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The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3073

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Mary I. Miller, *

*

Appellant. *

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Submitted: June 10, 2008

Filed: March 9, 2009

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Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.

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BOWMAN, Circuit Judge.

Mary I. Miller appeals the sentence imposed by the District Court1

 after

revocation of her probation. We affirm.

On March 24, 2003, Miller pleaded guilty to one count of conspiring with her

husband, Walter Randall Miller, to defraud the United States by failing to file

employment-tax returns or pay employment taxes from 1994 to 2002. The District

Court sentenced Miller to five years of probation. The court imposed special
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conditions of release requiring Miller to "cooperate fully" with the Internal Revenue

Service ("IRS") in filing "all tax returns required by law" ("Special Condition 9") and

to "cooperate with the [IRS] in making full payment of all taxes, interest, and

penalties" and "pay all amounts due to the IRS as finally determined" ("Special

Condition 10"). J. at 3. 

In December 2006, Miller's probation officer filed a petition to revoke Miller's

supervised release because, in violation of Special Conditions 9 and 10, Miller had not

filed her personal tax return for 2005 nor had she paid her outstanding tax obligation

to the IRS. The District Court revoked Miller's supervised release and sentenced her

to thirteen months in prison followed by thirty-two months of supervised release. The

court re-imposed the terms described in Special Conditions 9 and 10, which were

renumbered Special Conditions 8 and 9, respectively, and the court added a special

condition requiring Miller to pay, jointly and severally with her husband, $2,000 per

month toward her IRS obligations beginning thirty days after her release from prison

("New Special Condition 10"). The court explained that if Miller complied with New

Special Condition 10, she could avoid future revocation of supervised release for

failure to pay her IRS obligations.

Miller first argues that the District Court abused its discretion by imposing New

Special Condition 10 because the condition did not delineate a set amount of

restitution owed to the IRS, it encompassed IRS obligations that were unrelated to her

employment-tax conviction, and it included interest and penalties on those unrelated

IRS obligations. We review for abuse of discretion a district court's decision to

impose certain terms and conditions of supervised release. United States v. Boston,

494 F.3d 660, 667 (8th Cir. 2007). 

The District Court did not abuse its discretion by requiring as a condition of

Miller's release that she comply with the tax laws and pay the IRS $2,000 per month

toward her outstanding tax obligations as finally determined by the IRS. See United
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During the revocation hearing, both the parties and the District Court used the

term "restitution" to refer generally to Miller's duty to pay her outstanding tax

obligation to the IRS. Importantly, the District Court does not characterize this tax

obligation as "restitution" in the revocation judgment.

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States v. Ramsey, 992 F.2d 831, 833 (8th Cir. 1993) (concluding that district court did

not abuse its discretion by requiring defendant to comply with federal income tax

laws); 18 U.S.C. § 3583(d) (requiring sentencing courts to order as a condition of

supervised release that a defendant refrain from committing a federal, state, or local

crime); cf. United States v. Mitchell, 429 F.3d 952, 961–62 (10th Cir. 2005) (holding

that an order requiring the defendant to keep current on unrelated restitution

obligations is not "restitution" but rather a requirement to obey the law). Specifically,

Miller's contention that New Special Condition 10 does not comport with the

Mandatory Victim Restitution Act is unavailing. New Special Condition 10 does not

impose a restitution requirement; it imposes a requirement that Miller comply with the

tax laws—including the payment of her outstanding tax obligations.2

 See United

States v. Braxtonbrown-Smith, 278 F.3d 1348, 1356 (D.C. Cir.) (finding meritless the

defendant's argument that an order to pay delinquent taxes was an improper restitution

order because the tax obligation was established by the Internal Revenue Code), cert.

denied, 536 U.S. 932 (2002); United States v. Iverson, No. 95-4185, 1996 WL

656578, at *2 (10th Cir. Nov. 12, 1996) (holding that special condition ordering

defendant to "pay all back taxes owed" was not an order of restitution but an order to

obey the tax laws); United States v. Huguenin, No. 94-1119, 1994 WL 390112, at *2

