U.S. v. Miller, (10th Cir. 2007)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.



CHRISTOPHER MILLER,

Defendant-Appellant.

No. 06-1480

(D.Ct. No. 04-cr-00507-PSF)

(D. Colo.)

ORDER AND JUDGMENT
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Before TACHA, Chief Circuit Judge, and

BARRETT and BRORBY, Senior

Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

Appellant Christopher Miller pled guilty to robbery affecting interstate

commerce in violation of 18 U.S.C. 1951(a) and brandishing a firearm during

the commission of a crime of violence in violation of 18 U.S.C. 924(c)(1)(A)(ii). He now appeals his eighty-four-month sentence for

brandishing a firearm, on grounds the district court's application of the

mandatory minimum sentence proscribed by 18 U.S.C. 924(c) resulted in a

gross disparity of sentencing between him and his co-defendant, Mr. Lardale

Lewis, in violation of the Equal Protection Clause. We exercise jurisdiction

pursuant to 18 U.S.C. 3742 and 28 U.S.C. 1291 and affirm Mr. Miller's

sentence.

I. Factual Background

On the morning of November 15, 2004, Mr. Miller and Mr. Lewis

attempted to rob a Red Lobster Restaurant in Pueblo, Colorado. The restaurant is

a business in and affecting interstate commerce, importing food and other items

from outside the State of Colorado for sale, and which uses the proceeds

generated by its sales to reinvest in bringing in items from out of state.

On the morning of the robbery, Mr. Miller carried a handgun to the

restaurant.(1) When he and Mr. Lewis

encountered an employee outside of the

restaurant, Mr. Miller pointed the gun at the employee and directed him to lie

down and give his employee jacket to him, which Mr. Miller then put on. Mr.

Miller and Mr. Lewis then confronted another employee, who they directed to

knock on the restaurant door in an effort to gain entry into the building.

However, the employees inside the building realized what was going on and

telephoned the police. Shortly after the two men fled, they were apprehended.

Authorities found Mr. Miller on the roof of another business and saw him throw

a functioning Glock 9mm handgun from that roof. After his arrest, Mr. Miller

confessed to the crime and also implicated Mr. Lewis.

II. Procedural Background

On May 23, 2005, Mr. Miller pled guilty to one count of robbery affecting

interstate commerce in violation of 18 U.S.C. 1951(a) and one count of

brandishing a firearm during the commission of a crime of violence in violation

of 18 U.S.C. 924(c). In turn, Mr. Lewis pled guilty to the robbery count, but

not to brandishing a firearm.

Mr. Miller acknowledged at his plea hearing, as well as in his statement in

advance of his guilty plea and his plea agreement, that by pleading guilty he

understood he would be subject to not less than seven years imprisonment for the

charge of brandishing a firearm.(2)

Thereafter, in preparing the presentence report

for Mr. Miller, the probation officer noted Mr. Miller directly threatened two

robbery victims when he brandished the firearm, pointing the gun at one

restaurant employee as he laid on the ground and at another employee who felt

the gun being stuck into his left side. With respect to the other defendant's

presentence report, the probation officer noted a five-level adjustment for

brandishing a firearm under United States Sentencing Guidelines ("Guidelines"

or "U.S.S.G.") § 2B3.1(b)(2) appeared to be warranted for Mr. Lewis, but not for

Mr. Miller, as he, unlike Mr. Lewis, pled guilty to brandishing a firearm in

violation of 18 U.S.C. 924(c). However, the probation officer noted that while

it was "reasonably foreseeable" to Mr. Lewis that Mr. Miller would possess a

firearm during the attempted robbery, the government felt it could not carry its

burden of proving by a preponderance of the evidence that Mr. Lewis knew Mr.

Miller was armed with a firearm when they went to rob the restaurant. As a

result, the probation officer recommended against applying an upward adjustment

to Mr. Lewis's sentence.

