United States Court of Appeals
`For the Eighth Circuit
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`
`No. 20-3316
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`United States of America
`
` Plaintiff - Appellee
`
`v.
`
`Titus J. Miller
`
` Defendant - Appellant
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`Appeal from United States District Court
`for the District of Nebraska - Lincoln
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`
`Submitted: November 19, 2021
`Filed: January 21, 2022
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`
`Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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`BENTON, Circuit Judge.
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`Titus J. Miller was convicted of five counts of producing child pornography,
`in violation of 18 U.S.C. § 2251(a). The district court sentenced him to five
`consecutive 20-year prison terms and a lifetime of supervised release. It also ordered
`him to pay an assessment of $50,000 under 18 U.S.C. § 2259A (the “AVAA”). He
`appeals the sentence and the assessment. Having jurisdiction under 28 U.S.C. §
`1291, this court affirms in part and reverses and remands in part.
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`
`
`I.
`
`Miller asserts the court procedurally erred in imposing consecutive sentences.
`Miller also believes the sentence was substantively unreasonable. The government
`contends Miller waived the right to appeal his sentence in his plea agreement. To
`find waiver, this court must ensure that “the appeal falls within the scope of the
`waiver and that both the waiver and plea agreement were entered into knowingly
`and voluntarily.” United States v. Andis, 333 F.3d 886, 889-890 (8th Cir. 2003) (en
`banc). “Whether a valid waiver of appellate rights occurred is a question of law”
`this court reviews de novo. United States v. Sisco, 576 F.3d 791, 795 (8th Cir. 2009).
`
`Miller’s appeal of his sentence falls within the waiver. As part of the plea,
`Miller “knowingly and expressly” waived “any and all rights to appeal” his
`“conviction and sentence,” except for a claim of ineffective assistance of counsel.
`Miller also knowingly and voluntarily entered his plea. At the plea hearing, the court
`questioned Miller about the voluntariness of his plea and his understanding of the
`waiver. The court confirmed that Miller understood he was “giving up your right to
`that appeal process unless you are claiming that you were provided ineffective
`assistance by your attorney.” The court also confirmed he understood “that your
`waiver of appeal and your waiver of collateral attack apply both to your conviction
`and to the sentence you have not yet received.” The appeal waiver was valid and
`precludes Miller’s appeal of his term of imprisonment. See generally United States
`v. Carder, 814 Fed. Appx. 162, 164 (8th Cir. 2020) (holding the appeal waiver
`precluded defendant’s appeal of his sentence even though the district court misspoke
`at sentencing).
`
`
`
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`II.
`
`Miller argues the district court illegally imposed a $50,000 assessment under
`the AVAA. Specifically, he contends the court erred in failing to “consider 18
`U.S.C. § 3553 and 3572 factors in determining the correct amount” to assess. The
`government again argues the waiver precludes Miller’s appeal. Even if the issue
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`falls within the scope of the waiver, this court will not enforce the waiver if doing
`so would be a miscarriage of justice. Andis, 333 F. 3d at 890. Because there was
`and continues to be confusion about the $50,000 assessment, this court reverses and
`remands for clarification.
`
`At sentencing, the court imposed a $50,000 AVAA assessment, indicating that
`the amount was based on $5,000 per victim. Miller moved to clarify the amount. In
`a post-judgment Memorandum and Order, the court clarified that it was imposing
`the “$50,000 AVAA (18 U.S.C. § 2259A) assessment intentionally (a) to provide
`each of the five children with $5,000 each (to the extent possible) and (b) the balance
`to [be] paid into the fund for the benefit of other children.”
`
`“A monetary penalty under the AVAA is separate and distinct from
`restitution.” United States v. Madrid, 978 F.3d 201, 205 (5th Cir. 2020). Restitution
`requires identification of a victim and proof of losses. 18 U.S.C. § 2259(b)(2).
`However, a special assessment does not. Rather than going to individual victims,
`all assessments “collected under” the AVAA “shall be deposited into the Child
`Pornography Victims Reserve” fund. 18 U.S.C. § 2259B(a).
`
`In the court’s post-judgment Memorandum and Order, it ordered $25,000 as
`an assessment “for the benefit of other children.” This is a permissible assessment
`under the AVAA. See 18 U.S.C. § 2259A. The $25,000 designated to go directly
`to the victims, however, appears more like restitution than an assessment. The
`government argues that the Order’s phrase “to the extent possible” shows that the
`court was aware that the “victim families would have to go through the procedure
`set forth in the AVAA, including the Child Pornography Victim Reserve, to obtain
`monetary assistance from the Reserve.” This is not clear from the Order. This court
`reverses and remands to the district court to enter an amended judgment specifying
`whether all $50,000 shall be awarded as an assessment to the Child Pornography
`Victims Reserve, or whether some part shall be awarded as an assessment to the
`Reserve and some shall be awarded as restitution under 18 U.S.C. § 2259 to the
`victims.
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`* * * * * * *
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`The sentence is affirmed. This case is reversed and remanded to the district
`court to enter an amended judgment.
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