United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 5, 2018 Decided May 18, 2018

No. 17-3001

UNITED STATES OF AMERICA,

APPELLEE

v.

FREDERICK A. MILLER, ALSO KNOWN AS TOBY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:04-cr-00379-2)

Dennis M. Hart, appointed by the court, argued the cause 

and filed the briefs for appellant.

Lauren R. Bates, Assistant U.S. Attorney, argued the cause 

for appellee. On the brief were Elizabeth Trosman, Chrisellen 

R. Kolb, and Patricia A. Heffernan, Assistant U.S. Attorneys.

Before: PILLARD, Circuit Judge, and EDWARDS and 

WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge 

EDWARDS. 
2

EDWARDS, Senior Circuit Judge: In 2006, Appellant 

Frederick Miller and 20 codefendants were charged in a 100-

count indictment alleging a conspiracy to distribute heroin, 

cocaine, cocaine base, and phencyclidine (“PCP”). On June 19, 

2006, a jury convicted Appellant of 21 counts of using a

communication device to facilitate a drug-trafficking offense, 

acquitted him of PCP distribution and several counts of 

communications offenses, and hung on the remaining counts. 

Appellant was tried for a second time with respect to the counts 

on which the jury hung at the first trial. On November 15, 2006, 

following his second trial, a jury found Appellant guilty of 

narcotics conspiracy covering heroin, cocaine, and cocaine 

base, but not PCP; Racketeer Influenced and Corrupt 

Organizations Act (“RICO”) conspiracy; Continuing Criminal 

Enterprise (“CCE”); attempt to possess with intent to distribute 

heroin; and three counts of unlawful use of a communication 

facility. He was found not guilty of attempt to possess with

intent to distribute PCP and five additional communications

counts.

On November 28, 2007, the District Court sentenced 

Appellant on the counts of conviction from both trials. The 

court dismissed the narcotics conspiracy charge against

Appellant as a lesser-included offense of CCE. The court then 

imposed concurrent sentences of life imprisonment for the 

RICO conspiracy and CCE, and lesser terms of imprisonment 

on the other counts. 

On Appellant’s appeal from the first trial, this court

reversed six telephone count convictions and affirmed the

convictions on the remaining counts. On Appellant’s appeal 

from the second trial, this court vacated the CCE conviction for 

insufficiency of the evidence, reinstated the drug conspiracy 

conviction, vacated Appellant’s sentence, and remanded for 

resentencing.
3

On December 20, 2016, following remand to the District 

Court, the Appellant was resentenced as follows: life 

imprisonment on the RICO conspiracy; 120 months on the drug 

conspiracy; 60 months on attempted possession with intent to 

distribute heroin; and 48 months each on 18 telephone counts.

Appellant filed a timely notice of appeal on December 30, 

2016.

Appellant now claims that the District Court erred in its 

consideration of the United States Sentencing Guidelines

(“Guidelines”) in imposing sentencing enhancements for his 

possession of a firearm and for serving as an organizer or leader 

of criminal activity; in determining the quantity of drugs used 

to calculate his base offense level in sentencing him on a count 

of narcotics conspiracy; and in imposing a life sentence on the 

RICO conspiracy count. 

In response to Appellant’s challenges, the Government 

presses two points. The Government argues,

[f]irst, the claims are waived. Appellant did not 

challenge drug quantity or the district court’s 

application of either [sentencing] adjustment in his 

initial appeal; these determinations became law of the 

case, and therefore appellant should not be permitted 

to litigate them now. Second, the district court was not

authorized to reconsider the issues on resentencing 

because they are beyond the scope of this Court’s 

remand.

Gov’t Br. at 19. The Government’s arguments confusingly 

conflate three theories: waiver; law of the case; and the rule 

that the District Court generally does not have authority to 

resentence a defendant de novo when this court vacates one 
4

count of a multicount conviction. As we explain more fully in

the analysis section of this opinion, the Government’s 

arguments are seriously misguided.

Appellant had no reason to raise his present sentencing 

challenges during his initial appeal; therefore, he certainly did 

not “waive” these claims as the Government suggests. During 

his initial appeal, Appellant’s looming mandatory life sentence 

for his CCE conviction rendered his present sentencing 

challenges fruitless. Given this situation, Appellant was not 

obliged to raise arguments on his first appeal that were merely 

contingently relevant. Once Appellant’s initial appeal was 

successful in overturning the CCE conviction, however, his 

current sentencing challenges became relevant for the first 

time. Therefore, he gave up nothing during his first appeal.

