throbber
United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Decided August 21, 2015
`
`
`
`Argued February 20, 2015
`
`
`No. 08-3116
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`ROBERT FRANK MILLER,
`APPELLANT
`
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:05-cr-00143-1)
`
`
`
`Gregory Stuart Smith, appointed by the court, argued the
`cause and filed the briefs for appellant.
`
`
`Stratton C. Strand, Assistant U.S. Attorney, argued the
`cause for appellee. With him on the brief were Ronald C.
`Machen, Jr., U.S. Attorney, and Elizabeth Trosman, John P.
`Mannarino, and Michael K. Atkinson, Assistant U.S.
`Attorneys.
`
`
`Before: TATEL, SRINIVASAN and WILKINS, Circuit
`Judges.
`
`
`Opinion for the Court filed by Circuit Judge SRINIVASAN.
`
`
`
`
`
`

`
`2
`SRINIVASAN, Circuit Judge: Appellant Robert Miller
`
`was convicted of travel fraud and wire fraud for a scheme in
`which he obtained funds from investors and home buyers
`based on false representations about how the funds would be
`used. On appeal, Miller raises a number of challenges to his
`convictions and sentence. We reject the bulk of his
`challenges, except that, in accordance with our usual practice,
`we remand his claims of ineffective assistance of trial counsel
`to enable the district court to consider those claims in the first
`instance.
`
`
`I.
`
`
`
`Beginning in July 2003, Miller operated American
`Funding and Investment Corporation (AFIC), a company
`through which he purported to offer two types of services: (i)
`high-yield real estate investments, and (ii) home-buying
`assistance for people with poor credit. First, Miller obtained
`cash investments from individuals who thought AFIC would
`invest their money in pools of investment real estate. He told
`those investors that AFIC would use the invested capital to
`buy and refurbish foreclosure properties and then resell those
`properties, at a profit, to home buyers with poor credit.
`Second, Miller obtained cash “down payments” from
`prospective home buyers with poor credit. He told those
`home buyers he would help secure mortgages for them and
`then would use the down payment funds to buy homes they
`had preselected.
`
`
`
`
`
`As a result of those schemes, Miller obtained hundreds of
`thousands of dollars from prospective investors and home
`buyers. He never used the funds to buy any real estate for
`AFIC’s investors, however, or to secure or fund any
`mortgages for prospective home buyers. He instead used the
`funds to pay rent for AFIC’s office space, compensate
`
`

`
`3
`employees, buy office equipment, obtain newspaper
`advertisements to attract additional investors, cover personal
`and travel expenses, and make partial distributions to certain
`investors who demanded repayment.
`
`
`
`A Secret Service investigation uncovered many details of
`Miller’s scheme. After receiving a tip indicating that Miller
`had become aware of the investigation and might attempt to
`flee, the Secret Service arrested him at his offices. Miller was
`charged with nine counts of travel fraud, 18 U.S.C. § 2314,
`and two counts of wire fraud, 18 U.S.C. § 1343. A jury found
`him guilty on all counts.
`
`
`II.
`
`A.
`
`
` We first consider Miller’s Fourth Amendment challenge
`to the admission of evidence obtained by the Secret Service.
`In the district court, Miller sought to suppress documentary
`evidence obtained in a search of boxes seized from a vehicle
`parked at AFIC’s offices. According to the parties’ joint
`stipulation of facts, on April 8, 2004, “at [Miller’s] direction,
`employees of AFIC placed 22 boxes of AFIC records,
`interspersed with what appeared to be some of Miller’s
`personal records, in a 1995 Ford Explorer owned by and
`registered to Deborah Key, the mother of AFIC employee
`Tonya Smith.” J.A. 63. Smith had “temporary use” of the
`Ford Explorer that day. Id.
`
`
`After Secret Service agents arrested Miller, Smith drove
`the Explorer to the Secret Service Washington Field Office,
`where agents seized and secured the twenty-two boxes of
`files. The Secret Service held the boxes without immediately
`
`
`
`

