United States Court of Appeals

For the Eighth Circuit

___________________________

No. 11-3701

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Daniel Miller

lllllllllllllllllllll Defendant - Appellant

___________________________

No. 11-3737

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Rebecca Miller

lllllllllllllllllllll Defendant - Appellant

____________

 Appeals from United States District Court 

for the Western District of Arkansas - Texarkana

____________

 Submitted: June 12, 2012

Filed: October 31, 2012

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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

____________

LOKEN, Circuit Judge.

Between October and December 2010, informant Colin Dorsey made four

controlled methamphetamine buys from Daniel Miller at the home of Daniel and his

wife, Rebecca Miller. When Mr. Miller was arrested and interviewed in February

2011, he admitted distributing enough methamphetamine between 2004 and 2010 to

fill the conference room in which the interview was being conducted, receiving as

much astwo kilograms per week from his suppliers. Interviewed thatsame day, Mrs.

Miller admitted that on several occasions she and her 17-year-old son assisted in the

distribution of methamphetamine, including three occasions when she received

money from Dorsey at the Millers’ home. 

Mr. and Mrs. Miller were charged with conspiracy to distribute 500 grams or

more of a methamphetamine mixture in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(viii), and 846. Based on Colin Dorsey’s four controlled buys, Mr. Miller

was charged with four counts of aiding and abetting the distribution of more than 5

grams of actual methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B)(viii), and 18 U.S.C. § 2. Mrs. Miller was charged with three counts of

aiding and abetting based on the three buys in which she participated. A jury found

the Millers guilty on all counts, except it found Mrs. Miller guilty of conspiring to

distribute only 50 grams or more of methamphetamine. Mr. Miller was sentenced to

360 months in prison. Mrs. Miller was sentenced to 188 months in prison. Both

appeal. Mrs. Miller argues the evidence was insufficient to support her conviction. 

Mr. Miller argues the district court erred in denying pretrial discovery requests. Both

challenge a two-level sentencing enhancement for maintaining their home for the

purpose of distributing a controlled substance. We reject these contentions and affirm

both convictions and Mr. Miller’s sentence. Mrs. Miller further argues the district

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court committed procedural sentencing error in determining that her advisory

guidelines sentencing range was 188-235 months in prison. We agree with this

contention, vacate Mrs. Miller’s sentence, and remand for resentencing.

I. Sufficiency of the Evidence

Mrs. Miller argues the trial evidence was insufficient to prove beyond a

reasonable doubt that she aided or abetted the distribution of methamphetamine or

intentionally joined a conspiracy to distribute 50 grams ormore ofmethamphetamine. 

“We review the sufficiency of the evidence de novo, viewing evidence in the light

most favorable to the government, resolving conflicts in the government’s favor, and

accepting all reasonable inferences that support the verdict.” United States v.

Guenther, 470 F.3d 745, 747 (8th Cir. 2006) (quotation omitted). 

The government introduced evidence that on October 8, 2010, Dorsey called

Mr. Miller to purchase methamphetamine. Mr. Miller told Dorsey to come to his

home. When Dorsey arrived, Mr. Miller was not home. Dorsey called Mr. Miller,

who told Dorsey to give the $900 purchase money to Mrs. Miller. When Dorsey gave

Mrs. Miller the money, she said “Okay.” Dorsey again called Mr. Miller, who said

Dorsey would find the methamphetamine in a shoe on the rafter of the front porch. 

This buy involved 14.7 grams of actual methamphetamine in a mixture weighing 21.8

grams. On October 20, Dorsey called Mr. Miller and arranged another buy. When

Dorsey arrived at the Millers’ residence, neither Mr. Miller nor Mrs. Miller was

home. Mrs. Miller and their 17-year-old son soon arrived. Dorsey called Mr. Miller,

who told Dorsey to give Mrs. Miller the money. The Millers’ son then retrieved the

methamphetamine and gave it to Dorsey. This buy involved 17.7 grams of actual

methamphetamine in a mixture weighing 21.6 grams. On December 2, Dorsey called

Mr. Miller and set up another buy at Mr. Miller’s home. When Dorsey arrived, Mr.

Miller was not home; Mrs. Miller answered the door. Mr. Miller told Dorsey by

phone to give the money to Mrs. Miller and then said Dorsey would find the

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methamphetamine above a barbeque pit on the property. This purchase involved 17.5

grams of actual methamphetamine in a mixture weighing 26.2 grams. In addition to

admitting receiving money from Dorsey in these three transactions, Mrs. Miller

admitted that over the prior twelve months she had accepted money for

methamphetamine from two other individuals at the Millers’ residence.

