United States of America v. Frederick A. Miller, Also Known As Toby

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2021 Decided May 31, 2022
No. 20-3084
UNITED STATES OF AMERICA,
APPELLEE
v.
FREDERICK A. MILLER, ALSO KNOWN AS TOBY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cr-00379-2)
Dennis M. Hart, appointed by the court, argued the case
and filed the briefs for appellant.
Anne Y. Park, Assistant U.S. Attorney, argued the case for
appellee. With her on the brief were Chrisellen R. Kolb and
Suzanne Grealy Curt, Assistant U.S. Attorneys.
Before: HENDERSON and PILLARD, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.

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KAREN LECRAFT HENDERSON, Circuit Judge: Frederick
Miller (Miller) was convicted of drug conspiracy-related
charges after two trials and three appeals. After our most recent
remand for a second resentencing, the district court applied an
upward variance and imposed a life sentence. Miller now
argues that the district court exceeded the scope of its
resentencing mandate and committed procedural and
substantive errors in imposing the life sentence. We disagree
and therefore affirm Miller’s life sentence. In addition, we
remand for the correction of several clerical errors in the
judgment.
I. BACKGROUND
We have described the full history of Miller’s prosecution
in his previous appeals, see United States v. Miller, 738 F.3d
361 (D.C. Cir. 2013) (Miller I); United States v. Eiland, 738
F.3d 338 (D.C. Cir. 2013); United States v. Miller, 890 F.3d
317 (D.C. Cir. 2018) (Miller II), and thus we limit our
discussion to the facts relevant to this appeal.
Miller and Gerald Eiland (Eiland) headed a massive
interstate drug trafficking ring focused in the Washington, D.C.
area. Eiland, 738 F.3d at 344–45. Although the conspiracy
began in 1999, id., it is unclear exactly when Miller joined it.
The indictment alleges that Miller joined the conspiracy
“sometime around the year 2000.” Appendix (App.) 105.
At the latest resentencing on review here, the district court,
relying on testimony from the second trial, made several
findings regarding the extent of the harm caused by the
conspiracy. In June 1999, Eiland solicited Brian Lipscombe
(Lipscombe)—a longtime drug dealer for Eiland—to kill
Sorenson Oruchie (Oruchie), a heroin supplier to whom Eiland
owed money. As Lipscombe testified, he agreed and shot
Oruchie in the head. Oruchie survived.

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On October 12, 2001, the police executed a search of Je
Bradford’s residence. Bradford supplied the conspiracy with
distribution quantities of cocaine. As the police pounded on the
door, Bradford called Eiland, who told Bradford that he would
“take care of everything.” Supplemental Appendix (S.A.) 183.
Bradford then threw his cell phone against the wall, breaking
it. As Bradford testified, Eiland later went to Bradford’s
residence to “destroy any cell phone that [Bradford] might have
at the apartment and get rid of whatever evidence might be
left.” S.A. 187–88. Bradford was arrested and subsequently
incarcerated at the Charles County (MD) Detention Center.
According to the professional visitor log for the Charles
County Detention Center, a “Frederick Miller” from the “D.C.
police” visited Bradford on January 1, 2002. S.A. 208. From
2002 until 2005 Miller had a private detective license issued by
the District of Columbia Metropolitan Police Department
(MPD). Bradford testified that he and Miller met in a private
room for a “legal visit” because Miller’s license allowed him
to visit an inmate without surveillance. S.A. 190–91. Bradford
and Miller concluded that a particular associate had turned on
Bradford. According to Bradford, Miller said that “it’s not fair
that you won’t be able . . . to see your son grow up, . . . so [the
associate] won’t be able to see his son grow up.” S.A. 197.
Miller also said that he knew where the associate went for his
weekly bowling league and where he played with his son. As
Bradford explained, Miller “was going to kill him.” S.A. 198.
Sometime in 2003, the FBI began investigating, including
surveilling, the Eiland/Miller drug trafficking ring. Eiland, 738
F.3d at 345. At the second trial (regarding Eiland, Miller and
two associates), an FBI agent testified that he investigated
“drug trafficking that was occurring in the area of 9th and
Wahler Place, Southeast, . . . up around Draper Elementary
School.” S.A. 111. Draper Elementary School was at 908