`
`4
`searching them. The search took place only after agents
`obtained a search warrant, weeks later on April 27, 2004.
`
` Miller moved to suppress the evidence contained in the
`boxes on the ground that it had been obtained in violation of
`his Fourth Amendment rights. The district court denied the
`motion, concluding that Miller had “fail[ed] to demonstrate an
`objectively legitimate expectation of privacy in the vehicle”
`and that he therefore lacked “standing to challenge the seizure
`of the boxes located in that vehicle.” J.A. 179-80. Miller
`appeals the district court’s denial of his motion to suppress,
`arguing that the court erred in “requiring [Miller] to establish
`standing in the vehicle as well as the boxes inside.”
`Appellant Br. 28. According to Miller, he “had a viable
`privacy interest in the boxes,” id., which in his view sufficed
`to give him standing to object to the boxes’ seizure.
`
`In reviewing the district court’s denial of the suppression
`motion, we review legal conclusions de novo and factual
`findings for clear error. United States v. Holmes, 385 F.3d
`786, 789 (D.C. Cir. 2004). We will affirm the district court
`“so long as any reasonable view of the record supports its
`denial of the motion to suppress.” United States v. Patrick,
`959 F.2d 991, 997-98 n.8 (D.C. Cir. 1992).
`
`There are three distinct events involving the evidence
`found in the boxes that could conceivably raise a Fourth
`Amendment question: (i) the search of the Ford Explorer that
`led to discovery of the boxes, (ii) the seizure of the twenty-
`two boxes from the vehicle, and (iii) the eventual search of
`the boxes. Miller raises no challenge to the search of the
`boxes. Oral Arg. Tr. 6. And for good reason: agents searched
`the boxes only after obtaining a search warrant. J.A. 44;
`Suppl. App. 436. Nor does Miller contest the validity of the
`search of the Ford Explorer. Oral Arg. Tr. 5. Instead, Miller
`
`
`
`
`
`

`
`5
`challenges only the seizure of the boxes from the vehicle.
`Appellant Br. 27.
`
` Miller’s argument against the seizure, however, is flawed
`at its foundation. His argument sounds exclusively in the
`privacy interests he ostensibly held in the boxes. He thus
`contends that the district court erred in examining whether he
`had a reasonable expectation of privacy in the Ford Explorer,
`when, in his view, the relevant question instead is whether he
`had an expectation of privacy in the boxes. His challenge to
`the seizure of the boxes, however, should not hinge on
`privacy interests at all. Rather, seizures, unlike searches,
`involve an interference with possessory—not privacy—
`interests. But Miller makes no argument about (or even any
`reference to) any possessory interests he may have had in the
`boxes. That is fatal to his challenge.
`
`The Fourth Amendment protects two distinct “types of
`expectations,” the first involving “searches” and the second
`involving “seizures.” United States v. Jacobsen, 466 U.S.
`109, 113 (1984). The “interest protected by the Fourth
`Amendment injunction against unreasonable searches is quite
`different from that protected by its injunction against
`unreasonable seizures.” Arizona v. Hicks, 480 U.S. 321, 328
`(1987); see 1 Wayne R. LaFave, Search & Seizure § 2.1(a)
`(5th ed. 2014). A search “occurs when an expectation of
`privacy that society is prepared to consider reasonable is
`infringed.” Jacobsen, 466 U.S. at 113 (emphasis added). A
`seizure, by contrast, “occurs when there is some meaningful
`interference with an individual’s possessory interests in that
`property.” Id. (emphasis added). It is well established that
`the reasonableness of a seizure turns on the nature and extent
`of interference with possessory, rather than privacy, interests,
`e.g., id. at 124-25; and the Supreme Court has rejected the
`notion
`that “the Fourth Amendment protects against
`
`
`
`
`
`

