United States of America v. Brian Miller

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 24, 2024*
Decided July 26, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 24-1343
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN MILLER,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 13-cr-10098-JES
James E. Shadid,
Judge.
O R D E R
Brian Miller appeals the denial of his motion under 18 U.S.C. § 3582(c)(1)(A)(i)
seeking compassionate release based on what he maintains is an unusually long
sentence. Because the district court did not abuse its discretion, we affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1343 Page 2
Federal agents arrested Miller in 2013 after uncovering evidence that he had cut a
hole in a bathroom wall in his home, through which he watched and recorded minor
girls—friends of his daughter—while they showered. Federal criminal charges
followed, and after a bench trial in May 2014, the district court found Miller guilty of 22
counts of using a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction. See 18 U.S.C. § 2251(a), (e). The court rejected Miller’s
argument that the minors were not engaged in “sexually explicit conduct.” Such
conduct, the court explained, includes “lascivious exhibition” of the genitals or pubic
area, 18 U.S.C. § 2256(2)(A)(v), and case law made clear that Miller’s videos qualified as
“lascivious” because they were intended to provoke a sexual response in the viewer.
See United States v. Russell, 662 F.3d 831, 843 (7th Cir. 2011). The court sentenced Miller
to 22 concurrent sentences of 216 months in prison and 22 concurrent 15-year terms of
supervised release. We affirmed the judgment on direct appeal. See United States v.
Miller, 829 F.3d 519, 526 (7th Cir. 2016). Miller filed a collateral attack in 2018 and a
compassionate release motion in 2021, both of which were unsuccessful.
In December 2023, Miller filed a second compassionate release motion, which
raised arguments similar to those he made on direct appeal. This time, however, Miller
pointed to our decision in United States v. Howard, 968 F.3d 717 (7th Cir. 2020), to argue
that the contents of his video recordings do not fit within the statutory definition of
sexually explicit conduct. According to Miller, this means that his sentence is
“unusually long” under U.S.S.G. § 1B1.13(b)(6) because today, he would be acquitted
and therefore not subject to any prison time. The district court rejected Miller’s
argument and denied the motion, citing two independent grounds. First, the court
explained, Howard involved depictions of the offender, not the fully dressed and
sleeping minor, engaged in sexually explicit conduct, and so it was inapposite to
Miller’s case involving depictions of nude minors. And second, even if Miller’s sentence
somehow constituted an extraordinary and compelling reason for early release, the
sentencing factors under 18 U.S.C. § 3553(a) weighed against reducing his sentence.
Specifically, the court cited (1) the “egregious nature” of Miller’s conduct—the
extensive, multi-step effort he made to surreptitiously record his victims; (2) his
criminal history, which included a prior conviction for battery; (3) the need to promote
respect for the law; and (4) the need to protect the public from future criminal conduct.
On appeal, Miller does not contend with the district court’s conclusion that the
§ 3553(a) factors weighed against his early release. This is an independent and sufficient
ground for denying compassionate release, irrespective of whether Miller presented an
extraordinary and compelling reason. See United States v. Rucker, 27 F.4th 560, 563

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No. 24-1343 Page 3
(7th Cir. 2022); United States v. Ugbah, 4 F.4th 595, 598 (7th Cir. 2021) (“It is enough to
state one reason adequate to support the judgment.”).1 And because Miller does not
challenge this ground on appeal, he forfeits any argument that the district court abused
its discretion when it denied his motion based in part on the § 3553(a) factors.
See Webster v. CDI Ind., LLC, 917 F.3d 574, 578 (7th Cir. 2019); United States v. Bryant,
750 F.3d 642, 651 (7th Cir. 2014).
AFFIRMED
1 In any event, even if Howard supported Miller’s argument that his sentence is
extraordinarily long—and it does not—this would not establish an extraordinary and
compelling reason. “Judicial decisions, whether characterized as announcing new law
or otherwise, cannot alone amount to an extraordinary and compelling circumstance
allowing for a sentence reduction” under § 3852(c)(1)(A). United States v. Brock, 39 F.4th
462, 466 (7th Cir. 2022).

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