United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2021 Decided May 31, 2021

No. 20-3084

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 case 

and filed the briefs for appellant.

Anne Y. Park, Assistant U.S. Attorney, argued the case for 

appellee. With her on the brief were Chrisellen R. Kolb and 

Suzanne Grealy Curt, Assistant U.S. Attorneys.

Before: HENDERSON and PILLARD, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.
2

KAREN LECRAFT HENDERSON, Circuit Judge: Frederick 

Miller (Miller) was convicted of drug conspiracy-related 

charges after two trials and three appeals. After our most recent 

remand for a second resentencing, the district court applied an 

upward variance and imposed a life sentence. Miller now 

argues that the district court exceeded the scope of its 

resentencing mandate and committed procedural and 

substantive errors in imposing the life sentence. We disagree 

and therefore affirm Miller’s life sentence. In addition, we 

remand for the correction of several clerical errors in the 

judgment.

I. BACKGROUND

We have described the full history of Miller’s prosecution 

in his previous appeals, see United States v. Miller, 738 F.3d

361 (D.C. Cir. 2013) (Miller I); United States v. Eiland, 738 

F.3d 338 (D.C. Cir. 2013); United States v. Miller, 890 F.3d 

317 (D.C. Cir. 2018) (Miller II), and thus we limit our 

discussion to the facts relevant to this appeal.

Miller and Gerald Eiland (Eiland) headed a massive 

interstate drug trafficking ring focused in the Washington, D.C. 

area. Eiland, 738 F.3d at 344–45. Although the conspiracy 

began in 1999, id., it is unclear exactly when Miller joined it. 

The indictment alleges that Miller joined the conspiracy 

“sometime around the year 2000.” Appendix (App.) 105.

At the latest resentencing on review here, the district court,

relying on testimony from the second trial, made several 

findings regarding the extent of the harm caused by the 

conspiracy. In June 1999, Eiland solicited Brian Lipscombe

(Lipscombe)—a longtime drug dealer for Eiland—to kill 

Sorenson Oruchie (Oruchie), a heroin supplier to whom Eiland 

owed money. As Lipscombe testified, he agreed and shot 

Oruchie in the head. Oruchie survived.
3

On October 12, 2001, the police executed a search of Je 

Bradford’s residence. Bradford supplied the conspiracy with 

distribution quantities of cocaine. As the police pounded on the 

door, Bradford called Eiland, who told Bradford that he would 

“take care of everything.” Supplemental Appendix (S.A.) 183.

Bradford then threw his cell phone against the wall, breaking 

it. As Bradford testified, Eiland later went to Bradford’s 

residence to “destroy any cell phone that [Bradford] might have 

at the apartment and get rid of whatever evidence might be 

left.” S.A. 187–88. Bradford was arrested and subsequently

incarcerated at the Charles County (MD) Detention Center. 

According to the professional visitor log for the Charles 

County Detention Center, a “Frederick Miller” from the “D.C. 

police” visited Bradford on January 1, 2002. S.A. 208. From 

2002 until 2005 Miller had a private detective license issued by 

the District of Columbia Metropolitan Police Department

(MPD). Bradford testified that he and Miller met in a private 

room for a “legal visit” because Miller’s license allowed him

to visit an inmate without surveillance. S.A. 190–91. Bradford 

and Miller concluded that a particular associate had turned on 

Bradford. According to Bradford, Miller said that “it’s not fair 

that you won’t be able . . . to see your son grow up, . . . so [the 

associate] won’t be able to see his son grow up.” S.A. 197.

Miller also said that he knew where the associate went for his 

weekly bowling league and where he played with his son. As 

Bradford explained, Miller “was going to kill him.” S.A. 198.

Sometime in 2003, the FBI began investigating, including 

surveilling, the Eiland/Miller drug trafficking ring. Eiland, 738 

F.3d at 345. At the second trial (regarding Eiland, Miller and 

two associates), an FBI agent testified that he investigated 

“drug trafficking that was occurring in the area of 9th and 

Wahler Place, Southeast, . . . up around Draper Elementary 

School.” S.A. 111. Draper Elementary School was at 908 
4

Wahler Place SE, at the intersection of 9th and Wahler Place. 

