US v. Floyd Miller
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00164-3 Copies to all parties and the district court/agency. [999034645].. [12-4553]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4553
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FLOYD LEWIS MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
District Judge. (3:11-cr-00164-3)
Submitted:
December 28, 2012
Decided:
February 1, 2013
Before MOTZ, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for
Appellant.
Joseph Franklin Adams, OFFICE OF THE UNITED STATES
ATTORNEY, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Floyd Lewis Miller appeals his conviction and ninetyseven month sentence following a guilty plea to conspiracy to
distribute oxycodone, in violation of 21 U.S.C. § 846 (2006).
In accordance with Anders v. California, 386 U.S. 738 (1967),
Miller’s counsel has filed a brief certifying that there are no
meritorious
issues
for
appeal
but
questioning
the
district
court’s findings regarding the quantity of drugs attributable to
Miller for sentencing purposes, the court’s refusal to grant
Miller a departure or variance based on his age and poor health,
and
whether
Miller’s
sentence
is
unreasonably
disparate
compared with the sentences of his co-conspirators.
notified
of
his
right
to
supplemental pro se brief.
do
so,
Miller
did
when
Although
not
file
a
Finding no error, we affirm.
We review Miller’s sentence for reasonableness, using
an abuse of discretion standard.
U.S.
38,
procedural
51
(2007).
errors,
We
must
including
Gall v. United States, 552
first
review
improperly
for
significant
calculating
the
Guidelines range, failing to consider the 18 U.S.C. § 3553(a)
(2006)
factors,
sentencing
under
clearly
erroneous
failing to adequately explain the sentence.
a
sentence
procedurally
substantive reasonableness.
reasonable
may
or
Id. at 51; United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).
find
facts,
we
Only if we
consider
its
United States v. Carter, 564 F.3d
2
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325,
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328
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(4th
calculated
Cir.
Guidelines
2009).
range
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A
is
sentence
within
presumed
a
properly-
reasonable.
United
States v. Powell, 650 F.3d 388, 395 (4th Cir.), cert. denied,
132 S. Ct. 350 (2011).
We review Miller’s claim that the district court erred
in
relying
on
the
testimony
of
his
co-conspirator
when
determining the quantity of drugs properly attributed to Miller
for
sentencing
purposes
for
clear
error.
United
Layton, 564 F.3d 330, 334 (4th Cir. 2009).
here,
a
district
based on
court’s
witness
court’s
factual
testimony,
credibility
we
findings
grant
v.
Further, when, as
at
great
determinations.
States
sentencing
deference
Id.
to
Applying
are
the
these
standards, and recognizing that the district court adopted a
relatively
conservative
finding
of
the
drug
quantity
attributable to Miller, we find no error, clear or otherwise.
Further,
we
lack
authority
to
review
the
district
court’s refusal to grant Miller a departure unless the refusal
was based on the mistaken belief that it lacked the power to do
so.
United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008).
Here, there is no indication of such a mistake.
Moreover, the
district court cited numerous considerations that counseled for
a within-Guidelines range sentence and, therefore, did not abuse
its discretion in refusing Miller’s request for a variance.
See
United States v. Hammond, 698 F.3d 679, 681 (8th Cir. 2012) (per
3
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(reviewing
refusal
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to
grant
variance
for
abuse
of
discretion).
Similarly, we find no error in the district court’s
refusal
to
sentence
Miller
conspirators.
Although
district
court
to
imposing
sentence,
18
consider
a
more
U.S.C.
leniently
§ 3553(a)(6)
disparities
district
than
court
in
has
his
co-
directs
the
sentencing
“extremely
when
broad
discretion when determining the weight to be given each of the
§ 3553(a) factors.”
United States v. Jeffery, 631 F.3d 669, 679
(4th Cir.), cert. denied, 132 S. Ct. 187 (2011).
The district
court here offered a sufficiently individualized explanation for
Miller’s sentence and did not abuse its discretion.
See United
States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007) (reasons
court articulates for a given sentence need not be couched in
precise terms of § 3553(a) so long as they can be matched to
factor appropriate for consideration and are clearly based on
the defendant’s individual circumstances).
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal.
therefore affirm Miller’s conviction and sentence.
We
This court
requires that counsel inform Miller, in writing, of his right to
petition
the
Supreme
Court
of
the
United
States
for
further
review. If Miller requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may
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move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Miller.
legal
before
We dispense with oral argument because the facts and
contentions
this
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
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