After careful review of the record, we affirm in part, 

reverse in part, vacate in part, and remand the case for 

resentencing consistent with the following judgments. We hold 

that Appellant’s challenges to the firearm and role-in-theoffense enhancements are meritorious because the District 

Court plainly erred in applying them. However, we hold that 

Appellant’s challenge to the drug quantity determination fails 

because the District Court adequately explained its judgment 

and its findings are supported by the record. Finally, we vacate 

and remand the sentence on the RICO conspiracy count 

because the parties agree that the District Court erred in stating 

that the Guidelines range for the RICO conspiracy was life, 

when it was in fact 360 months to life. 

I. BACKGROUND

As noted above, Appellant and 20 codefendants were 

charged in a multicount indictment arising from a conspiracy 

to distribute heroin, cocaine, cocaine base (also known as 
5

“crack”), and PCP. United States v. Eiland, 738 F.3d 338, 345

(D.C. Cir. 2013). On July 18, 2004 – after Appellant’s arrest 

but before the alleged conspiracy ended in September 2004 –

the Government executed a search warrant at his home and 

found firearms licensed to him, as well as a glass vial with the 

odor of PCP and several bottles of acetone, which can be used 

to dilute PCP. After the first trial, a jury convicted Appellant of 

21 counts of using a communication device to facilitate a drug

trafficking offense, acquitted him “of PCP distribution and 

several counts of communications offenses,” and “hung on the 

remaining counts,” resulting in a mistrial as to those. Id.

Appellant was tried for a second time “with respect to the 

counts on which the jury hung at the first trial.” United States 

v. Miller, 738 F.3d 361, 367 (D.C. Cir. 2013). 

At his second trial, Appellant

was convicted of narcotics conspiracy (Count 1) with 

regard to heroin, cocaine, and cocaine base, but not 

with regard to PCP; RICO conspiracy (Count 2); CCE

(Count 3); attempt to possess with intent to distribute 

heroin (Count 5); and three counts of unlawful use of 

a communication facility. The jury found Miller not 

guilty of attempt to possess with intent to distribute 

PCP and five additional communications counts.

Eiland, 738 F.3d at 346. Regarding the narcotics conspiracy

count, the jury specifically found drug amounts for which 

Appellant was responsible, “including those drugs that he 

actually distributed or possessed with intent to distribute, and 

those drugs distributed or possessed with intent to distribute by 

co-conspirators which the defendant knew or reasonably could 

have foreseen would be distributed or possessed in furtherance 

of the conspiracy.” Jury Verdict Form at 20, United States v. 

Eiland (No. 04-CR-00379) (Dec. 5, 2006), available at
6

Supplemental Appendix (“S.A.”) 15. Those amounts were “1 

kilogram or more of mixtures or substances containing a 

detectable amount of heroin,” “5 kilograms or more of mixtures 

or substances containing a detectable amount of cocaine,” and 

“5 grams or more but less than 50 grams of mixtures or 

substances containing a detectable amount of cocaine base.” Id.

at 21–22, S.A. 16–17. 

Regarding the CCE count, the jury found that Appellant

conspired to distribute and possess with intent to distribute 

mixtures or substances containing detectable amounts of 

heroin, cocaine, and cocaine base. The jury also found that the 

criminal enterprise was involved in the distribution of 30 

kilograms or more of heroin and 15 kilograms or more of 

cocaine. Although the jury found Appellant guilty on Count 

Five, “attempt[ing] to possess with intent to distribute heroin,” 

it did not make a specific finding regarding drug quantity. Id.

at 39, S.A. 33.

The Presentence Investigation Report for the first trial 

(“2007 PSR”) explained that, “[b]ased on the jury verdict, 

Frederick Miller was held accountable for at least 30 kilograms 

of heroin and at least 15 kilograms of cocaine.” 2007 PSR at 

11, United States v. Miller (No. CR-04-379-2) (Apr. 16, 2007).

Using the “2006 edition of the Guidelines Manual, in 

conjunction with the May 2007 Supplement,” the 2007 PSR 

grouped all of the counts under Guidelines § 3D1.2(d) because 

the offense level of each count was determined based upon “the 

quantity of a substance involved.” Id. at 12. The PSR calculated 

the base offense level at 42 “because the offense involved at 

least 30 kilograms of heroin and at least 15 kilograms of 

cocaine,” citing Guidelines § 2D1.1(a)(3) and (c)(1). Id.

The 2007 PSR increased the offense level two points under 

Guidelines § 2D1.1(b)(1) for “Specific Offense Characteristic: 
7

A dangerous weapon (including a firearm[)] was possessed.” 