In response to the probation officer's recommendations, Mr. Miller moved

for a downward departure under U.S.S.G. § 5K2.0, on grounds his case presented

exceptional circumstances because of the potential sentence disparity based on

the fact he pled guilty to the firearm brandishing count, while the government

dismissed the same count against Mr. Lewis. He also argued for a below-Guidelines sentence

under 18 U.S.C. 3553(a) on grounds the government could

not explain why the other defendant, Mr. Lewis, received a sentence which did

not include additional time under either § 924(c) or the applicable Guidelines

enhancement. In addition, Mr. Miller also filed a pro se motion for departure,

claiming, in part, that his and Mr. Lewis's different sentences constituted

"selective prosecution," in violation of the Equal Protection Clause, but not

specifically mentioning the unconstitutional application of 18 U.S.C. 924(c)

under the Equal Protection Clause.(3)

At the sentencing hearing, the district court engaged in a discussion with

government counsel over the possibility of a sentence disparity; government

counsel explained that while it might be possible to prove an identical § 924(c)

violation against Mr. Lewis, different circumstances existed given Mr. Lewis did

not make an admission about possessing a gun or being involved in the robbery,

as did Mr. Miller. Counsel also explained direct evidence connected Mr. Miller

with the gun, including when authorities saw him toss it from the roof-top.

Counsel also pointed out an eighty-four-month sentence constituted the statutory

mandatory minimum under 18 U.S.C. 924(c)(1)(A)(ii), and the only Guidelines

departures from the mandatory minimum did not apply to Mr. Miller's

circumstance.

After considering the advisory Guidelines and the sentencing factors in 18 U.S.C. 3553(a), together with parties' objections and arguments, the district

court sentenced Mr. Miller to six months on the robbery count and eighty-four

months on the firearm brandishing count, to run consecutively, for a total

sentence of ninety months. In imposing the sentence, the district court noted it

was a serious crime of violence placing individuals and the community in real

danger of physical injury and causing psychological injury. In response to the

disparity argument, the district court judge noted it was an appropriate sentence

and that even if he had the ability to go below the eighty-four-month mandatory

minimum:

I don't believe that would be appropriate under these circumstances,

and I don't believe that the disparity in sentences is unfair and

certainly not unconstitutional.

As [government counsel] has correctly noted, there were some

substantial proof differences that justified a lower sentence for the

other defendant, Mr. Lewis. And so I just don't see that there is a

disparity here that is unjustified given those proof limitations that

occurred with respect to Mr. Lewis.

R., Vol. III at 34-35.

III. Discussion

On appeal, Mr. Miller raises one issue. He contends an unconstitutional

disparity under the Equal Protection Clause exists, based on the application of 18 U.S.C. 924(c), because he received a ninety-month
name="txt4a">(4) sentence for the same

conduct as his co-defendant, Mr. Lewis, who received only a thirty-two-month

sentence. In support of this contention, Mr. Miller suggests: 1) he and Mr.

Lewis are equally responsible for the robbery and, therefore, they should receive

related sentences; and 2) their conduct is the same, as evidenced by the stipulated

facts in their plea documents, which are nearly identical, with the only

appreciable distinction being Mr. Lewis's omission in his stipulated facts that he

knew of the existence of the gun at the scene of the crime. While Mr. Miller

admits no controlling authority exists holding the mandatory minimum sentence

statute, 18 U.S.C. 924(c), facially or per se violates the Equal Protection

Clause, he suggests its application in his case is unconstitutional because no

rational relationship exists between the mandatory minimum sentence and the

disparate sentence imposed on him in comparison to Mr. Lewis. In making his

Equal Protection argument to contest his sentence, he relies on the factor in §

3553(a)(6) regarding "the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct."

His argument on appeal no longer involves his request for a downward departure

under Chapter Five of the Guidelines.