`
`6
`unreasonable seizures of property only where privacy or
`liberty [interests are] also implicated,” Soldal v. Cook Cnty.,
`Ill., 506 U.S. 56, 65 (1992).
`
`
`
`The Court accordingly has explained that subjecting
`luggage to a “canine sniff” does not amount to a “search”
`under the Fourth Amendment because it infringes no
`constitutionally protected privacy interest: a canine sniff
`“does not require opening the luggage” or “expos[ing]
`noncontraband items . . . otherwise . . . hidden from public
`view.” United States v. Place, 462 U.S. 696, 706-07 (1983).
`But detaining luggage to facilitate a canine sniff “is no doubt
`. . . a ‘seizure’ . . . for purposes of the Fourth Amendment”
`because it “intrudes on” the owner’s “possessory interest in
`[the] luggage.” Id. at 707-08. Conversely, whereas recording
`of serial numbers on stereo equipment does not constitute a
`seizure because it does not “meaningfully interfere with [the
`owner’s] possessory interest,” shifting the position of the
`equipment to bring the serial numbers into view amounts to a
`search: “expos[ing] . . . concealed portions” of the equipment
`is an “invasion of [the owner’s] privacy.” Hicks, 480 U.S. at
`324-25 (internal quotation marks omitted).
`
`
`Here, although Miller consistently (and exclusively)
`frames his Fourth Amendment argument as one about the
`unlawful seizure of the twenty-two boxes from the back of the
`Ford Explorer, he makes no complaint of any interference
`with his possessory rights. Instead, he contends that the “key
`question” the district court failed to address was whether
`Miller had a “privacy interest in the boxes themselves.”
`Appellant Br. 24, 27 (emphases added and omitted). Indeed,
`he invokes the term “privacy” more than fifty times in the
`portion of his briefing devoted to the suppression motion, but
`he never once makes reference to any loss of a “possessory”
`
`
`
`

`
`7
`interest in the boxes. Appellant Br. 4-36; Appellant Reply Br.
`4-10.
`
`
`It therefore is unsurprising that, in the decision on which
`Miller principally relies, United States v. Most, 876 F.2d 191,
`195-200 (D.C. Cir. 1989), this court examined whether a
`search of a defendant’s bag by a police officer violated the
`Fourth Amendment. In the course of finding the search
`unlawful, we held that the defendant had not relinquished his
`reasonable expectation of privacy in the bag’s contents by
`leaving the bag with a store clerk while shopping. Id. at 198-
`99. Most is inapposite to Miller’s seizure challenge. The
`defendant there contested the search of the bag, not its
`seizure, because the police never obtained a warrant to search
`it. Id. at 193, 195-96. Here, by contrast, the Secret Service
`obtained a warrant before searching the boxes. And Miller
`unsurprisingly makes no argument that the search of the
`boxes was unlawful.
`
`In short, there is a basic mismatch between Miller’s
`wholesale reliance on his privacy interest in the boxes and his
`challenge to the seizure of those boxes. To the extent the
`seizure of those boxes violated his Fourth Amendment rights,
`the violation would intrude on his possessory interest in the
`boxes rather than on any reasonable expectation of privacy
`associated with them. See, e.g., Jacobsen, 466 U.S. at 113.
`But because Miller raises no claim of interference with his
`possessory interests, his challenge to the seizure necessarily
`fails.
`
`
`B.
`
`
` Miller alternatively raises a second claim related to the
`recovery of the boxes from the Ford Explorer. He asserts that
`his
`trial counsel
`rendered constitutionally
`ineffective
`
`
`
`

`
`8
`assistance by failing to call any witnesses during the hearings
`on Miller’s suppression motion and by failing timely to
`submit into the record an FBI form (FBI 302) documenting an
`interview with Smith. According to Miller, his trial counsel’s
`failure to put him or Smith on the stand or to enter the FBI
`302 into the record deprived him of an opportunity to show
`that he had effective control of the Ford Explorer and thus had
`standing to contest its search.
`
`
`
`To prevail on a Sixth Amendment claim of ineffective
`assistance of counsel, Miller first would need to show that his
`trial counsel’s performance was deficient, falling below “an
`objective standard of
`reasonableness” as defined by
`“prevailing professional norms.” Strickland v. Washington,
`466 U.S. 668, 687-88 (1984). Miller would also need to
`demonstrate that his counsel’s deficient performance caused
`him prejudice—“that there is a reasonable probability that,
`but for counsel’s unprofessional errors, the result of the
`proceeding would have been different.” Id. at 694. Our
`general practice when faced with a “colorable and previously
`unexplored” ineffective-assistance-of-counsel claim raised for
`the first time on direct appeal is to remand the claim for an
`evidentiary hearing. United States v. Rashad, 331 F.3d 908,
`908-10 (D.C. Cir. 2003). We will resolve such a claim
`without a remand only if the “trial record alone conclusively
`shows that the defendant either is or is not entitled to relief.”
`Id. at 909-10 (internal quotation marks omitted).
`
`
`
`
`
`Here, with respect to the first prong of the Strickland
`inquiry,
`the
`government
`describes
`various
`tactical
`considerations that may have led defense counsel to refrain
`from placing Smith or Miller on the stand—for instance, to
`avoid waiving Miller’s Fifth Amendment protection, or
`because Smith might have been a hostile witness. The record
`is unclear, moreover, whether Smith planned to invoke her
`
`