The elements of aiding and abetting the distribution of a controlled substance

are: “(1) the defendant associated herself with the unlawful venture; (2) the

defendant participated in it as something she wished to bring about; and (3) the

defendant sought by her actions to make it succeed.” United States v. Ellefson, 419

F.3d 859, 863 (8thCir. 2005) (quotation omitted). Mrs. Miller argues the government

failed to prove she possessed the necessary intent to be guilty of aiding and abetting. 

She further argues the government failed to establish an essential element of a drug

conspiracy offense, that she “intentionally joined the conspiracy.” United States v.

Jiminez, 487 F.3d 1140, 1146 (8th Cir. 2007) (quotation omitted). We disagree. 

Based on Mrs. Miller’s admissions that she accepted money for drugs on prior

occasions and received money from Dorsey on three occasions when he came to her

home and left with methamphetamine, a reasonable jury could find she intentionally

participated in completing three methamphetamine transactions. This same evidence

was sufficient for the jury to find beyond a reasonable doubt that Mrs. Miller was a

knowing member of the conspiracy, even if she played a relatively minor role

compared to Mr. Miller. See United States v. Lopez, 443 F.3d 1026, 1030-31 (8th

Cir.) (en banc), cert. denied, 549 U.S. 898 (2006). 

Alternatively, Mrs. Miller argues there wasinsufficient evidence to support the

jury’s finding that she conspired to distribute 50 grams or more of a mixture

containing methamphetamine. We disagree. Mrs. Miller personally participated in

three transactions involving a total of more than 50 grams of a methamphetamine

mixture. These transactions clearlywere “reasonably foreseeable drug quantitiesthat

were in the scope of the criminal activity that [she] jointly undertook.” United States

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v. Foxx, 544 F.3d 943, 951 (8th Cir. 2008) (quotation omitted), cert. denied, 130 S.

Ct. 91 (2009). 

II. Mr. Miller’s Discovery Motion

Three weeks before trial, Mr. Miller filed a Motion for Additional Discovery

Regarding Cooperating Witnessrequesting, in twenty numbered subparagraphs, that

the government produce for inspection and copying a variety of documents

concerning “cooperating” and “prospective government” witnesses. The motion

relied on Rule 16 of the Federal Rules of Criminal Procedure and on Brady v.

Maryland, 373 U.S. 83 (1963). In response, the government objected to being

required to disclose its witnesses prior to trial and stated that it would provide

exculpatory and impeachment evidence that it was required to disclose under Brady

“prior to cross-examination of the cooperating witness should he/she be called as a

witness” at trial. Four days before trial, the district court granted the motion in

substantial part, ordering the government to provide the requested information “prior

to the cross-examination of the witness.” There is no contention the government

failed to comply with this directive. 

On appeal, Mr. Miller challenges one portion of the district court’s ruling, the

denial of his request for the “case names and numbers of any trials or evidentiary

hearings at which any cooperating witness has testified.” He argues this ruling

violated Brady, Rule 16(a)(1)(E)(i), and the Sixth Amendment’s Confrontation

Clause. This contention is without merit; indeed, it was not properly preserved. 

Rule 16(a)(1)(E)(i) provides that, upon a defendant’s request, the government

must produce for inspection and copying documents “material to preparing the

defense.” In 1975, Congress amended Rule 16 to eliminate a requirement that the

government disclose its witnesses prior to trial. See Pub. L. 94-64, § 3(23), 89 Stat.

370, 375; Rule 16 Advisory Committee Notes to the 1975 Enactment relating to

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Rules 16(a)(1)(E) and (b)(1)(C). Mr. Miller’s pretrial discovery motion was a thinly- 1

disguised attempt to learn through discovery who the government was likely to call

as trial witnesses. The government properly objected, and the district court did not

abuse its discretion by ordering the government to provide discovery “prior to crossexamination” of any cooperating witness at trial. See United States v. Roach, 28 F.3d

729, 734 (8th Cir. 1994); United States v. Rogers, 549 F.2d 490, 494 & n.4 (8th Cir.