Id. at 13. It awarded a four-point increase for “Role in the 

Offense” pursuant to Guidelines § 3B1.1(a). Id. Because the 

adjusted offense level, 48, was the result of the application of 

the Guidelines, and it was greater than an offense level of 43, 

the 2007 PSR treated the offense level as 43, pursuant to 

Guidelines Chapter 5, Part A, paragraph 2. The 2007 PSR 

calculated a criminal history category of I. A total offense level 

of 43 and a criminal history category of I resulted in a 

Guidelines range of life imprisonment. The statutory minimum 

sentence for the CCE conviction was life; both the narcotics 

conspiracy and the RICO conspiracy carried maximum terms 

of life imprisonment; and the unlawful-use-of-acommunications-facility counts carried maximum statutory 

terms of imprisonment of four years. 

On November 28, 2007, the District Court sentenced 

Appellant on the counts of conviction from both trials. The 

court dismissed the narcotics conspiracy charge against 

Appellant as a lesser included offense of the CCE count. 

Eiland, 738 F.3d at 346. The District Court held that a twooffense-level increase was appropriate for possession of a 

firearm “even though it was legally obtained.” Transcript of 

Sentencing at 3, United States v. Miller (No. CR-04-379-2) 

(Nov. 28, 2007), S.A. 3. It then imposed “concurrent sentences 

of life imprisonment for RICO conspiracy and CCE, and lesser 

terms of imprisonment on the other counts.” Eiland, 738 F.3d 

at 346.

On appeal from the first trial, this court vacated various 

unlawful-use-of-a-communications-facility counts and 

affirmed the remaining counts. Miller, 738 F.3d at 387. On 

appeal from the second trial, this court concluded that, although 

sufficient evidence supported the narcotics conspiracy 

conviction, the evidence failed to establish that Appellant
8

organized or supervised five people as required for a CCE 

conviction. Eiland, 738 F.3d at 356–58. However, we affirmed 

and reinstated Appellant’s conviction on Count 1 relating to

narcotics conspiracy, vacated his sentence, and remanded the 

case for resentencing. Id. at 361.

The Probation Office issued a revised memorandum 

(“revised PSR”) to assist the District Court at resentencing. 

Based on the 2015 version of the Guidelines, the base offense 

level was predicated upon the narcotics conspiracy count. 

Because Guidelines § 2D1.1(a)(5) and (c)(2) state that an 

offense involving at least 30 kilograms of heroin and 15 

kilograms of cocaine resulted in a marijuana equivalent of 

33,000 kilograms, the base offense level was set at 36. Again 

adding two points because “[a] dangerous weapon, specifically 

a firearm, was possessed” (Guidelines § 2D1.1(b)(1)), and four 

points for “Role in the Offense” pursuant to § 3B1.1(a), the 

revised PSR calculated the total offense level to be 42. Revised 

Re-Sentencing Report, United States v. Miller (No. CR-04-

379-2) (June 16, 2016), available at Appellant’s Appendix 

(“A.A.”) 124. With a criminal history of I, the revised PSR

determined that Appellant’s Guidelines range of imprisonment 

was 360 months to life. 

On December 20, 2016, the District Court resentenced 

Appellant as follows: (1) ten years on Count One, narcotics 

conspiracy; (2) life on Count Two, RICO conspiracy; (3) five 

years on Count Five, attempted possession with intent to 

distribute heroin; and (4) four years each on Counts Six, 16–

18, 22, 24, 27, 28, 30, 33, 35, 36, 38, 39, 41, 43, 49, 52, and 53.

In so doing, the District Court found that Appellant was 

responsible for the drug quantities underlying the vacated CCE 

conviction, i.e., “30 kilograms of heroin, 15 kilograms of 

cocaine, and at least five grams of crack.” Transcript of 

Sentencing Hearing at 8–10, United States v. Miller (No. CR-
9

04-379-2) (Dec. 20, 2016), A.A. 73–75. The District Court also

applied a two-point firearm enhancement because, based on the 

evidence and witness testimony it had seen and heard, the court 

determined that Appellant “was in fact in possession of a 

firearm during this drug conspiracy.” Id. at 10, A.A. 75. And, 

finally, the District Court applied a four-point role-in-theoffense enhancement because it found that Appellant 

“managed or supervised at least one participant who was 

criminally responsible for an offense in a criminal activity that 

involved five or more participants, or was otherwise 

extensive.” Id. at 11, A.A. 76.

Appellant filed a timely notice of appeal on December 30, 

2016. 

