Judge’s miscalculation leads to remand for resentencing

A judge’s miscalculation of a man’s federal court sentence based on the number of his prior felony convictions prompted the 7th Circuit Court to remand for resentencing Thursday.

Tyrone Miller was arrested after police found him unconscious behind the wheel of his car, which he had crashed into a street light. Upon searching Miller’s vehicle while he was detained in the back of the squad car, officers saw a loaded handgun with an extended magazine on the floor where Miller’s feet had been.

The only issue at trial was whether Miller possessed the gun seized from the vehicle’s floor. A jury found Miller guilty of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1), and he was sentenced to 87 months in prison.

On appeal, Miller argued that his conviction was not supported by sufficient evidence, and that his sentence was based on an erroneous understanding of his criminal history.  The 7th Circuit affirmed Miller’s conviction for possessing a loaded firearm in his vehicle but vacated his sentence, concluding it was based on an inaccurate count of his past felony convictions. 

Miller, 31, had 17 criminal history points, with convictions going back 20 years. He had 11 convictions, including five felonies: three for firearms, one for drugs, and one for obstruction of justice.

One of those convictions was characterized as “possession of loaded firearm in or upon a vehicle” in which Miller was incarcerated for 161 days. It was never disclosed if the offense was a felony or misdemeanor, but documents made part of the record on appeal show that the offense — and Miller’s charge —are misdemeanors under state law.

 “The government in its sentencing memorandum wrote, erroneously, that ‘it appears that Mr. Miller has six prior felony convictions.’ He had only five,” the court order stated Thursday. “In Miller’s allocution at sentencing, he also stated he had five felony convictions.”

Therefore, the 7th Circuit found Miller’s argument valid, that the district judge procedurally erred by selecting a sentence based on two inaccuracies regarding Miller’s criminal history.

“Miller’s argument that the district judge misspoke about a hypothetical criminal-history category is not preserved and without merit,” the court wrote in a per curiam opinion. “On plain-error review, Miller must establish that he was prejudiced by this misstatement, i.e., that there is a reasonable probability that, but for this error, his sentence would have been different.”

The government argued that Miller forfeited his arguments in regard to the miscalculations because he did not correct the judge at sentencing, but the 7th Circuit disagreed with that reasoning. It concluded Miller preserved his contention over the miscounting of his prior felony convictions by simply stating he had five felonies during the allocution.

“Once the judge made this ruling, Miller was not required to object further in order to preserve his claim of error. And because the judge had an opportunity to consider and resolve this contested issue immediately, the purpose of the contemporaneous objection rule was fulfilled,” the court wrote.

“The miscounting of Miller’s felony convictions did not affect the Guidelines range; instead the miscount received explicit attention from the district judge when he selected a sentence using the § 3553(a) factors,” the court concluded. “Accordingly, we must remand for resentencing free of any misapprehension about Miller’s total prior felony convictions.”

The case is USA v. Tyrone Miller, 17-3514.

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