United States of America v. Titus J. Miller

United States Court of Appeals
For the Eighth Circuit
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No. 20-3316
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United States of America
Plaintiff - Appellee
v.
Titus J. Miller
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 19, 2021
Filed: January 21, 2022
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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BENTON, Circuit Judge.
Titus J. Miller was convicted of five counts of producing child pornography,
in violation of 18 U.S.C. § 2251(a). The district court sentenced him to five
consecutive 20-year prison terms and a lifetime of supervised release. It also ordered
him to pay an assessment of $50,000 under 18 U.S.C. § 2259A (the “AVAA”). He
appeals the sentence and the assessment. Having jurisdiction under 28 U.S.C. §
1291, this court affirms in part and reverses and remands in part.

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I.
Miller asserts the court procedurally erred in imposing consecutive sentences.
Miller also believes the sentence was substantively unreasonable. The government
contends Miller waived the right to appeal his sentence in his plea agreement. To
find waiver, this court must ensure that “the appeal falls within the scope of the
waiver and that both the waiver and plea agreement were entered into knowingly
and voluntarily.” United States v. Andis, 333 F.3d 886, 889-890 (8th Cir. 2003) (en
banc). “Whether a valid waiver of appellate rights occurred is a question of law”
this court reviews de novo. United States v. Sisco, 576 F.3d 791, 795 (8th Cir. 2009).
Miller’s appeal of his sentence falls within the waiver. As part of the plea,
Miller “knowingly and expressly” waived “any and all rights to appeal” his
“conviction and sentence,” except for a claim of ineffective assistance of counsel.
Miller also knowingly and voluntarily entered his plea. At the plea hearing, the court
questioned Miller about the voluntariness of his plea and his understanding of the
waiver. The court confirmed that Miller understood he was “giving up your right to
that appeal process unless you are claiming that you were provided ineffective
assistance by your attorney.” The court also confirmed he understood “that your
waiver of appeal and your waiver of collateral attack apply both to your conviction
and to the sentence you have not yet received.” The appeal waiver was valid and
precludes Miller’s appeal of his term of imprisonment. See generally United States
v. Carder, 814 Fed. Appx. 162, 164 (8th Cir. 2020) (holding the appeal waiver
precluded defendant’s appeal of his sentence even though the district court misspoke
at sentencing).
II.
Miller argues the district court illegally imposed a $50,000 assessment under
the AVAA. Specifically, he contends the court erred in failing to “consider 18
U.S.C. § 3553 and 3572 factors in determining the correct amount” to assess. The
government again argues the waiver precludes Miller’s appeal. Even if the issue

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falls within the scope of the waiver, this court will not enforce the waiver if doing
so would be a miscarriage of justice. Andis, 333 F. 3d at 890. Because there was
and continues to be confusion about the $50,000 assessment, this court reverses and
remands for clarification.
At sentencing, the court imposed a $50,000 AVAA assessment, indicating that
the amount was based on $5,000 per victim. Miller moved to clarify the amount. In
a post-judgment Memorandum and Order, the court clarified that it was imposing
the “$50,000 AVAA (18 U.S.C. § 2259A) assessment intentionally (a) to provide
each of the five children with $5,000 each (to the extent possible) and (b) the balance
to [be] paid into the fund for the benefit of other children.”
“A monetary penalty under the AVAA is separate and distinct from
restitution.” United States v. Madrid, 978 F.3d 201, 205 (5th Cir. 2020). Restitution
requires identification of a victim and proof of losses. 18 U.S.C. § 2259(b)(2).
However, a special assessment does not. Rather than going to individual victims,
all assessments “collected under” the AVAA “shall be deposited into the Child
Pornography Victims Reserve” fund. 18 U.S.C. § 2259B(a).
In the court’s post-judgment Memorandum and Order, it ordered $25,000 as
an assessment “for the benefit of other children.” This is a permissible assessment
under the AVAA. See 18 U.S.C. § 2259A. The $25,000 designated to go directly
to the victims, however, appears more like restitution than an assessment. The
government argues that the Order’s phrase “to the extent possible” shows that the
court was aware that the “victim families would have to go through the procedure
set forth in the AVAA, including the Child Pornography Victim Reserve, to obtain
monetary assistance from the Reserve.” This is not clear from the Order. This court
reverses and remands to the district court to enter an amended judgment specifying
whether all $50,000 shall be awarded as an assessment to the Child Pornography
Victims Reserve, or whether some part shall be awarded as an assessment to the
Reserve and some shall be awarded as restitution under 18 U.S.C. § 2259 to the
victims.

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* * * * * * *
The sentence is affirmed. This case is reversed and remanded to the district
court to enter an amended judgment.
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