`
`9
`own Fifth Amendment privilege to avoid testifying. We thus
`do not know “all the circumstances animating counsel’s
`strategic decisions from which we could determine whether
`[counsel’s] failure” to call the witnesses and timely submit the
`FBI 302 “was a reasonable, calculated choice or a mark of
`deficient performance.” United States v. Mohammed, 693
`F.3d 192, 204 (D.C. Cir. 2012) (internal quotation marks
`omitted). With respect to Strickland’s prejudice prong, the
`record does not conclusively show whether trial counsel’s
`decision might have caused prejudice to Miller, a subject on
`which the district court has an “advantageous perspective.”
`Massaro v. United States, 538 U.S. 500, 506 (2003). We
`therefore adhere to our normal practice and remand Miller’s
`claim to the district court to examine his allegations. See
`Mohammed, 693 F.3d at 204.
`
`
`II.
`
`
` We next consider Miller’s challenge based on the Speedy
`Trial Act (STA). The STA establishes a general rule: if a
`defendant is not brought to trial within seventy days of
`indictment, the court “shall” dismiss the indictment “on
`motion of the defendant.” 18 U.S.C. § 3162(a)(2). Certain
`periods of pre-trial delay, however, are “excluded” when
`determining whether the seventy-day period elapsed. Id.
`§ 3161(h). In the event of an STA violation, the district court
`retains discretion to determine “whether to dismiss the case
`with or without prejudice” based on three statutory factors.
`Id. § 3162(a)(2). In the case of a dismissal without prejudice,
`the government has six months from the date of dismissal to
`secure the return of a new indictment. Id. § 3288.
`
`
`
`
`
`Here, Miller argues that the non-excludable period of
`time between his arraignment and his trial exceeded the
`statutory seventy-day limit. The Act, however, establishes
`
`

`
`10
`that “[f]ailure of the defendant to move for dismissal prior to
`trial or entry of a plea of guilty or nolo contendere shall
` Id.
`constitute a waiver of
`the right
`to dismissal.”
`§ 3162(a)(2). Miller never sought a dismissal on STA
`grounds before the district court. Any STA challenge he
`might bring on appeal therefore is waived, and plain error
`review is unavailable. See United States v. Taplet, 776 F.3d
`875, 879-81 (D.C. Cir. 2015).
`
`
`Unable to obtain relief on appeal directly under the STA,
`Miller raises the STA through the lens of an ineffective-
`assistance-of-counsel claim. He argues that his trial counsel
`rendered constitutionally ineffective assistance by failing to
`move for dismissal in the district court under the STA. We
`again follow our ordinary practice and remand that claim for
`initial examination by the district court.
`
`
`With respect to the performance prong of the Strickland
`inquiry, Miller argues that his counsel’s failure to seek
`dismissal necessarily amounted to deficient performance
`because Miller had a statutory entitlement to dismissal under
`the Act. Even if more than seventy non-excludable days
`elapsed, however, that would still not amount to a per se
`showing of deficient performance. See United States v.
`Richardson, 167 F.3d 621, 626 (D.C. Cir. 1999). Counsel
`might have had “sound strategic reasons for not pursuing the
`violation,” based, for instance, on the complexity of the case
`or a reasonable belief that any dismissal would have been
`without prejudice. Id.; see United States v. Rushin, 642 F.3d
`1299, 1307-08 (10th Cir. 2011).
`
` With respect to Strickland’s prejudice prong, there would
`be a threshold question whether, in the event of a successful
`STA objection, the case would have been dismissed with or
`without prejudice. The Act provides that, “[i]n determining
`
`
`
`