1976), cert. denied, 431 U.S. 918 (1977); United States v. Taylor, 542 F.2d 1023,

1026 & n.1 (8th Cir. 1976), cert. denied, 429 U.S. 1074 (1977). Nor was this a

violation of the government’s obligations under Brady. “Brady is not a discovery

rule, but a rule of fairness and minimum prosecutorial obligation.” United States v.

Krauth, 769 F.2d 473, 476 (8th Cir. 1985) (quotation omitted). 

At trial, the only cooperating witness who testified was Colin Dorsey. Dorsey

testified on direct examination that he cooperated with the government in making the

controlled buys after he was arrested for drug possession, that he did so in exchange

for the government’s promise to make his cooperation known to the local district

attorney, and that he was paid for these efforts and had been paid by law enforcement

for work on other past cases. Mr. Miller cross-examined Dorsey for bias, and the

district court in no way limited this cross examination. Mr. Miller made no showing

that he was being denied effective cross-examination, or his right to confront Dorsey,

because the government had failed to provide exculpatory or impeachment materials

required either by Brady or by the district court’s discovery order. Thus, he failed to

establish a Brady violation byshowing “the government suppressed evidence that was

favorable to the defendant and material either to guilt or to punishment.” United

States v. Heppner, 519 F.3d 744, 750 (8th Cir.), cert. denied, 555 U.S. 909 (2008). 

Mr. Miller argues that all prior cases at which a cooperating witness testified must be

This had been the rule before a 1974 amendment required the government to 1

disclose its witnesses before trial. See United States v. Cole, 453 F.2d 902, 905 (8th

Cir.), cert. denied, 406 U.S. 922 (1972). 

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disclosed because an “informant’s cooperation . . . suggests a motive for him to

engage in improper conduct.” He cites no circuit decision applying Brady so broadly.

Mr. Miller further argues that the district court abused its discretion by denying

his request for production of any presentence investigation report (PSR) prepared for

a cooperating witness without conducting an in camera review to determine if it

contained impeachment evidence. In its response to Mr. Miller’s pretrial motion, the

government stated it would provide “any evidence which is contained in such a report

which is required to be disclosed under Brady v. Maryland . . . prior to the crossexamination of any witness to which such impeachment evidence applies.” Mr.

Miller did not renew thisrequest before cross examining Dorsey, the only cooperating

witness who testified at trial. We have held that a district court should conduct an in

camera review of a PSR if “the government has recognized the possibility that the

PSR contains Brady/Giglio information and requested in camera review.” United

States v. Huggans, 650 F.3d 1210, 1226 (8th Cir. 2011) (quotation omitted), cert.

denied, 132 S. Ct. 1583 (2012). But here, neither party asked the court to review a

PSR in camera. Moreover, to obtain access to another person’s PSR, a defendant

must make a “showing of special need.” United States v. Jewell, 614 F.3d 911, 921

(8th Cir. 2010) (quotation omitted), cert. denied, 131 S. Ct. 1677 (2011). As Mr.

Miller made no such showing, there was no abuse of discretion. 

III. The “Crack House” Sentencing Enhancement

Mr. and Mrs. Miller both argue the district court committed procedural

sentencing error by imposing a two-level increase for “maintain[ing] a premises for

the purpose of manufacturing or distributing a controlled substance.” U.S.S.G.

§ 2D1.1(b)(12). We review factual findings that the Millers maintained the premises

for the purpose of distributing methamphetamine for clear error. See United States

v. Baker, 200 F.3d 558, 563 (8th Cir. 2000) (standard of review). 

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In the Fair Sentencing Act of 2010, Congress directed the Sentencing

Commission to add a two-level enhancement if “the defendant maintained an

establishment for the manufacture or distribution of a controlled substance, as

generally described in section 416 ofthe Controlled Substances Act (21 U.S.C. 856).” 

Pub. L. No. 111-220, § 6(2), 124 Stat. 2372, 2373 (2010). This statute, commonly

known as the “crack-house” statute, makes it unlawful to “knowingly open, lease,

rent, use, or maintain any place, whether permanently or temporarily, for the purpose

of manufacturing, distributing, or using any controlled substance.” 21 U.S.C.

§ 856(a)(1); see United States v. Verners, 53 F.3d 291, 293 (10th Cir. 1995). 

