United States v. Miller , 15 F. App'x 713 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 26 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-5142
(D.C. No. 99-CR-125-001-C)
VICTOR CORNELL MILLER, (N.D. Okla.)
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 00-5149
v. (D.C. No. 99-CR-125-002-C)
(N.D. Okla.)
GEORGE JOHN HANSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
BRISCOE , Circuit Judge.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
We have consolidated these appeals on our own motion. See Fed. R. App.
P. 3(b)(2). In appeal No. 00-5142, Victor Cornell Miller appeals from a judgment
sentencing him to life imprisonment plus 1,584 months. In appeal No. 00-5149,
George John Hanson appeals from a judgment sentencing him to life
imprisonment plus 984 months. Both men were tried together and convicted by a
jury of crimes arising from a string of robberies. They raise issues relating to
their convictions and the calculation of their offense levels under the United
States Sentencing Guidelines (USSG).
Appeal No. 00-5142, Victor Cornell Miller
Miller contends that his conviction on Count 15, possession of a firearm
during a crime of violence, must be reversed because the district court permitted
the government to amend an erroneous cross-reference in the superseding
indictment without resubmission to the grand jury. We agree with the district
court, however, that the amendment was one of form rather than substance, was
not prejudicial to Miller, and did not require correction by the grand jury. See
United States v. Pina, 974 F.2d 1241, 1243 (10th Cir. 1992); see also United
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States v. Leichtnam , 948 F.2d 370, 376 (7th Cir. 1991); United States v.
Sobamowo , 892 F.2d 90, 97 (D.C. Cir. 1989).
Relying on Apprendi v. New Jersey , 530 U.S. 466 (2000), Miller next
challenges the application of the Armed Career Criminal enhancement in the
calculation of his criminal history category. See 18 U.S.C. § 924(e); USSG
§ 4B1.4. The district court determined that Miller had four prior violent felony
convictions and was therefore subject to the enhancement. This finding is not
subject to challenge under Apprendi . See United States v. Martinez-Villalva , 232
F.3d 1329, 1331-32 (10th Cir. 2000).
Miller also argues that Apprendi did not permit the district court, following
USSG § 2K2.1(c)(1)(B), to cross-reference to two unconvicted homicides as
relevant conduct to set the offense level. Miller argues that under Apprendi , these
homicides had to be pled in the indictment and proved to the jury beyond a
reasonable doubt to permit the cross-reference. 1
Apprendi requires that any fact
1
Co-defendant Hanson makes the same argument, which fails for the same
reason.
To the extent Miller is arguing that the homicides could not be used for
cross-referencing purposes because he had not yet been convicted of them, we
reject that contention as well. See USSG § 1B1.3 (defining “relevant conduct”
for cross-reference purposes). We also reject any contention that the homicides
were not proved by a preponderance of the evidence for sentencing purposes.
Miller did not contest the facts surrounding them contained in the presentence
report. See United States v. Shinault , 147 F.3d 1266, 1277 (10th Cir. 1998).
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other than a prior conviction that increases the penalty for a crime beyond the
prescribed statutory maximum be submitted to a jury and proved beyond a
reasonable doubt. Id. at 490. “ Apprendi does not apply to sentencing factors that
increase a defendant’s guideline range but do not increase the statutory
maximum.” United States v. Sullivan , 242 F.3d 1248, 1255 (10th Cir. 2001). Due
to his prior violent felony convictions, use of which we have already upheld,
Miller faced a statutory sentence on Count 16 ranging from a minimum of fifteen
years to a maximum of life imprisonment. 18 U.S.C. § 924(e)(1); United States v.
Custis , 511 U.S. 485, 487 (1994). The life sentence he received therefore did not
exceed the statutory maximum.
Appeal No. 00-5149, United States v. Hanson
Hanson first argues that he should not have been sentenced as a career
offender pursuant to USSG § 4B1.1, because he did not have two prior felony
convictions for violent or controlled substance offenses. Hanson was not
sentenced as a career offender, however; instead, he received a sentencing
enhancement as an Armed Career Criminal. The Armed Career Criminal Act
(ACCA) applies when a defendant has three previous violent felony convictions
committed on occasions different from one another. 18 U.S.C. § 924(e)(1).
Hanson has the three requisite convictions for application of the ACCA.
His conviction for first degree robbery committed on December 3, 1982 is
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counted separately from convictions for first degree robbery and assault with a
deadly weapon with intent to kill, which he committed against different victims
one day later. See United States v. Lloyd , 13 F.3d 1450, 1454 (10th Cir. 1994).
His third violent felony conviction was for escape that occurred October 3, 1990.
Although there is no evidence that the escape involved any violence, and the state
statute under which he was convicted does not define escape as a violent offense,
the escape nevertheless constitutes a violent felony, because “escape is always a
violent crime” for purposes of the ACCA. United States v. Springfield , 196 F.3d
1180, 1185 (10th Cir. 1999), cert. denied, 529 U.S. 1029 (2000). Thus Hanson
has three prior violent felony convictions, and the enhancement was properly
applied.
Finally, Hanson argues that under Apprendi , the jury should have been
allowed to determine whether he was subject to the Armed Career Criminal
enhancement. As noted above, this argument is barred by our decision in
Martinez-Villalva , 232 F.3d at 1131-32.
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The judgments of the United States District Court for the Northern District
of Oklahoma are AFFIRMED.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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