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Wahler Place SE, at the intersection of 9th and Wahler Place.
During the investigation, the FBI agent identified Eiland and
Miller as drug traffickers. From wiretapping Miller’s phone,
the agent discovered the conspiracy used a residence on the
“3800 block of 9th Street, Southeast”—near Draper
Elementary School—for meetings related to the drug
conspiracy. See S.A. 115–16, 124. There, Eiland fronted street-
level dealers thousands of bags of “Spider Man”—a type of
heroin—with “[l]ittle dolphin shapes, designs” on each bag.
S.A. 129–30, 136. Several street dealers also sold heroin near
the school. Indeed, one dealer was arrested on 9th Street with
“[77] bags of [heroin] with blue dolphin markings on them,”
47 bags of cocaine base and 598 “Ziplocs” of opiates. S.A.
143–45.
The government arrested Eiland and Miller in August
2004. Eiland, 738 F.3d at 345. Miller was charged with various
crimes related to distributing heroin, cocaine, crack and
phencyclidine (PCP). Id.1 The first jury convicted Miller on 21
1 The following counts were alleged against Miller in the final
superseding indictment before the first trial: count 1 alleged a
narcotics conspiracy in violation of 21 U.S.C. § 846; count 2 alleged
a violation of the Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. § 1962(d); count 3 alleged a continuing criminal
enterprise in violation of 21 U.S.C. § 848(a)–(b); counts 4–7 alleged
unlawful possession with intent to distribute PCP in violation of 21
U.S.C. § 841 and 18 U.S.C. § 2; count 8 alleged unlawful attempted
possession of heroin with intent to distribute in violation of 21 U.S.C.
§§ 841, 846 and 18 U.S.C. § 2; count 9 alleged unlawful use of a
communication facility under 21 U.S.C. § 843(b) and 18 U.S.C. § 2;
counts 11–41 and 43–62 alleged unlawful use of a communication
facility in violation of 21 U.S.C. § 843(b); count 68 alleged
conspiracy to commit first-degree murder in violation of 22 D.C.
Code §§ 1805a, 2101; count 69 alleged conspiracy to commit murder
in aid of racketeering activity in violation of 18 U.S.C. § 1959.
Retyped Superseding Indictment, United States v. Eiland, Cr. No.

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counts, acquitted him on others and hung on the remaining
counts. Id.2 The district court retried Miller, id., and the second
jury found Miller guilty on the counts alleging narcotics
conspiracy, RICO conspiracy, continuing criminal enterprise,
heroin distribution and three counts alleging unlawful use of a
communication facility, id. at 346.3 The district court sentenced
Miller to life imprisonment on both the RICO conspiracy and
continuing criminal enterprise counts. Id. Miller then appealed,
challenging the procedures and sufficiency of evidence from
both trials. From the first trial, we reversed Miller’s convictions
on counts 19, 20, 34, 40, 46 and 59 for procedural defects and
04-379 (D.D.C. Mar. 20, 2006), ECF No. 617. The remaining counts
were alleged against Miller’s codefendants only.
2 The jury hung on counts 1–3 (conspiracy, RICO and
continuing criminal enterprise), 7–9 (PCP distribution, heroin
distribution and unlawful use of communication facility), 12–15, 46
and 48 (unlawful use of communication facility); found Miller guilty
on 16–20, 22, 24, 30, 33–36, 38–41, 43, 49, 52–53 and 59 (unlawful
use of communication facility); found Miller not guilty on count 6,
11, 21, 26–29, 44–45, 47, 50–51, 54, 57 and 60–62 (unlawful use of
communication facility). Verdict Form, United States v. Miller, Cr.
No. 04-379 (D.D.C. June 19, 2006), ECF No. 1036. During trial, the
district court accepted a new superseding indictment that no longer
alleged counts 4, 5, 23, 25, 31–32, 37, 55–56, 58, 68 and 69 against
Miller. Retyped Indictment, United States v. Eiland, Cr. No. 04-379
(D.D.C. May 24, 2006), ECF No. 671.
3 Before the second trial, the government filed a new indictment
that renumbered and added counts. Retyped Indictment, United
States v. Eiland, Cr. No. 04-379 (D.D.C. Oct. 11, 2006), ECF No.
804. The second jury found Miller guilty on counts 1, 2, 3
(conspiracy, RICO and continuing criminal enterprise), 5 (heroin
distribution), 6, 27 and 28 (unlawful use of communication facility)
and not guilty on counts 4 (PCP distribution), 8–11 and 15 (five
unlawful use of communication facility counts). Verdict Form,
United States v. Eiland, Cr. No. 04-379 (D.D.C. Dec. 5, 2006), ECF
No. 904.