During the investigation, the FBI agent identified Eiland and 

Miller as drug traffickers. From wiretapping Miller’s phone, 

the agent discovered the conspiracy used a residence on the 

“3800 block of 9th Street, Southeast”—near Draper 

Elementary School—for meetings related to the drug 

conspiracy. See S.A. 115–16, 124. There, Eiland fronted streetlevel dealers thousands of bags of “Spider Man”—a type of 

heroin—with “[l]ittle dolphin shapes, designs” on each bag. 

S.A. 129–30, 136. Several street dealers also sold heroin near 

the school. Indeed, one dealer was arrested on 9th Street with 

“[77] bags of [heroin] with blue dolphin markings on them,” 

47 bags of cocaine base and 598 “Ziplocs” of opiates. S.A. 

143–45.

The government arrested Eiland and Miller in August 

2004. Eiland, 738 F.3d at 345. Miller was charged with various 

crimes related to distributing heroin, cocaine, crack and 

phencyclidine (PCP). Id.1 The first jury convicted Miller on 21 

1 The following counts were alleged against Miller in the final 

superseding indictment before the first trial: count 1 alleged a

narcotics conspiracy in violation of 21 U.S.C. § 846; count 2 alleged 

a violation of the Racketeer Influenced and Corrupt Organizations 

Act, 18 U.S.C. § 1962(d); count 3 alleged a continuing criminal 

enterprise in violation of 21 U.S.C. § 848(a)–(b); counts 4–7 alleged 

unlawful possession with intent to distribute PCP in violation of 21 

U.S.C. § 841 and 18 U.S.C. § 2; count 8 alleged unlawful attempted 

possession of heroin with intent to distribute in violation of 21 U.S.C. 

§§ 841, 846 and 18 U.S.C. § 2; count 9 alleged unlawful use of a 

communication facility under 21 U.S.C. § 843(b) and 18 U.S.C. § 2; 

counts 11–41 and 43–62 alleged unlawful use of a communication 

facility in violation of 21 U.S.C. § 843(b); count 68 alleged 

conspiracy to commit first-degree murder in violation of 22 D.C. 

Code §§ 1805a, 2101; count 69 alleged conspiracy to commit murder 

in aid of racketeering activity in violation of 18 U.S.C. § 1959.

Retyped Superseding Indictment, United States v. Eiland, Cr. No. 
5

counts, acquitted him on others and hung on the remaining 

counts. Id.2 The district court retried Miller, id., and the second

jury found Miller guilty on the counts alleging narcotics 

conspiracy, RICO conspiracy, continuing criminal enterprise, 

heroin distribution and three counts alleging unlawful use of a 

communication facility, id. at 346.3 The district court sentenced 

Miller to life imprisonment on both the RICO conspiracy and 

continuing criminal enterprise counts. Id. Miller then appealed,

challenging the procedures and sufficiency of evidence from 

both trials. From the first trial, we reversed Miller’s convictions 

on counts 19, 20, 34, 40, 46 and 59 for procedural defects and 

04-379 (D.D.C. Mar. 20, 2006), ECF No. 617. The remaining counts 

were alleged against Miller’s codefendants only. 

2 The jury hung on counts 1–3 (conspiracy, RICO and 

continuing criminal enterprise), 7–9 (PCP distribution, heroin 

distribution and unlawful use of communication facility), 12–15, 46 

and 48 (unlawful use of communication facility); found Miller guilty 

on 16–20, 22, 24, 30, 33–36, 38–41, 43, 49, 52–53 and 59 (unlawful 

use of communication facility); found Miller not guilty on count 6, 

11, 21, 26–29, 44–45, 47, 50–51, 54, 57 and 60–62 (unlawful use of 

communication facility). Verdict Form, United States v. Miller, Cr. 

No. 04-379 (D.D.C. June 19, 2006), ECF No. 1036. During trial, the 

district court accepted a new superseding indictment that no longer 

alleged counts 4, 5, 23, 25, 31–32, 37, 55–56, 58, 68 and 69 against 

Miller. Retyped Indictment, United States v. Eiland, Cr. No. 04-379 

(D.D.C. May 24, 2006), ECF No. 671.

3 Before the second trial, the government filed a new indictment 

that renumbered and added counts. Retyped Indictment, United 

States v. Eiland, Cr. No. 04-379 (D.D.C. Oct. 11, 2006), ECF No. 

