USA v. Terry Miller

Filing

Case: 09-50981

Document: 00511204413

Page: 1

Date Filed: 08/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50981 S u m m a r y Calendar August 16, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. T E R R Y MICHAEL MILLER, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:06-CR-125-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* T e r r y Michael Miller was convicted by a jury of two counts of assaulting a federal officer in violation of 18 U.S.C. § 111(a) and (b). Miller was sentenced t o 240 months of imprisonment on both counts, with 60 months on count two to r u n consecutively, for a total term of imprisonment of 300 months and three y e a r s of supervised release on both counts to run concurrently. The district c o u r t ordered Miller to pay $3,000 in restitution to the victim named in count one.
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On appeal, we determined that the counts were multiplicitous for

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 09-50981

Document: 00511204413 Page: 2 No. 09-50981

Date Filed: 08/16/2010

s e n te n c in g purposes, vacated and remanded Miller's sentence to correct this e r r o r , and affirmed the judgment in all other respects. United States v. Miller, 5 7 6 F.3d 530, 531 (5th Cir.), cert. denied, 130 S. Ct. 652 (2009). A t resentencing, the district court selected count one as the count of c o n v ic t io n , sentenced Miller to 240 months of imprisonment and three years of s u p e r v is e d release, and ordered him to pay a $25,000 fine and $3,000 in r e s t i t u tio n to the victim. Miller contends that the district court violated the m a n d a t e rule by imposing the fine because the error identified by this court did n o t affect the district court's prior decision not to impose a fine. " T h e only issues on remand properly before the district court are those is s u e s arising out of the correction of the sentence ordered by this court." United S ta te s v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). Our prior determination t h a t the counts were multiplicitous did not make the district court's previous fin d in g that Miller was unable to pay a fine "newly relevant." United States v. L e e , 358 F.3d 315, 326 (5th Cir. 2004). Therefore, the district court violated the m a n d a t e rule by imposing the fine. We exercise our discretion to correct this fo r fe it e d error because it is clear or obvious, affects Miller's substantial rights, a n d "`seriously affect[s] the fairness, integrity, or public reputation of judicial p r o c e e d in g s .'" Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). M ille r also challenges the district court's calculation of the offense level a n d the factual basis of the restitution award. Failure to raise an issue in an in it ia l appeal constitutes waiver of that issue "unless `there was no reason to r a is e it in the initial appeal.'" United States v. Griffith, 522 F.3d 607, 610 (5th C ir . 2008) (quoting Lee, 358 F.3d at 324). The specific offense-level calculations t h a t Miller complains of and the factual sufficiency of the restitution award were g e r m a n e to the first appeal, and our mandate did not "breathe[] life" into these is s u e s . See id. at 611. Therefore, Miller should have raised these issues in the fir s t appeal. See id. at 610-11. By failing to do so, Miller waived consideration 2

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Date Filed: 08/16/2010

o f them. See id.; see also United States v. Rodriguez, 602 F.3d 346, 350 (5th Cir. 2 0 1 0 ). M ille r contends that his 240-month sentence is substantively unreasonable because it is more severe than other sentences imposed for violating § 111 and b e c a u s e the district court gave undue weight to his criminal history. Miller was c o n v ic t e d of attempting to run over law enforcement officers who were a t t e m p t in g to execute a warrant. Miller's extensive 32-year criminal history in c lu d e d but was not limited to attempted murder, engaging in organized c r im in a l conduct, burglary of a building, several thefts, several burglaries of a h a b it a t io n , and family violence assault. I n light of Miller's criminal history and pattern of recidivism, as well as t h e district court's finding that the maximum sentence was necessary to promote t h e goals of the sentencing factors set forth in 18 U.S.C. § 3553(a), Miller has not reb u tted the presumption of reasonableness that applies to his within-guidelines s e n te n c e . See United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th C ir . 2008). Thus, he has not shown error, plain or otherwise, with respect to the 2 4 0 -m o n t h sentence. T h e judgment of the district court is VACATED with respect to the im p o s it io n of the fine and AFFIRMED in all other respects.

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