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otherwise affirmed. See Miller I, 738 F.3d at 367–68, 387.
From the second trial, we found insufficient evidence for the
continuing criminal enterprise charge, count 3. Eiland, 738
F.3d at 357–58.4 We remanded for Miller’s first resentencing
and the district court again sentenced Miller to life
imprisonment on the RICO conspiracy charge and determinate
sentences on the other 21 counts.5 Miller appealed.
On appeal from Miller’s first resentencing, we concluded
that the district court had erred. First, the district court
committed “clear error” in finding the Sentencing Guidelines6
range for the RICO conspiracy charge to be mandatory life
imprisonment. Miller II, 890 F.3d at 324–25. The panel
“therefore vacate[d] Appellant’s life sentence on the RICO
conspiracy count and remand[ed] to the District Court with
instructions to resentence Appellant on the RICO conspiracy
count in light of the correct Guidelines range of 360 months to
life.” Id. at 325. The district court made several “clerical
errors” in describing the counts. Id. And it “plainly erred by
imposing the [firearm] enhancement because it made no factual
finding as to any nexus between those firearms and Appellant’s
4 At sentencing, the district court vacated count 1 as a lesser
included offense of count 3. United States v. Eiland, 738 F.3d 338,
359, 361 (D.C. Cir. 2013). Because we vacated count 3, we reinstated
count 1. Id.
5 Under the new numbering system, the district court sentenced
Miller on counts 1 (conspiracy to distribute narcotics), 2 (RICO
conspiracy), 5 (heroin distribution), 6, 16–18, 22, 24, 27–28, 30, 33,
35–36, 38, 39, 41, 43, 49 and 52–53 (unlawful use of communication
facility).
6 The Sentencing Guidelines are issued by the United States
Sentencing Commission pursuant to 28 U.S.C. § 994(a) to be used in
determining appropriate criminal sentences to further the purposes of
deterrence, incapacitation, just punishment and rehabilitation. U.S.
Sent’g Guidelines Manual ch. 1, pt. A Subpt. 1.

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drug convictions.” Id. at 328. Finally, the court misapplied the
“organizer or leader” enhancement after it had found that
Miller managed or supervised “at least one participant” only.
Id. at 329. Under the Guidelines, “the District Court’s factual
finding as to Appellant’s role justified at most a three-point
enhancement, [thus, it] plainly erred by imposing a four-point
enhancement.” Id.
We remanded for a second resentencing. In Miller II’s
operative conclusion, we stated: “We reverse and remand for
resentencing the District Court’s four-point enhancement for
Appellant’s role in the offense, the court’s two-point firearm
enhancement, and Appellant’s sentence for the RICO
conspiracy. We also vacate the clerical errors in the judgment
on Counts Two and Five, and remand these matters for
correction by the District Court.” Id. at 331.
In district court, both Miller and the government submitted
motions regarding the factual predicates for the role-in-the-
offense and firearm enhancements. The government argued for
enhancements that would have resulted in a Guidelines range
with an upper range of life imprisonment and urged the district
court to impose life imprisonment. One week before
resentencing, however, the government filed a memorandum,
stating that it no longer sought both the firearm enhancement
and the four-point organizer-or-leader enhancement. The
parties therefore did not dispute the proper offense level under
the Guidelines. See App. 237 (government and defendant agree
on enhancements with total offense level of 39 and Guideline
range of 262 to 327). Instead, for the first time, the government
argued for an upward variance. Relying in part on information
from Miller’s 2007 Presentence Investigation Report, the
government argued for an upward variance given the
Eiland/Miller conspiracy’s unusually violent conduct and
Miller’s earlier arrests. Miller opposed the upward variance.

