Sentence Modification

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ryan Miller

Case No.: 16-1679

Officials: BAUER, ROVNER, and SYKES, Circuit Judges.

Focus: Sentence Modification

Defendant-appellant, Ryan Miller, entered into a written plea agreement with the government and pleaded guilty to mail fraud affecting a financial institution, in violation of 18 U.S.C. § 1341, and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Miller now appeals on the grounds that the indictment failed to specify proper means of identification; that the district court improperly applied two points to his criminal history calculation under U.S.S.G. § 4A1.1(d) for committing the charged crimes while under a criminal justice sentence; and that the district court improperly mandated participation in the inmate financial responsibility program (“IFRP”).

Miller’s plea agreement states, “[b]eginning no later than in or about July 2007, and continuing until on or about December 2009 … Miller knowingly devised, intended to devise, and participated in a scheme to defraud.” It is undisputed that Miller was in prison in 2008, which is encompassed by the time frame in his plea agreement. While Miller may not have been actively taking money from victims while in prison, we do not find this fact dispositive. During his time in prison, Miller maintained constructive possession of the fraudulently obtained credit cards, as well as the notebook containing the identifying information of the victims. He also maintained control over the fraudulently opened mailboxes, where credit card statements continued to be received during his incarceration. Thus, we find the district court did not plainly err in adding the two points under U.S.S.G. § 4A1.1(d).

Turning to the district court’s order mandating Miller’s participation in the IFRP, both parties agree that the district court improperly mandated Miller’s participation in the program. In United States v. Boyd, we found plain error for this same order. 608 F.3d 331, 334–35 (7th Cir. 2010). We addressed the error by modifying the sentence to clarify that participation in the IFRP was voluntary, without requiring remand. See Id. at 335. We find this appropriate here as well, and thus, order modification on appeal to reflect that Miller’s participation in IFRP is voluntary. For the foregoing reasons, we AFFIRM AS MODIFIED.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.