[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-13247

Non-Argument Calendar

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D.C. Docket No. 1:18-cr-00035-JB-B-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

NICOLE MARIE MILLER, 

a.k.a. Unique, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Alabama

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(May 24, 2021)

Before MARTIN, JORDAN, and BRASHER, Circuit Judges.

PER CURIAM: 

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Nicole Miller appeals her convictions by a jury and 120-month sentence for 

possessing a firearm as a convicted felon and possessing a firearm in a school 

zone. Miller makes two arguments on appeal. First, she says the government 

presented insufficient evidence to establish that she actually possessed a firearm. 

Second, she says her 120-month sentence is substantively unreasonable. After 

careful consideration, we affirm Miller’s convictions and sentence.

I. BACKGROUND

Following a mistrial, Miller was charged in a second superseding indictment 

with one count of possession of a firearm by a convicted felon in violation of 18 

U.S.C. § 922(g)(1) (“Count 1”) and one count of possession of a firearm in a 

school zone in violation of 18 U.S.C. § 922(q)(2)(A) (“Count 2”).

A. Trial

The case proceeded to a jury trial on the charges in the superseding 

indictment. Several witnesses testified, but we recount only the testimony relevant 

to this appeal. The government called Valerie James who testified that on 

February 2, 2017, she and some friends met Miller in a parking lot to purchase 

Xanax. After James realized the pills Miller gave her were not real, she took them 

without paying and left in her car. Miller started to follow James in her own car 

and the two pulled into the parking lot of a Subway. They got into an argument 

and eventually James got back in the car and tried to pull out of her parking spot. 

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Miller attempted to reach into James’s vehicle and in doing so dropped a cigar onto

James’s lap. James later provided the cigar to law enforcement. James believes 

Miller fell to the ground as James pulled off. As James drove away, she heard 

gunshots and her car was hit by gunfire. On cross-examination, James testified 

that she lied to the police about what the fight between her and Miller was about 

because she was on probation. James identified Miller in court. 

Kim Barton also testified. She testified that on February 2, 2017, she picked 

up her daughter from school to take her to an appointment. While she was stopped 

at a traffic light she saw someone hop out of a car in the Subway parking lot, fall 

on the ground, then jump up with a gun and start shooting. In court, Barton 

identified Miller as the person she saw fire the gun. After her daughter’s 

appointment, Barton returned to the scene where she gave police a description of 

the shooter. She did not see Miller at this time, but she did see someone in the 

back of a police car though she was not sure who it was. Barton testified that she 

was not asked to identify anyone at the scene and was asked only for a description. 

After the government rested its case, Miller moved for a judgment of 

acquittal, which the district court denied. Miller renewed her motion after the 

close of her evidence, which the court again denied. The jury found Miller guilty 

on both counts.

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B. Sentencing

Pursuant to United States Sentencing Guideline § 2K2.1(a)(2), Miller’s 

Presentence Investigation Report (“PSR”) assigned a base offense level of 24

because she possessed a firearm after having been convicted of at least two 

felonies. Four points were added to the offense level under Guideline 

§ 2K2.1(b)(6)(B)

1 because Miller possessed a firearm in connection with another 

felony offense, which resulted in a total offense level of 28. With a criminal 

history category of IV, her guideline range was 110 to 137 months’ imprisonment. 

Prior to the sentencing hearing, Miller filed a sentencing memorandum. Her 

memorandum explained that Miller had experienced severe childhood trauma and 

abuse that continued to impact her. She asked the district court to consider her 

history in this regard and impose a below-guidelines sentence. She further argued 

that a below-guidelines sentence was warranted because she had been in custody 

during the COVID-19 pandemic and had contracted COVID-19 while incarcerated. 

At the sentencing hearing, the district court stated that it had considered the 

PSR, the testimony and evidence presented at trial, the parties’ arguments, as well 

as the sentencing factors in 18 U.S.C. § 3553(a) and the sentencing guidelines. 

