1

The Honorable Donald J. Stohr, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3917

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United States of America, *

*

Plaintiff - Appellee, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Kelvin Miller, * [UNPUBLISHED]

*

Defendant - Appellant. *

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Submitted: September 25, 2009

Filed: December 7, 2009

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Before MURPHY, BRIGHT, and RILEY, Circuit Judges.

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PER CURIAM.

Kelvin Miller appeals his conviction for being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1) on the grounds that: (1) there was insufficient

evidence to sustain his conviction; (2) the district court1

 improperly applied sentence

enhancements under the United States Sentencing Guidelines (“USSG”) §§ 3C1.1 and

3C1.2; (3) the district court erred in denying his motion for a downward departure or

variance; and (4) the district court failed to adequately consider the 18 U.S.C. §

3553(a) factors. We affirm. 
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After viewing the evidence in the light most favorable to the verdict, see United

States v. Urick, 431 F.3d 300, 303 (8th Cir. 2005), we conclude the evidence is

sufficient to show Miller possessed a firearm. Two police officers testified they

observed Miller carrying a weapon as he ran through a St. Louis residential

neighborhood. One of the officers testified that Miller pointed that weapon at him

during the chase. An officer also testified that after Miller was arrested, he admitted

to throwing this weapon in a nearby backyard. Officers subsequently found the

weapon in that location. This evidence is sufficient to sustain Miller’s conviction for

being a felon in possession of a firearm.

We also conclude the district court properly imposed an obstruction of justice

enhancement under USSG § 3C1.1 based on Miller’s repeated denials at trial that he

possessed a weapon. See United States v. Flores, 362 F.3d 1030, 1037 (8th Cir. 2004)

(“Committing perjury at trial constitutes an obstruction of justice within the meaning

of § 3C1.1.”). The record also indicates that the district court applied the

enhancement only after conducting its own independent evaluation of all the evidence.

See United States v. Kessler, 321 F.3d 699, 703 (8th Cir. 2003). That evidence

strongly showed that Miller lied while on the witness stand when he denied possessing

the weapon, and the district court did not err in enhancing his sentence.

Similarly, evidence supports the district court’s imposition of a sentence

enhancement for creating a risk of death or injury during flight under USSG § 3C1.2.

Miller admitted he fled from police, jumped out of a moving vehicle which later

struck a parked car, led police officers on a foot chase through a residential

neighborhood, and persistently disregarded officers’ commands to stop. The record

also shows that Miller carried a loaded weapon during the chase and pointed it at a

police officer, which resulted in the officer shooting Miller. This factual background

justifies the enhancement for reckless endangerment under USSG § 3C1.2. See

United States v. Bates, 561 F.3d 754, 757 (8th Cir. 2009).
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The district court also did not err in denying Miller’s request for a downward

departure from the guideline sentence based on Miller’s claims of diminished capacity

and mental health problems. After reviewing the sentencing record, it is evident that

the district court considered Miller’s request, but concluded the guideline sentence

was appropriate and Miller had not established his case was sufficiently atypical to

warrant a lesser sentence. See United States v. Lee, 553 F.3d 598, 601 (8th Cir.

2009).

Finally, the district court did not err in imposing a guideline sentence rather

than one pursuant to 18 U.S.C. § 3553(a). We have carefully reviewed the record and

conclude the district court properly considered the § 3553(a) factors and did not abuse

its discretion in sentencing Miller to 96 months’ imprisonment.

Accordingly, we affirm. 

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