Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2008

USA v. Miller
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5335




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                    Case No: 05-5335

                           UNITED STATES OF AMERICA

                                             v.

                              MICHAEL LEWIS MILLER,

                                             Appellant

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                  Crim. No. 96-cr-00051
                     District Judge: The Honorable Juan R. Sánchez


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  February 14, 2008

                    Before: SLOVITER, and SMITH, Circuit Judges,
                              DIAMOND, District Judge *

                               (Filed: February 14, 2008)




                                        OPINION

SMITH, Circuit Judge.

       In April 1997, Michael Miller was convicted of conspiracy, wire fraud, and

securities fraud for his role in a complex scheme involving the leasing of worthless stocks


   *
   The Honorable Gustave Diamond, Senior District Judge for the United States District
Court for the Western District of Pennsylvania, sitting by designation.
of three public companies to the Teale Network, which in turn “represented these leased

stocks as assets available to pay claims pursuant to reinsurance contracts entered into with

a Pennsylvania-based insurance company, the World Life and Health Insurance Company

. . . . When World Life attempted to liquidate these assets to pay outstanding medical

reinsurance claims, the stocks were found to be worthless.” United States v. Miller, 

, 360 (3d Cir. 2005).

       On January 22, 1998, the District Court sentenced Miller to seven months of

incarceration. Miller appealed, challenging his conviction. The United States filed a

cross-appeal challenging the sentence. We affirmed the convictions and vacated for

resentencing. On February 3, 2003, the District Court held a resentencing hearing. The

District Court found that Miller and his co-defendants caused a total fraud loss of

approximately $3.2 million, and ordered restitution in that amount. The District Court

enhanced Miller’s offense level and sentenced Miller to 51 months of incarceration and

two years of supervised release. This Court affirmed. Miller appealed to the United

States Supreme Court, which vacated the judgment of this Court and remanded in light of

its opinion in United States v. Booker, 

(2005). We, in turn, vacated Miller’s

sentence and remanded to the District Court for resentencing in accordance with Booker.

(citing United States v. Davis, 

, 183 (3d Cir. 2005)).

       District Judge Sánchez conducted the resentencing hearing because the original

sentencing judge, Judge Newcomer, was then deceased. Judge Sánchez ultimately



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imposed the same sentence of imprisonment as Judge Newcomer had imposed, but he

increased the term of supervised release from two to three years. Miller timely appealed.1

        Miller raises four arguments on appeal. First, he argues that the application of

Booker’s remedial opinion to his case violates 18 U.S.C. 3742(g).2 As we understand his

argument, Miller argues that the remedial portion of Booker does not apply to him

because his case was pre-Booker and because the mandatory guidelines were the ones

that “were in effect on the date of the previous sentencing.” 18 U.S.C. 3742(g).

Therefore, he argues, the mandatory guidelines must apply to him and factors not

determined by the jury may not be used to increase his sentence above the applicable

guidelines level. We reject this argument.

        The Supreme Court severed and excised the portion of the law which dictated that

the guidelines were mandatory—18 U.S.C.A. § 3553(b)(1)—from the rest of the statute in

Booker. On its face, § 3742 refers only to which guidelines apply and not how they are to

be applied. Further, Booker itself said that: “we must apply today’s holdings—both the

Sixth Amendment holding and our remedial interpretation of the Sentencing Act—to all

cases on direct review.” 

(emphasis added). Indeed, Miller’s



   1
       We have jurisdiction pursuant to 28 U.S.C. § 1291.
   2
      Section 3742(g) reads: “the court shall apply the guidelines issued by the Sentencing
Commission pursuant to section 994(a)(1) of title 28, United States Code, and that were
in effect on the date of the previous sentencing of the defendant prior to the appeal,
together with any amendments thereto by any act of Congress that was in effect on such
date . . . .”

                                              3
case was remanded for resentencing in light of Booker. Finally, any objection Miller has

to judicial fact-finding has been rejected by this Court in U.S. v. Grier, 

(3d

Cir. 2006) (en banc), which held that a preponderance of the evidence burden of proof

applies in determining facts relevant to defendant’s sentencing.

       Second, Miller argues that the District Court improperly increased his supervised

release term from two to three years.3 We find this argument is also without merit. The

resentencing judge had discretion to impose a period of supervised release up to and

including three years. 18 U.S.C. § 3583(b)(2). After reviewing the record, we are

satisfied that the factors of § 3553(a) properly informed the District Court’s decision to

increase the period of supervised release, and that the Court did not abuse its discretion in

doing so.

       Miller also asserts that when a defendant receives a harsher sentence on

resentencing, the presumption of vindictiveness applies. However, the Supreme Court

has limited application of the presumption to circumstances in which there is a

“reasonable likelihood” that the increase in sentence is the product of actual

vindictiveness. Alabama v. Smith, 

, 799 (1989). Where there is no such

reasonable likelihood, the burden remains upon the defendant to prove actual

vindictiveness. 

The record before us reveals nothing to suggest there is a



   3
     We review the imposition of supervised release for an abuse of discretion. United
States v. Warren, 

, 362 (3d Cir. 1999).


                                              4
likelihood that Judge Sánchez was “vindictive” in his resentencing of Miller. Further,

Miller has not put forth any facts from which we could infer a likelihood of

vindictiveness, much less actual vindictiveness.

       Third, Miller contends that the District Court incorrectly imposed a sentence for

full restitution without making the requisite factual findings required under the Victim

Witness Protection Act. The District Court ordered full restitution after the first

resentencing hearing in February 2003. The sentence from which Miller now appeals was

only remanded for consideration in light of Booker. During the pendency of his appeal to

this Court, we decided United States v. Leahy, 

(3d Cir. 2006). In Leahy,

this Court determined that Booker does not apply to orders of restitution. Therefore,

restitution was outside the scope of the remand.

       Finally, Miller argues that he was entitled to a de novo resentencing hearing

because the original presiding judge was not available. After reviewing the record, we

are satisfied that the hearing conducted by the District Court afforded Miller a fair

resentencing. Judge Sánchez carefully reviewed all of Judge Newcomer’s factual

findings and conclusions of law, considered both the original and supplemental

presentence reports, and afforded the defense an opportunity to present evidence and

additional testimony regarding medical and financial issues affecting Miller and his

family. To require anything more than what the District Court actually did would be mere

formalism. Therefore, we will affirm the judgment of the District Court.



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