Judges: Per Curiam
Filed: Apr. 11, 2019
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 10, 2019 Decided April 11, 2019 Before AMY C. BARRETT, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 18-1616 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Central District of Illinois. v. No. 17-30041-001 MARK E. MILLER, Richar
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 10, 2019 Decided April 11, 2019 Before AMY C. BARRETT, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 18-1616 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Central District of Illinois. v. No. 17-30041-001 MARK E. MILLER, Richard..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 10, 2019
Decided April 11, 2019
Before
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18‐1616
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 17‐30041‐001
MARK E. MILLER, Richard Mills,
Defendant‐Appellant. Judge.
O R D E R
While serving in the United States Army Corps of Engineers in Afghanistan,
Mark Miller illegally solicited approximately $330,000 from local contractors in
exchange for promises that the United States government would continue working on
road‐construction projects. Without the benefit of a plea agreement, Miller pleaded
guilty to seeking and receiving bribes, 18 U.S.C. § 201(b)(2)(A), and the district court
imposed a below‐guidelines sentence of 100 months’ imprisonment and 3 years’
supervised release. Miller has filed a notice of appeal, but his lawyer moves to
withdraw, arguing that the appeal is frivolous. See Anders v. California, 386 U.S. 738
(1967). Miller has not responded to counsel’s motion. See CIR. R. 51(b). Because counsel’s
No. 18‐1616 Page 2
analysis appears thorough, we limit our review to the subjects that she discusses.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel notes that Miller wishes to withdraw his guilty plea, and therefore first
considers whether Miller could challenge the voluntariness of the plea under Federal
Rule of Criminal Procedure 11. See United States v. Knox, 287 F.3d 667, 671 (7th
Cir. 2002). Counsel points out two omissions in the district court’s plea colloquy, but
correctly concludes that both are harmless. First, the district court failed to warn Miller
that his statements could be used in a future perjury prosecution. See FED. R. CRIM. P.
11(b)(1)(A). This omission did not affect Miller’s substantial rights, though, because
there is no current or prospective prosecution against him. See United States v. Stoller,
827 F.3d 591, 597–98 (7th Cir. 2016). Second, the court did not ask Miller if he had been
threatened into entering a guilty plea. See FED. R. CRIM. P. 11(b)(2). But this omission is
also harmless because the court confirmed that Miller had not received “promises or
assurances … in order to get [him] to plead guilty,” that he had not been “force[ed] …
to plead guilty,” and that he was, “in fact, guilty.”
Next, counsel considers whether Miller could challenge the court’s calculation of
an advisory guidelines range of 121 to 151 months’ imprisonment, but properly rejects
such a challenge as frivolous. The court correctly assessed Miller’s offense level at 31
(which included a base offense level of 14 because Miller was a public official,
see U.S.S.G. § 2C1.1(a)(1), and enhancements for accepting “more than one bribe,” see id.
§ 2C1.1(b)(1), accepting bribes exceeding $250,000, see id. § 2B1.1, accepting bribes as a
public official in a “high‐level … position,” see id. § 2C1.1(b)(3), and writing a
recommendation for a visa applicant on Army Corps stationary, see id. § 2C1.1(b)(4)).
The court also rightly found a criminal history category of II because Miller received
bribes while on probation for a previous driving‐under‐the‐influence conviction.
See U.S.S.G. §§ 4A1.1(c), (d).
Finally, counsel considers whether Miller could argue that his below‐guidelines
sentence was substantively unreasonable. This court reviews the substantive
reasonableness of a below‐guidelines sentence under an abuse‐of‐discretion standard
with the presumption that the sentence is reasonable. See Rita v. United States, 551 U.S.
338, 347 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Here, the
district court offered an adequate statement of its reasons, consistent with 18 U.S.C.
§ 3553(a), for imposing the 100‐month sentence. See United States v. Jackson, 860 F.3d 438,
449 (7th Cir. 2017). It characterized the offense as “particularly troubling,” given
Miller’s repeated abuse of his position over six years, and it explained that “a serious
No. 18‐1616 Page 3
penalty” was needed to “help deter others who might engage in this or similar illegal
activity.” Then, telling Miller that he had made “one of the finest allocutions” it had
ever heard, the court addressed mitigating factors like Miller’s acceptance of
responsibility, his “very troubled childhood” filled with abuse, his post‐traumatic stress
disorder, and the wartime conditions. In light of this explanation, we agree with counsel
that it would be frivolous to argue that the sentence was substantively unreasonable.
We GRANT the motion and DISMISS the appeal.