedural error, we consider the substantive reasonableness of the length
of the sentence under an abuse-of-discretion standard. Gall, 128 S. Ct. at 597.
        Here, the District Court considered the three-to-nine-month revocation sentence
recommended under the Guidelines, but elected instead to impose a thirteen-month
term of imprisonment—a sentence that is within the statutory limits of 18 U.S.C.
§ 3583(e)(3). The District Court based its sentencing determination on factual
findings that were not clearly erroneous, adequately explained the reasons for the
sentence imposed, and considered alternatives to imprisonment. The court found by
a preponderance of the evidence, see id., that Miller refused to cooperate with the IRS,
failed to pay her outstanding tax debt, filed incomplete and inaccurate personal tax
returns for the 2000 through 2004 tax years, and failed to file a personal tax return for
the 2005 tax year. The court noted that it was "disturbing" that despite the
"considerable leniency" extended to Miller at her original sentencing, she refused to

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comply with the court's orders. Tr. of June 18, 2007, Sent. Hr'g at 58–59. The court
stated that it had "tried everything possible" to get Miller to "comply with the
judgments of this Court," but that Miller continued "to frustrate the [IRS] and this
Court and the Court takes a very dim view of that." Id. at 65–66. We hold that the
District Court did not commit procedural sentencing error.

       Likewise, we are satisfied that the District Court considered and gave
appropriate weight to the relevant § 3553(a) factors in determining Miller's revocation
sentence. The court was aware of Miller's ongoing violations of the special conditions
of her probation and her unwillingness to comply with those conditions despite the
efforts of the court and the IRS to obtain compliance. The court considered both the
Guidelines sentencing range and the statutory maximum sentence before determining
that the sentence imposed was necessary to deter Miller's continued criminal conduct.
In addition to presiding over Miller's revocation sentencing, the District Court
presided over Miller's initial sentencing. At the revocation hearing, therefore, the
court was fully apprised of Miller's history and characteristics. See United States v.
Franklin, 397 F.3d 604, 607 (8th Cir. 2005) (noting that judge who presided over both
original and revocation sentencing proceedings was aware of defendant's history and
characteristics). After careful review of the record, we are confident that the District
Court adequately considered the relevant § 3553(a) factors, committed no abuse of
discretion in weighing those factors, and imposed a reasonable sentence.

      We affirm Miller's sentence in all respects.
                     ______________________________




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