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At the hearing, the government explained why it had not
theretofore asked for an upward variance. “[A]t the time of the
original sentencing in this case, because [Miller] was given a
mandatory life sentence—I don’t think that then defense
counsel or the Court were really focused on [the facts
supporting an upward variance] too much.” App. 229; see also
App. 232 (“The original PSR, presentence report, indicates that
there is no reason for an upward variance. But again, at that
point, the parties and the Court [we]re under the impression
that we were dealing with a mandatory life sentence; there was
no reason to look for a variance.”). Defense counsel
emphasized that the government first argued for an upward
variance only one week before the second resentencing but did
not request a continuance.
The district court sentenced Miller to life imprisonment. It
concluded that a sentence within the Sentencing Guidelines
range did not reflect the seriousness of Miller’s crimes or act
as a sufficient deterrence. It offered several reasons for an
upward variance. First, Miller had a long history of arrests for
violent crimes and drug offenses. Because Miller had not been
convicted of these offenses, however, the court calculated
Miller’s criminal history category under the Guidelines as 1,
the lowest category. The court instead considered the past
arrests as supporting an upward variance. Second, the court
concluded that the conspiracy had obstructed justice based on
the evidence that Eiland had destroyed evidence at Bradford’s
home. See supra at 3. Third, the court found the drug
conspiracy unusually harmful to the community: “Miller
caused harm beyond his conduct dealing narcotics” and the
conspiracy “brought destruction on much of Southeast,
Washington, D.C.” App. 242–43. “People like Mr. Oruchie
were grievously injured as a result of the conspiracy.” App.
243. Fourth, Miller abused his private investigator credentials
to gain an unsupervised visit with Bradford in prison in an

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effort to influence his testimony, including by credibly
suggesting he would kill the man he thought informed on
Bradford. Finally, Miller’s conspiracy engaged in dangerous
conduct (i.e., drug dealing) near a school, Draper Elementary
School. Miller timely appealed.
II. ANALYSIS
We typically review the scope of a remand for
resentencing de novo. United States v. Hunter, 809 F.3d 677,
681 (D.C. Cir. 2016). But where—as here—the defendant fails
to object at his sentencing hearing—having had the opportunity
to object—“the more demanding plain error standard of review
applies.” Id. at 682 (quoting United States v. Locke, 664 F.3d
353, 357 (D.C. Cir. 2011). Plain-error review has four
elements. Puckett v. United States, 556 U.S. 129, 135 (2009).
First, there must be a legal error the appellant did not
“affirmatively waive[].” Id. “Second, the legal error must be
clear or obvious, rather than subject to reasonable dispute.” Id.
Third, the legal error “must have affected the appellant’s
substantial rights, which in the ordinary case means he must
demonstrate that it affected the outcome of the district court
proceedings.” Id. (citation and internal quotation marks
omitted). Fourth, the appellate court typically remedies any
plain error “only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id.
(citation and internal quotation marks omitted).7
7 Miller argues that the district court commits per se plain error
whenever it violates the mandate rule. As Miller notes, “an inferior
court has no power or authority to deviate from the mandate issued
by an appellate court,” Briggs v. Pennsylvania. R. Co., 334 U.S. 304,
306 (1948), and “[a] district court commits legal error and therefore
abuses its discretion when it fails to abide by the . . . mandate rule,”
United States v. Kpodi, 888 F.3d 486, 491 (D.C. Cir. 2018). True

