NOT RECOMMENDED FOR PUBLICATION File Name: 05a0713n.06 Filed: August 16, 2005
NO. 04-4167; 04-4169
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL from the United v. ) States District Court for ) the Southern District of ) Ohio at Dayton. SUMPTER A. MILLER, ) Defendant-Appellant. ) )
Decided and Filed , 2005.
Before: COOK and DAUGHTREY, Circuit Judges; and HOOD, District Judge.*
HOOD, District Judge. Following a jury trial in Case No.
3:03-cr-84, Defendant-Appellant Sumpter A. Miller (“Miller”) was
convicted of possessing with the intent to distribute in excess of
five grams of crack cocaine, a Schedule II controlled substance, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). After denying
Miller’s motion for acquittal or, in the alternative, for a new
trial, the district court sentenced him to a term of 92 months
* The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District of Kentucky, sitting by designation.
1 imprisonment. In a second case, Case No. 3:03-cr-45, Miller pled
guilty to one count of conspiracy to possess with the intent to
sell a motor vehicle knowing its identification number had been
tampered with, in violation of 18 U.S.C. § 371. The district court
adopted the sentencing calculations made in the Presentence
Investigation Report (“PIR”) and sentenced Miller to 21 months
imprisonment to be served concurrent to his sentence in Case No.
3:03-cr-84.
On appeal, Miller argues that the district court erred in Case
No. 3:03-cr-84 by admitting officers’ out-of-court statements and
in denying his post-conviction motion. Further, Miller seeks
vacation of his sentence in Case No. 3:03-cr-45 under United States
v. Booker, 125 S. Ct. 738 (2005). For the reasons stated below, we
AFFIRM Miller’s conviction in Case No. 3:03-cr-84. Additionally,
based on the concurrent sentence doctrine, we DECLINE TO ENTERTAIN
Miller’s Booker argument.
FACTUAL AND PROCEDURAL HISTORY
Case No. 3:03-cr-45
On March 19, 2003, a federal grand jury returned a twenty-
three count indictment against Miller and nine co-defendants.
Miller was charged with one count of conspiracy to buy, receive,
possess and obtain control of, with the intent to sell, motor
vehicles knowing that the identification numbers for such vehicles
had been removed, obliterated, tampered with and altered, in
2 violation of 18 U.S.C. § 371, and two substantive counts of the
underlying offense, in violation of 18 U.S.C. § 2321(a) and 18
U.S.C. § 2.
On May 26, 2004, Miller appeared with counsel and entered a
plea of guilty to Count 1 of the indictment; the United States
dismissed Counts 8 and 16. The plea of guilty was made pursuant to
a written plea agreement between Miller and the United States.
On September 10, 2004, Miller was sentenced. The district
court adopted the sentencing calculations made in the PIR and
sentenced Miller to a term of 21 months imprisonment to be served
concurrent to the sentence in Case No. 3:03-cr-84. Miller filed a
timely notice of appeal.
Case No. 3:03-cr-84
On July 8, 2003, a federal grand jury returned an indictment
charging Miller with one count of possessing with the intent to
distribute in excess of five grams of crack cocaine, a Schedule II
controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B). On July 16, 2003, Miller appeared with counsel and
entered a plea of not guilty to Count 1 of the indictment.
The matter proceeded to trial on February 23, 2004. At trial,
Dayton Police Detective Becky Rose (“Det. Rose”) testified that on
April 16, 2003, at approximately 7:00 p.m., she received a
telephone call at her residence from Dayton Police Sergeant Dennis
Cheney (“Sgt. Cheney”). Det. Rose testified that Sgt. Cheney
3 provided her with information regarding Miller’s whereabouts;
apparently, Sgt. Cheney received this information from FBI Special
Agent Peter Lakes (“Special Agent Lakes”). As a result of this
telephone call, Det. Rose contacted Special Agent Lakes directly.
Det. Rose testified that Special Agent Lakes also provided her with
information relating to Miller. In response to her conversation
with Special Agent Lakes, Det. Rose made a broadcast over her
portable radio advising dispatch that she had information on a
wanted person. Det. Rose provided Miller’s name, a possible
location, the make and model of a vehicle he was thought to be in,
and a clothing description. Specifically, Det. Rose stated that
Sumpter Andropolis Miller was at the Food City on Germantown,
sitting in a blue GMC Yukon, and wearing a white T-shirt.
