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Seventh Circuit: Procedural Error Occurs When Miscount of Prior Convictions Basis for Sentence, Resentencing Required

by David Reutter

The U.S. Court of Appeals for the Seventh Circuit held that an Indiana federal district court committed a procedural error in selecting a sentence based on a miscounting of the defendant’s prior felony conviction.

Before the Court was the appeal of Tyrone Miller. He was arrested after police found him unconscious behind the wheel of his car, which he crashed into a street light. When he woke up, he attempted to leave the accident scene, hunching over as he walked.

An officer stopped him and handcuffed him before beginning to pat him down. As the officer’s hands approached Miller’s waist, Miller tried to flee but was tackled to the ground. The officer placed him in a squad car without concluding a search. When Miller stepped out of the car at the police station, the officer saw a loaded handgun with an extended magazine on the floor where Miller’s feet had been.

A jury found Miller guilty of possessing a firearm as a felon. He was sentenced to 87 months in prison. On appeal, he challenged his conviction as not supported by the evidence and argued his sentence was based on an erroneous understanding of his criminal history.

As to the first claim, the Seventh Circuit noted the issue is one of credibility, and a jury’s creditability finding will be set aside only where the testimony is “impossible under the laws of nature.” The Court found “the officer testified to nothing impossible.” Miller’s hunching over and fleeing as the pat-down reached his waist supported a theory that he was trying to hide a gun in his waistband.

The Court then turned to the procedural sentencing error. A presentence report found that Miller, 31, had 17 criminal history points with convictions going back 20 years. Of his 11 adult convictions, he had five felonies—three for firearms, one for drugs, and one for obstruction of justice.

Two misconceptions occurred prior to sentencing. One of the firearm convictions was out of Michigan, and it was only a misdemeanor under state law. The second was in the Government’s sentencing memorandum, which stated that “it appears that Mr. Miller has six prior sentencing convictions.” In fact, he had five prior felony convictions, not six.

At sentencing, the district court focused on Miller’s prior convictions. It specifically stated how it arrived at six prior felony convictions when Miller expressed concern that the court got it wrong. Defendants have a due process right to be sentenced based on accurate information. United States v. Oliver, 873 F.3d 601 (7th Cir. 2017). To overturn a sentence for a violation of this right, the defendant must “show that information before the sentencing court was inaccurate and that the sentencing court relied on the inaccurate information in the sentencing.” United States v. Barnes, 907 F.2d 693 (7th Cir. 1990).

As the Court pointed out, the district court restated that Miller had seven felony convictions four times during sentencing and in its sentencing memorandum. It also said Miller’s history was one of the two “biggest” factors justifying the sentence imposed. “A single misinformed comment warrants resentencing if it reveals that the judge misapprehended the record ... with respect to an aggravating factor that the judge considered important,” the Seventh Circuit wrote.

The Government argued that the error was harmless because the district court judge would not have “imposed a lower term had he known Miller had only five prior felonies.” The Court flatly rejected the Government’s position, pointing out that “in Welch [738 F.2d 863 (7th Cir. 1984)] we held that harmless-error review is inappropriate when the sentencing judge has relied on misinformation.” The Court explained that following Welch, “we have continued to require resentencing if the district judge has relied on erroneous information in justifying the sentence, even if the judge pointed to additional § 3553(a) factors to support the sentence.”

Accordingly, the Court affirmed Miller’s conviction but vacated his sentence and remanded for resentencing “free of any misapprehension about Miller’s total prior felony convictions.” See: United States v. Miller, 900 F.3d 509 (7th Cir. 2018).  

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