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We review a criminal sentence for abuse of discretion and
apply a two-step review process. Gall v. United States, 552
U.S. 38, 51 (2007). First, we consider whether the district court
committed a “significant procedural error,” such as improperly
calculating the Sentencing Guidelines range or relying on
clearly erroneous facts. Id. We review a sentencing court’s
factual determinations for clear error. See United States v.
Ventura, 650 F.3d 746, 749 (D.C. Cir. 2011).8
Second, we consider “the substantive reasonableness of
the sentence” under the “abuse-of-discretion” standard,
considering the “totality of the circumstances, including the
extent of any variance from the Guidelines range.” Gall, 552
U.S. at 51. Regardless whether the defendant objected to the
substantive reasonableness of the sentence, we review for
abuse of discretion, as the defendant need not “re-object” to a
sentence’s substantive reasonableness once his original
submission regarding substantive reasonableness is made and
rejected. See United States v. Burroughs, 613 F.3d 233, 241
enough. But plain error review requires more—that the district court
not simply committed legal error but a “clear or obvious” legal error
not “subject to reasonable dispute.” Puckett v. United States, 556
U.S. 129, 135 (2009).
8 As the government notes, ordinarily, “where a defendant fails
to raise a claim at his sentencing hearing, we review for plain error
only.” United States v. Hunter, 809 F.3d 677, 681 (D.C. Cir. 2016)
(citation and internal quotation marks omitted); see FED. R. CRIM. P.
52(b) (“A plain error that affects substantial rights may be considered
even though it was not brought to the court’s attention.”). But
according to the Supreme Court, the clear error standard has long
applied to judicial fact-finding in criminal cases, even to findings that
“hav[e] nothing to do with guilt.” Maine v. Taylor, 477 U.S. 131, 145
(1986); see also In re Sealed Case, 552 F.3d 841, 849–51 (D.C. Cir.
2009) (Edwards, J., concurring statement). Notwithstanding Miller
failed to object at the criminal sentencing hearing, then, we review
the factual findings for clear error.

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(D.C. Cir. 2010). “[I]t will be the unusual case when we reverse
a district court sentence—whether within, above, or below the
applicable Guidelines range—as substantively unreasonable.”
United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir.
2008). Because the Guidelines are advisory only, we do not
require a heightened showing of “reasonableness” if a district
court imposes an above-Guidelines sentence. Id. at 1092–93.
A. The Mandate Rule
Miller argues that the district court exceeded its mandate
on remand. In Miller II, we “reverse[d] and remand[ed] for
resentencing the District Court’s four-point enhancement for
Appellant’s role in the offense, the court’s two-point firearm
enhancement, and Appellant’s sentence for the RICO
conspiracy.” 890 F. 3d at 331. According to Miller, we
remanded only for the limited purpose of making factual
findings for the organizer-or-leader and firearm enhancements.
Even assuming arguendo that we remanded for fact-finding,
however, we think that the district court properly reached the
newly relevant issue of whether to apply an upward variance.
Under the mandate rule, “an inferior court has no power or
authority to deviate from the mandate issued by an appellate
court.” Briggs v. Pennsylvania. R. Co., 334 U.S. 304, 306
(1948). If we remand to a district court without “express
instructions regarding which issues the district court may
consider” at resentencing, the district court may consider only
defined “categories of inquiry.” See United States v. Blackson,
709 F.3d 36, 40 (D.C. Cir. 2013) (“collecting in one place this
circuit’s rules regarding the scope of a district court’s
resentencing authority under a remand order”). In United States
v. Whren we said that “upon a resentencing occasioned by a
remand, unless the court of appeals expressly directs otherwise,
the district court may consider . . . such new arguments or new

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facts as are made newly relevant by the court of appeals’
decision—whether by the reasoning or by the result.” 111 F.3d
956, 960 (D.C. Cir. 1997). For Whren to apply, then, the
appellate decision must not “expressly” forbid the district court
from considering new arguments but any new argument must
be “newly relevant.”
Miller II did not expressly prohibit the district court from
considering new arguments. Granted, Miller argues that we
remanded for the district court to consider only whether factual
predicates existed for the two enhancements described supra.
But, even assuming Miller is correct, Whren requires only that
we do not expressly direct the district court not to consider
newly relevant arguments for those arguments to be precluded.
111 F.3d at 960. And Miller II did not expressly limit the
district court’s remit—we simply remanded for resentencing
on several issues. 890 F.3d at 331. For “express” instructions,
we generally require “more specific remand instructions” than
the typical remand instruction. See Blackson, 709 F.3d at 43.
We believe Miller II also made the question of an upward
variance “newly relevant.” In the two earlier sentencings, the
government had argued that the court should impose life
imprisonment under the Sentencing Guidelines range. Thus, it
had no reason to argue that the district court should impose an
upward variance—the district court could not have imposed an
upward variance from life imprisonment. See United States v.
McCoy, 313 F.3d 561, 564, 566 (D.C. Cir. 2002) (en banc)
(Whren applies to issues “which never became determinative
before the district court” or “for which the likelihood of any
significance is remote[, as] an absolute requirement to raise all
objections (regardless of the degree of relevance) is likely both
to waste judicial resources and work injustice”). Once Miller II
held that the insufficient evidence for the firearm and
organizer-or-leader enhancements required remand, however,