804. The second jury found Miller guilty on counts 1, 2, 3 

(conspiracy, RICO and continuing criminal enterprise), 5 (heroin

distribution), 6, 27 and 28 (unlawful use of communication facility) 

and not guilty on counts 4 (PCP distribution), 8–11 and 15 (five 

unlawful use of communication facility counts). Verdict Form, 

United States v. Eiland, Cr. No. 04-379 (D.D.C. Dec. 5, 2006), ECF 

No. 904.
6

otherwise affirmed. See Miller I, 738 F.3d at 367–68, 387.

From the second trial, we found insufficient evidence for the

continuing criminal enterprise charge, count 3. Eiland, 738 

F.3d at 357–58.

4 We remanded for Miller’s first resentencing 

and the district court again sentenced Miller to life 

imprisonment on the RICO conspiracy charge and determinate 

sentences on the other 21 counts.5 Miller appealed.

On appeal from Miller’s first resentencing, we concluded 

that the district court had erred. First, the district court 

committed “clear error” in finding the Sentencing Guidelines6

range for the RICO conspiracy charge to be mandatory life 

imprisonment. Miller II, 890 F.3d at 324–25. The panel 

“therefore vacate[d] Appellant’s life sentence on the RICO 

conspiracy count and remand[ed] 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.” Id. at 325. The district court made several “clerical 

errors” in describing the counts. Id. And it “plainly erred by 

imposing the [firearm] enhancement because it made no factual 

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

4 At sentencing, the district court vacated count 1 as a lesser 

included offense of count 3. United States v. Eiland, 738 F.3d 338, 

359, 361 (D.C. Cir. 2013). Because we vacated count 3, we reinstated 

count 1. Id. 

5 Under the new numbering system, the district court sentenced 

Miller on counts 1 (conspiracy to distribute narcotics), 2 (RICO 

conspiracy), 5 (heroin distribution), 6, 16–18, 22, 24, 27–28, 30, 33, 

35–36, 38, 39, 41, 43, 49 and 52–53 (unlawful use of communication 

facility). 

6 The Sentencing Guidelines are issued by the United States 

Sentencing Commission pursuant to 28 U.S.C. § 994(a) to be used in

determining appropriate criminal sentences to further the purposes of 

deterrence, incapacitation, just punishment and rehabilitation. U.S.

Sent’g Guidelines Manual ch. 1, pt. A Subpt. 1.
7

drug convictions.” Id. at 328. Finally, the court misapplied the 

“organizer or leader” enhancement after it had found that 

Miller managed or supervised “at least one participant” only.

Id. at 329. Under the Guidelines, “the District Court’s factual 

finding as to Appellant’s role justified at most a three-point 

enhancement, [thus, it] plainly erred by imposing a four-point 

enhancement.” Id.

We remanded for a second resentencing. In Miller II’s

operative conclusion, we stated: “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.” Id. at 331.

In district court, both Miller and the government submitted 

motions regarding the factual predicates for the role-in-theoffense and firearm enhancements. The government argued for 

enhancements that would have resulted in a Guidelines range 

with an upper range of life imprisonment and urged the district 

court to impose life imprisonment. One week before

resentencing, however, the government filed a memorandum, 

stating that it no longer sought both the firearm enhancement 

and the four-point organizer-or-leader enhancement. The 

parties therefore did not dispute the proper offense level under 

the Guidelines. See App. 237 (government and defendant agree 

on enhancements with total offense level of 39 and Guideline 

range of 262 to 327). Instead, for the first time, the government 

argued for an upward variance. Relying in part on information 

from Miller’s 2007 Presentence Investigation Report, the 

government argued for an upward variance given the 

Eiland/Miller conspiracy’s unusually violent conduct and 

Miller’s earlier arrests. Miller opposed the upward variance.
8

At the hearing, the government explained why it had not 

theretofore asked for an upward variance. “[A]t the time of the 

original sentencing in this case, because [Miller] was given a 

mandatory life sentence—I don’t think that then defense 

counsel or the Court were really focused on [the facts 

supporting an upward variance] too much.” App. 229; see also 

App. 232 (“The original PSR, presentence report, indicates that 

there is no reason for an upward variance. But again, at that 

point, the parties and the Court [we]re under the impression 

that we were dealing with a mandatory life sentence; there was 

no reason to look for a variance.”). Defense counsel

emphasized that the government first argued for an upward 

variance only one week before the second resentencing but did 

not request a continuance.