(1st Cir. July 22, 1994) (noting that condition requiring defendant to "file delinquent

and future tax returns, as well as pay any tax due" simply required compliance with

the law); United States v. Hatchett, 918 F.2d 631, 644 (6th Cir. 1990) (holding that

conditioning probation on payment of all back taxes was nothing more than an order

to "comply with the law"), cert. denied, 501 U.S. 1223 (1991); United States v. Schiff,

876 F.2d 272, 275 (2d Cir. 1989) (holding that condition directing payment of all

"legally required" taxes was "neither overbroad nor vague" and "mandate[d] no more

than the law require[d]"). Moreover, New Special Condition 10 is reasonably related
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to the circumstances of Miller's offense, involves no greater deprivation of liberty than

is reasonably necessary to deter Miller's criminal conduct, and is designed to protect

the public from additional crimes by Miller. See 18 U.S.C. § 3583(d). The District

Court did not abuse its discretion by conditioning Miller's release on her compliance

with the tax laws and her payment of $2,000 per month toward her outstanding tax

obligations.

Miller next argues that the District Court abused its discretion by imposing a

thirteen-month sentence of imprisonment after revoking her probation. We review a

district court's revocation sentencing decisions using the same standards that we apply

to initial sentencing decisions. United States v. Cotton, 399 F.3d 913, 916 (8th Cir.

2005). In reviewing for abuse of discretion, we must first ensure that the court

committed no significant procedural error, such as improperly calculating the sentence

under the Guidelines, failing to consider relevant 18 U.S.C. § 3553(a) sentencing

factors, imposing a sentence based on clearly erroneous facts, or failing to adequately

explain the reasons for the sentence imposed. See Gall v. United States, 128 S. Ct.

586, 597 (2007). Once we are satisfied that the sentencing decision is free of

significant procedural error, we consider the substantive reasonableness of the length

of the sentence under an abuse-of-discretion standard. Gall, 128 S. Ct. at 597. 

Here, the District Court considered the three-to-nine-month revocation sentence

recommended under the Guidelines, but elected instead to impose a thirteen-month

term of imprisonment—a sentence that is within the statutory limits of 18 U.S.C.

§ 3583(e)(3). The District Court based its sentencing determination on factual

findings that were not clearly erroneous, adequately explained the reasons for the

sentence imposed, and considered alternatives to imprisonment. The court found by

a preponderance of the evidence, see id., that Miller refused to cooperate with the IRS,

failed to pay her outstanding tax debt, filed incomplete and inaccurate personal tax

returns for the 2000 through 2004 tax years, and failed to file a personal tax return for

the 2005 tax year. The court noted that it was "disturbing" that despite the

"considerable leniency" extended to Miller at her original sentencing, she refused to
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comply with the court's orders. Tr. of June 18, 2007, Sent. Hr'g at 58–59. The court

stated that it had "tried everything possible" to get Miller to "comply with the

judgments of this Court," but that Miller continued "to frustrate the [IRS] and this

Court and the Court takes a very dim view of that." Id. at 65–66. We hold that the

District Court did not commit procedural sentencing error.

Likewise, we are satisfied that the District Court considered and gave

appropriate weight to the relevant § 3553(a) factors in determining Miller's revocation

sentence. The court was aware of Miller's ongoing violations of the special conditions

of her probation and her unwillingness to comply with those conditions despite the

efforts of the court and the IRS to obtain compliance. The court considered both the

Guidelines sentencing range and the statutory maximum sentence before determining

that the sentence imposed was necessary to deter Miller's continued criminal conduct.

In addition to presiding over Miller's revocation sentencing, the District Court

presided over Miller's initial sentencing. At the revocation hearing, therefore, the

court was fully apprised of Miller's history and characteristics. See United States v.

Franklin, 397 F.3d 604, 607 (8th Cir. 2005) (noting that judge who presided over both

original and revocation sentencing proceedings was aware of defendant's history and

characteristics). After careful review of the record, we are confident that the District

Court adequately considered the relevant § 3553(a) factors, committed no abuse of

discretion in weighing those factors, and imposed a reasonable sentence.

We affirm Miller's sentence in all respects. 

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