II. ANALYSIS

A. Standard of Review

Under Gall v. United States, 552 U.S. 38 (2007), we 

review sentences in a two-step process pursuant to which 

procedural challenges are reviewed for an abuse of discretion.

First, we must “ensure that the district court committed no 

significant procedural error such as failing to calculate (or 

improperly calculating) the Guidelines range, treating the 

Guidelines as mandatory, failing to consider the § 3553(a) 

factors, selecting a sentence based on clearly erroneous facts, 

or failing to adequately explain the chosen sentence—

including an explanation for any deviation from the Guidelines 

range.” Id. at 51. Next, if the District Court decision is 

procedurally sound, we then review it for substantive 

reasonableness, “tak[ing] into account the totality of the 

circumstances, including the extent of any variance from the 

Guidelines range. If the sentence is within the Guidelines 

range, the appellate court may, but is not required to, apply a 

presumption of reasonableness.” Id.
10

“When a defendant fails to raise objections at sentencing, 

we review only for plain error.” United States v. Mack, 841 

F.3d 514, 525 (D.C. Cir. 2016). “Under the plain error 

standard, we will correct a district court’s error only if (1) there 

is in fact an error to correct; (2) the error is plain; (3) it affects 

substantial rights; and (4) it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings.” United 

States v. Mahdi, 598 F.3d 883, 888 (D.C. Cir. 2010).

“[W]e review a sentencing court’s factual determinations 

for clear error.” In re Sealed Case, 552 F.3d 841, 849 (D.C. 

Cir. 2009).

B. Appellant’s Sentencing Challenges

1. Stipulated Errors by the District Court

The parties agree that the District Court erred when, at 

resentencing, it treated Appellant’s Guidelines range for the 

RICO conspiracy count as life rather than 360 months to life. 

At the initial sentencing, Appellant’s Guidelines range for the 

RICO conspiracy was life due to the mandatory life sentence 

on his CCE count. After our decision in Eiland, however, in 

which we vacated Appellant’s CCE conviction and remanded 

the case for resentencing, the Guidelines range for Appellant’s 

RICO conspiracy count fell to 360 months to life. We therefore 

vacate Appellant’s life sentence on the RICO conspiracy count 

and remand to the District Court with instructions to resentence 

Appellant on the RICO conspiracy count in light of the correct 

Guidelines range of 360 months to life. 

Because the District Court must reevaluate the RICO 

conspiracy sentence, we need not reach Appellant’s argument 

that the now-vacated life sentence for that count was 

substantively unreasonable due to “erroneous factual 

assumptions” made by the District Court. Appellant’s Br. 21–
11

22. Nor do we need to assess Appellant’s claim that the District 

Court’s resentencing decision was “in fatal conflict” with the 

court’s 120-month sentence on the narcotics conspiracy count. 

Id. at 22.

The parties have also identified clerical errors in the 

District Court’s written judgment regarding Counts Two and 

Five. The judgment erroneously states that Count Two charged 

CCE and that Count Five charged “Communications Facility 

Narcotic - Distribute.” Judgment, United States v. Miller (No. 

CR-04-379-2) (Dec. 28, 2016), A.A. 86. But as the verdict form 

from the second trial establishes, those counts charged RICO 

conspiracy and attempted possession with intent to distribute

heroin, respectively. On remand, the District Court will be 

required to correct the judgment to reflect the actual charges of 

conviction.

____________________

We now turn to the points of disagreement between the 

parties. The District Court’s calculation of Appellant’s new 

sentence incorporated sentencing adjustments for drug 

quantity, firearm possession, and Appellant’s role in the 

offense. Appellant challenges these adjustments. The 

Government, in turn, argues that Appellant’s challenges should 

not be heard for three reasons: they have been waived; they are 

barred by law of the case; and they are beyond the District 

Court’s remit to resentence only insofar as the initial sentence 

was affected by the vacatur. We will consider the 

Government’s arguments first because they raise threshold 

objections to our consideration of Appellant’s claims.
12

2. Law-of-the-Case Doctrine, Waiver, and the Authority 

of the District Court to Resentence on Remand

It is worth noting at the outset that, as we explained in 

Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 

1995), the law-of-the-case doctrine is “analytically distinct” 

from waiver and forfeiture. Further, as we explain below, 

waiver is distinct from forfeiture.

The Government argues that law-of-the-case doctrine bars 

Appellant’s challenges to the issues he raises here because he 

could have raised them – but did not – in his initial appeal. The 

Government is mistaken.