After hearing the radio broadcast, Officer Chris Smith
(“Officer Smith”) responded to the location and confirmed to
dispatch that defendant Miller was seated in the passenger seat of
a blue Yukon parked next to Food City. Officer Smith observed
Miller as he drove past Food City at approximately 20-25 miles per
hour. Officer Smith testified that he was able to identify Miller
because, prior to the start of his shift, he had reviewed the
district’s current wanted fliers, one of which featured Miller, and
because of prior contacts with Miller. Officer Smith radioed
dispatch advising that he had located Miller; he gave his location
so that other crews could respond. Officer Smith continued past
4 Miller’s location to await additional crews to assist in the
arrest.
Officer Mark Ponichtera (“Officer Ponichtera”), having heard
both Det. Rose’s and Officer Smith’s radio broadcasts, and being
familiar with Miller, immediately headed to Officer Smith’s
location. Both officers then proceeded back to the Food City
location, coordinating their approach. As they drove into an alley
adjacent to Food City, Officers Smith and Ponichtera observed
Miller standing outside the passenger side door of the Yukon. Upon
the officers’ arrival, Miller fled. Officer Ponichtera followed on
foot while Officer Smith attempted to pursue Miller in his cruiser.
Miller crossed Germantown and headed toward the Desoto Bass
housing project which was directly across the street. With Officer
Ponichtera chasing him, Miller ran into a building that housed the
community center of the complex. By this time Officer Smith had
exited his vehicle and joined the foot pursuit. Once inside the
community center, the officers observed Miller run out the exit
door of the storage room in the back of the building. The chase
continued through the housing complex until Officer Ponichtera was
able to apprehend Miller after he unsuccessfully attempted to jump
a fence. Once detained, Officer Smith placed Miller under arrest
on the March 2003 federal charges and patted him down for safety.
Officer Smith recovered approximately $1,200.00 in cash from
Miller’s left front pant pocket, and a set of car keys from his
5 right front pant pocket. A subsequent inventory audit established
that the cash amounted to $1,120.00 and was made up of 3 fifty-
dollar bills, 31 twenty-dollar bills, 17 ten-dollar bills, 35 five-
dollar bills, and 5 one-dollar bills. Officer Smith took
possession of the money and the keys and, at the direction of Det.
Rose, transported Miller downtown to the Safety Building.
In the meantime, Officer Ponichtera retraced his steps back to
the parking lot of Food City where he met up with Officers
Ferdelman and Gross who had heard the radio broadcasts and were
securing the Yukon. Once Officer Ponichtera arrived, he contacted
Det. Rose who advised him to have the vehicle towed to the First
District’s secured lot. Det. Rose also asked Officer Ponichtera to
inventory the vehicle. While Officer Ponichtera was unable to
inventory the vehicle because the doors to the vehicle were locked,
the windows were rolled up, and the tow truck driver did not have
a slim jim tool, he did have the car towed to the First District
location, as instructed.
Back at the Safety Building, the cash found on Miller was
logged into the police department’s evidence room, and the keys
were turned over to Det. Rose. Det. Rose asked Miller whether or
not the keys belonged to the Yukon, to which Miller replied, “What
Yukon?”. When Det. Rose explained that she was referring to
Miller’s mother’s blue Yukon, Miller did not respond. After the
interview, Det. Rose secured the keys in the locked drawer of her
6 Safety Building office desk.
The next day, April 17, 2003, Det. Rose made arrangements with
an evidence technician to gain access to the secure garage where
the Yukon had been towed in order to inventory the vehicle. Det.
Rose retrieved the keys taken from Miller the previous evening and,
accompanied by Detective Mike Auricchio (“Det. Auricchio”),
traveled to the First District garage. Upon completing an
inspection of the exterior of the vehicle, Det. Rose unlocked the
driver’s side door using one of the keys taken from Miller the
previous night. Having gained access to the vehicle, Det. Rose
climbed into the vehicle via the driver’s side door and reached
across the car to unlock the passenger side door for Det.
