United States v. Antoine Miller

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 23, 2023
• Docket: 23-4112
• Status: Unpublished

Opinion

USCA4 Appeal: 23-4112 Doc: 30 Filed: 10/23/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4112

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTOINE DESHAWN MILLER,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. David A. Faber, Senior District Judge. (2:20-cr-00092-1)

Submitted: October 19, 2023 Decided: October 23, 2023

Before KING and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Mary Claire Davis, FROST BROWN TODD LLP, Charleston, West Virginia, for Appellant. William S. Thompson, United States Attorney, M. Ryan Blackwell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

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PER CURIAM:

Antoine Deshawn Miller appeals the 24-month sentence imposed upon the

revocation of his supervised release. On appeal, Miller argues the upward-variant sentence

is plainly unreasonable because the district court miscalculated the advisory policy

statement range, did not address his nonfrivolous mitigating arguments, and failed to

adequately explain the chosen sentence. We affirm.

“We affirm a revocation sentence so long as it is within the prescribed statutory

range and is not plainly unreasonable.” United States v. Coston, 964 F.3d 289, 296 (4th

Cir. 2020) (internal quotation marks omitted). Miller’s sentence does not exceed the

applicable statutory maximum. Accordingly, the remaining question is whether the

sentence is plainly unreasonable. When reviewing whether a revocation sentence is plainly

unreasonable, we first “determine whether the sentence is unreasonable at all.” Id. (internal

quotation marks omitted). “In making this determination, we follow generally the

procedural and substantive considerations that we employ in our review of original

sentences, with some necessary modifications to take into account the unique nature of

supervised release revocation sentences.” United States v. Slappy, 872 F.3d 202, 207 (4th

Cir. 2017) (cleaned up). “A revocation sentence is procedurally reasonable if the district

court adequately explains the chosen sentence after considering the Sentencing Guidelines’

nonbinding Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a)

factors.” Coston, 964 F.3d at 297 (internal quotation marks omitted); see 18 U.S.C.

§ 3583(e).

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Miller first argues the district court procedurally erred when calculating the advisory

policy statement range by relying on a prior state conviction for marijuana possession to

increase the severity of one of his violations from Grade C to Grade B. Our review of the

record leads us to conclude that Miller waived his right to challenge the calculation of the

advisory policy statement range on this basis. Miller not only confirmed that he did not

object to the district court’s calculation of the policy statement range, but he also explicitly

conceded, when discussing the relevant prior offense, that the district court had

“[t]echnically . . . calculated the [G]uidelines appropriately” in relation to that offense. We

have previously held that similar concessions amounted to waiver. See United States v.

Boyd, 5 F.4th 550, 555 (4th Cir. 2021) (discussing case where this court held a defendant

waived an argument when he “explicitly stated at the sentencing hearing that he had no

outstanding objections to a revised presentence report and agreed with the component of

his sentence later challenged on appeal” (internal quotation marks omitted)). Because

waived issues are “unreviewable,” Stokes v. Stirling, 64 F.4th 131, 141 (4th Cir. 2023), we

do not reach this issue.

As to Miller’s other arguments, we conclude his sentence is not plainly

unreasonable. The district court considered the relevant statutory factors and thoroughly

explained its rationale for imposing the above-policy statement range sentence,

emphasizing that the statutory maximum sentence was necessary to account for Miller’s

repeated noncompliance with the conditions of his release, his “egregious criminal

behavior,” and his “dreadful criminal record.” Although the district court did not expressly

address Miller’s argument regarding his prior marijuana possession offense, the court’s

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explanation of the sentence adequately indicates that it considered that argument and found

it unconvincing.

We therefore affirm the revocation judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED