Defendant’s Brief in Opposition to Government’s Objections to Base Offense Level in PSR — United States v. Akee Yamire Miller, No. 3:CR-21-150 (Dkt. 40, M.D. Pa.)
Summary
Akee Yamire Miller, through attorney James J. Scanlon, opposes the government's objection to the base offense level in the presentence report in United States v. Miller, 3:CR-21-150, before Judge Mariani in the U.S. District Court for the Middle District of Pennsylvania. Miller pleaded guilty on June 7, 2021 to one count of a Criminal Information charging a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and § 2. Probation set the base offense level at 38 under USSG § 2D1.1(a)(1); the government argues that prior similar drug convictions require 43, which the brief says equals a Life sentence. The brief argues that, because no Information of prior conviction was filed under 21 USC § 851(a) and no prior conviction appears in the plea agreement or the Indictment, the higher level cannot apply, as the probation officer's addendum also concludes. It is dated January 17, 2024.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA : 3:CR-21-150
:
v. : (Judge Mariani)
:
AKEE YAMIRE MILLER : (Electronically Filed)
DEFENDANT’S BRIEF IN OPPOSITION TO GOVERNMENT’S
OBJECTIONS TO BASE OFFENSE LEVEL IN PSR
AND NOW comes the Defendant, Akee Yamire Miller (the “Defendant”), by
and through his attorney, James J. Scanlon, Esq., and files the following Brief in
Opposition to the Government’s Objection to the Base Offense Level set forth in the
United States Probation’s PSR.
BRIEF FACTUAL AND PROCEDURAL OVERVIEW
On June 7, 2021, the Defendant pleaded guilty to one count of a Criminal
Information charging him with a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),
and § 2. Once the guilty plea was entered, U.S. Probation prepared a presentence
report and the report concludes that the Defendant’s base offense level is 38,
pursuant to USSG § 2D1.1(a)(1). The United States objects to the base offense level
and asserts that the correct base level is 43. As a basis for this assertion, the United
States argues that the Defendant’s admission of guilt and his prior similar drug
offense convictions mandate a base level of 43 pursuant to applicable law.
1
The United States Probation Officer who prepared the PSR disagrees with the
United States and filed an addendum to the PSR which sets forth his position. See
Doc. 20. The addendum states:
The probation officer agrees that the defendant has prior convictions
for similar offenses; however, USSG § 2D1.1(a)(1) states that the
base offense level is 43 if the defendant was convicted under 21 USC
§ 841(b)(1)(C) and the offense of conviction establishes that death
or serious bodily injury resulted from the use of the substances and
that the defendant committed the offense after one or more prior
convictions for a similar offense.
Because there was no filing of an Information of Prior Conviction
pursuant to 21 USC § 851(a), a stipulation in the plea agreement, or
a reference to a prior conviction in the Indictment, the probation
officer does not believe that the offense of conviction has established
that the defendant has a prior conviction for a similar offense.
Id. The U.S. Probation Officer’s position is correct.
ARGUMENT
A. The Defendant should not be subjected to an increased penalty pursuant to
USSG § 2D1.1(a)(1).
21 U.S.C. § 851(a)(1) states “[n]o person who stands convicted of an offense
under this part shall be sentenced to increased punishment by reason of one or more
prior convictions, unless before trial, or before entry of a plea of guilty, the United
States attorney files an information with the court”. Section 851 “lays out the
procedure for proving prior convictions that can be used to trigger the statutory
sentencing enhancements available under 21 U.S.C. § 841”. United States v. Banks,
770 F.3d 346, 350 (5th Cir. 2014). Therefore, the Government must follow Section
2
851 to subject the Defendant to increased punishments available under Section 841.
The Government, in this case, has failed to follow Section 851 because there was no
filing of an Information of prior conviction pursuant to 21 USC § 851(a), a
stipulation in the plea agreement, or a reference to a prior conviction in the
Indictment. Thus, the correct base level is 38.
USSG § 2D1.1(a)(1) is essentially the Sentencing Commission’s identical
counterpart to an increased punishment stated in 21 U.S.C. § 841. 21 U.S.C. §
841(b) states “[i]f any person commits such a violation after a prior conviction for a
serious drug felony or serious violent felony has become final . . . if death or serious
bodily injury results from the use of such substance shall be sentenced to life
imprisonment”. USSG § 2D1.1(a)(1) states the base offense level is 43 if:
(A) the defendant is convicted under 21 U.S.C. §
841(b)(1)(A) or (b)(1)(B), or 21 U.S.C. § 960(b)(1) or
(b)(2), and the offense of conviction establishes that death
or serious bodily injury resulted from the use of the
substance and that the defendant committed the offense
after one or more prior convictions for a serious drug
felony or serious violent felony; or
(B) the defendant is convicted under 21 U.S.C. §
841(b)(1)(C) or 21 U.S.C. § 960(b)(3) and the offense of
conviction establishes that death or serious bodily injury
resulted from the use of the substance and that the
defendant committed the offense after one or more prior
convictions for a felony drug offense;
3
USSG § 2D1.1(a)(1) was just amended on November 1, 2023 to now include the
language “prior convictions for a serious drug felony or serious violent felony; or . .
. felony drug offense”. The Sentencing Commission directly took the terms “serious
drug felony”, “serious violent felony”, and “felony drug offense” from the increased
penalties listed in 21 U.S.C. § 841. USSG § 2D1.1(a)(1) states that the base offense
level is a 43 which according to the Sentencing Table is a Life sentence, which
therefore provides the same result as the statutory life sentence penalty in 21 U.S.C.
§ 841.
Here, as the U.S. Probation Officer correctly notes, “[b]ecause there was no
filing of an Information of Prior Conviction pursuant to 21 USC § 851(a), a
stipulation in the plea agreement, or a reference to a prior conviction in the
Indictment,” the offense of conviction does not establish that the defendant has a
prior conviction for a similar offense.
Since USSG § 2D1.1(a)(1) is essentially an identical counterpart to the
increased punishment stated in 21 U.S.C. § 841; USSG § 2D1.1(a)(1) should not
apply in this case when the Government has agreed that the increased punishments
of 21 U.S.C. § 841 do not apply.
4
CONCLUSION
WHEREFORE, the Defendant, Akee Yamire Miller, respectfully requests
that this Honorable Court deny the Government’s objection to base offense level
set forth in the PSR and apply a base offense level of 38.
Respectfully submitted,
Date: January 17, 2024 /s/ James J. Scanlon
James J. Scanlon
Ridley, Chuff, Kosierowski & Scanlon, P.C.
400 Broad Street
Milford, Pennsylvania 18337
(570) 296-5553 (Office)
(570) 296-5554 (Fax)
5
CERTIFICATE OF SERVICE
I, James J. Scanlon, do hereby certify that this document, the foregoing
Brief in Opposition to Government’s Objection to Base Offense Level in PSR,
was served electronically through the ECF system to all counsel of record.
Date: January 17, 2024 /s/ James J. Scanlon
James J. Scanlon
6
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