“[T]he law of the case doctrine does not apply where an 

issue was not raised before the prior panel and thus was not

decided by it.” Yesudian ex rel. U.S. v. Howard Univ., 270 F.3d 

969, 972 (D.C. Cir. 2001); see also 18B WRIGHT, MILLER &

COOPER, FEDERAL PRACTICE AND PROCEDURE § 4478 (2d ed.

2002) (“Actual decision of an issue is required to establish the 

law of the case. Law of the case does not reach a matter that 

was not decided. As compared to claim preclusion, it is not 

enough that the matter could have been decided in earlier 

proceedings.”). 

In addition, even if Appellant had raised with the District 

Court before the first appeal the matters now at issue and that 

court had addressed them, this court would nevertheless be able 

to review them now. As the Supreme Court recently observed, 

“[t]he doctrine [of law of the case] may describe an appellate 

court’s decision not to depart from a ruling, but it does not 

‘limit the court’s power.’” Musacchio v. United States, 136 S. 

Ct. 706, 716 (2016) (quoting Messenger v. Anderson, 225 U.S. 

436, 444 (1912)).
13

An appellate court’s function is to revisit matters 

decided in the trial court. When an appellate court 

reviews a matter on which a party failed to object 

below, its review may well be constrained by other 

doctrines such as waiver, forfeiture, and estoppel, as 

well as by the type of challenge that it is evaluating. 

But it is not bound by district court rulings under the 

law-of-the-case doctrine.

Musacchio, 136 S. Ct. at 716 (emphasis in original).

Given that Appellant’s sentencing challenges here have 

not been previously decided by any court, let alone this one, 

law-of-the-case doctrine does not apply. 

In an apparent effort to avoid this well-established 

doctrine, the Government looks to our decision in United States 

v. Thomas, 572 F.3d 945 (D.C. Cir. 2009). To the extent that 

Thomas may appear to be at odds with Yesudian and our en 

banc decision in LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 

1996), Yesudian and LaShawn control. See Sierra Club v. 

Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). And, in any 

event, the Supreme Court’s decision in Musacchio puts the 

matter to rest. Law-of-the-case doctrine applies only to issues 

upon which decisions were actually rendered, and is inapposite 

where an issue merely went unraised.

The Government also argues that Appellant’s drug 

quantity and enhancement challenges were “waived” when he 

failed to press two of them (quantity and role-in-the-offense) at 

his initial sentencing, or any of them in his initial appeal. The 

Government’s understanding of waiver is wrong. 

“The terms waiver and forfeiture—though often used 

interchangeably by jurists and litigants—are not synonymous.” 

Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17
14

n.1 (2017). “[F]orfeiture is the failure to make the timely 

assertion of a right[;] waiver is the ‘intentional relinquishment 

or abandonment of a known right.’” United States v. Olano, 

507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 

458, 464 (1938)); see also EDWARDS & ELLIOTT, FEDERAL 

STANDARDS OF REVIEW 99 (3d ed. 2018). As the government 

does not contend that Appellant took steps we could reasonably 

understand as an intentional relinquishment of his quantity and 

enhancement challenges, Appellant never “waived” any of his 

claims in this case.

Nor did Appellant forfeit these claims. The challenges 

Appellant now raises would have been fruitless before Eiland

vacated his CCE conviction, as that conviction had a statutory 

mandatory minimum sentence of life that could not have been 

reduced even had he argued and won on the issues now 

presented. Compare 21 U.S.C. § 848 (2012) (providing for a 

life sentence when two additional elements are satisfied), with 

Jury Verdict Form at 37, Eiland, S.A. 31 (special jury verdict 

finding Appellant guilty of those two elements). The 

Government’s position that Appellant had reason to raise these 

issues on his initial appeal because success could have reduced 

his Guidelines sentence range is simply incorrect. So long as 

the CCE conviction was in place, no amount of Guidelines

range reduction could have lowered Appellant’s sentence 

below the statutory minimum of life. The Government does not 

dispute this.

Instead, the Government argues that Appellant had reason 

to raise his current sentencing challenges on his initial appeal 

because of the possibility they would become relevant if this 

court heeded his challenge to the CCE conviction. Our case law 

holds otherwise. See, e.g., United States v. Melgar-Hernandez, 

832 F.3d 261, 270 (D.C. Cir. 2016) (finding that a defendant 

could raise an argument made “newly relevant” by a retroactive 
15

amendment to the Guidelines, and noting that to hold otherwise 

would “engender an incentive for defense lawyers to raise 

highly contingent objections in the district court, which would 

result in a waste of judicial resources in the long run”). Here, 

Eiland animated Appellant’s present challenges by vacating 

the CCE conviction (and its attendant mandatory life sentence) 

that had temporarily rendered these challenges useless. 