The district court sentenced Miller to life imprisonment. It

concluded that a sentence within the Sentencing Guidelines 

range did not reflect the seriousness of Miller’s crimes or act 

as a sufficient deterrence. It offered several reasons for an 

upward variance. First, Miller had a long history of arrests for 

violent crimes and drug offenses. Because Miller had not been 

convicted of these offenses, however, the court calculated 

Miller’s criminal history category under the Guidelines as 1, 

the lowest category. The court instead considered the past

arrests as supporting an upward variance. Second, the court 

concluded that the conspiracy had obstructed justice based on 

the evidence that Eiland had destroyed evidence at Bradford’s 

home. See supra at 3. Third, the court found the drug 

conspiracy unusually harmful to the community: “Miller 

caused harm beyond his conduct dealing narcotics” and the

conspiracy “brought destruction on much of Southeast, 

Washington, D.C.” App. 242–43. “People like Mr. Oruchie

were grievously injured as a result of the conspiracy.” App.

243. Fourth, Miller abused his private investigator credentials

to gain an unsupervised visit with Bradford in prison in an
9

effort to influence his testimony, including by credibly

suggesting he would kill the man he thought informed on

Bradford. Finally, Miller’s conspiracy engaged in dangerous 

conduct (i.e., drug dealing) near a school, Draper Elementary 

School. Miller timely appealed.

II. ANALYSIS

We typically review the scope of a remand for 

resentencing de novo. United States v. Hunter, 809 F.3d 677, 

681 (D.C. Cir. 2016). But where—as here—the defendant fails 

to object at his sentencing hearing—having had the opportunity 

to object—“the more demanding plain error standard of review 

applies.” Id. at 682 (quoting United States v. Locke, 664 F.3d 

353, 357 (D.C. Cir. 2011). Plain-error review has four 

elements. Puckett v. United States, 556 U.S. 129, 135 (2009). 

First, there must be a legal error the appellant did not

“affirmatively waive[].” Id. “Second, the legal error must be 

clear or obvious, rather than subject to reasonable dispute.” Id.

Third, the legal error “must have affected the appellant’s 

substantial rights, which in the ordinary case means he must 

demonstrate that it affected the outcome of the district court 

proceedings.” Id. (citation and internal quotation marks 

omitted). Fourth, the appellate court typically remedies any 

plain error “only if the error seriously affects the fairness, 

integrity or public reputation of judicial proceedings.” Id.

(citation and internal quotation marks omitted).7

7 Miller argues that the district court commits per se plain error 

whenever it violates the mandate rule. As Miller notes, “an inferior 

court has no power or authority to deviate from the mandate issued 

by an appellate court,” Briggs v. Pennsylvania. R. Co., 334 U.S. 304, 

306 (1948), and “[a] district court commits legal error and therefore 

abuses its discretion when it fails to abide by the . . . mandate rule,”

United States v. Kpodi, 888 F.3d 486, 491 (D.C. Cir. 2018). True 
10

We review a criminal sentence for abuse of discretion and 

apply a two-step review process. Gall v. United States, 552 

U.S. 38, 51 (2007). First, we consider whether the district court 

committed a “significant procedural error,” such as improperly 

calculating the Sentencing Guidelines range or relying on 

clearly erroneous facts. Id. We review a sentencing court’s

factual determinations for clear error. See United States v.

Ventura, 650 F.3d 746, 749 (D.C. Cir. 2011).

8

Second, we consider “the substantive reasonableness of 

the sentence” under the “abuse-of-discretion” standard, 

considering the “totality of the circumstances, including the 

extent of any variance from the Guidelines range.” Gall, 552 

U.S. at 51. Regardless whether the defendant objected to the 

substantive reasonableness of the sentence, we review for 

abuse of discretion, as the defendant need not “re-object” to a 

sentence’s substantive reasonableness once his original 

submission regarding substantive reasonableness is made and 

rejected. See United States v. Burroughs, 613 F.3d 233, 241 

enough. But plain error review requires more—that the district court 

not simply committed legal error but a “clear or obvious” legal error

not “subject to reasonable dispute.” Puckett v. United States, 556 

U.S. 129, 135 (2009). 

