United States v. Trevor Miller, 11th Cir. (2010)
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 09-12916 and 09-14575
Non-Argument Calendar
________________________
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 21, 2010
JOHN LEY
CLERK
D. C. Docket No. 07-00128-CR-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREVOR MILLER,
a.k.a. Tony,
a.k.a. Dread,
a.k.a. Derrick,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(July 21, 2010)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Trevor Miller appeals his convictions and sentences for conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.C. 846,
841(b)(1)(B)(ii) (Count 1), conspiracy to import cocaine, in violation of 21 U.S.C.
960(b)(3) & 963 (Count 2), and possession of a firearm during the commission
of a drug crime, in violation of 18 U.S.C. 924(c) (Count 3). On appeal, he
argues: (1) the district court erred by denying his motion to suppress money and a
gun; (2) there was insufficient evidence to establish venue on Count 3; (3) his
above-Guidelines sentence is unreasonable; (4) the district court erred by denying
his motion to forbid the government from requiring a sentence-appeal waiver as a
condition of a plea bargain; and (5) the district court abused its discretion in
denying him access to a coconspirators presentence investigation report (PSI).
After carefully considering Millers arguments and the parties briefs, we affirm.
I. Millers Motion to Suppress the Money and Gun
The district court did not clearly err in finding that Miller did not have a
subjective expectation of privacy in the rental house.1 To prove his
unconstitutional-search claim, Miller must establish both a subjective and an
1
We review a district courts denial of a defendants motion to suppress under a mixed
standard of review: we review the district courts findings of fact for clear error and the district
courts application of law to those facts de novo. United States v. Ramirez, 476 F3d 1231, 1235
(11th Cir. 2007). We construe all facts in the light most favorable to the prevailing party, in this
case the government. Id. at 1236. Whether a claimant has a subjective expectation of privacy in
the object of the search is a question of fact that we review for clear error. United States v.
McBean, 861 F.2d 1570, 1573 (11th Cir. 1988).
2
objective expectation of privacy. See United States v. Segura-Baltazar, 448 F.3d
1281, 1286 (11th Cir. 2006). Thus, Miller has the burden of demonstrating an
actual expectation of privacy . . . that society is prepared to recognize as
reasonable. Id. (citations omitted). Further, because Miller was neither the owner
nor the lessee of the rental home, he must demonstrate a significant and current
interest in the property at the time it was searched. See United States v. Garcia,
741 F.2d 363, 366 (11th Cir. 1984).
The district court did not clearly err in finding that Miller has failed to carry
his burden in this case. Miller did not have a possessory interest in the rental home
because he was never a tenant. A couple named Julian and Denise signed the lease
to the rental home in November 2006 and Denise paid the first and last months
rent. The lease for the rental home was a month-to-month lease with an
understanding that Bassano, the property manager, would give the occupants
between two and three weeks to clear out their belongings if the lease concluded as
a result of non-payment. Although Miller did pay rent to Bassano for one month,
testimony shows that he did so on behalf of Julian and Denise, not for himself.
Moreover, the total rent paymentsthree months worthcovered only
November, December, and January; no rent was paid in February or March and
Bassano was not informed that a rent payment was forthcoming. Because Miller
knew that Bassano would give him at most three weeks to move his belongings out
of the house prior to terminating the lease, Miller could not have had an actual
expectation of privacy in the rental home when the gun and money were found in
March 2007. By that point, rent had been overdue for at least five weeks.
Further, Miller was seen at the property only three times, and Miller could
not even identify photos of the home at the suppression hearing. Considering all of
this evidence, the district court did not clearly err when it found that Miller lacked
a subjective expectation of privacy in the rental home at the time of the March
2007 search. See United States v. Brazel, 102 F.3d 1120, 114748 (11th Cir. 1997)
(holding the defendant lacked a subjective expectation of privacy in an apartment
because he had failed to show that he was the tenant or had an unrestricted right
of occupancy or control in the apartment at the time of the search).
II. Sufficiency of the Evidence as to Millers 924(c) Conviction
The Governments evidence was sufficient to prove that venue was proper in
the Northern District of Georgia for the 924(c)(1) gun-possession offense
(Count 3).2 The Supreme Court has held, [W]here a crime consists of distinct
parts which have different localities the whole may be tried where any part can be
We review the sufficiency of the evidence de novo, viewing the evidence and making
all reasonable inferences in favor of the government. United States v. Gari, 572 F.3d 1352, 1359
(11th Cir. 2009), cert. denied, 130 S.Ct. 1562 (2010).
