United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 20, 2015 Decided August 21, 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 twentytwo 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 

constitute a waiver of the right to dismissal.” Id.

§ 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 ineffectiveassistance-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 freefloating . . . 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.