8 As the government notes, ordinarily, “where a defendant fails 

to raise a claim at his sentencing hearing, we review for plain error 

only.” United States v. Hunter, 809 F.3d 677, 681 (D.C. Cir. 2016) 

(citation and internal quotation marks omitted); see FED. R. CRIM. P. 

52(b) (“A plain error that affects substantial rights may be considered 

even though it was not brought to the court’s attention.”). But

according to the Supreme Court, the clear error standard has long 

applied to judicial fact-finding in criminal cases, even to findings that 

“hav[e] nothing to do with guilt.” Maine v. Taylor, 477 U.S. 131, 145 

(1986); see also In re Sealed Case, 552 F.3d 841, 849–51 (D.C. Cir. 

2009) (Edwards, J., concurring statement). Notwithstanding Miller 

failed to object at the criminal sentencing hearing, then, we review 

the factual findings for clear error.
11

(D.C. Cir. 2010). “[I]t will be the unusual case when we reverse 

a district court sentence—whether within, above, or below the 

applicable Guidelines range—as substantively unreasonable.” 

United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 

2008). Because the Guidelines are advisory only, we do not 

require a heightened showing of “reasonableness” if a district 

court imposes an above-Guidelines sentence. Id. at 1092–93.

A. The Mandate Rule

Miller argues that the district court exceeded its mandate 

on remand. In Miller II, we “reverse[d] and remand[ed] 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.” 890 F. 3d at 331. According to Miller, we 

remanded only for the limited purpose of making factual

findings for the organizer-or-leader and firearm enhancements.

Even assuming arguendo that we remanded for fact-finding, 

however, we think that the district court properly reached the 

newly relevant issue of whether to apply an upward variance.

Under the mandate rule, “an inferior court has no power or 

authority to deviate from the mandate issued by an appellate 

court.” Briggs v. Pennsylvania. R. Co., 334 U.S. 304, 306 

(1948). If we remand to a district court without “express 

instructions regarding which issues the district court may 

consider” at resentencing, the district court may consider only 

defined “categories of inquiry.” See United States v. Blackson, 

709 F.3d 36, 40 (D.C. Cir. 2013) (“collecting in one place this 

circuit’s rules regarding the scope of a district court’s 

resentencing authority under a remand order”). In United States 

v. Whren we said that “upon a resentencing occasioned by a 

remand, unless the court of appeals expressly directs otherwise, 

the district court may consider . . . such new arguments or new 
12

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

decision—whether by the reasoning or by the result.” 111 F.3d 

956, 960 (D.C. Cir. 1997). For Whren to apply, then, the 

appellate decision must not “expressly” forbid the district court 

from considering new arguments but any new argument must 

be “newly relevant.”

Miller II did not expressly prohibit the district court from 

considering new arguments. Granted, Miller argues that we 

remanded for the district court to consider only whether factual 

predicates existed for the two enhancements described supra. 

But, even assuming Miller is correct, Whren requires only that 

we do not expressly direct the district court not to consider 

newly relevant arguments for those arguments to be precluded.

111 F.3d at 960. And Miller II did not expressly limit the 

district court’s remit—we simply remanded for resentencing 

on several issues. 890 F.3d at 331. For “express” instructions, 

we generally require “more specific remand instructions” than 

the typical remand instruction. See Blackson, 709 F.3d at 43.

We believe Miller II also made the question of an upward 

variance “newly relevant.” In the two earlier sentencings, the 

government had argued that the court should impose life 

imprisonment under the Sentencing Guidelines range. Thus, it

had no reason to argue that the district court should impose an 

upward variance—the district court could not have imposed an 

upward variance from life imprisonment. See United States v.

McCoy, 313 F.3d 561, 564, 566 (D.C. Cir. 2002) (en banc)

(Whren applies to issues “which never became determinative 

before the district court” or “for which the likelihood of any 

significance is remote[, as] an absolute requirement to raise all 

objections (regardless of the degree of relevance) is likely both 

to waste judicial resources and work injustice”). Once Miller II 

held that the insufficient evidence for the firearm and 

organizer-or-leader enhancements required remand, however, 
13

the upward variance became “newly relevant” because, without 

the vacated enhancements, the government could no longer 

argue for life imprisonment under the Guidelines.