We begin our discussion by clarifying that a sentence above or below the

recommended Guidelines range based on an application of Chapters Four or Five

of the Guidelines is referred to as a "departure," while a sentence above or below

the recommended Guidelines range through application of the sentencing factors

in 18 U.S.C. 3553(a)(5) is called a

"variance." United States v. Atencio, 476 F.3d

1099, 1101 n.1 (10th Cir. 2007) (en banc request denied). Thus, on appeal, it is

evident Mr. Miller is no longer requesting a downward departure under Chapter

Five. Instead, he makes a variance request by claiming his sentence is

unreasonable under § 3553(a)(6) based on an alleged unconstitutional sentencing

disparity in the application of 18 U.S.C. 924(c) to his sentence, which mandates

a minimum seven-year sentence, as compared with his co-defendant's sentence of

only thirty-two months.

We review for reasonableness the sentence's length, as guided by the

factors in 18 U.S.C. 3553(a). See United States v. Kristl, 437 F.3d 1050,

1053

(10th Cir. 2006) (per curiam). The § 3553(a) factor we concentrate on in this

appeal is "the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct." See 18 U.S.C. 3553(a)(6). We require reasonableness in two respects ­ "the length

of

the sentence, as well as the method by which the sentence was calculated."

Kristl, 437 F.3d at 1055. Because brandishing a weapon carries a mandatory

minimum sentence of seven years under 18 U.S.C. 924(c), the recommended

Guidelines range in this case is the mandatory minimum of eighty-four months.

See U.S.S.G. § 5G1.1(b). If the district court, as here, "properly considers the

relevant Guidelines range and sentences the defendant within that range, the

sentence is presumptively reasonable." Kristl, 437 F.3d at 1055.

In addition, this court has held no constitutional error occurs when a

defendant pleads guilty and receives the required mandatory minimum sentence

imposed by statute, and, similarly, no non-constitutional Booker error occurs

when, based on admitted facts in a guilty plea, "the district court had no

discretion under the statute to do other than impose the mandatory minimum

sentence." United States v. Payton, 405 F.3d 1168, 1173 (10th Cir. 2005)

(holding, based on admitted facts in the defendant's guilty plea to conspiracy to

possess with intent to distribute methamphetamine, that the district court had no

discretion to do other than impose the statutory mandatory minimum sentence of

120 months imprisonment). While we recognize a Congressional objective exists

in avoiding disparate sentences between co-defendants, we have determined

"Congress chose to avoid unwarranted disparities through a guideline system

which considered various facts concerning the offense and the offender." United

States v. Maden, 114 F.3d 155, 159 (10th Cir 1997) (quotation marks and citation

omitted). Thus, we have concluded "'disparate sentences are allowed where the

disparity is explicable by the facts on the record.'" Id. (quoting United States

v.

Garza, 1 F.3d 1098, 1101 (10th Cir. 1993)).

In this case, Mr. Miller pled guilty to brandishing a weapon, and the

district court applied the mandatory minimum sentence required under 18 U.S.C. 924(c)(1)(A)(ii), which is also the Guidelines range. Thus, it is clear Mr.

Miller's sentence was properly calculated and a rebuttable presumption exists as

to it reasonableness. Kristl, 437 F.3d at 1053-55. Our inquiry, then, concerns

whether Mr. Miller's sentence is unreasonable under § 3553(a) based on his "as-applied"

challenge to the application of § 924(c) to his circumstances. However,

after a review of the applicable facts and legal principles in this case, it is clear

the application of 18 U.S.C. 924(c) in sentencing did not result in an

unconstitutionally unreasonable or otherwise disparate sentence.