The same principle applies to the Government’s argument 

that under United States v. Wyche, 741 F.3d 1284, 1294 & n.9 

(D.C. Cir. 2014), the District Court could rely on undisputed 

facts in the 2007 PSR because Appellant did not challenge drug 

quantity or the supervisory-role enhancement at his initial 

sentencing. Wyche stated no such categorical rule. Wyche cites 

United States v. Pinnick, which merely observed that, “[u]nder 

most circumstances, a sentencing court may rely on undisputed 

facts in a presentence report to conclude that the defendant 

committed any extraneous acts offered as relevant conduct.” 47 

F.3d 434, 437 (D.C. Cir. 1995) (emphasis added). As we noted

in United States v. Saro, 24 F.3d 283, 291 (D.C. Cir. 1994), 

there is no “categorical rule” barring plain error review of

factual findings in presentence reports merely because they 

have not been the subject of a timely objection. 

Indeed, Wyche itself allowed a formerly inert sentencing 

issue to be raised because changed circumstances had given 

that issue life. The case involved a defendant (Wyche) who 

argued, among other things, that because his initial sentencing 

had included a finding that he was responsible for 500 grams 

or more of cocaine base, and because the Government had not 

at that time attempted to demonstrate that he was responsible 

for more than 500 grams of cocaine base, the Government 

could not upon resentencing challenge the drug quantity 

finding. Wyche, 741 F.3d at 1293–94. This court observed that 

the Government’s challenge was not precluded because, at the 
16

time of Wyche’s initial sentencing, “500 grams of cocaine base 

triggered the highest base offense level for cocaine base 

crimes,” and, having established that Wyche was responsible 

for at least 500 grams, “the Government was not required to 

prove—and had no reason to argue—that Wyche was 

responsible for any amount of cocaine base over 500 grams.” 

Id. (emphasis in original). Revisions to the Guidelines 

postdating the initial sentencing, however, changed the base 

offense level such that there were potential offense level 

increases tied to proof of quantities over 500 grams of cocaine 

base, which for the first time gave the Government reason to 

argue the issue. Id.

Finally, the Government argues that this court’s remand 

for Appellant’s resentencing did not authorize the District 

Court to reconsider drug quantity or either of the sentencing 

adjustments at issue here. In support of this claim, the 

Government cites United States v. Blackson, 709 F.3d 36 (D.C. 

Cir. 2013). That case enumerates the district court’s 

“resentencing authorit[ies] under a remand order that . . . 

contains no express instructions regarding which issues the 

district court may consider.” Id. at 40. However, Blackson

makes it clear that when facing such a remand, “under Whren,

the district court may also consider ‘such new arguments or 

new facts as are made newly relevant by the court of appeals’ 

decision—whether by the reasoning or by the result.’” Id.

(quoting United States v. Whren, 111 F.3d 956, 960 (D.C. Cir. 

1997)). As explained above, Eiland’s vacatur of Appellant’s 

CCE conviction made his present sentencing challenges newly 

relevant, thereby satisfying Blackson.

In sum, we reject the Government’s threshold claims that 

seek to limit our review of Appellant’s sentencing challenges. 

As we have explained, the Government’s arguments are 
17

seriously misguided and find no support in controlling 

precedent.

____________________

In the ensuing analysis, we will address the parties’ claims 

with respect to The Firearm Enhancement, The Role-in-theOffense Enhancement, and The Drug Quantity Findings. 

To the extent that the Government is asserting that 

Appellant forfeited his sentencing challenges, the issue is 

relevant only insofar as a forfeited challenge would be subject 

to plain error review. Even if plain error applied here, however, 

the outcome would be the same: As detailed below, Appellant’s 

challenges to the firearm and role-in-the-offense enhancements 

are sustained because the District Court’s application of those 

enhancements constituted plain error that affected Appellant’s 

substantial rights and seriously affected the fairness of judicial 

proceedings. See United States v. King-Gore, 875 F.3d 1141, 

1147 (D.C. Cir. 2017). Appellant’s challenge to the drug 

quantity finding fails (regardless of the applicable standard of 

review) because the District Court’s determination is 

sufficiently explained and supported by the record. Wyche, 741 

F.3d at 1294 n.9 (“[W]e may affirm [a district] court’s [drug] 

quantity finding ‘on any ground supported in the record.’”

(quoting United States v. Taylor, 627 F.3d 674, 676 (7th Cir. 

