United States v. Michael Milchin
Opinion
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: September 6, 2024
Before: JORDAN, HARDIMAN, and PORTER Circuit Judges.
(Filed: February 5, 2025)
Robert A. Zauzmer, Esq. Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Counsel for Appellee
Michael Milchin Cumberland FCI P.O. Box 1000 Cumberland, MD 21501 Pro Se Appellant
OPINION OF THE COURT 1
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
1 Judge Jordan participated in this decision and the decision to redesignate this opinion as precedential in response to the government’s motion prior to his retirement on January 15, 2024.
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 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 2
Section 3582 of Title 18 of the United States Code authorizes prisoners to seek a reduction of their term of
2 Milchin also faults the District Court for “not providing any meaningful consideration of the Appellant’s 3553(a) factors.” Appellant’s Br. at 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. 18 U.S.C. § 3582(c)(2).
imprisonment in cases where the defendant had “been sentenced to a term of imprisonment based on a sentencing range that has subsequently 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.
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”).
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.
Free access — add to your briefcase to read the full text and ask questions with AI
United States v. Michael Milchin (United States v. Michael Milchin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.