United States v. Miller

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-2081 D.C. No. Plaintiff - Appellee, 1:22-cr-02041-SAB-1 v. MEMORANDUM* SUNDRON LARSELL MILLER, AKA Sundron Larsell Switzler Miller,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 24-2143 Plaintiff - Appellee, D.C. No. 1:17-cr-02020-SAB -1 v.

SUNDRON LARSELL MILLER, AKA Sundron Larsell Switzler Miller,

Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, District Judge, Presiding

Submitted August 13, 2025**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Anchorage, Alaska

Before: GRABER, OWENS, and R. NELSON, Circuit Judges.

A jury convicted Sundron Miller of carjacking, brandishing a firearm during

and in relation to a crime of violence, being a felon in possession of a firearm, and

assault with intent to commit murder in Indian Country. We affirm.

1. First, Miller contends that the government did not prove his Indian status

at trial. See 18 U.S.C. §§ 1153, 113(a)(1). Because Miller did not raise it below,

we review this argument for plain error. United States v. Johnson, 979 F.3d 632,

636 (9th Cir. 2020). No plain error occurred. The government had to show that

Miller: “(1) ha[d] some quantum of Indian blood and (2) [was] a member of, or

[was] affiliated with, a federally recognized tribe.” United States v. Zepeda, 792

F.3d 1103, 1106–07 (9th Cir. 2015) (en banc). On the first prong, the government

introduced evidence that Miller was related by blood to Angel Sutterlict-Cloud, a

member of the Yakama Nation, and that Miller’s uncle and mother both had Indian

blood. See United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005). The

government also showed Miller was affiliated with the Yakama Nation through

Sutterlict-Cloud’s testimony, and through evidence at trial showing that Miller

resided in, and actively participated in the social life of, the Yakama Nation Indian

Reservation. United States v. Cruz, 554 F.3d 840, 849–50 (9th Cir. 2009).

2. Second, Miller argues that the district court failed to instruct the jury that

2 24-2081 it must find that he was Indian. But Miller failed to show that any such error

prejudiced his substantial rights or undermined the integrity of the trial

proceedings. Given the evidence of Miller’s Indian status, such an instruction

would not have changed the trial’s outcome. See Zepeda, 792 F.3d at 1115; see

also Rosales-Mireles v. United States, 585 U.S. 129, 134–35 (2018) (plain error

shown only if there is a reasonable probability that, “but for the error, the outcome

of the proceeding would have been different” (cleaned up)).

3. Third, Miller argues that no reasonable juror could have found that the

vehicle he carjacked travelled in interstate commerce. See 18 U.S.C. § 2119.

Because Miller did not raise this objection below, we review for plain error.

United States v. Lopez, 4 F.4th 706, 719 (9th Cir. 2021). Evidence of a single

interstate crossing, including evidence that a car was manufactured out of a state

and then shipped into it, satisfies the interstate nexus requirement for carjacking.

United States v. Newton, 65 F.3d 810, 811 (9th Cir. 1995). The government

presented evidence that the vehicle in question was manufactured outside the state

of Washington.

4. Fourth, Miller argues that the instruction on aiding and abetting

carjacking constructively amended his indictment. We review for plain error.

United States v. Peterson, 538 F.3d 1064, 1070–71 (9th Cir. 2008). The

instruction here tracked the relevant statutory text and did not omit any required

3 24-2081 element. See United States v. Armstrong, 909 F.2d 1238, 1244 (9th Cir. 1990);

United States v. Garcia, 729 F.3d 1171, 1177 (9th Cir. 2013) (holding that

instruction that tracks statutory text and does not omit element is not erroneous).

The instruction was similar to those considered error-free by this court. United

States v. Ubaldo, 859 F.3d 690, 698–99, 706 (9th Cir. 2017).

5. Fifth, Miller contends that no reasonable juror could have found that

Miller knew of his felony conviction when he possessed a rifle and attempted to

murder Sutterlict-Cloud. See 18 U.S.C. § 922(g); see also Rehaif v. United States,

588 U.S. 225, 227 (2019). We review for plain error. Greer v. United States, 593

U.S. 503, 507 (2021). Normally, a jury can reasonably conclude that “a defendant

knew he was a felon based on the fact that he was a felon.” Id. at 509. This

principle is especially true here, because Miller stipulated to the felony conviction

at issue. See United States v. Door, 996 F.3d 606, 619 (9th Cir. 2021).

6. Finally, Miller argues that his superseding indictment must be dismissed

because the district court issued “ends of justice” continuances that violated the

Speedy Trial Act (STA). Failure to move for dismissal before trial waives STA

claims. 18 U.S.C. § 3162(a)(2); United States v. Brickey, 289 F.3d 1144, 1150 (9th

Cir. 2002), overruled on other grounds by United States v. Contreras, 593 F.3d

1135, 1136 (9th Cir. 2010) (en banc). Miller did not move to dismiss the

indictment at the appropriate time in the district court and, thus, waived his STA

4 24-2081 claims.

AFFIRMED.

5 24-2081