As the district court explained, the disparity in sentencing in this case was

clearly explicable, as demonstrated by several facts. First, regardless of whether

both individuals committed the same robbery, Mr. Miller pled guilty to the

weapon brandishing charge and Mr. Lewis did not. In addition, Mr. Lewis did

not make any admission he knew Mr. Miller possessed a gun when they went to

rob the restaurant. Next, no evidence in the record suggests Mr. Lewis

brandished the weapon, while two witnesses stated Mr. Miller held the gun on

them and authorities saw Mr. Miller throw a gun from a roof shortly after the

robbery attempt and prior to his arrest.(6) As

the probation officer noted, while it

may have been reasonably foreseeable Mr. Miller would possess a firearm during

the attempted robbery, the government reasonably believed it could not carry its

burden of proving by a preponderance of the evidence that Mr. Lewis knew Mr.

Miller was armed with a firearm when they approached the restaurant. The

district court recognized this when it discussed the disparity between the two

sentences under § 3553(a)(6) and stated substantial proof differences justified a

lower sentence for Mr. Lewis.(7)

IV. Conclusion

Under these distinctly different circumstances, it is plain Mr. Miller's

sentence is reasonable and no unconstitutional disparity exists. Accordingly, we

AFFIRM Mr. Miller's sentence.

Entered by the Court:

WADE BRORBY

United States Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

1. Mr. Miller's plea agreement states Mr.

Lewis knew Mr. Miller was

armed with a firearm. In contrast, Mr. Lewis's plea agreement omits any

reference to his knowledge Mr. Miller had a gun. As discussed hereafter, Mr.

Lewis, unlike Mr. Miller, did not plea or admit to brandishing a weapon and the

government declined to enhance Mr. Lewis's sentence for brandishing a weapon

based on its conclusion it could not prove he knew Mr. Miller had the firearm

with him.

2. Specifically, at the hearing, the district

court pointed out to Mr. Miller

that, by virtue of his guilty plea to the weapon brandishing count, he would have

to serve a seven-year consecutive sentence, which Mr. Miller stated he

understood.

3. The government contends Mr. Miller did

not raise the issue he now

brings on appeal regarding the unconstitutional disparity of his sentence

compared to Mr. Lewis's sentence, which he now bases on the unconstitutional

application of 18 U.S.C. 924(c). As a result, the government argues our

standard of review for his newly-raised issue is plain error. However, we

construe Mr. Miller's pro se pleading liberally, see Haines v. Kerner,

404 U.S.

519, 520 (1972), and, giving him the benefit of the doubt, conclude for the

purpose of this appeal he generally raised the issue in the district court when he

claimed the difference in sentencing violated the Equal Protection Clause.

Moreover, even if Mr. Miller had not previously framed his Equal Protection

objection expressly in the context of a variance under § 3553(a), we do not

require a defendant to make such an objection in order to preserve a claim his

sentence is unreasonably long under those factors. See United States v.

Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006), petition for cert. filed

(Nov. 22,

2006) (No. 06-7990). Instead, we review for reasonableness the sentence's

length, as guided by the factors in 18 U.S.C. 3553(a). See id.

4. As previously indicated, Mr. Miller

received both a six-month sentence

for the robbery and an eighty-four-month consecutive sentence for brandishing a

weapon, totaling ninety months imprisonment.

5. 18 U.S.C. 3553(a) provides, in

part, the court shall consider:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant;

and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available; ...

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct; and

(7) the need to provide restitution to any victims of the offense.

6. The record also discloses Mr. Lewis had a

low criminal history score of

I, which resulted in his receiving a lower sentence than if he had a higher history

score. While Mr. Miller received a mandatory minimum sentence under § 924(c),

we note his criminal history score of III was higher than Mr. Lewis's.

7. While Mr. Miller relies on United

States v. Trujillo, 906 F.2d 1456 (10th

Cir. 1990), in support of his appeal, we note the disposition in that case actually

supports the disparity in sentencing in this case. In Trujillo, we upheld the

disparity in sentencing between two co-defendants involved in the same criminal

activity, given the defendant who received the longer sentence had not, like his

co-defendant, accepted responsibility for his conduct, nor was he entitled to a

reduction for his role in the offense. Id. at 1465.

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