NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 24-1484 _______________
UNITED STATES OF AMERICA
v.
MICHAEL MILCHIN, Appellant _______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cr-00284-001) District Judge: Honorable Gerald J. Pappert _______________
Submitted Under Third Circuit L.A.R. 34.1(a): September 6, 2024 _______________
Before: JORDAN, HARDIMAN, and PORTER Circuit Judges.
(Filed: October 8, 2024) ______________
OPINION ∗ ______________
∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PORTER, Circuit Judge.
Michael Milchin pleaded guilty to several criminal charges in connection with his
leadership role in a conspiracy to illegally distribute opioids. He unsuccessfully sought a
retroactive application of the new offense-level reduction under U.S.S.G. § 4C1.1 for
“zero-point offenders.” But Milchin is not eligible for application of the zero-point
offender reduction, so we will affirm.
I
On February 9, 2018, Michael Milchin pleaded guilty to charges of healthcare
fraud, conspiracy to commit healthcare fraud, conspiracy to distribute oxycodone, and
possession of oxycodone with intent to distribute. He was sentenced to a total term of 168
months of imprisonment, and three years of supervised release. Milchin unsuccessfully
sought relief from his sentence, filing numerous motions for compassionate release and
motions based on his health, his mother’s health, his purported rehabilitation, and the
threat of COVID-19 in prison.
This appeal concerns Milchin’s motion for a sentence reduction pursuant to 18
U.S.C. § 3582(c)(2) based on United States Sentencing Guideline § 4C1.1. Effective
November 1, 2023, § 4C1.1 allows an offense-level reduction for certain offenders with
zero criminal history points at the time of their sentencing. USSG § 4C1.1.
The District Court first concluded that Milchin was not eligible for the reduction
on November 13, 2023, but dismissed his motion without prejudice based on a stay of
motions seeking retroactive application of § 4C1.1. Milchin then requested appointment
of counsel for assistance in litigating his eligibility for relief under § 4C1.1. The Court
2 denied that request on March 1, 2024, determining that “Milchin does not qualify for a
sentence reduction.” Order at 1–2 n.1, United States v. Milchin, No. 17-284-1 (E.D. Pa.
Mar. 1, 2024), ECF No. 531. On March 4, 2024, Milchin filed an “Emergency Motion for
Sentence Reduction” repeating his claim for relief under § 4C1.1. Emergency Motion for
Sentence Reduction at 1, United States v. Milchin, No. 17-284-1 (E.D. Pa. Mar. 4, 2024),
ECF No. 532. The District Court denied that motion, citing its earlier orders. Milchin
appealed.
II
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
We review de novo a criminal defendant’s eligibility for consideration of a
reduced sentence based on a retroactive guideline amendment. United States v. McBride,
283 F.3d 612, 614 (3d Cir. 2002).
III 1
Section 3582 of Title 18 of the United States Code authorizes prisoners to seek a
reduction of their term of imprisonment in cases where the defendant had “been
sentenced to a term of imprisonment based on a sentencing range that has subsequently
1 Milchin also faults the District Court for “not providing any meaningful consideration of the Appellant’s 3553(a) factors.” Appellant’s Br. 4. But courts are only required to consider the factors set forth in 18 U.S.C. § 3553(a) if the Defendant has a valid basis for seeking a reduction in his term of imprisonment. See 18 U.S.C. § 3582(c). Because the District Court held that Milchin had not “been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” it was not required to consider the § 3553(a) factors.
3 been lowered.” 18 U.S.C. § 3582(c)(2). The issue presented on appeal is whether Milchin
was in fact sentenced under a sentencing range that was subsequently lowered. Milchin
argues that § 4C1.1 of the Sentencing Guidelines, which became effective on November
1, 2023, lowered the sentencing range under which he had originally been sentenced in
2018.
Section 4C1.1 reduces the offense-level for certain offenders that had zero
criminal history points at the time of their sentencing. USSG § 4C1.1. Several types of
offenders and offenses are excluded from eligibility for an offense-level reduction under
§ 4C1.1. If, for example, the defendant’s offense “result[ed] in death or serious bodily
injury,” the offense was “a sex offense,” or he “use[d] violence or credible threats of
violence in connection with the offense,” then § 4C1.1 provides no relief. USSG
§ 4C1.1(a)(3)–(5).
Relevant here, § 4C1.1 requires that an offender “did not receive an adjustment
under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. § 848.” USSG § 4C1.1(a)(10) (emphasis added).
Milchin received an aggravating role adjustment, but was not engaged in a “continuing
criminal enterprise” as that term is defined.
Milchin argues that because he did not both receive an aggravating role
adjustment, and engage in a continuing criminal enterprise, he is eligible for § 4C1.1’s
offense-level reduction. We disagree and hold that § 4C1.1 makes ineligible any
defendant that either received an aggravating role adjustment or was engaged in a
continuing criminal enterprise.
