US v. Floyd Miller, No. 12-4553 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4553 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FLOYD LEWIS MILLER, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:11-cr-00164-3) Submitted: December 28, 2012 Decided: February 1, 2013 Before MOTZ, GREGORY, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for Appellant. Joseph Franklin Adams, OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Floyd Lewis Miller appeals his conviction and ninetyseven month sentence following a guilty plea to conspiracy to distribute oxycodone, in violation of 21 U.S.C. § 846 (2006). In accordance with Anders v. California, 386 U.S. 738 (1967), Miller s counsel has filed a brief certifying that there are no meritorious issues for appeal but questioning the district court s findings regarding the quantity of drugs attributable to Miller for sentencing purposes, the court s refusal to grant Miller a departure or variance based on his age and poor health, and whether Miller s sentence is unreasonably disparate compared with the sentences of his co-conspirators. notified of his right to supplemental pro se brief. do so, Miller did when Although not file a Finding no error, we affirm. We review Miller s sentence for reasonableness, using an abuse of discretion standard. U.S. 38, procedural 51 (2007). errors, We must including Gall v. United States, 552 first review improperly for significant calculating the Guidelines range, failing to consider the 18 U.S.C. § 3553(a) (2006) factors, sentencing under clearly erroneous failing to adequately explain the sentence. a sentence procedurally substantive reasonableness. reasonable may or Id. at 51; United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). find facts, we Only if we consider its United States v. Carter, 564 F.3d 2 325, 328 (4th calculated Cir. Guidelines 2009). range A is sentence within presumed a properly- reasonable. United States v. Powell, 650 F.3d 388, 395 (4th Cir.), cert. denied, 132 S. Ct. 350 (2011). We review Miller s claim that the district court erred in relying on the testimony of his co-conspirator when determining the quantity of drugs properly attributed to Miller for sentencing purposes for clear error. United Layton, 564 F.3d 330, 334 (4th Cir. 2009). here, a district based on court s witness court s factual testimony, credibility we findings grant v. Further, when, as at great determinations. States sentencing deference Id. to Applying are the these standards, and recognizing that the district court adopted a relatively conservative finding of the drug quantity attributable to Miller, we find no error, clear or otherwise. Further, we lack authority to review the district court s refusal to grant Miller a departure unless the refusal was based on the mistaken belief that it lacked the power to do so. United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). Here, there is no indication of such a mistake. Moreover, the district court cited numerous considerations that counseled for a within-Guidelines range sentence and, therefore, did not abuse its discretion in refusing Miller s request for a variance. See United States v. Hammond, 698 F.3d 679, 681 (8th Cir. 2012) (per 3 curiam) (reviewing refusal to grant variance for abuse of discretion). Similarly, we find no error in the district court s refusal to sentence Miller conspirators. Although district court to imposing sentence, 18 consider a more U.S.C. leniently § 3553(a)(6) disparities district than court in has his co- directs the sentencing extremely when broad discretion when determining the weight to be given each of the § 3553(a) factors. United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.), cert. denied, 132 S. Ct. 187 (2011). The district court here offered a sufficiently individualized explanation for Miller s sentence and did not abuse its discretion. See United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007) (reasons court articulates for a given sentence need not be couched in precise terms of § 3553(a) so long as they can be matched to factor appropriate for consideration and are clearly based on the defendant s individual circumstances). In accordance with Anders, we have reviewed the entire record and have found no meritorious issues for appeal. therefore affirm Miller s conviction and sentence. We This court requires that counsel inform Miller, in writing, of his right to petition the Supreme Court of the United States for further review. If Miller requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may 4 move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Miller. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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