`
`11
`whether to dismiss [a] case with or without prejudice, the
`court shall consider, among others, each of the following
`factors: [i] the seriousness of the offense; [ii] the facts and
`circumstances of the case which led to the dismissal; and [iii]
`the impact of a reprosecution on the administration of this
`chapter and on the administration of justice.” 18 U.S.C.
`§ 3162(a)(2). Because it is generally for a district court to
`determine in the first instance whether to dismiss with
`prejudice, see United States v. Bryant, 523 F.3d 349, 361
`(D.C. Cir. 2008), and because
`the record does not
`conclusively establish the appropriate outcome in this case,
`we remand for consideration of the § 3162(a)(2) factors.
`
`
`If the district court determines that the case would have
`been dismissed with prejudice, Miller will have satisfied
`Strickland’s prejudice prong. But if the court concludes that
`it would have dismissed without prejudice, thus leaving room
`for a retrial, the court will need to assess the implications of
`such a dismissal under Strickland’s prejudice standard. The
`parties dispute whether the prospect of a dismissal without
`prejudice would itself demonstrate Strickland prejudice. We
`have previously noted that issue without resolving it. See
`United States v. Marshall, 669 F.3d 288, 295 (D.C. Cir.
`2011). There is no occasion for us to resolve that question
`here when it is undetermined whether Miller has a meritorious
`argument under Strickland’s performance prong, or whether,
`for purposes of the prejudice prong, a dismissal under the
`STA would in fact have been without prejudice.
`
`
`III.
`
`
` Miller argues that the district court improperly allowed
`testimony of two prospective home buyers, Charlene Peters
`and Anthony Wilburn, and of AFIC’s director of mortgage
`banking, Deadrid Brown. Peters and Wilburn testified that
`
`
`
`

`
`12
`Miller induced them to make “down payments” in exchange
`for mortgages and homes that never materialized. Brown
`testified that Miller refused to return Peters’s money even
`when it became clear that those funds would not be used to
`purchase a home. We review the district court’s decision to
`allow testimony for abuse of discretion. United States v.
`Williams, 212 F.3d 1305, 1308 (D.C. Cir. 2000).
`
` Miller first contends that, because the eleven counts in
`the
`indictment
`pertained
`to
`real-estate
`investment
`transactions, not mortgage
`transactions, Peters’s and
`Wilburn’s testimony about their mortgage transactions should
`have been deemed irrelevant under Federal Rule of Evidence
`401. Evidence is relevant if it “has any tendency to make a
`fact more or less probable than it would be without the
`evidence” and if the “fact is of consequence in determining
`the action.” Fed. R. Evid. 401. Here, although each of the
`individual counts against Miller involved an investment
`transaction, rather than a mortgage transaction, those counts
`represented specific instances of a charged scheme “to
`defraud and to obtain money and property by means of
`materially false and fraudulent pretenses, representations and
`promises,” including obtaining “moneys, funds and property
`from investors and prospective home buyers.” J.A. 31-32
`(emphasis added). Because Peters’s and Wilburn’s testimony
`as prospective home buyers pertained to aspects of the
`fraudulent scheme with which Miller was charged, the
`testimony met Rule 401’s relevance standard.
`
` Miller next argues that the same testimony amounted to
`inadmissible character evidence under Rule 404(b), which
`bars the introduction of evidence of a “crime, wrong, or other
`act” to “prove a person’s character in order to show that on a
`particular occasion the person acted in accordance with the
`character.” Fed. R. Evid. 404(b)(1). According to Miller, the
`
`
`
`