4 The Supreme Court’s recent decision in Pulsifer v. United States guides our
analysis. 601 U.S. 124 (2024). There, the Court considered how a similarly phrased
provision applied to defendants with “(A) more than 4 criminal history points . . . (B) a
prior 3-point offense . . . and (C) a prior 2-point violent offense.” 18 U.S.C. § 3553(f)(1)
(emphasis added); Pulsifer, 601 U.S. at 129.
The arguments in this case trace those in Pulsifer. There, the defendant argued that
the provision at issue applied only to defendants that satisfied all of Subsection (f)’s
subparagraphs. Id. at 130. The government countered that the provision applied to
defendants that satisfied any of Subsection (f)’s subparagraphs. Id. at 133–34.
Recognizing that both interpretations are “grammatically possible,” the Court looked to
the provision’s “legal context”—the contents of the provision and how the provision
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 24-1484 _______________
UNITED STATES OF AMERICA
v.
MICHAEL MILCHIN, Appellant _______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cr-00284-001) District Judge: Honorable Gerald J. Pappert _______________
Submitted Under Third Circuit L.A.R. 34.1(a): September 6, 2024 _______________
Before: JORDAN, HARDIMAN, and PORTER Circuit Judges.
(Filed: October 8, 2024) ______________
OPINION ∗ ______________
∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PORTER, Circuit Judge.
Michael Milchin pleaded guilty to several criminal charges in connection with his
leadership role in a conspiracy to illegally distribute opioids. He unsuccessfully sought a
retroactive application of the new offense-level reduction under U.S.S.G. § 4C1.1 for
“zero-point offenders.” But Milchin is not eligible for application of the zero-point
offender reduction, so we will affirm.
I
On February 9, 2018, Michael Milchin pleaded guilty to charges of healthcare
fraud, conspiracy to commit healthcare fraud, conspiracy to distribute oxycodone, and
possession of oxycodone with intent to distribute. He was sentenced to a total term of 168
months of imprisonment, and three years of supervised release. Milchin unsuccessfully
sought relief from his sentence, filing numerous motions for compassionate release and
motions based on his health, his mother’s health, his purported rehabilitation, and the
threat of COVID-19 in prison.
This appeal concerns Milchin’s motion for a sentence reduction pursuant to 18
U.S.C. § 3582(c)(2) based on United States Sentencing Guideline § 4C1.1. Effective
November 1, 2023, § 4C1.1 allows an offense-level reduction for certain offenders with
zero criminal history points at the time of their sentencing. USSG § 4C1.1.
The District Court first concluded that Milchin was not eligible for the reduction
on November 13, 2023, but dismissed his motion without prejudice based on a stay of
motions seeking retroactive application of § 4C1.1. Milchin then requested appointment
of counsel for assistance in litigating his eligibility for relief under § 4C1.1. The Court
2 denied that request on March 1, 2024, determining that “Milchin does not qualify for a
sentence reduction.” Order at 1–2 n.1, United States v. Milchin, No. 17-284-1 (E.D. Pa.
Mar. 1, 2024), ECF No. 531. On March 4, 2024, Milchin filed an “Emergency Motion for
Sentence Reduction” repeating his claim for relief under § 4C1.1. Emergency Motion for
Sentence Reduction at 1, United States v. Milchin, No. 17-284-1 (E.D. Pa. Mar. 4, 2024),
ECF No. 532. The District Court denied that motion, citing its earlier orders. Milchin
appealed.
II
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
We review de novo a criminal defendant’s eligibility for consideration of a
reduced sentence based on a retroactive guideline amendment. United States v. McBride,
283 F.3d 612, 614 (3d Cir. 2002).
III 1
Section 3582 of Title 18 of the United States Code authorizes prisoners to seek a
reduction of their term of imprisonment in cases where the defendant had “been
sentenced to a term of imprisonment based on a sentencing range that has subsequently
1 Milchin also faults the District Court for “not providing any meaningful consideration of the Appellant’s 3553(a) factors.” Appellant’s Br. 4. But courts are only required to consider the factors set forth in 18 U.S.C. § 3553(a) if the Defendant has a valid basis for seeking a reduction in his term of imprisonment. See 18 U.S.C. § 3582(c). Because the District Court held that Milchin had not “been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” it was not required to consider the § 3553(a) factors.
3 been lowered.” 18 U.S.C. § 3582(c)(2). The issue presented on appeal is whether Milchin
was in fact sentenced under a sentencing range that was subsequently lowered. Milchin
argues that § 4C1.1 of the Sentencing Guidelines, which became effective on November
1, 2023, lowered the sentencing range under which he had originally been sentenced in
2018.
Section 4C1.1 reduces the offense-level for certain offenders that had zero
criminal history points at the time of their sentencing. USSG § 4C1.1. Several types of
offenders and offenses are excluded from eligibility for an offense-level reduction under
§ 4C1.1. If, for example, the defendant’s offense “result[ed] in death or serious bodily
injury,” the offense was “a sex offense,” or he “use[d] violence or credible threats of
violence in connection with the offense,” then § 4C1.1 provides no relief. USSG
§ 4C1.1(a)(3)–(5).