Even if the government should have argued for an upward 

variance as an alternative ground for sentencing Miller to life 

imprisonment at the previous sentencings, Whren would still 

apply because the district court can apply an upward variance 

sua sponte without notice. See Irizarry v. United States, 553 

U.S. 708, 714 (2008). Because the district court had sentenced 

Miller to life imprisonment under the Guidelines at both the 

original sentencing and the first resentencing, it necessarily did 

not consider whether to apply an upward variance. But, at the 

second resentencing—the sentencing sub judice—the district 

court, for the first time, concluded that the applicable 

Sentencing Guidelines range did not include life imprisonment. 

It therefore became “newly relevant” whether to apply an 

upward variance.9

B. Alleged Procedural Errors

Miller first argues that the district court committed a 

“significant procedural error” because Miller lacked sufficient 

time to review the grounds for the upward variances. But even 

assuming that a lack of proper notice would constitute a 

9 The district court may sentence a defendant under the 

Guidelines and, alternatively, recite that, if the Guidelines range is 

incorrectly calculated, it would have instead applied an upward 

variance and imposed the same sentence. See United States v.

Orange, 21 F.4th 162, 166 (D.C. Cir. 2021) (district court calculated 

Guidelines range and explained “if I’m wrong about the guideline 

range, I would still vary upwards to give you this sentence”); but see 

also United States v. Booker, 436 F.3d 238, 247 (D.C. Cir. 2006) 

(district court cannot issue alternative judgments with different 

sentences).
14

significant procedural error, cf. Gall, 552 U.S. at 51 

(“significant procedural error[s]” include “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”), Miller lacked any right to notice of the grounds of the 

upward variance under either the Federal Rules of Criminal 

Procedure or the Due Process Clause. 

The Federal Rules of Criminal Procedure provide no right 

to notice of the grounds of an upward variance. After the 

Supreme Court interpreted Rule 32 to provide a right to notice 

before a court departs from the Sentencing Guidelines, Burns 

v. United States, 501 U.S. 129, 135 (1991), the Congress 

repealed the relevant part of Rule 32 and clarified that courts 

must provide notice only before imposing an upward departure:

(h) Notice of Possible Departure from

Sentencing Guidelines. Before the court may 

depart from the applicable sentencing range on 

a ground not identified for departure either in 

the presentence report or in a party’s prehearing 

submission, the court must give the parties 

reasonable notice that it is contemplating such a 

departure. The notice must specify any ground 

on which the court is contemplating a departure.

Notably, Rule 32(h) applies to a “departure” (a deviation from 

Guidelines range based on Guidelines policy). As the Supreme 

Court has explained, Rule 32 does not apply to “variances” 

(sentences outside the Guidelines range based on the statutory 

sentencing factors, see 18 U.S.C. § 3553(a)). Irizarry, 553 U.S. 

at 714. Here the district court applied an upward variance based 
15

on the statutory sentencing factors, meaning that Miller had no 

right to notice of the grounds thereof.

The Supreme Court has also explained that the right to due 

process does not require a sentencing court to grant notice 

before imposing an upward variance. It explained that “[t]he 

due process concerns that motivated the Court to require notice 

in a world of mandatory Guidelines no longer provide a basis 

for” a due process right to notice after the Court decided United 

States v. Booker, 543 U.S. 220 (2005). Irizarry, 553 U.S. at

714. “Now faced with advisory Guidelines,” the Court

explained, the “special need” for a notice requirement before

deviating no longer applies. Id. at 713–14. Instead the Supreme 

Court and this court have said that a defendant may request a 

continuance if he needs time to rebut the grounds of an upward 

variance. Id. at 715–16; United States v. Nicely, 492 F. App’x 

119, 122 (D.C. Cir. 2012). 

