United States v. Mills
Opinion of the Court
SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
_ At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 5th day of June, Two Thousand and Three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the district court’s judgment of conviction entered on August 9, 2002 is hereby AFFIRMED.
Defendant-Appellant Scott A. Mills, who pleaded guilty to one count of possessing prohibited objects, to wit, drugs, while a federal inmate, see 18 U.S.C. § 1791(a)(2), appeals from a judgment of conviction sentencing him to 37-months’ incarceration.
In considering Mills’s sentencing challenge to the district court’s findings of fact,. we review only for clear error. See United States v. Downing, 297 F.3d 52, 60 (2d Cir. 2002); United States v. Paccione, 202 F.3d 622, 624 (2d Cir. 2002). In applying this deferential standard, we are mindful that the district court’s sentencing findings need to be supported only by a preponderance of the evidence, see United States v. Thorn, 317 F.3d 107, 117 (2d Cir. 2003), and that the issue of a defendant’s intent often depends on reasonable inferences drawn from circumstantial evidence, see United States v. Brown, 937 F.2d 32, 36 (2d Cir. 1991) (noting that direct evidence of intent can rarely be adduced); see also 1 L. Sand, et al., Modern Federal Jury Instructions ¶ 6.06, Instr. 6-17 (1996) (recommending that juries be instructed to review the “surrounding facts and circumstances” when considering a defendant’s intent, for “[t]he intent with which an act is done is often more clearly and conclusively shown by the act itself or by a series of acts, than by words or explanations ...”).
Mills’s possession of prohibited objects while a federal inmate occurred on August 4, 2001, when his 71-year old mother, accompanied by Mills’s three minor children, visited him at the Federal Coirectional Institution in Ray Brook, New York, and
In sum, the district court could fairly have inferred that Mills’s children were not simply coincidentally present at the time their father and grandmother attempted to smuggle drugs into the prison. Rather, the adults had deliberately chosen to commit their crime on the single day when the children’s presence would provide a further distraction. Compare United States v. Jimenez, 300 F.3d 1166, 1169 (9th Cir. 2002) (holding that a child who routinely accompanied his mother on family trips to Mexico was not “used” by her in smuggling drugs when it would have been highly unusual for her to have left him with some other person), with United States v. Castro-Hernandez, 258 F.3d 1057, 1060 (9th Cir. 2001) (affirming U.S.S.G. § 3B1.4 enhancement for father who specifically arranged for child to accompany him on a smuggling trip when the boy would normally have been with his grandmother).
While these circumstances would, by themselves, support affirmance, Mills’s arrest conduct provided further evidence of his willingness to use his children to his own criminal advantage. When, on August 4, 2002, authorities intervened to intercept the drugs passed to Mills by his mother, the three children understandably became frightened and started to cry. Rather than attempt to mollify their distress, Mills took advantage of the attending confusion to engage in a self-serving act of obstruction: he swallowed the drugs.
Because we conclude that the district court did not clearly err in finding that the totality of the evidence supported a § 3B1.4 sentencing guideline enhancement in Mills’s case, we hereby AFFIRM.
. This sentence represents the middle of Mills’s 33—41 month guideline range based on an offense level of 13 and a criminal history category of VI. The sentence runs consecutively to a 50-month term of incarceration imposed on Mills in the District of Maine for possession of a firearm by a convicted felon, see 18 U.S.C. § 924(g)(1), which sentence Mills was then serving when he committed the § 1791(a)(2) crime that is the subject of this appeal.
Reference
- Full Case Name
- United States v. Scott A. MILLS, Elizabeth June MILLS and David Lee Mills
- Cited By
- 1 case
- Status
- Published