IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10016

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VERNON ANTHONY MILLER,

Defendant-Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 3:94-CR-343-1

Before DAVIS, JONES and HAYNES, Circuit Judges.

PER CURIAM:*

Vernon Anthony Miller, federal prisoner # 25647-077, was convicted by 

a jury of conspiracy to commit numerous bank robberies and other crimes 

(Count 1), aiding and abetting bank robbery (Counts 2, 4, and 6), aiding and 

abetting the using and carrying a firearm during a crime of violence, in 

violation of 18 U.S.C. § 924(c) (Counts 3 and 7), and aiding and abetting the 

interstate transport of a stolen vehicle (Count 8). In the calculation of his 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 8, 2015

Lyle W. Cayce

Clerk

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No. 15-10016

2

guidelines range, no firearms enhancements were applied to the bank 

robberies charged in Counts 2 and 6 because they were the offenses underlying 

the § 924(c) convictions in Counts 3 and 7. See U.S.S.G. § 2K2.4, comment. 

(n.2) (Nov. 1994). Firearms enhancements of five levels each were applied to 

four other bank robberies listed as objects of the conspiracy in Count 1. See

U.S.S.G. § 2B3.1(b)(2)(C) (Nov. 1994). The district court sentenced Miller to a 

total term of imprisonment of 468 months.

In March 2011, Miller moved for a reduction of his sentence under 18 

U.S.C. § 3582(c)(2), based on Amendment 599 to the Sentencing Guidelines, 

which amended the commentary to § 2K2.4, effective November 1, 2000, and 

based on the 18 U.S.C. § 3553(a) sentencing factors, including his 

postconviction rehabilitation. The district court denied the motion and denied 

Miller’s motion for leave to proceed in forma pauperis (IFP) on appeal, 

certifying that an appeal was not taken in good faith. See 28 U.S.C. 

§ 1915(a)(3).

Miller now appeals the denial of his § 3582(c)(2) motion and moves to 

proceed IFP on appeal. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 

28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Miller’s motion to amend his 

notice of appeal is construed as a motion to supplement his IFP motion with 

the documents required by Rule 24(a)(5) and is GRANTED.

By moving to proceed IFP on appeal, Miller challenges the district court’s 

certification that his appeal is not taken in good faith. See Baugh, 117 F.3d at 

202. This court’s inquiry into Miller’s good faith “is limited to whether the 

appeal involves ‘legal points arguable on their merits (and therefore not 

frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation 

omitted). 

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After considering the factors set forth in 18 U.S.C. § 3553(a), the district 

court may reduce a term of imprisonment that was based on a sentencing range 

that has subsequently been lowered by an amendment to the Sentencing 

Guidelines. § 3582(c)(2). Miller contends that Amendment 599 prohibited not 

only a firearms enhancement for the offenses underlying his § 924(c) 

convictions, but also firearms enhancements for any relevant conduct for any 

offense for which he was held responsible under U.S.S.G. § 1B1.3. His 

argument is not supported by the language of former note 2, as amended, or by 

any relevant circuit precedent. See § 2K2.4, comment. (n.2) (Nov. 1, 2000); 

United States v. Dixon, 273 F.3d 636, 643 (5th Cir. 2001).

Miller has not shown that his appeal presents a nonfrivolous issue. 

Accordingly, his IFP motion is DENIED, and his appeal is DISMISSED as 

frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

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