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A masterclass on the doctrines of Law of the Case, Waiver, Forfeiture, Remand and on Firearm and Role-in-the-Offense enhancements–plain error results in a remand: United States v. Miller, _ F.3d _ (D.C. Circuit, No. 17-3001 (May 18, 2018).

Frederick (“Toby”) Miller was sentenced to terms of life imprisonment following RICO and narcotics conspiracy-related convictions that are reported in United States v. Eiland, 738 F.3d 338 (D.C. Cir. 2013) and, thanks to a hung jury in the first trial, in United States v. Miller, 738 F.3d 361 (D.C. Cir. 2013). On appeal from the first trial, the D.C. Circuit vacated various unlawful-use-of-a-communications-facility counts and affirmed the remaining counts. Miller, 738 F.3d at 387. On appeal from the second trial, the Circuit concluded that, although sufficient evidence supported Miller’s narcotics conspiracy conviction, the evidence failed to establish that he had organized or supervised five people as required for a CCE conviction. Eiland, 738 F.3d at 356–58. After affirming and reinstating Miller’s narcotics conspiracy conviction, the court vacated his sentence, and remanded the case for resentencing. Id. at 361. (Slip Op. at 7-8).

At resentencing, Miller again received a life sentence. He appealed once more and claimed, inter alia, that plain error had infected the Firearms and Role-in-the Offense enhancements, and that the District Court erred in stating that the Guidelines range for the RICO conspiracy was life, when it was in fact 360 months to life.  The Circuit Court of Appeals, in a decision written by Senior Circuit Judge Edwards, agreed and his case remanded for resentencing.

The Government fought Miller tooth-and-nail.  First, it raised two procedural defenses, the first centered around a theory that Miller had waived the enhancement claims by not making then before, and thus was barred by the law of the case doctrine from raising them at this point. These preliminary contentions, Judge Edwards retorted, were “seriously misguided.” (Slip Op. at 3-4). Miller’s “looming mandatory life sentence for his CCE conviction [had] rendered his present sentencing challenges fruitless” and “[g]iven this situation, Appellant was not obliged to raise arguments on his first appeal that were merely contingently relevant.” (Slip Op. at 4).

With this backdrop, the panel (Edwards, Williams and Pillard, JJ) tackled the issues. The court agreed, given the Government’s concession, that in light of the intervening decision in Eiland, the trial judge had erred when, at resentencing, it treated Miller’s Guidelines range for the RICO conspiracy count as life rather than 360 months to life. (Slip Op. at 10).

The panel then delved into the Government’s barrage of threshold defenses to Miller’s objections to the various enhancements. By way of summary, the court explained that” the law-of-the-case doctrine is ‘analytically distinct’ from waiver and forfeiture” and that “waiver is distinct from forfeiture.”(Slip op at 12) (citing Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995)).