2010))).

3. The Firearm Enhancement

The District Court imposed a two-point sentencing 

enhancement under Guidelines § 2D1.1(b)(1) for Appellant’s 

possession of a firearm based on a postarrest search of 

Appellant’s home that yielded licensed firearms, a glass vial 

with the odor of PCP, and several bottles of acetone, which can 
18

be used to dilute PCP. “The applicability of a specific offense 

characteristic, such as section 2D1.1(b)(1), depends on whether 

the conduct at issue is ‘relevant’ to the offense of conviction.”

United States v. Bell, 795 F.3d 88, 105 (D.C. Cir. 2015)

(quoting United States v. Pellegrini, 929 F.2d 55, 56 (2nd Cir. 

1991)). To that end, courts have held that, before applying a 

firearms enhancement, “a nexus must be shown between the 

weapon and the criminal act.” United States v. Pineda, 981 

F.2d 569, 573 (1st Cir. 1992). The District Court plainly erred 

by imposing the enhancement because it made no factual 

finding as to any nexus between those firearms and Appellant’s 

drug convictions, which related to heroin, cocaine, and cocaine 

base, as Appellant was acquitted of the PCP counts. 

Instead, the District Court limited its factual finding 

justifying the enhancement to a statement that “Mr. Miller was 

in fact in possession of a firearm during this drug conspiracy.”

Transcript of Sentencing Hearing at 10, United States v. Miller

(No. CR-04-379-2) (Dec. 20, 2016), A.A. 75. While we see no 

clear error in this finding, it merely identifies parallel conduct, 

and fails to articulate a nexus between the firearms and the 

offenses at issue. The Government’s citation to Application 

Note 11 to Guidelines § 2D1.1 is unavailing. While Note 11 

states that “[t]he enhancement should be applied if the weapon 

was present, unless it is clearly improbable that the weapon was 

connected with the offense,” that principle does not obviate the 

“nexus” requirement enunciated in Pineda. 981 F.2d at 573.

4. The Role-in-the-Offense Enhancement

The District Court imposed a four-point sentencing 

enhancement under Guidelines § 3B1.1(a) for Appellant’s role 

in the offense, finding that he “managed or supervised at least 

one participant who was criminally responsible for an offense 

in a criminal activity that involved five or more participants, or 
19

was otherwise extensive.” Transcript of Sentencing Hearing at 

11, United States v. Miller (No. CR-04-379-2) (Dec. 20, 2016),

A.A. 76. But Guidelines § 3B1.1(a)’s four-point enhancement 

applies only when the defendant “was an organizer or leader

of a criminal activity that involved five or more participants or 

was otherwise extensive” (emphasis added). The District 

Court’s finding that Appellant managed or supervised such 

activity instead tracks the language of Guidelines § 3B1.1(b), 

which says: “If the defendant was a manager or supervisor (but 

not an organizer or leader) and the criminal activity involved 

five or more participants or was otherwise extensive, increase 

by 3 levels.” Because the District Court’s factual finding as to 

Appellant’s role justified at most a three-point enhancement, it 

plainly erred by imposing a four-point enhancement.

In reaching this conclusion, we mean to address only the 

misfit between the District Court’s finding and its 

enhancement, not the evidentiary support for the finding as to 

Appellant’s role.

5. The Drug Quantity Findings

“Under the Sentencing Guidelines, a district court 

determines a defendant’s sentencing range by calculating the 

defendant’s base offense level. A base offense level, in turn, is 

derived from a defendant’s ‘relevant conduct.’ For drug 

offenses, ‘relevant conduct’ includes the quantity of drugs 

involved in the offense.” United States v. Burnett, 827 F.3d 

1108, 1120 (D.C. Cir. 2016). 

At Appellant’s resentencing, the District Court “agree[d] 

with Mr. Miller that it must make a reasonable foreseeability 

finding and determine the amount of drugs attributable to Mr. 

Miller.” Transcript of Sentencing Hearing at 10, United States 

v. Miller (No. CR-04-379-2) (Dec. 20, 2016), A.A. 75. In so 
20

doing, it “consider[ed] the conduct underlying the CCE 

conviction” and determined, based on “the testimony at trial 

and the evidence presented at trial,” that Appellant was 

responsible for “the entire amount of drugs underlying” that 

conviction, i.e. “30 kilograms of heroin, 15 kilograms of 

cocaine, [and] five grams of crack.” Id. at 9–10, A.A. 74–75. 

