United States v. Miles

86 F.4th 734

UNITED STATES of America, Plaintiff-Appellee, v. Arthur MILES, Defendant-Appellant.

No. 22-2805

United States Court of Appeals, Seventh Circuit

Argued September 13, 2023

Decided November 13, 2023

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 19-cr-00183 — Tanya Walton Pratt, Chief Judge.

Pamela Sarah Domash, Attorney, Brian L. Reitz, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Serguel Mawuko Akiti, Attorney, Bingzi Hu, Attorney, Murdoch Walker, II, Attorney, Lowther Walker LLC, Atlanta, GA, for Defendant-Appellant.

Before Flaum, Ripple, and Scudder, Circuit Judges.

Flaum, Circuit Judge.

Arthur Miles was sentenced to 240 months' imprisonment for four drug and firearm offenses. On appeal, he mounts several challenges to his convictions and sentence. For the following reasons, we vacate the district court's judgment with respect to Miles's multiplicitous firearm convictions and remand for the limited purpose of vacating one of his firearm sentences and merging his two firearm convictions. In all other respects, we affirm.

I. Background

A. Factual Background

In 2019, Indianapolis-based law enforcement officers investigated Christopher Deeren for suspected drug trafficking. The officers used a confidential source (CS) to perform and surveil two controlled methamphetamine buys from Deeren. During both purchases, the CS met Deeren at a gas station, got into a car with him, and headed to 3243 Brouse Avenue. The CS handed Deeren cash, and Deeren entered the house alone. A few minutes later, Deeren returned to the car and handed the CS meth. The two drove back to the gas station, where the CS gave the meth to an undercover officer. Deeren used a different car for each controlled buy.

Based on this information, officers believed that Deeren's supplier was located at the Brouse Avenue address. They applied for a warrant to search that residence and any vehicles on its premises for evidence of drug trafficking. Then-Magistrate Judge Pryor approved the warrant.

A few days later, the CS arranged another controlled buy from Deeren so officers could execute the warrant. In advance, officers set up surveillance around the property. They observed a person, later identified as Arthur Miles, using a key to enter the residence. Soon after, Deeren and the CS arrived. Deeren exited the car and began speaking with Miles on the front porch of the residence. At that point, officers arrested both Miles and Deeren and executed the search warrant.

After Miles waived his Miranda rights, he admitted to living at 3243 Brouse Avenue and owning two vehicles on the premises. The cars that belonged to Miles—a Honda Odyssey and a Dodge Charger—were different than those Deeren used during the controlled buys. The officers found 107.3 grams of pure meth inside the Honda. Inside the residence, they discovered an additional 160.5 grams of pure meth, 124 grams of a mixture containing cocaine, two rifles, and various drug distribution paraphernalia.

B. Procedural Background

Miles was indicted for possession with intent to distribute meth (Count 1); possession with intent to distribute a mixture containing cocaine (Count 2); and knowing possession of two firearms in violation of 18 U.S.C. § 922(g)(1) (Counts 3 & 4). Miles made two motions to suppress the evidence recovered via the search, arguing that the warrant did not establish probable cause and was not sufficiently particular. The district court denied both motions.

A jury convicted Miles on all four counts, and the court entered concurrent sentences for each. Miles's meth conviction carried the longest sentence, and he received a within-the-Guidelines sentence of 240 months' imprisonment. Miles now appeals.

II. Discussion

On appeal, Miles challenges his felon-in-possession convictions, the court's denials of his suppression motions, and the reasonableness of his sentence. We take each argument in turn.

A. Section 922(g)(1) Convictions

Miles challenges his felon-in-possession convictions on two grounds. First, he argues that the convictions are multiplicitous. Second, he submits that they are unconstitutional under N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022).

1. Multiplicitous Convictions

Miles argues, and the government concedes on appeal, that his two § 922(g)(1) convictions are multiplicitous because he possessed the two firearms underpinning his convictions simultaneously. United States v. Haas, 37 F.4th 1256, 1260 (7th Cir. 2022) ("An indictment is multiplicitous when it charges a single offense as separate counts."); United States v. Buchmeier, 255 F.3d 415, 422 (7th Cir. 2001) ("[W]hen a defendant's possession of multiple firearms is simultaneous and undifferentiated, the government may only charge . . . one violation of § 922(g)(1) . . . regardless of the actual quantity of firearms involved."). As such, this error requires remand so that "one conviction [can] be vacated and merged into the other." United States v. Bloch, 718 F.3d 638, 644 (7th Cir. 2013).