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the upward variance became “newly relevant” because, without
the vacated enhancements, the government could no longer
argue for life imprisonment under the Guidelines.
Even if the government should have argued for an upward
variance as an alternative ground for sentencing Miller to life
imprisonment at the previous sentencings, Whren would still
apply because the district court can apply an upward variance
sua sponte without notice. See Irizarry v. United States, 553
U.S. 708, 714 (2008). Because the district court had sentenced
Miller to life imprisonment under the Guidelines at both the
original sentencing and the first resentencing, it necessarily did
not consider whether to apply an upward variance. But, at the
second resentencing—the sentencing sub judice—the district
court, for the first time, concluded that the applicable
Sentencing Guidelines range did not include life imprisonment.
It therefore became “newly relevant” whether to apply an
upward variance.9
B. Alleged Procedural Errors
Miller first argues that the district court committed a
“significant procedural error” because Miller lacked sufficient
time to review the grounds for the upward variances. But even
assuming that a lack of proper notice would constitute a
9 The district court may sentence a defendant under the
Guidelines and, alternatively, recite that, if the Guidelines range is
incorrectly calculated, it would have instead applied an upward
variance and imposed the same sentence. See United States v.
Orange, 21 F.4th 162, 166 (D.C. Cir. 2021) (district court calculated
Guidelines range and explained “if I’m wrong about the guideline
range, I would still vary upwards to give you this sentence”); but see
also United States v. Booker, 436 F.3d 238, 247 (D.C. Cir. 2006)
(district court cannot issue alternative judgments with different
sentences).

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significant procedural error, cf. Gall, 552 U.S. at 51
(“significant procedural error[s]” include “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines
range”), Miller lacked any right to notice of the grounds of the
upward variance under either the Federal Rules of Criminal
Procedure or the Due Process Clause.
The Federal Rules of Criminal Procedure provide no right
to notice of the grounds of an upward variance. After the
Supreme Court interpreted Rule 32 to provide a right to notice
before a court departs from the Sentencing Guidelines, Burns
v. United States, 501 U.S. 129, 135 (1991), the Congress
repealed the relevant part of Rule 32 and clarified that courts
must provide notice only before imposing an upward departure:
(h) Notice of Possible Departure from
Sentencing Guidelines. Before the court may
depart from the applicable sentencing range on
a ground not identified for departure either in
the presentence report or in a party’s prehearing
submission, the court must give the parties
reasonable notice that it is contemplating such a
departure. The notice must specify any ground
on which the court is contemplating a departure.
Notably, Rule 32(h) applies to a “departure” (a deviation from
Guidelines range based on Guidelines policy). As the Supreme
Court has explained, Rule 32 does not apply to “variances”
(sentences outside the Guidelines range based on the statutory
sentencing factors, see 18 U.S.C. § 3553(a)). Irizarry, 553 U.S.
at 714. Here the district court applied an upward variance based

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on the statutory sentencing factors, meaning that Miller had no
right to notice of the grounds thereof.
The Supreme Court has also explained that the right to due
process does not require a sentencing court to grant notice
before imposing an upward variance. It explained that “[t]he
due process concerns that motivated the Court to require notice
in a world of mandatory Guidelines no longer provide a basis
for” a due process right to notice after the Court decided United
States v. Booker, 543 U.S. 220 (2005). Irizarry, 553 U.S. at
714. “Now faced with advisory Guidelines,” the Court
explained, the “special need” for a notice requirement before
deviating no longer applies. Id. at 713–14. Instead the Supreme
Court and this court have said that a defendant may request a
continuance if he needs time to rebut the grounds of an upward
variance. Id. at 715–16; United States v. Nicely, 492 F. App’x
119, 122 (D.C. Cir. 2012).
Miller also appears to argue that the district court made
several clearly erroneous findings in determining bases for the
upward variance. See Gall, 552 U.S. at 51 (“significant
procedural error[s]” include “selecting a sentence based on
clearly erroneous facts”). “A finding is ‘clearly erroneous’
when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). “Where there
are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” Anderson
v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). As
the Seventh Circuit has put it, “[t]o be clearly erroneous, a
decision must strike us as more than just maybe or probably
wrong; it must . . . strike us as wrong with the force of a five-
week-old, unrefrigerated dead fish.” Parts & Elec. Motors, Inc.
v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).