Auricchio. When doing this, Det. Rose observed a clear plastic
baggie containing what appeared to be crack cocaine in the console
area of the Yukon. Upon further inspection of the vehicle, the
detectives observed a small pocket scale with white powder residue
on it, a second plastic baggie containing what appeared to be crack
cocaine, two men’s leather jackets, and a box of clear plastic
sandwich bags. The scales and baggies containing the white powder
were secured and submitted to the Miami Valley Regional Crime
Laboratory where they tested positive for crack cocaine.
Det. Rose testified that, after finding the above-mentioned
items, she suspended her inventory of the vehicle until the next
day, leaving the vehicle unlocked with the keys in the ignition.
7 Det. Rose testified that, while she did not start the vehicle, a
key from the set taken from Miller the night before did in fact fit
into the ignition. The vehicle was towed to Summit Tow Yard.
Det. Rose traveled to Summit Tow Yard the next day to finish
her inventory of the Yukon. Det. Rose testified that, upon
arriving at the yard, she retrieved the keys she’d left in the
Yukon the previous evening - the same keys taken from Miller on
April 16, 2003 - from the front office. Det. Rose was also
provided with three additional keys Summit Towing had found inside
the vehicle. These keys were placed on a separate key ring. After
unsuccessfully trying to open the locked doors of the vehicle with
the keys she had used the night before and the additional keys that
were found inside the vehicle, Det. Rose gained access to the Yukon
by asking one of the tow truck drivers to slim jim it for her.
Upon gaining access to the Yukon, Det. Rose completed her inventory
of the vehicle. On this occasion, Det. Rose recovered, among other
items, a photo of Miller and his girlfriend, Brandi Webster
(“Webster”), Webster’s Trotwood High School ID card, and Webster’s
Blockbuster rental card. In the glove compartment of the vehicle,
Det. Rose found the title and registration, which indicated that
the Yukon was owned by Angela T. Miller, Sumpter Miller’s mother.
To further support its position that Miller was in control of
the 1994 blue GMC Yukon on the night in question, the government
called Detective Rob Rike (“Det. Rike”) to testify about a prior
8 incident involving Miller. Det. Rike testified that on December
13, 2001, in Dayton, Ohio, he and other officers issued a citation
to Miller for reckless operation, driving without an operator’s
license, and driving under suspension. The vehicle Miller was
operating was a 1994 blue GMC Yukon. Det. Rike further testified
that, during the attempted traffic stop, Miller jumped from the
moving vehicle and fled. After catching up to and apprehending
Miller, Det. Rike placed him under arrest for the above-mentioned
traffic offenses and performed a custodial search. In performing
the search, Det. Rike retrieved a baggie of marijuana from Miller’s
sweatshirt pocket. During an inventory of the vehicle - the 1994
blue GMC Yukon - officers recovered a GAP shopping bag that
contained eight bags of bulk marijuana and one bag containing 20
individually packaged ziploc baggies of marijuana. Two additional
baggies of marijuana were recovered from the driver’s door pocket.
In response to the government’s evidence that Miller was in
control of the Yukon on April 16, 2003, defense witness, Victor
Randall Schuyler, an assistant parts manager employed by Bob Ross
Buick, testified that the keys found on Miller, the same keys that
Det. Rose allegedly used to open the door to the Yukon and insert
into the ignition switch, were not in fact keys to a 1994 GMC Yukon
ignition cylinder. The defense also called Antwan Ingram, a friend
of Miller’s who testified that, on April 16, 2003, he had borrowed
the vehicle in question from Angela Miller and was at Food City
9 with Miller’s brother, George Miller.
On March 3, 2004, the jury returned a guilty verdict.
Subsequently, on May 26, 2004, counsel for Miller filed a motion
for judgment of acquittal, or in the alternative, for a new trial
pursuant to Rules 29 and 33 of the Federal Rules of Criminal
Procedure. Finding that there was sufficient evidence from which
a jury could conclude that the drugs found and recovered in the
Yukon were possessed by Miller, the district court denied Miller’s
motion by order dated September 14, 2004. Miller was sentenced to
a term of 92 months imprisonment to be served concurrent to his
sentence in Case No. 3:03-cr-45. A timely notice of appeal was
filed.