  • The law of the case defense lacked merit. “‘[T]he law of the case doctrine does not apply where an issue was not raised before the prior panel and thus was not decided by it.’” (Slip Op. at 12) (quoting Yesudian ex rel. U.S. v. Howard Univ., 270 F.3d 969, 972 (D.C. Cir. 2001));
  • In any event, “‘[t]he doctrine [of law of the case] may describe an appellate court’s decision not to depart from a ruling, but it does not “‘limit the court’s power.”’” (Slip Op. at 12) (quoting Musacchio v. United States, 136 S. Ct. 706, 716 (2016) (internal citation omitted)). “Law-of-the-case doctrine applies only to issues upon which decisions were actually rendered, and is inapposite where an issue merely went unraised.” (Slip Op. at 13).
  • The waiver objection also was groundless. As Judge Edwards stated, “‘waiver is the “intentional relinquishment or abandonment of a known right.”’” (Slip Op. at 14) (quoting United States v. Olano, 507 U.S. 725, 733 (1993) (internal citation omitted). “[B]ecause ‘the government does not contend that Appellant took steps we could reasonably understand as an intentional relinquishment of his quantity and enhancement challenges, Appellant never “waived” any of his claims in this case.’”
  • The Government’s alternative forfeiture defense also sputtered out. Miller’s challenges would have been fruitless before Eiland vacated his CCE conviction, as that conviction had a statutory mandatory minimum sentence of life that could not have been reduced even had he argued and won on the issues now presented.” (Slip Op. at 14). Looking to United States v. Melgar-Hernandez, 832 F.3d 261, 270 (D.C. Cir. 2016), Judge Edwards rebuffed the theory that Miller should have raised his current sentencing challenges on his initial appeal because of a mere possibility that they might have become relevant if his challenge to the CCE conviction had been upheld. “Here, Eiland animated Appellant’s present challenges by vacating the CCE conviction (and its attendant mandatory life sentence) that had temporarily rendered these [current] challenges useless.” (Slip Op. at 15-16).
  • Nor did the Government gain traction by contending that under United States v. Wyche, 741 F.3d 1284, 1294 & n.9 (D.C. Cir. 2014), the District Court could have relied on undisputed facts in Miller’s 2007 Presentence Report because he hadn’t challenge the drug quantity or the supervisory-role enhancements at his initial sentencing. To the contrary, under “United States v. Saro, 24 F.3d 283, 291 (D.C. Cir. 1994), there is no ‘categorical rule’ barring plain error review of factual findings in presentence reports merely because they have not been the subject of a timely objection.” (Slip Op. at 15). “Indeed, Wyche itself allowed a formerly inert sentencing issue to be raised because changed circumstances had given that issue life.” (Slip Op. at 15-16).
  • The Government’s last-ditch remand doctrine defense was easily extinguished, for Eiland’s vacatur of Mr. Miller’s CCE conviction made his present sentencing challenges newly relevant. . . .” In so doing, the panel found the Government’s reliance on United States v. Blackson, 709 F.3d 36 (D.C. Cir. 2013), to be incorrect, for Blackson “‘makes it clear that [on remand] the district court may also consider “such new arguments or new facts as are made newly relevant by the court of appeals’ decision—whether by the reasoning or by the result.”’” (Slip Op. at 16).

Having disposed of the Government’s fierce procedural obstacles, the panel addressed the substance. Although Miller’s drug quantity claim failed because the Trial Judge had adequately explained his reasoning, the District Court’s application of the firearms and role enhancements constituted plain error that affected Miller’s substantial rights and seriously affected the fairness of judicial proceedings. (Slip Op. at 17) (citing United States v. King-Gore, 875 F.3d 1141, 1147 (D.C. Cir. 2017)).

The firearms enhancement was remanded because U.S.S.G. § 2D1.1(b)(1) requires proof of a nexus between firearms and the offense of conviction. Here certain firearms licensed to Miller had been recovered in a search of his house. Although that search had yielded evidence later linked to the PCP charges (Slip Op. at 5), the District Court “plainly erred by imposing the enhancement because it made no factual finding as to any nexus between those firearms and [Miller]’s drug convictions, which related to heroin, cocaine, and cocaine base, as [Miller] was acquitted of the PCP counts.” (Slip Op. at 17-18) (citing United States v. Bell, 795 F.3d 88, 105 (D.C. Cir. 2015)).

A similar fate befell the four-point organizer-leader enhancement meted out to Miller. U.S.S.G. § 3B1.1(a) applies only when the defendant was “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive;” here the district judge’s findings tracked the language of U.S.S.G. § 3B1.1(b), which awards three points for being “a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive. . . .” This finding was deemed plain error, although the panel took pains to note that it was addressing “only the misfit between the District Court’s finding and its enhancement, not the evidentiary support for the finding as to [Miller]’s role” (Slip Op. at 18-19).

Finally, the panel reviewed Miller’s challenge to the Trial Judge’s quantity calculations. In upholding those findings, the court of appeals concluded, inter alia, that the District Court had permissibly concluded, based on its (as well as Eiland’s) assessment of the evidence of [Miller]’s managerial role, that [Miller] was a manager of the conspiracy and responsible for the entire drug quantity underlying the vacated CCE conviction.” (Slip Op. at 19-22). (The issues of quantity and foreseeability recur in these narcotics conspiracy prosecutions and the reader is urged to consult the decision to gain an understanding of the Circuit’s latest analysis of those subjects.)

Winning this appeal took time, attention to changes in the law and incredible patience. A well-earned tip of the hat goes to Dennis Hart.

  • Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.