The court also said it had considered Miller’s personal history and characteristics 

and the nature and circumstances of her offense. It expressed concern about her 

1 The PSR mistakenly notes that the increase was pursuant to Guideline § 2K2.1(b)(6)(A).

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prior felony convictions and the fact that one involved a firearm and the other 

involved Xanax, both of which were again involved in the offense for which she 

was now being sentenced. Given these considerations, the district court sentenced 

Miller to 120 months’ imprisonment, with 110 months on Count 1 and 10 months 

on Count 2 to be served consecutively. The court noted that this sentence 

addressed the seriousness of the offense, the objectives of punishment, deterrence, 

and incapacitation. 

This is Miller’s appeal.

II. DISCUSSION

Miller makes two arguments on appeal. First, she says there was insufficient 

evidence to sustain a conviction under either 18 U.S.C. § 922(g)(1) or 18 U.S.C. 

§ 922(q)(2)(A). Second, she says her 120-month sentence is substantively 

unreasonable. We address each in turn.

A. Sufficiency of Evidence

Miller argues the evidence at trial was insufficient to sustain her convictions

under 18 U.S.C. § 922(g)(1) or 18 U.S.C. § 922(q)(2)(A) because both offenses 

require proof of possession and the government did not produce enough evidence 

to establish that Miller possessed a firearm on February 2, 2017.

We review de novo whether sufficient evidence supports a conviction, 

viewing the evidence in the light most favorable to the verdict and making all 

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reasonable inferences and credibility determinations in favor of the jury’s verdict. 

United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005) (per curiam). We 

must affirm unless, “under no reasonable construction of the evidence,” could the 

jury have found the defendant guilty beyond a reasonable doubt. Id. “Credibility 

determinations are left to the jury and the jury’s verdict will not be disturbed on 

appeal unless the testimony is incredible as a matter of law.” United States v. 

Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (per curiam) (quotation marks 

omitted).

The evidence here was sufficient for a jury to find Miller guilty beyond a 

reasonable doubt. Based on the evidence presented at trial, the jury could have 

found that Miller possessed a firearm on the date in question. James testified that 

after she and Miller got into an argument and she tried to drive away, Miller 

reached into her car, fell, and then James began to hear gunshots and her car was 

hit by gunfire. And Barton testified that she witnessed a woman fall, spring up, 

then start shooting. Critically, Barton identified Miller as the shooter in court. 

Although Miller argues Barton’s testimony is unreliable because she did not 

identify Miller when she spoke to police officers at the scene, Barton testified that 

she was not asked to provide an identification at that time. Nothing rendered

Barton’s testimony “incredible as a matter of law” and we conclude that was a 

sufficient basis for the jury to believe Miller possessed a firearm. Flores, 572 F.3d 

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at 1263 (quotation marks omitted). There was thus sufficient evidence to convict 

Miller on both counts.

B. Reasonableness of Sentence

Miller argues her 120-month sentence is substantively unreasonable because 

it is excessive based on the sentencing factors in 18 U.S.C. § 3553(a). Specifically, 

Miller says the district court should have given greater weight to her history and 

characteristics in light of her severe childhood trauma and abuse. 

We review the substantive reasonableness of a sentence for abuse of 

discretion. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We 

vacate a sentence as substantively unreasonable only if “we are left with the 

definite and firm conviction that the district court committed a clear error of 

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies 

outside the range of reasonable sentences dictated by the facts of the case.” United 

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation marks 

omitted).

We are not left with that “definite and firm conviction” here. See id. The 

district court did consider the factor emphasized by Miller (personal history and 

characteristics) in addition to the other § 3553(a) factors. The court also expressed 

concern about Miller’s prior felony convictions and the fact that one involved a 

firearm and the other involved Xanax. The court ultimately decided that, given 

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these considerations, a midrange sentence of 120 months’ imprisonment was 

appropriate. The district court explained that even though the evidence at trial 

would justify a sentence at the high-end of the guidelines, it was not going to 

impose a high-end sentence. We cannot say this constituted a “clear error of 

judgment in weighing the § 3553(a) factors.” Id. (quotation marks omitted). 

Therefore Miller’s midrange sentence of 120 months’ imprisonment is not 

substantively unreasonable.

AFFIRMED.

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