The District Court also explained its determination that 

Appellant had occupied a managerial role in the conspiracy, 

citing Eiland’s holding that there was sufficient evidence for a 

jury to rationally find that Appellant, in tandem with Gerald 

Eiland, managed Darius Ames and supervised Charles Brown 

and Tyrone and Timothy Thomas in various drug trafficking 

activities. As Eiland held, “[t]he government’s evidence at trial 

showed that Eiland and Miller organized an extensive drug 

ring”; “[t]he evidence revealed a wide-ranging drug operation 

headed by Eiland and Miller”; and “Miller and Eiland were key 

participants in all of the [conspiracy’s] acts, arranging for the 

purchase and distribution of cocaine, heroin, and crack.” 738 

F.3d at 344–45, 359.

Appellant advances several arguments to challenge the 

District Court’s determination of drug quantity, none of which 

is persuasive.

Appellant first argues that Eiland’s vacatur of the CCE 

count for insufficient proof that he supervised a fifth person 

necessarily implies that he cannot be held responsible for the 

entire quantity of drugs the jury specially found connected to 

that now-vacated conviction. We disagree. Appellant need not 

have supervised another participant in the drug trafficking 

scheme in order to be deemed responsible for drug quantities

tied to that participant. “In a drug conspiracy, the amount of 

drugs attributable to any one codefendant as ‘relevant conduct’ 

for guidelines purposes is limited to the reasonably foreseeable 

transactions in furtherance of that codefendant’s ‘jointly
21

undertaken criminal activity.’” Wyche, 741 F.3d at 1292

(quoting United States v. Easter, 553 F.3d 519, 523 (7th Cir.

2009)). 

Appellant also suggests that the District Court’s quantity 

finding is infirm because it simply relied on the jury’s special 

finding of drug quantity that underlay the now-vacated CCE 

conviction. But as Appellant’s counsel conceded at 

resentencing, the District Court could make the same finding 

as the jury verdict without relying on the jury verdict itself, and 

the District Court explicitly agreed with Appellant that it must 

make a finding as to the drug quantity reasonably foreseeable 

by and therefore attributable to him. It then made such a finding 

based on its own view of the evidence and testimony 

corroborating Appellant’s managerial role, and cited to this 

court’s holdings in Eiland to the same effect. We have no 

reason to question the District Court’s determination that 

Appellant’s and his co-defendants’ reasonably foreseeable 

transactions involved 30 kilograms or more of heroin and 15 

kilograms or more of cocaine.

Appellant next argues that the District Court failed to make 

individual findings regarding the drug quantity reasonably 

foreseeable to him. Appellant appears willing to countenance

foreseeability as to only those drugs he was convicted of 

possessing, or for which there is evidence he personally 

handled or transferred. Appellant is mistaken in his view. As 

we held in Wyche:

A court may rely “on evidence of a defendant’s 

relationship to and involvement with the conspiracy 

in order to draw permissible inferences regarding” 

the scope of his agreement to the conspiratorial 

conduct “and the foreseeability of his 

coconspirators’ conduct.” Thomas, 114 F.3d at 260. 
22

If the defendant plays a managerial role in a drug 

conspiracy, coordinates drug distribution with other 

managers of the conspiracy and shares in the 

conspiracy’s profits, he may be held responsible for 

the entire drug quantity attributable to the conspiracy 

during the time he was a participant.

Wyche, 741 F.3d at 1292–93. The District Court permissibly 

applied these principles here and concluded, based on its (as 

well as Eiland’s) assessment of the evidence of Appellant’s 

managerial role, that Appellant was a manager of the 

conspiracy and responsible for the entire drug quantity 

underlying the vacated CCE conviction.

Finally, Appellant argues that the District Court did not 

adequately explain its reasoning for the drug quantity decision. 

We disagree. As we have explained above, the District Court

took care to cite to the evidence and testimony upon which it 

relied, as well as to this court’s detailed holdings in Eiland, to 

support its conclusion regarding Appellant’s managerial role in 

the drug conspiracy. Based on its view of the record, the 

District Court found that the full drug quantity associated with 

Appellant’s vacated CCE conviction could be attributed to him 

for the drug conspiracy count. That finding was sufficiently 

explained and supported by the record.
23

III. CONCLUSION

For the reasons set forth above, we affirm the District 

Court’s drug quantity calculation. We reverse and remand for 

resentencing the District Court’s four-point enhancement for 

Appellant’s role in the offense, the court’s two-point firearm 

enhancement, and Appellant’s sentence for the RICO 

conspiracy. We also vacate the clerical errors in the judgment 

on Counts Two and Five, and remand these matters for 

correction by the District Court.

So ordered.