`
`13
`government improperly attempted to show that, because
`Miller defrauded Peters and Wilburn, he must also have
`defrauded the victims of the eleven specific counts charged in
`the indictment. Miller misapprehends the scope of Rule
`404(b). The Rule does not bar “evidence . . . of an act that is
`part of the charged offense,” United States v. Bowie, 232 F.3d
`923, 929 (D.C. Cir. 2000), as was the case with Peters’s and
`Wilburn’s testimony.
`
` Miller next contends that the testimony of Peters,
`Wilburn, and Brown should have been excluded as unfairly
`prejudicial under Federal Rule of Evidence 403. Peters and
`Brown, for example, both wept on the stand and testified that
`Peters had been left homeless with a sick baby after Miller
`failed to provide the home and mortgage he had promised her.
`Under Rule 403, the district court “may exclude relevant
`evidence if its probative value is substantially outweighed by
`a danger of . . . unfair prejudice.” Fed. R. Evid. 403. In this
`case, the evidence in question was directly probative of
`Miller’s fraudulent intent in carrying out the charged scheme,
`showing that the mortgage side of AFIC’s business was a
`sham. And when, as here, the “evidence indicates a close
`relationship to the event charged,” a district court acts within
`its discretion by striking the Rule 403 “balance . . . in favor of
`admission.” United States v. Clarke, 24 F.3d 257, 266 (D.C.
`Cir. 1994).
`
`For those reasons, we find no abuse of discretion in the
`district court’s decision to allow the challenged testimony.
`
`
`
`
`
`
`IV.
`
`
` Miller challenges the propriety of two aspects of the
`government’s closing argument. He first argues that the
`prosecution engaged in “race-baiting” when referring to
`
`

`
`14
`Brown’s trial testimony. Brown testified about a brochure,
`entitled “Company Profile,” which Miller had given Brown to
`persuade her to join AFIC. Brown said that she had
`underlined a particular sentence in the brochure stating that
`“AFIC [was] targeting primarily African American Families
`as its biggest market.” Suppl. App. 498. When asked why
`she had underlined that statement, Brown responded that,
`when she “read” the statement, “I just thought that [Miller]
`was on the same page as I was basically,” i.e., that Miller
`“was out there to help people, not hurt people.” Id. at 1014.
`In summarizing Brown’s testimony in closing arguments, the
`prosecution stated that Brown “noted in AFIC’s marketing
`materials the statement that AFIC is targeting primarily
`African-American families as its biggest market. Now, she
`thought at the time that Mr. Miller like herself was trying to
`help African-American families, trying to help them get into
`homes, not trying to hurt them.” Id. at 1147-49.
`
` Miller notes that the “Constitution prohibits racially
`biased prosecutorial arguments.” McCleskey v. Kemp, 481
`U.S. 279, 309 n.30 (1987).
` The statements
`in
`the
`prosecution’s closing argument to which Miller points,
`however, do not qualify as “racially biased.” The prohibition
`on racially biased comments addresses “comments beyond the
`pale of legally acceptable modes of proof.” United States v.
`Doe, 903 F.2d 16, 25 (D.C. Cir. 1990).
` Here, the
`prosecution’s statements about Brown’s testimony amounted
`to a summary of that testimony, i.e., of “proper evidence
`introduced during trial.” See United States v. Perholtz, 842
`F.2d 343, 360 (D.C. Cir. 1988) (internal quotation marks
`omitted). While the statement referred to “African-American
`families,” it did so via a recapitulation of Brown’s own
`testimony highlighting that very phrase as it appeared in an
`AFIC brochure. Such a recapitulation does not constitute the
`sort of “racially inflammatory remark[]” or “[a]ppeal[] to
`
`
`
`