Relevant here, § 4C1.1 requires that an offender “did not receive an adjustment
under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. § 848.” USSG § 4C1.1(a)(10) (emphasis added).
Milchin received an aggravating role adjustment, but was not engaged in a “continuing
criminal enterprise” as that term is defined.
Milchin argues that because he did not both receive an aggravating role
adjustment, and engage in a continuing criminal enterprise, he is eligible for § 4C1.1’s
offense-level reduction. We disagree and hold that § 4C1.1 makes ineligible any
defendant that either received an aggravating role adjustment or was engaged in a
continuing criminal enterprise.
4 The Supreme Court’s recent decision in Pulsifer v. United States guides our
analysis. 601 U.S. 124 (2024). There, the Court considered how a similarly phrased
provision applied to defendants with “(A) more than 4 criminal history points . . . (B) a
prior 3-point offense . . . and (C) a prior 2-point violent offense.” 18 U.S.C. § 3553(f)(1)
(emphasis added); Pulsifer, 601 U.S. at 129.
The arguments in this case trace those in Pulsifer. There, the defendant argued that
the provision at issue applied only to defendants that satisfied all of Subsection (f)’s
subparagraphs. Id. at 130. The government countered that the provision applied to
defendants that satisfied any of Subsection (f)’s subparagraphs. Id. at 133–34.
Recognizing that both interpretations are “grammatically possible,” the Court looked to
the provision’s “legal context”—the contents of the provision and how the provision
“fit[s] with other pertinent law.” Id. at 140–41. We adopt a similar approach.
As a first step, we note that both conjunctive and disjunctive readings of
§ 4C1.1(a)(10) are “grammatically permissible” in the abstract. Id. at 133. “No
grammatical principle precludes” reading Subsection (10) to apply only to defendants
that both received an aggravating role adjustment and were not engaged in a continuing
criminal enterprise. Id. at 137. But the same can be said of the disjunctive reading. See
United States Sentencing Commission, Amendments to the Sentencing Guidelines 42
(2024) (noting that “several stakeholders have questioned whether either condition in
subsection (a)(10) is disqualifying or whether only the combination of both conditions is
disqualifying”).
5 Situating Subsection (10) within its legal context makes clear that “and” operates
disjunctively. Subsection (10), if read conjunctively, would be superfluous because it is
impossible for a defendant to have both received an aggravating role adjustment and to
have been found engaged in a continuing criminal enterprise in the same case.
Start with § 2D1.5, which is the section dealing with Continuing Criminal
Enterprise. USSG § 2D1.5. Application Note 1 of that section directs users to “not apply
any adjustment from Chapter Three, Part B (Role in the Offense).” USSG § 2D1.5,
comment. (n.1). And an aggravating role adjustment is just that—an “adjustment[] from
Chapter Three, Part B.” USSG § 4C1.1(a)(10); see USSG § 3B1.1. Putting this together,
a defendant found to have engaged in a continuing criminal enterprise, will never
“receive an adjustment under § 3B1.1.” 2 Id. The upshot is that Subsection (10) would be
a nullity under a conjunctive interpretation.
The canon against surplusage counsels against adopting interpretations that render
a statute “superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). And “[w]hen a statutory
construction ‘render[s] an entire subparagraph meaningless’ . . . the canon against
surplusage applies with special force.” Pulsifer, 601 U.S. at 143 (quoting Nat’l Ass’n of
Mfrs. v. Dep’t of Defense, 583 U.S. 109, 128 (2018)). Milchin’s proffered interpretation
would do just that.
2 The Sentencing Guidelines’ Applications Notes are controlling so long as “the guideline which the commentary interprets will bear the construction.” United States v. Nasir, 17 F.4th 459, 470 (3d Cir. 2021) (quoting Stinson v. United States, 508 U.S. 36, 46 (1993)).
6 The Supreme Court in Pulsifer similarly relied on the “statutory difficult[y]”
created by an interpretation that deprived Subparagraph (A) of the criminal history
requirement in the safety-valve provision of “any operative significance.” Pulsifer, 601
U.S. at 141. Recall that the provision at issue in Pulsifer permitted sentencing “without
regard to any statutory minimum sentence” so long as the defendant did not have “(A)
more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-
point violent offense.” 18 U.S.C. § 3553(f) (emphasis added). The Court recognized that,
if read conjunctively, Subparagraph (A) would be superfluous since a defendant with
both “a prior 3-point offense” and “a prior 2-point violent offense” would always have
5—“more than 4”—criminal history points. Id.; Pulsifer, 601 U.S. at 142.
Thus far, every court to have considered the question has adopted the disjunctive
reading of “and” in U.S.S.G. § 4C1.1(a)(10). See United States v. Arroyo-Mata, 2024 WL
1367796 at *2 n.6 (N.D. Ga. Apr. 1, 2024) (collecting district court cases). We agree.
* * *
For these reasons, we will affirm the District Court’s judgment.