United States v. Miller, 10th Cir. (2015)
FILED
United States Court of Appeals
Tenth Circuit
October 9, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 14-3281
(D.C. No. 5:06-CR-40151-JAR-1)
(D. Kan.)
v.
F. JEFFREY MILLER,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, LUCERO, and McHUGH, Circuit Judges. **
Defendant-Appellant F. Jeffrey Miller appeals from the district courts
revocation of his supervised release and imposition of three concurrent 36-month
sentences on three counts of conviction. Mr. Miller argues that the district court
abused its discretion by (1) finding that he violated the terms of his supervised
release without sufficient evidentiary support in the record and (2) sentencing him
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
outside the 410 month advisory guideline range. Our jurisdiction arises under
28 U.S.C. 1291 and we affirm.
Background
Mr. Miller, a building contractor, was convicted of conspiracy to defraud
mortgage lenders (Count 1), money laundering (Count 5), and criminal contempt
based upon violations of conditions of release (Counts 9 & 10). United States v.
Miller, 682 F.3d 1254, 1260 (10th Cir. 2012). On appeal, this court affirmed all
but the conspiracy count. Id. at 1278. On resentencing, the district court
sentenced Mr. Miller to 72 months imprisonment on each count, to run
concurrently, and three years supervised release on each count, again
concurrently. I R. 125-26. Mr. Miller was placed on supervised release on
January 10, 2014.
Mr. Millers probation officer filed a petition to revoke his supervised
release alleging that Mr. Miller had violated several conditions of that release. I
R. 132-34. Specifically, (1) that he not commit another federal, state, or local
crime (by submitting false monthly reports to his probation officer, 18 U.S.C.
1001), (2) that he answer inquiries of his probation officer truthfully and follow
her instructions, (3) that he not be employed in a capacity where he had
discretionary authority over financial matters, and (4) that he not commit another
federal, state, or local crime (by transmitting in interstate commerce a threat, with
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intent to extort money, to injure the person of Lisa Montgomery). II R. 92-4;
102-04. After an evidentiary hearing, the district court revoked Mr. Millers
supervised release. Essentially, the district court determined that Mr. Miller was
running a contract for deed scam using his sons business, that he represented
to his probation officer that he was mere a laborer for the business when in fact
he acted as a principal with substantial involvement in financial affairs, and that
he traveled in interstate commerce and repeatedly telephoned and harrassed
purchaser Lisa Montgomery to make her payments. United States v. Miller, No.
06-40151-JAR, 2014 WL 6750066 (D. Kan. Nov. 26, 2014).
We review a decision to revoke supervised release for an abuse of
discretion. United States v. Engles, 779 F.3d 1161, 1162 (10th Cir. 2015). The
decision that a defendant violated a condition of his release need only be
supported by a preponderance of the evidence. 18 U.S.C. 3583(e)(3); United
States v. Disney, 253 F.3d 1211, 1213 (10th Cir. 2001). As the trier of fact in a
revocation proceeding, the district court has the exclusive function of appraising
the credibility of witnesses, determining the weight to give their testimony, and
resolving any conflicts in the evidence. Thus, the district courts factual findings
will be upheld unless clearly erroneous. United States v. Hall, 984 F.2d 387, 390
(10th Cir. 1993).
To support his position, Mr. Miller argues that many important activities in
his sons business occurred prior to his release, and that he was merely a trusted
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advisor. Aplt. Br. at 17-18. He also maintains that he accurately reported his job
title Labor when asked for his position in the company. Id. at 20-21. He points
out that Lisa Montgomerys claims that she filed a police report and initiated a
court case could not be verified. Id. at 23-24. Further, when Mr. Millers cell
phone records did not substantiate outgoing calls to her on the date she claimed,
she changed the dates. Id.
We have reviewed the hearing transcript. As is often the case, the evidence
is not all one-sided. But it doesnt need to be. Mr. Millers probation officer
testified that Mr. Millers claim that he was doing labor work, fixing things on
homes that his son had purchased was simply not accurate based upon
information she received not only from others, but also from Mr. Millers own
explanation of how the business worked. III R. 256-59. Regarding Lisa
Montgomerys testimony, III R. 208-53, that is a matter of credibility solely the
province of the district court. There is nothing inherently incredible about that
testimony which would allow us to disregard it. The district courts findings are,
therefore, not clearly erroneous.
Insofar as the sentence imposed, it need only be reasoned and reasonable,
meaning that it be procedurally and substantively reasonable. United States v.
McBride, 633 F.3d 1229, 1231-32 (10th Cir. 2011); United States v. Steele, 603
F.3d 803, 807 (10th Cir. 2010). The district courts discretion is guided by the
factors set out in 18 U.S.C. 3553(a), and the advisory sentencing guidelines
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found in U.S.S.G. 7B1.4. See United States v. Rodriguez-Quintanilla, 442 F.3d
1254, 1256-57 (10th Cir. 2006). A reasonableness standard has been equated to
an abuse of discretion standard in the Tenth Circuit and a district court abuses its
discretion when it renders a judgment that is arbitrary, capricious, whimsical, or
manifestly unreasonable. United States v. Regan, 627 F.3d 1348, 1352 (10th
Cir. 2010)(internal quotation marks omitted).
Given the district courts findings that Mr. Millers behavior was severe
and exceptional under the totality of circumstances, and that Mr. Millers
conduct on supervised release was a continuation of his original offense conduct,
the sentence the district court imposed is not arbitrary, capricious, or manifestly
unreasonable. Transcript of Revocation Sentencing at 11, United States v. F.
Jeffrey Miller, No. 06-cr-40151 (D. Kan. Dec. 15, 2014). As it should, the
district court clearly explained the basis for its harsh sentence, see Gall v. United
States, 552 U.S. 38, 46 (2007), and did not abuse its discretion.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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