`
`15
`racial passion” that would implicate the prohibition against
`racially biased arguments by the prosecution. Doe, 903 F.2d
`at 24-25.
`
` Miller also takes issue with several references by the
`prosecution to him as a “con artist” or “con man.” While a
`prosecutor may draw “reasonable
`inferences from
`the
`evidence,” United States v. Allen, 960 F.2d 1055, 1059 (D.C.
`Cir. 1992), she may not express her “personal opinion
`concerning the guilt of the accused,” United States v. Young,
`470 U.S. 1, 18 (1985). A “con man” is someone “who
`defrauds a victim by first gaining the victim’s confidence and
`then, through trickery, obtaining money or property.” Black’s
`Law Dictionary (10th ed. 2014). Each time the prosecutor
`referred to Miller as a “con artist” or “con man,” it was part of
`a broader discussion of evidence showing that Miller engaged
`in a scheme to defraud his victims by winning their
`confidence. See J.A. 237-42; Suppl. App. 1174-75, 1177,
`1181. Consequently, the “words were not used as free-
`floating . . . expressions of the prosecutor’s opinion.” United
`States v. Gartmon, 146 F.3d 1015, 1024 (D.C. Cir. 1998).
`Instead, the references to “con artist” and “con man” were
`permissibly “tied to specific conduct at issue in the trial” and
`used as a “description of the manner in which [Miller]
`conducted the scheme charged in the indictment.” Id.
`
`
`V.
`
`
`
`
`
`Finally, Miller challenges his sentence, contending that
`the district court
`failed
`to make an
`individualized
`determination supporting a federal sentence consecutive to
`(rather than concurrent with) his existing Maryland state
`sentence. The Sentencing Guidelines in effect at the time of
`Miller’s conduct and sentencing provided that a “sentence . . .
`may be imposed to run concurrently, partially concurrently, or
`
`

`
`16
`consecutively to the prior [sentence] to achieve a reasonable
`punishment for the instant offense.” U.S.S.G. § 5G1.3(c)
`(2008). Miller takes issue with the district court’s expression
`of its “adhere[nce] as a general proposition to the principle,
`separate crime, separate time.” Suppl. App. 1222.
`
`
`While there might be cause for concern if the district
`court had limited its analysis to that kind of general approach,
`the court here went on to exercise case-specific discretion in
`imposing a consecutive sentence. The court expressly noted
`its “discretion to sentence concurrently or consecutively” and
`its “willing[ness] to listen to arguments as to why [the
`sentence] shouldn’t be consecutive.” Id. After considering
`the duration and indeterminate nature of the Maryland
`sentence as well as the statutory sentencing factors, the court
`found lacking “any fact or circumstances or even legal
`arguments that would warrant a concurrent sentence.” Id. at
`1248-49.
`
`
`This case is thus unlike the unpublished Second Circuit
`decision on which Miller relies. See United States v. Brown,
`152 F. App’x 55 (2d Cir. 2005). There, the district court
`exercised no case-specific discretion and
`imposed a
`consecutive sentence based solely on a “personal attitude” and
`preference for consecutive sentences. Id. at 57. Here, by
`contrast, the district court considered individualized factors in
`assigning a consecutive sentence.
`
`Nor are the facts here akin to those in United States v.
`Ayers, __ F.3d __, 2015 WL 4590290 (D.C. Cir. July 31,
`2015), decided after briefing and oral argument in this case.
`In Ayers, we held that the district court erred when it
`construed the relevant sentencing statute to impose a statutory
`presumption of consecutive sentences and thereby to limit the
`trial court’s discretion to determine the timing of sentences.
`
`
`
`

`
`17
`Id. at *3-4; see 18 U.S.C. § 3584(a). By contrast, the district
`court in this case, as noted, understood that it had full
`discretion; and while it expressed a general sentiment (based
`on experience) about the exercise of that discretion, it made
`the
`required,
`individualized determination under
`the
`defendant’s case-specific circumstances.
`
`
`
` We remand for further proceedings on Miller’s claims
`that his trial counsel provided ineffective assistance by failing
`to offer certain testimony and evidence to establish Fourth
`Amendment standing and by failing to move for dismissal
`under the Speedy Trial Act. We otherwise reject Miller’s
`challenges to his convictions and sentence, including a
`number of passing suggestions of ineffective assistance of
`counsel mentioned only in footnotes or conclusory statements
`in Miller’s briefing. See Appellant Br. 45 n.16, 47 n.19, 52,
`53 n.23. Those passing references, which contain no
`discussion of the relevant law, are “not enough to raise [those]
`issue[s] for our review.” NSTAR Elec. & Gas Corp. v. FERC,
`481 F.3d 794, 800 (D.C. Cir. 2007); see Ry. Labor
`Executives’ Ass’n v. U.S. R.R. Ret. Bd., 749 F.2d 856, 859 n.6
`(D.C. Cir. 1984).
`
`
`So ordered.
`
`
`
`
`
`* *
`
`*
`
`*
`
`*

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