ANALYSIS
I. Sufficiency of the Evidence/Manifest Weight of Evidence
In his first assignment of error, Miller contends that the
trial court erred by denying his motions for judgment of acquittal
and for a new trial when there was insufficient evidence to support
the conviction and the verdict was contrary to the weight of the
evidence. Whether viewed under a sufficiency of evidence standard,
Jackson v. Virginia, 443 U.S. 307, 319 (1979), or a manifest weight
of evidence standard, United States v. Ashworth, 836 F.2d 260, 266
(6th Cir. 1988), Miller contends that the evidence that he
constructively possessed crack cocaine was inadequate to support a
conviction.
10 When considering a challenge to the sufficiency of evidence to
sustain a conviction on direct appeal, the relevant question is
whether,... “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson, 443 U.S. at 319(emphasis in original). The Court must
view all evidence and resolve all reasonable inferences in favor of
the government. Id; see also, United States v. Searan, 259 F.3d
434, 441 (6th Cir. 2001). Because the issue is one of legal
sufficiency, the Court may neither "independently weighs the
evidence, nor judges the credibility of witnesses who testified at
trial.” United States v. Talley, 164 F.3d 989, 996 (6th Cir.
1999). Neither may the Court substitute its judgment for that of
the jury. United States v. Hilliard, 11 F.3d 618, 620 (6th Cir.
1993). Finally, it must be remembered that "circumstantial
evidence alone can sustain a guilty verdict and ... [such] evidence
need not remove every reasonable hypothesis except that of guilt."
United States v. Stone, 748 F.2d 361, 362 (6th Cir. 1984).
In reviewing the denial of a motion for a new trial under Fed.
R. Crim. P. 33, an appellate court is “limited to examining the
evidence produced at trial to determine whether the district
court’s determination [that the verdict is not against the manifest
weight of evidence] was a clear and manifest abuse of discretion.”
Ashworth, 836 F.2d at 266 (citations omitted). Unlike the district
court, the appellate court does not sit as a “thirteenth juror” to
11 judge the credibility of witnesses and weigh the evidence. Id.
In order to convict a defendant under 21 U.S.C. § 841(a)(1),
the government must prove beyond a reasonable doubt that the
defendant (1) knowingly, (2) possessed a controlled substance, (3)
with intent to distribute it. United States v. Jackson, 55 F.3d
1219, 1225 (6th Cir. 1995) (citing, United States v. Peters, 15
F.3d 540, 544 (6th Cir. 1994)). Miller argues that the evidence
presented at trial was insufficient to establish the second of the
three elements - that he possessed a controlled substance, to wit,
crack cocaine. In the context of criminal law, possession can be
shown through knowingly having dominion and control over an object.
United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973). This
theory has come to be known as “constructive possession,” and
numerous courts have relied on it to support convictions for
illegal possession of controlled substances. See United States v.
Gibbs, 182 F.3d 408, 424 (6th Cir. 1999)(holding that the
government is not required to prove actual possession of a
controlled substance, because constructive possession is sufficient
to establish a violation of §§ 841(a)(1)); see also United States
v. Hill, 142 F.3d 305 (6th Cir. 1998); United States v. Reed, 141
F.3d 644 (6th Cir. 1998). Like actual possession, constructive
possession may be proved by circumstantial evidence. Craven, 478
F.2d at 1333.
At trial the government offered evidence tending to prove the
12 following facts:
(1) Immediately prior to the officers’ arrival at Food City,
Miller was the sole occupant of the 1994 blue GMC Yukon;
(2) No one else was seen in the vehicle at any time;
(3) When the officers arrived, Miller fled;
(4) When Miller was apprehended, officers recovered
approximately $1,200.00 in small denominations;
(5) The 1994 blue GMC Yukon was owned by Miller’s mother;
(6) Miller’s girlfriend’s personal belongings were found in
the 1994 blue GMC Yukon; and,
(7) Miller had prior connections with the 1994 blue GMC
Yukon.1
Taken together, the above facts provide ample evidence for a
rational juror to conclude that Miller “possessed” the crack
cocaine found in the 1994 blue GMC Yukon.
The government’s evidence, however, did not go unanswered.
The defense rebutted the government’s position that Miller was the
only one in the vehicle on the night in question with testimony
1 In admitting this 404(b) evidence, the Court admonished the jury to use it only for the limited purpose of proving the element of “intent to distribute.” (J.A. at 1245.) The Court made clear that the jury was not to use evidence of Miller’s prior drug sales out of the 1994 blue GMC Yukon as evidence that he “possessed” the crack cocaine found in the 1994 blue GMC Yukon on April 16, 2005. (J.A. at 1245.) Accordingly, while the government contends that this evidence is indicative of guilt, the defendant is correct in asserting that it cannot be a basis to support the government’s position that Miller possessed the crack cocaine recovered from the vehicle.