2

On appeal, Mr. Miller argues there was insufficient evidence he “maintained”

the premisesfor the distribution of controlled substances because his use of the house

to deliver methamphetamine on four occasions in late 2010 “does not qualify as

maintaining premises for drug distribution.” Among the factors a court considers in

determining whether a defendant “maintained” premisesfor drug distribution are (A)

whether he orshe owned or rented the premises, and (B) the extent to which he orshe 

controlled accessto, or activities at, the premises. § 2D1.1, comment. (n.28). “Where

the defendant lives in the house, this element is normally easily proved.” Verners, 53

F.3d at 296 (citation omitted). 

Here, though it is unclear who owned the premises, Mr. and Mrs. Miller lived

there, used the home astheir primary residence, and controlled accessto the property. 

In addition to the four controlled buys, the government presented evidence Mr. Miller

admitted that he distributed massive quantities of methamphetamine between 2004

and 2010, that he told customers they would find the methamphetamine in unusual

locationssuch as beside a fence post and he would collect the purchase price at a later

Prior to 2003, § 856(a)(1) made it unlawful to “knowingly open or maintain

2

any place for the purpose of manufacturing, distributing, or using any controlled

substance.” The 2003 amendment did not affect the issue in this case.

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time, and that he kept ledgers with the names and locations of suppliers and

customers that the government recovered and presented at trial. On October 22,

2010, Mr. Miller reported to local law enforcement officersthatsomeone had planted

ten grams of methamphetamine in his home and tried to convince the officers to use

him as a confidential informant, claiming to know every drug dealer in the area. The

district court did not clearly err in finding that Mr. Miller “maintained” the premises

for drug distribution.

Mrs. Miller argues that she did not maintain the home “for the purpose of”

distributing controlled substances. Application Note 28 to § 2D1.1 instructs that

Manufacturing or distributing a controlled substance need not be the

sole purpose for which the premises was maintained, but must be one of

the defendant’s primary or principal uses for the premises, rather than

one of the defendant’s incidental or collateral uses for the premises. In

making this determination, the court should consider how frequently the

premises was used by the defendant for manufacturing or distributing a

controlled substance and how frequently the premises was used by the

defendant for lawful purposes.

Focusing on the frequency-of-use factor and her minimal role in her husband’s

criminal enterprise, Mrs. Miller argues that her primary use of the premises was as a

family home, where she resided with her husband and raised eleven children, their

own and children of Mr. Miller’s sisters.

We assume that § 2D1.1(b)(12), like the 21 U.S.C. § 856(a)(1) offense that it

parallels, requires proof that the specific defendant being sentenced maintained the

premises “for the purpose of” drug manufacture or distribution. “It is not sufficient

that others possess the requisite purpose.” United States v. Payton, 636 F.3d 1027,

1043 (8th Cir.) (quotation omitted), cert. denied, 132 S. Ct. 349 (2011). However,

consistent with decisions applying § 856, Application Note 28 provides that drug

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manufacturing or distribution need only be “one of the defendant’s primary or

principal uses for the premises, rather than one of the defendant’s incidental or

collateral uses for the premises.” Here, there was direct evidence Mrs. Miller used

the premises for the purpose of actively participating in at least three controlled buys

on the property, and she admitted accepting payments that she knew were for

methamphetamine purchases on other occasions. In two of the controlled buys, Mrs.

Miller’s teenage son helped deliver the methamphetamine to purchaser Dorsey. 

These drug distribution activities were more than an “incidental or collateral” use of

the premises by Mrs. Miller.

We are somewhat baffled by Application Note 28’s instruction to compare the

frequency of lawful and unlawful uses in this type of case. When the premises in

question was the defendant’s family home, by definition it was used for that lawful

purpose 100% of the time. Yet Congress in enacting § 856 and in directing the

Commission to adopt § 2D1.1(b)(12) surely intended to deter the manufacture and

distribution of illegal drugs in “crack houses” where children are being raised. Thus,

prior decisions have upheld § 856 convictions where defendant used the premises in

question as a primary residence as well asfor substantial drug trafficking. See United

States v. Shetler, 665 F.3d 1150, 1163 (9th Cir. 2011); United States v. McCullough,

457 F.3d 1150, 1161 (10th Cir. 2006), cert. denied, 549 U.S. 1136 (2007); United

States v. Church, 970 F.2d 401, 406 (7th Cir. 1992), cert. denied, 506 U.S. 1065

(1993). Likewise, we conclude, § 2D1.1(b)(12) applies when a defendant uses the

premises for the purpose of substantial drug-trafficking activities, even if the

premises was also her family home at the times in question. Thus, the district court

did not clearly err in finding that Mrs. Miller’s use of the premisesfor the distribution

of methamphetamine warranted a two-level increase under § 2D1.1(b)(12). 