Miller also appears to argue that the district court made 

several clearly erroneous findings in determining bases for the 

upward variance. See Gall, 552 U.S. at 51 (“significant 

procedural error[s]” include “selecting a sentence based on 

clearly erroneous facts”). “A finding is ‘clearly erroneous’ 

when although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.” United States 

v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). “Where there 

are two permissible views of the evidence, the factfinder’s 

choice between them cannot be clearly erroneous.” Anderson 

v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). As 

the Seventh Circuit has put it, “[t]o be clearly erroneous, a 

decision must strike us as more than just maybe or probably 

wrong; it must . . . strike us as wrong with the force of a fiveweek-old, unrefrigerated dead fish.” Parts & Elec. Motors, Inc. 

v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).
16

Miller challenges several factual findings that are not close 

to “clearly erroneous.” For example, Miller argues that the 

district court could not rely on Bradford’s testimony because 

he identified Miller as “Corey.” Even if Bradford heard Eiland

on the phone refer to Miller as “Corey”—and the record 

suggests that Bradford might not have heard him correctly, see

App. 271—the district court could nonetheless reasonably 

determine that Bradford in court correctly pointed out Miller as

his prison visitor. App. 273 “If the district court’s account of 

the evidence is plausible in light of the record viewed in its 

entirety, the court of appeals may not reverse it even though 

convinced that had it been sitting as the trier of fact, it would 

have weighed the evidence differently.” Anderson, 470 U.S. at 

573–74.

We address at length the only challenge that warrants 

discussion: whether the district court erroneously found that 

Miller was a member of the drug conspiracy when Eiland paid 

Lipscombe to kill Oruchie. At trial, Lipscombe testified that 

Eiland paid him to kill Oruchie. Lipscombe, in exchange for 

$10,000 and a used Acura, shot Oruchie in the head and told 

Eiland that Oruchie had died. Miller argues that he could not 

have yet joined the conspiracy because Lipscombe testified that 

he attempted to kill Oruchie “[i]n June of, approximately June, 

of 1999,” App. 275, and Miller was incarcerated until 

sometime in June 1999. Based on this untidy chronology—and, 

indeed, the lack of any other evidence suggesting that Miller 

knew about the attempted murder of Oruchie—Miller might 

have a point. 

Nonetheless, Miller challenges a finding the district court 

did not make. The district court found “it more likely than not 

that Mr. Eiland paid Mr. Lipscombe to murder one of his heroin 

suppliers, Sorenson Oruchie.” App. 241–42. In setting out the 

reasons to apply an upward variance, however, the district 
17

court found that the conspiracy harmed people beyond drug 

users, only once mentioning Oruchie as an example:

[Miller’s] actions brought destruction on much 

of Southeast, Washington, D.C. In dealing 

drugs across the street from an elementary 

school, the conspirators harmed the entire 

community; they exposed young children to the 

risk of violence, and disrupted their education. 

This was not just a conspiracy to harm drug 

users. Moreover, Mr. Miller caused harm 

beyond his conduct dealing narcotics. People 

like Mr. Oruchie were grievously injured as a 

result of the conspiracy that he co-led with his 

codefendant.

App. 242–43 (emphasis added). The district court cited the 

attempted murder of Oruchie as an example of the threat the

conspiracy posed to an entire area of the District of Columbia. 

Indeed, several times it referred to the conspiracy’s 

“destruction” of the Southeast community. See App. 244 

(noting “harms [Miller] brought”); App. 245 (noting 

“conspiracy’s violent conduct”). Because the district court did

not punish Miller for the attempted murder of Oruchie, but

instead merely cited it as an example of the kinds of harms that

conspiracy caused, there was no error.

We also reject Miller’s other claims of “significant”

procedural error. First, the district court did not use the 

Guidelines as its basis for the upward variance. It explicitly 

applied the upward variance based on considerations required 

by 18 U.S.C. § 3553(a), including the “nature and 

circumstances” and “seriousness” of the crimes. See, e.g., App.

244 (“[T]he guidelines d[o] not reflect the seriousness of the

offense with respect to the conspirator’s violent conduct, the
18

efforts to obstruct justice, and the impact on school children.”).

“[I]t is not error for a district court to enter sentencing variances 

based on factors already taken into account by the Advisory 

Guidelines, in cases in which the Guidelines do not fully 

account for those factors, or when a district court applies 

broader § 3553(a) considerations in granting the variance.” 

United States v. Ransom, 756 F.3d 770, 775 (D.C. Cir. 2014)

(citation and internal quotation marks omitted). Second, the 

district court can rely on hearsay as evidence for its findings. 