13 from Antwan Ingram. Ingram testified that he had driven the
vehicle to the Food City location on April 16, 2003, and that
George Miller, Defendant’s brother, was in the front passenger seat
that night. The defense also presented evidence that the keys
found on Miller on April 16, 2003, were not the keys to the 1994
blue GMC Yukon. Counsel for Miller argues that the government
presented insufficient evidence to establish that Miller exercised
dominion and/or control over the drugs found in the vehicle and
that Miller’s mere proximity to the vehicle is not enough to
sustain a conviction. While defense counsel’s statement regarding
proximity is accurate, the jury in this case drew acceptable
inferences from the evidence presented to find that the drugs found
in the 1994 blue GMC Yukon belonged to Miller and were under his
dominion and control. Jurors are entitled to choose from among
reasonable constructions of evidence of drug possession presented
at trial. See United States v. Forrest, 17 F.3d 916, 919 (6th Cir.
1994).
From an examination of all the evidence adduced at trial,
viewed in the light most favorable to the government, we conclude
that a reasonable jury could have found beyond a reasonable doubt
that Miller possessed with the intent to distribute in excess of
five grams of crack cocaine, a Schedule II controlled substance, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). For the same
reasons, we find that the district court did not abuse its
14 discretion in finding that the verdict was not against the manifest
weight of the evidence.
II. Evidentiary Rulings
Miller’s second assignment of error relates to the admission
of statements made by Sgt. Cheney and Agent Lakes to Detective Rose
regarding Miller’s location on the night in question. Miller
asserts that the district court erred in allowing Det. Rose to
testify to the content of her conversations with Sgt. Cheney and
Agent Lakes and in allowing Officers Smith and Ponichtera to
testify about Det. Rose’s radio broadcast.
Ordinarily, a district court’s evidentiary determinations are
reviewed under an abuse of discretion standard. Gibbs, 182 F.3d at
429. However, when a party objects to the admission of evidence on
specific grounds in the trial court, but on appeal asserts
different grounds for challenging the admission, the court reviews
for plain error. United States v. Evans, 883 F.2d 496, 499 (6th
Cir. 1989) (citing, United States v. Johnson, 772 F.2d 407, 409
(8th Cir. 1983)). At trial, Miller objected to the admission of
Sgt. Cheney’s and Agent Lakes’ out-of-court statements based on
hearsay.2 In his Rule 29/33 motion, the same evidence was objected
to on the basis of a Sixth Amendment confrontation clause
2 The objection was overruled. The district court found that the statements were not being admitted for the truth of the matter asserted, but rather to explain Det. Rose’s actions in response to the information received.
15 violation.3 (J.A. at 157.) Nowhere below, however, did Miller
raise the argument that he now raises in this appeal, namely that
admitting the statements into evidence violates Rule 403 of the
Federal Rules of Evidence. Accordingly, this Court will review the
evidentiary ruling for plain error. “To establish plain error, a
defendant must show that: (1) an error occurred in the district
court; (2) the error was obvious or clear; (3) the error affected
the defendant’s substantial rights; and (4) this adverse impact
seriously affected the fairness, integrity, or public reputation of
the judicial proceedings.” United States v. Emuegbunam, 268 F.3d
377, 406 (6th Cir. 2001).
Federal Rule of Evidence 403 permits the exclusion of relevant
evidence if its probative value is substantially outweighed by the
danger of unfair prejudice. Viewing the record as a whole, it
cannot be said that the district court’s admission of this now-
disputed testimony rises to the level of plain error. Sgt.
Cheney’s and Agent Lakes’s out-of-court statements regarding
Miller’s location was integral in explaining to the jury how and
why Miller was apprehended. Furthermore, Officer Smith’s and
Ponichtera’s testimony regarding Det. Rose’s radio broadcast
informed the jury how the Officers became involved in the case and
3 When an out of court statement is not offered to prove the truth of the matter asserted, the Confrontation Clause is not implicated. Tennessee v. Street, 471 U.S. 409, 413-414 (1985); United States v. Martin, 897 F.2d 1368, 1372 (6th Cir. 1990).