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IV. Mrs. Miller’s Advisory Guidelines Range

Mrs. Miller’s initial PSR stated that the offense conduct was three controlled

buys by a confidential informant (Dorsey) and the relevant conduct was a fourth buy,

resulting in a base offense level of 32 based on 64 total grams of actual

methamphetamine. Daniel Miller’s initial PSR likewise recommended a base offense

level of 32 based on 64 grams of actual methamphetamine, with all four controlled

buys being offense conduct for Daniel. The government objected that Daniel’s base

offense level should be 38 because he admitted distributing more than 15 kilograms

of methamphetamine over a lengthy period. The government objected that Mrs.

Miller’s base offense level should also be 38 because “she was convicted as a part of

the same conspiracy as Mr. Miller.” Mrs. Miller objected that the fourth buy should

not be included in her drug quantity. The probation officer agreed with the

government. However, the revised PSR mistakenly listed a base offense level of 38

“based on a total of 64 grams of actual methamphetamine,” rather than on more than

15 kilograms of methamphetamine. The revised PSR rejected Mrs. Miller’s objection

to including the fourth buy because she was “convicted of a conspiracy charge.” 

The revised PSR also recommended the two-level increase under

§ 2D1.1(b)(12) previously discussed, a two-level increase under § 3B1.4 for using her

minor son to commit the offense, and no adjustment for role in the offense. Mrs.

Miller objected to both increases and urged a four-level reduction because she was

a minimal participant in the conspiracy under § 3B1.2(a). 

At sentencing, the district court ruled on these revisions and objections based

on the trial record. The court upheld the revised base offense level of 38. Without

making a specific quantity finding or noting that the revised PSR’s total of 64 grams

of actual methamphetamine is level 32, not level 38, the court observed: 

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The conspiracy was more than just the counts as such. It covered the

whole range of criminal conduct under what we call “relevant conduct.” 

So the court ruled that Mrs. Miller was convicted of conspiracy. She

should be charged with the entire amount of those drugs. 

The court then rejected Mrs. Miller’s objection to including the fourth buy because

“you were convicted of a conspiracy and a conspiracy covers the entire range of

conduct.” However, the court granted a four-level reduction, finding Mrs. Miller a

minimal participant in the conspiracy, and rejected a two-level increase for use of a

minor in committing the offense because “Mr. Miller was more involved in the use

of your son that you were.” These findings resulted in a total offense level of 36 and,

with a criminal history category of I, an advisory guidelinesrange of 188-235 months

in prison. The court sentenced Mrs. Miller to the bottom of that range, 188 months.

This record presents two proceduralsentencing issues that lead us to conclude

we should remand for resentencing. First, it appears no one atsentencing recognized

that the district court’s finding that Mrs. Miller was entitled to a four-level minimalrole adjustment brought into play an amendment to the “mitigating role cap” in

§ 2D1.1(a)(5) mandated by the Fair Sentencing Act of 2010: “If the resulting offense

level is greater than level 32 [after a § 3B1.2 mitigating role adjustment] and the

defendant receives the 4-level (“minimal participant”) reduction in § 3B1.2(a),

decrease [the base offense level] to level 32.” See U.S.S.G. App. C, Vol. III, Amend.

748, at p.382 (2011); Pub. L. No. 111-220, § 7(1), 124 Stat. 2372, 2374 (2010). Here,

the PSR recommended no role adjustment, so it did not consider § 2D1.1(a)(5). Mrs.

Miller in urging a minimal role adjustment did not bring the mitigating role cap to the

district court’s attention, even after the court announced atsentencing it was granting

the adjustment. Because the court started with a base offense level of 38, it

determined that Mrs. Miller’s total offense level was 36 after the adjustment (and the

premises enhancement). Even under plain error review, the failure to apply amended

§ 2D1.1(a)(5) resulted in an erroneous application of the Guidelines that may have

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substantially increased Mrs. Miller’s advisory guidelines range, making remand

appropriate. See United States v. Jackson, 410 F.3d 939, 941-42 (7th Cir. 2005).