4
proved to have been done. United States v. Rodriguez-Moreno, 526 U.S. 275, 281
(1999). Thus, [w]here venue is appropriate for the underlying crime of violence,
so too it is for the 924(c)(1) offense. Id. at 282.
In this case, Tiquila Turner testified at trial that, as part of the ongoing drugtrafficking conspiracy to import drugs into the United States, she had made
connecting flights in Atlanta with cocaine stored inside her body. This testimony
establishes that a portion of the drug-trafficking conspiracy took place in the
Northern District of Georgia. Turner then testified that while in Florida, Miller had
used a firearm to intimidate her into keeping quiet if she was ever caught with
drugs. Thus, because the government presented sufficient evidence to demonstrate
that part of the underlying crime took part in Atlanta, the Northern District of
Georgia was a proper venue to charge the 924(c)(1) offense, even though the gun
possession itself occurred in Florida. See Rodriguez-Moreno, 526 U.S. at 282
(holding that venue was proper in New Jersey even though the gun was used in
Maryland, when a portion of the underlying offense occurred in New Jersey).
III. Reasonableness of Millers Sentence
The district court did not abuse its discretion in imposing an aboveGuidelines sentence for Millers violation of 924(c)(1).3 In United States v.
We review all sentenceswhether inside, just outside, or significantly outside the
Guidelines rangeunder a deferential abuse-of-discretion standard. United States v. Livesay,
5
Pounds, we held that every conviction under 924(c)(1)(A) carries with it a
statutory maximum sentence of life imprisonment, regardless of what subsection
the defendant is sentenced under. 230 F.3d 1317, 1319 (11th Cir. 2000).
In this case, the permissible sentencing range was between five years and
life imprisonment for Millers violation of 924(c). The district court sentenced
Miller to 119 months for this count, a sentence that is neither procedurally nor
substantively unreasonable. The district court did not procedurally err because it
correctly calculated Millers Guidelines range, properly considered the 3553(a)
factors, and fully explained its reasoned decision for imposing an aboveGuidelines sentence. Both the 119-month sentence for Count 3 and the 240month total sentence are substantively reasonable, especially considering that
Millers criminal history category did not reflect his previous murder conviction in
the United Kingdom.
IV. Millers Motion to Forbid Sentence-Appeal Waivers
The district court did not err in denying Millers motion to forbid the
government from seeking a sentence-appeal waiver as a condition to entering into a
plea agreement.4 Sentence-appeal waivers are constitutional, as the right to appeal
525 F.3d 1081, 1090 (11th Cir. 2008) (quotation omitted). We review Millers sentence for both
procedural error and substantive reasonableness. See id. at 1091.
4
We review constitutional and jurisdictional issues de novo. United States v. Wright, 392
F.3d 1269, 1280 (11th Cir. 2004); In re Donovan, 532 F.3d 1134, 1136 (11th Cir. 2008).
6
is not a constitutional right, but is rather statutory in nature. United States v.
Bushert, 997 F.2d 1343, 1347 (11th Cir. 1993). As such, a sentence-appeal waiver
is enforceable if the defendant knowingly and voluntarily consents. Id. at 1350.5
V. Millers Request to Disclose Mannings PSI
The district court did not abuse its discretion in denying Millers request to
disclose coconspirator India Mannings PSI.6 Generally, it is presumed that courts
will not disclose the contents of the PSI of another individual because routinely
doing so would have a chilling effect on the willingness of various individuals to
contribute information that will be incorporated into the report. United States v.
Gomez, 323 F.3d 1305, 1308 (11th Cir. 2003). Thus, a party who requests
anothers PSI must demonstrate a compelling, particularized need for disclosure.
Id. (quotations omitted).
Here, the district court did not abuse its discretion by denying access to
Mannings PSI because Miller failed to articulate with particularity any compelling
need for the information contained therein.
AFFIRMED.
5
Additionally, as the district court explained, the ripeness doctrine prevented the district
court from considering the merits of Millers motion because, at the time Miller filed his motion,
there was no pending plea agreement between the parties. See Natl Adver. Co. v. City of Miami,
403 F.3d 1335, 1339 (11th Cir. 2005).
6
We review a district courts decision as to whether to disclose a PSI for abuse of
discretion. United States v. Gomez, 323 F.3d 1305, 1307 (11th Cir. 2003).
7