United States v. Jones, 744 F.3d 1362, 1368 (D.C. Cir. 2014) 

(“Clear precedent permits hearsay to be used in sentencing 

decisions.”). Third and finally, the district court appropriately 

considered illegal conduct the government declined to 

prosecute. United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 

2008) (“[L]ong-standing precedents of the Supreme Court and 

this Court establish that a sentencing judge may consider 

uncharged or even acquitted conduct in calculating an 

appropriate sentence, so long as that conduct has been proven 

by a preponderance of the evidence and the sentence does not 

exceed the statutory maximum for the crime of conviction.”).10

C. The Alleged “Substantively Unreasonable” Sentence

Miller argues that the district court imposed a 

substantively unreasonable sentence. It is “an unusual case” in 

which the district court imposes such an “unreasonably high or 

low” sentence to warrant reversal for substantive 

10 In reply, Miller argued for the first time that 18 U.S.C.

§ 3742(g)(2) bars the district court from imposing a sentence outside 

the Guidelines range on grounds the court did not include in the 

statement of reasons in the earlier sentencing. Because Miller did not 

make that argument in his opening brief, we do not consider it. See, 

e.g., United States v. Powers, 885 F.3d 728, 734 (D.C. Cir. 2018).
19

unreasonableness. Gardellini, 545 F.3d at 1093, 1096. 

Contrary to Miller’s protestations, this is not that case. 

First, the district court distinguished this case from a 

typical case with the same underlying charges. See United 

States v. Murray, 897 F.3d 298, 308–09 (D.C. Cir. 2018) (“To 

sustain an upward variance, the district court . . . must state the 

specific reason why the defendant’s conduct was more harmful 

or egregious than the typical case represented by the relevant 

Sentencing Guidelines range.” (cleaned up)). The district court 

gave several reasons that Miller caused greater-than-usual 

harm. See, e.g., App. 244 (“[T]he guidelines d[o] not reflect the

seriousness of the offense with respect to the conspirator’s

violent conduct, the efforts to obstruct justice, and the impact

on school children.”).

Further, the district court did not “incorrectly” give the

same sentence to Eiland and Miller. It sentenced both Eiland

and Miller to life imprisonment, notwithstanding Eiland was

the conspiracy’s “leader” and Miller the “manager.” See U.S. 

Sent’g Guidelines Manual § 3B1.1 (“an organizer or leader”

receives greater punishment than “a manager or supervisor”).

Even if Eiland’s and Miller’s criminal conduct were identical

save for their respective roles as “leader” and “manager,” the

district court could have reasonably determined that each

deserved the most serious punishment available.

Moreover, the district court properly considered the

purposes of criminal sentencing. See 18 U.S.C. § 3553(a)(2) 

(sentencing court must consider purposes of criminal 

punishment). Miller contends that the district court did not give

sufficient weight to his rehabilitation while in prison. The

district court, however, explicitly considered Miller’s “good

conduct while he has been in prison and his extensive efforts at

vocational education in prison.” App. 244. It nonetheless found
20

the life sentence necessary in order to impose a punishment

severe enough to deter future crime. App. 244. Given the

significant deference that we grant the district court regarding

sentencing decisions, Gardellini, 545 F.3d at 1093, we find no 

abuse of discretion regarding the severity of the sentence.

Finally, we believe the district court made two clerical 

errors. The Amended Judgment describes count 5 as 

“Conspiracy and Attempted Possession with Intent to 

Distribute Heroin” but the verdict form refers to “Count 5: On 

or about April 16, 2004, attempt to possess with intent to 

distribute heroin.” Although the Amended Judgment refers to 

the correct statute for count 5, see 21 U.S.C. § 841(a)(1) 

(“unlawful [to] possess with intent to . . . distribute . . . a 

controlled substance”), it should not have included the word

“[c]onspiracy.” Moreover, when pronouncing sentence, the 

court sentenced Miller to 48 months’ imprisonment on count 

22, as reflected in the Amended Judgment. The district court, 

however, had vacated and dismissed count 22 once it found 

Miller “not guilty of Count 15 . . . which charged the same 

substantive offense as the conduct charged in Count 22.” 

Because the “pronouncement of the sentence constitutes the 

judgment of the court” and remains the judgment “until the first 

[judgment] shall be vacated and set aside or reversed on appeal 

or error,” United States v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010)

(citations omitted), we direct the district court to correct the 

errors identified in this paragraph. 

For the foregoing reasons, we affirm the district court’s 

judgment but remand to the district court to correct the 

judgment in accordance with this opinion.

So ordered.