16 how, ultimately, as a result of Miller’s apprehension, the crack
cocaine was discovered and seized from the Yukon. It is clear from
the record that the probative value of the evidence was not
substantially outweighed by the risk of unfair prejudice under Rule
403.
Accordingly, based on a review of the record, we find that the
district court did not plainly err in admitting the testimony to
which the defendant now objects.
III. Application of the Sentencing Guidelines
Finally, Miller contends that the district court erred in
determining his offense level for sentencing purposes in Case No.
3:03-cr-45. Specifically, Miller challenges the application of two
sentence enhancements that resulted in his base offense level of
eight being raised to an offense level of twelve. These
enhancements were made pursuant to sections 2B6.1(b)(1)(B) and
2B6.1(b)(3) of the Guidelines. Miller objects to the enhancements,
arguing that they were based on facts neither proved to a jury nor
admitted by Miller.
While this case was pending on appeal, the Supreme Court
issued its decision in United States v. Booker. “In Booker, the
Supreme Court concluded that the Sixth Amendment prevents federal
judges from making factual determinations that increase a
defendant’s sentence on the basis of facts not reflected in the
jury’s verdict.” United States v. Davidson, 409 F.3d 304, 309 (6th
17 Cir. 2005) (citing Booker, 125 S. Ct. at 745-47, 756). Further,
the Court expressly stated that its decision in Booker must be
applied “to all cases on direct review.” Booker, 125 S. Ct. at
769. Because the case sub judice was pending on direct review when
Booker was decided, the holdings of Booker are applicable.
In the case sub judice, the district court relied on judge-
found facts to apply two sentence enhancements - a two level
enhancement under section 2B6.1(b)(1)(B) based upon its
determination that the combined retail value of the vehicles was in
excess of $5,000.00, and a four level enhancement under section
2B6.1(b)(3) based upon its determination that the offense involved
an organized scheme to steal vehicles or vehicle parts. Thus,
based on facts that were neither presented to a jury nor admitted
by Miller, the applicable sentencing range was increased from a
base offense level of eight to an offense level of twelve resulting
in a 21-month sentence. The district court ordered that the
sentence was to run concurrent to the 92-month sentence handed down
in Case No. 3:03-cr-84.
Although not briefed, we believe (and appellant’s counsel
conceded at oral argument) that the concurrent sentence doctrine,
which is a discretionary doctrine, applies to the issue sub judice.
See Benton v. Maryland, 395 U.S. 784, 787-93 (1969); Barnes v.
United States, 412 U.S. 837, 848, n.16 (1973); Dale v. Haeberlin,
878 F.2d 930, 935, n.3 (6th Cir. 1989). A court should exercise
18 its discretion not to review an issue where it is clear that there
is no collateral consequence to the defendant and the issue does
not otherwise involve a significant question meriting
consideration. Dale, 878 F.2d at 935 n.3. Having upheld Miller’s
conviction in Case No. 3:03-cr-84, and considering Miller received
a concurrent and longer sentence on that count, the concurrent
sentence doctrine allows the Court to decline to address Miller’s
sentencing challenge. See United States v. Smith, 601 F.2d 972,
973-74 (8th Cir. 1979). (The concurrent sentence doctrine permits
courts to avoiid reaching the merits of a claim attacking fewer
than all multiple concurrent sentences if success on the claim
would not change the term of imprisonment.). Because the
challenged sentence runs concurrently with the sentence in Case No.
3:03-cr-84, the challenged sentence has no harmful impact on
Miller’s prison term. Additionally, because there is no likely
collateral consequence, we find no significant legal issue to
compel our attention. Accordingly, while noting that affirmance of
Miller’s conviction in Case No. 3:03-cr-84 does not moot the issues
he raises as to the alleged sentencing violations in Case No. 3:03-
cr-45, Dale, 878 F. 2d 935 n.3, pursuant to the collateral sentence
doctrine, we decline as a discretionary matter to reach them.
CONCLUSION
For the reasons stated herein, we AFFIRM the judgment of the
district court in Case No. 3:03-cr-84. Additionally, based on the
19 concurrent sentence doctrine, we DECLINE TO ENTERTAIN Miller’s
Booker argument.