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Miller challenges several factual findings that are not close
to “clearly erroneous.” For example, Miller argues that the
district court could not rely on Bradford’s testimony because
he identified Miller as “Corey.” Even if Bradford heard Eiland
on the phone refer to Miller as “Corey”—and the record
suggests that Bradford might not have heard him correctly, see
App. 271—the district court could nonetheless reasonably
determine that Bradford in court correctly pointed out Miller as
his prison visitor. App. 273 “If the district court’s account of
the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.” Anderson, 470 U.S. at
573–74.
We address at length the only challenge that warrants
discussion: whether the district court erroneously found that
Miller was a member of the drug conspiracy when Eiland paid
Lipscombe to kill Oruchie. At trial, Lipscombe testified that
Eiland paid him to kill Oruchie. Lipscombe, in exchange for
$10,000 and a used Acura, shot Oruchie in the head and told
Eiland that Oruchie had died. Miller argues that he could not
have yet joined the conspiracy because Lipscombe testified that
he attempted to kill Oruchie “[i]n June of, approximately June,
of 1999,” App. 275, and Miller was incarcerated until
sometime in June 1999. Based on this untidy chronology—and,
indeed, the lack of any other evidence suggesting that Miller
knew about the attempted murder of Oruchie—Miller might
have a point.
Nonetheless, Miller challenges a finding the district court
did not make. The district court found “it more likely than not
that Mr. Eiland paid Mr. Lipscombe to murder one of his heroin
suppliers, Sorenson Oruchie.” App. 241–42. In setting out the
reasons to apply an upward variance, however, the district

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court found that the conspiracy harmed people beyond drug
users, only once mentioning Oruchie as an example:
[Miller’s] actions brought destruction on much
of Southeast, Washington, D.C. In dealing
drugs across the street from an elementary
school, the conspirators harmed the entire
community; they exposed young children to the
risk of violence, and disrupted their education.
This was not just a conspiracy to harm drug
users. Moreover, Mr. Miller caused harm
beyond his conduct dealing narcotics. People
like Mr. Oruchie were grievously injured as a
result of the conspiracy that he co-led with his
codefendant.
App. 242–43 (emphasis added). The district court cited the
attempted murder of Oruchie as an example of the threat the
conspiracy posed to an entire area of the District of Columbia.
Indeed, several times it referred to the conspiracy’s
“destruction” of the Southeast community. See App. 244
(noting “harms [Miller] brought”); App. 245 (noting
“conspiracy’s violent conduct”). Because the district court did
not punish Miller for the attempted murder of Oruchie, but
instead merely cited it as an example of the kinds of harms that
conspiracy caused, there was no error.
We also reject Miller’s other claims of “significant”
procedural error. First, the district court did not use the
Guidelines as its basis for the upward variance. It explicitly
applied the upward variance based on considerations required
by 18 U.S.C. § 3553(a), including the “nature and
circumstances” and “seriousness” of the crimes. See, e.g., App.
244 (“[T]he guidelines d[o] not reflect the seriousness of the
offense with respect to the conspirator’s violent conduct, the