Second, the confused sentencing record leaves us with doubt concerning the

district court’s drug quantity finding. The district court correctly ruled that, in

determining the base offense level for her drug conspiracy offense, Mrs. Miller is

responsible for “all reasonably foreseeable acts and omissions of othersin furtherance

of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B), explaining

Relevant Conduct principles that underly Guidelines sentencing. However, “the

emphasis under § 1B1.3 is the scope of the individual defendant’s undertaking and

foreseeability in light of that undertaking, rather than the scope of the conspiracy as

a whole.” United States v. Spotted Elk, 548 F.3d 641, 674 (8th Cir. 2008) (emphasis

in original), cert. denied, 556 U.S. 1145, 1194, 1265 (2009); see § 1B1.3, comment.

(n.2). Therefore, before attributing drug transactions conducted by other conspirators

to the defendant, the sentencing court must find that the transactions were 

in furtherance of the conspiracy and either known to that defendant or

reasonably foreseeable to [her]. Factors relevant to foreseeability

include whether the defendant benefited from [her] co-conspirator’s

activities and whether [she] demonstrated a substantial level of

commitment to the conspiracy. 

United States v. Brown, 148 F.3d 1003, 1008 (8th Cir. 1998) (citation omitted), cert.

denied, 525 U.S. 1169 (1999). The extent to which specific findings are required will

of course vary with the circumstances surrounding a particular defendant and her

conspiracy offense. 

In this case, the drug quantity in the initial PSR was 64 grams of actual

methamphetamine sold to Dorsey in four controlled buys over a three-month period. 

Mrs. Miller objected to including the fourth buy as relevant conduct. The district

court’s overruling of that objection required nothing more than a cryptic reference to

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the conspiracy nature of her offense. But the revised PSR had increased the base

offense level from 32 to 38, accepting the government’s objection that Mrs. Miller’s

base offense level should be based upon Mr. Miller’s boastful admissions that he

distributed more than 15 kilograms of methamphetamine during the course of his sixyear conspiracy. No doubt more than 64 grams of actual methamphetamine could

reasonably be attributed to Mrs. Miller. Not only was she Mr. Miller’s wife who

lived with him in premises they used for drug distribution, she also admitted

accepting money for methamphetamine from two other individuals in the prior year. 

But the government asserted she was responsible for the entire 15 kilograms simply

because she “was convicted as a part of the same conspiracy as Mr. Miller.” This 

was contrary to well-established Eighth Circuit precedent. See Spotted Elk, 548 F.3d

at 674 (“a defendant’s conviction for conspiracy does not automatically mean that

every conspirator has foreseen the total quantity of drugs involved in the entire

conspiracy”); United States v. Rogers, 982 F.2d 1241, 1245-46 (8th Cir.) (remanding

because the district court attributed all quantities implicated in the conspiracy based

solely on defendant’s conspiracy conviction), cert. denied, 509 U.S. 912 (1993).

Our uncertainty is amplified because the revised PSR increased the base

offense level from 32 to 38 without revising the drug quantity from 64 grams of

actual methamphetamine to 15 kilograms of methamphetamine. In upholding the

revised base offense level, the district court made no reference to drug quantity. It

simply found: “Mrs. Miller was convicted of conspiracy. She should be charged with

the entire amount of those drugs.” As the only relevant conduct issue the court

explicitly considered wasto deny Mrs. Miller’s objection to including the fourth buy,

the record leaves in doubt whether the court was aware that this cryptic comment

resulted in a thirty-fold increase in the drug quantity finding, based primarily on Mr. 3

Miller’s activities, and despite the jury’s finding of a lesser quantity than charged in

the indictment and the court’s grant of a minimal role adjustment. In these

Compare § 2D1.1(c)(1) with § 2D1.1(c)(4). 3

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circumstances, we conclude that the interests of justice are well-served by a remand

for resentencing following a redetermination of Mrs. Miller’s advisory guidelines

range. This seems particularly appropriate because, the day after Mrs. Miller’s

sentencing, the district court in sentencing Mr. Miller adopted his argument for base

offense level 32, without a specific drug quantity finding, in order to reduce his

advisory guidelines range from life to 360 months-to-life. Whether this was a

reduced drug quantity finding or a de facto downward variance is in our view

unimportant. It simply reinforces our view that, in this post-Booker world, a remand

for resentencing in this case is needed.

For the foregoing reasons, we affirm Daniel Miller’s conviction and sentence. 

We affirm Rebecca Miller’s conviction, vacate her sentence, and remand to the

district court for resentencing not inconsistent with this opinion. 

______________________________

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