United States of America v. Shariff Miller

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 3, 2023
Decided August 3, 2023
Before
DIANE P. WOOD, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2079
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHARIFF MILLER,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:08-CR-00629(1)
Virginia M. Kendall,
Judge.
O R D E R
Shariff Miller appeals the sentence imposed upon the revocation of his
supervised release, but his appointed counsel asserts that the appeal is frivolous and
moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). We grant counsel’s
motion and dismiss Miller’s appeal.
A defendant who appeals a revocation order does not have an unqualified
constitutional right to counsel, so the Anders safeguards need not govern our review.
Gagnon v. Scarpelli, 411 U.S. 778, 789–91 (1973). Even so, our practice is to apply them.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-2079 Page 2
See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Counsel’s brief explains the
nature of the case and addresses the issues that an appeal of this kind might be
expected to involve, and Miller did not respond to counsel’s motion. See C IR . R. 51(b). In
fact, Miller’s appointed counsel informs us that Miller no longer wishes to contest the
judgment on appeal, but Miller has not provided the requisite written consent to
support a motion to dismiss the appeal. See C IR . R. 51(f). Because counsel’s analysis
appears thorough, we limit our review to the subjects he discusses. See United States v.
Bey, 748 F.3d 774, 776 (7th Cir. 2014).
In 2021, after serving time in prison for convictions of possession of crack cocaine
with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm as a felon, 18
U.S.C. § 922(g)(1), Miller violated the conditions of his supervised release. The
probation office advised the court that Miller had (1) missed a visit with the office and
(2) driven under the influence. At Miller’s revocation hearing in 2022, the district court
concluded that Miller committed both violations. The court then adopted the
government’s recommendation to sentence him to four months’ imprisonment,
followed by three years’ supervised release for both counts, to run concurrently. In its
written judgment, however, the court noted that Miller had committed an additional
violation: driving under the influence a second time.
Miller then brought this appeal. And he proceeded to serve out his four-month
prison term. But during the ensuing term of supervised release, Miller again was
arrested. The probation office petitioned to again revoke his supervision. After a
hearing, the court entered a new judgment that revoked the term of supervised release
and sentenced him to an eight-month prison term without further supervised release.
Counsel explores whether Miller could raise any non-frivolous challenge to the
calculation of the sentence imposed at the 2022 revocation hearing. With regard to the
term of supervision on the firearm count, counsel points out that the court imposed a
term longer than permitted by statute. Because the firearm count was a Class C felony,
the court could at most impose a new supervised release term of 32 months, see 18
U.S.C. § 3583(b)(2) (36 months minus the four-month prison term imposed upon
revocation of supervised release, see 18 U.S.C. § 3583(h)). But the court improperly
imposed a 36-month term. Miller, however, did not object to the supervised release
term, despite being on notice that the probation officer had not accounted for the cap on
post-revocation supervised release set forth in § 3583(h). Our review, therefore, would
be for plain error. United States v. Allgire, 946 F.3d 365, 368 (7th Cir. 2019). But because
Miller cannot show that any error affected his substantial rights, counsel properly

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No. 22-2079 Page 3
rejects challenging the 36-month term. As counsel explains, any possible prejudice from
serving a 36-month rather than 32-month term was extinguished when the court
revoked his supervision after Miller stipulated to violating the conditions of its terms.
Counsel also considers challenging the court’s error in entering a judgment that
was inconsistent with its oral sentence. Counsel notes that the written judgment listed
three violations rather than just the two identified by the court at the hearing. But
counsel appropriately concludes that challenging the judgment would be frivolous
because Miller has not been prejudiced: the revocation of his term of supervised release
makes the error irrelevant. And because the error did not prejudice Miller, the
additional stigma he may feel from being sentenced to three violations instead of two
cannot be plain error. See Allgire, 946 F.3d at 368.
Still, an unambiguous oral pronouncement like the court’s controls, and the
inconsistent written judgment should be amended accordingly. United States v. Fisher,
943 F.3d 809, 816 (7th Cir. 2019). The discrepancy in the written judgment is a clerical
error, correctable at any time under Rule 36 of the Federal Rules of Criminal Procedure.
See United States v. Anobah, 734 F.3d 733, 739 (7th Cir. 2013). We thus order the district
court to amend its judgment to reflect its oral pronouncement.
Because Miller does not wish to disturb the outcome of his supervised release,
counsel appropriately refrains from addressing other potential errors related to the 2022
revocation hearing. See United States v. Caviedes-Zuniga, 948 F.3d 854, 856 (7th Cir. 2020).
Therefore, with the modification to the judgment, we GRANT counsel’s motion
to withdraw and DISMISS the appeal.

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