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efforts to obstruct justice, and the impact on school children.”).
“[I]t is not error for a district court to enter sentencing variances
based on factors already taken into account by the Advisory
Guidelines, in cases in which the Guidelines do not fully
account for those factors, or when a district court applies
broader § 3553(a) considerations in granting the variance.”
United States v. Ransom, 756 F.3d 770, 775 (D.C. Cir. 2014)
(citation and internal quotation marks omitted). Second, the
district court can rely on hearsay as evidence for its findings.
United States v. Jones, 744 F.3d 1362, 1368 (D.C. Cir. 2014)
(“Clear precedent permits hearsay to be used in sentencing
decisions.”). Third and finally, the district court appropriately
considered illegal conduct the government declined to
prosecute. United States v. Settles, 530 F.3d 920, 923 (D.C. Cir.
2008) (“[L]ong-standing precedents of the Supreme Court and
this Court establish that a sentencing judge may consider
uncharged or even acquitted conduct in calculating an
appropriate sentence, so long as that conduct has been proven
by a preponderance of the evidence and the sentence does not
exceed the statutory maximum for the crime of conviction.”).10
C. The Alleged “Substantively Unreasonable” Sentence
Miller argues that the district court imposed a
substantively unreasonable sentence. It is “an unusual case” in
which the district court imposes such an “unreasonably high or
low” sentence to warrant reversal for substantive
10 In reply, Miller argued for the first time that 18 U.S.C.
§ 3742(g)(2) bars the district court from imposing a sentence outside
the Guidelines range on grounds the court did not include in the
statement of reasons in the earlier sentencing. Because Miller did not
make that argument in his opening brief, we do not consider it. See,
e.g., United States v. Powers, 885 F.3d 728, 734 (D.C. Cir. 2018).

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unreasonableness. Gardellini, 545 F.3d at 1093, 1096.
Contrary to Miller’s protestations, this is not that case.
First, the district court distinguished this case from a
typical case with the same underlying charges. See United
States v. Murray, 897 F.3d 298, 308–09 (D.C. Cir. 2018) (“To
sustain an upward variance, the district court . . . must state the
specific reason why the defendant’s conduct was more harmful
or egregious than the typical case represented by the relevant
Sentencing Guidelines range.” (cleaned up)). The district court
gave several reasons that Miller caused greater-than-usual
harm. See, e.g., App. 244 (“[T]he guidelines d[o] not reflect the
seriousness of the offense with respect to the conspirator’s
violent conduct, the efforts to obstruct justice, and the impact
on school children.”).
Further, the district court did not “incorrectly” give the
same sentence to Eiland and Miller. It sentenced both Eiland
and Miller to life imprisonment, notwithstanding Eiland was
the conspiracy’s “leader” and Miller the “manager.” See U.S.
Sent’g Guidelines Manual § 3B1.1 (“an organizer or leader”
receives greater punishment than “a manager or supervisor”).
Even if Eiland’s and Miller’s criminal conduct were identical
save for their respective roles as “leader” and “manager,” the
district court could have reasonably determined that each
deserved the most serious punishment available.
Moreover, the district court properly considered the
purposes of criminal sentencing. See 18 U.S.C. § 3553(a)(2)
(sentencing court must consider purposes of criminal
punishment). Miller contends that the district court did not give
sufficient weight to his rehabilitation while in prison. The
district court, however, explicitly considered Miller’s “good
conduct while he has been in prison and his extensive efforts at
vocational education in prison.” App. 244. It nonetheless found

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the life sentence necessary in order to impose a punishment
severe enough to deter future crime. App. 244. Given the
significant deference that we grant the district court regarding
sentencing decisions, Gardellini, 545 F.3d at 1093, we find no
abuse of discretion regarding the severity of the sentence.
Finally, we believe the district court made two clerical
errors. The Amended Judgment describes count 5 as
“Conspiracy and Attempted Possession with Intent to
Distribute Heroin” but the verdict form refers to “Count 5: On
or about April 16, 2004, attempt to possess with intent to
distribute heroin.” Although the Amended Judgment refers to
the correct statute for count 5, see 21 U.S.C. § 841(a)(1)
(“unlawful [to] possess with intent to . . . distribute . . . a
controlled substance”), it should not have included the word
“[c]onspiracy.” Moreover, when pronouncing sentence, the
court sentenced Miller to 48 months’ imprisonment on count
22, as reflected in the Amended Judgment. The district court,
however, had vacated and dismissed count 22 once it found
Miller “not guilty of Count 15 . . . which charged the same
substantive offense as the conduct charged in Count 22.”
Because the “pronouncement of the sentence constitutes the
judgment of the court” and remains the judgment “until the first
[judgment] shall be vacated and set aside or reversed on appeal
or error,” United States v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010)
(citations omitted), we direct the district court to correct the
errors identified in this paragraph.
For the foregoing reasons, we affirm the district court’s
judgment but remand to the district court to correct the
judgment in accordance with this opinion.
So ordered.

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