Miles argues full resentencing is necessary because his "invalid convictions played a significant role [in] the district court's sentencing considerations, to [his] prejudice." However, Miles does not provide support from case law or the factual record for this argument. These sorts of "perfunctory and underdeveloped arguments . . . unsupported by pertinent authority" are insufficient to maintain a claim on appeal. Greenbank v. Great Am. Assurance Co., 47 F.4th 618, 629 (7th Cir. 2022).

Even absent Miles's waiver, full resentencing is unnecessary. Although "we prefer to [remand for resentencing] to give the district court the opportunity to reconsider the sentence as a whole," United States v. Mobley, 833 F.3d 797, 801 (7th Cir. 2016) (citation omitted), a "more limited remand is advisable when the district court's reasoning convinces us that the rest of the sentence would not change," United States v. Teague, 8 F.4th 611, 616 (7th Cir. 2021) (citation omitted).

Although the district court mentioned Miles's firearm possession at sentencing, it discussed the facts related to Miles's drug charges and his history with drugs extensively. Most importantly, while the court sentenced Miles to 60 months' imprisonment for each § 922(g)(1) conviction, those sentences have no effect on Miles's overall term of incarceration because they run concurrently with his lengthier 240-month meth sentence. As a result, plenary resentencing is unnecessary because "[b]ased on the court's findings[,] . . . we are persuaded that the rest of the sentences it imposed should be left intact." Teague, 8 F.4th at 616; see also United States v. Parker, 508 F.3d 434, 442 (7th Cir. 2007) (remanding with instructions to vacate one multiplicitous § 922(g) sentence and merge the two § 922(g) convictions but affirming the judgment of the district court "[i]n all other respects").

2. Constitutionality of 922(g)(1)

Miles next argues that both of his § 922(g)(1) convictions should be vacated because the statute violates the Second Amendment.

Last year, Bruen established a new framework for analyzing Second Amendment challenges to firearm restrictions, which relies solely on the Amendment's "text, as informed by history." 142 S. Ct. at 2127; see also Atkinson v. Garland, 70 F.4th 1018, 1020 (7th Cir. 2023) ("Bruen leaves no room for doubt: [T]ext and history . . . now define the controlling Second Amendment inquiry."). To start, if "the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." Bruen, 142 S. Ct. at 2126. To overcome this presumption, "[t]he government must then justify its regulation by demonstrating that the regulation is consistent with the Nation's historical tradition of firearm regulation." Id. at 2130.

Before Bruen, this Circuit rejected challenges to § 922(g)(1)'s constitutionality. See, e.g., Kanter v. Barr, 919 F.3d 437, 443, 450-51 (7th Cir. 2019), abrogated by Bruen, 142 S. Ct. 2111. However, "we did so under the means-end inquiry after determining that the historical record on felons possessing firearms was 'inconclusive.' " Atkinson, 70 F.4th at 1022 (quoting Kanter, 919 F.3d at 445-447).

Bruen, however, rendered the means-end analysis obsolete, 142 S. Ct. at 2126-30, and since Bruen's pronouncement, challenges like Miles's have proliferated both in this Circuit and across the country. See, e.g., United States v. Prince, No. 22 CR 240, 2023 WL 7220127 (N.D. Ill. Nov. 2, 2023); United States v. Sims, No. 22-cr-30081, 2023 WL 4461997 (C.D. Ill. July 11, 2023); United States v. Freeman, No. 23 CR 158, 2023 WL 3763745 (N.D. Ill. June 1, 2023); United States v. Bullock, No. 18-CR-165, — F.Supp.3d —, 2023 WL 4232309 (S.D. Miss. June 28, 2023).

While three of our sister circuits have decided as-applied challenges to § 922(g)(1) in Bruen's aftermath—two upholding the statute's validity—this Circuit has not.¹ See Atkinson, 70 F.4th at 1019-20 (remanding for "the historical analysis now required by Bruen" where district court dismissed a challenge to § 922(g)(1) before the Supreme Court announced Bruen).

Because Miles did not raise his constitutional challenge before the district court despite opportunities to do so, we review only for plain error. Greer v. United States, — U.S. —, 141 S. Ct. 2090, 2096, 210 L.Ed.2d 121 (2021); 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.").

To be plain, an error must be "clear and uncontroverted at the time of appeal." United States v. Trudeau, 812 F.3d 578, 589 (7th Cir. 2016). Since the Seventh Circuit has not yet ruled on § 922(g)(1)'s constitutionality after Bruen, the law is unsettled. United States v. Hosseini, 679 F.3d 544, 548 (7th Cir. 2012). As a result, "the claimed error—if there [is] one—[is]...