United States v. Miller

United States Court of Appeals
Fifth Circuit
F I L E D
April 6, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-11217
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FREDERICK CHARLES MILLER,
Defendant-Appellant
_________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________
Before HIGGINBOTHAM, SMITH, and
BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
After embezzling over a million dollars
from his employer, Frederick Miller pleaded
guilty of one count of conducting a monetary
transaction with criminally derived funds and
one count of tax evasion; he agreed to the
forfeiture of about $950,000 in assets. The
district court imposed a sentence of ninety-six
months’ imprisonment and ordered substantial
restitution to Miller’s former employer and the
IRS. Miller appeals several aspects of the
application of the sentencing guidelines and
the alleged use of certain admissions in the
sentencing decision, and claims that numerous
errors were made with respect to restitution.
We affirm.
I.
Miller engaged in a scheme to defraud his
employer and was indicted on eleven counts:
one count of wire fraud, 18 U.S.C. § 1343;
five counts of theft from a health care benefit

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2
program, id. § 669; and five counts of con-
ducting a monetary transaction with criminally
derived funds (“money laundering”), id.
§ 1957. A superseding information charged
Miller with tax evasion in the year 2000. See
26 U.S.C. § 7201.
Miller was, at various times, chief financial
officer of Medical Pathway (an affiliate of
Medical Select Management (“MSM”)) and a
related entity, Harris Methodist Select
(“HMS”). He wrote checks drawn from the
accounts of HMS and MSM payable to fic-
titious entities and accounts in HMS’s and
MSM’s names but under his control, and later
diverted the funds to his own use. None of
this illegally obtained income was declared on
his tax returns.
Pursuant to a cooperation agreement and,
later, a plea agreement, Miller pleaded guilty
of one count of conducting a monetary trans-
action with criminally-derived funds (in viola-
tion of 18 U.S.C. § 1957) and one count of
income tax evasion (in violation of 26 U.S.C.
§ 7201). In exchange for these pleas and
agreement to forfeit all embezzled funds, the
government moved to dismiss the remaining
ten counts.
The presentence report (“PSR”) initially
concluded Miller’s offense level for the money
laundering count should be calculated using
U.S.S.G. § 2F1.1, the applicable guideline for
offenses involving fraud. Using § 2F1.1’s base
offense level of 6, incorporating the value of
the stolen funds (+11), considering the sophis-
ticated means used (+2), t he abuse of a posi-
tion of trust (+2), the presence of more than
minimal planning (+2), and taking into account
Miller’s obstruction of justice (+2), the PSR
arrived at an offense level of 25. The PSR
also concluded that the tax evasion charge
should yield a total offense level of 19. Deter-
mining that the two offenses should not be
grouped, a one-level increase was added to the
highest offense level, yielding a total of 26.
The government objected, contending that
either (1) § 2F1.1 should be used in conjunc-
tion with a four-level increase because the of-
fense derived more than $1,000,000 and af-
fected a financial institution, generating an of-
fense level for the first count of 29; or
(2) § 2S1.2, the guideline for money launder-
ing crimes, should apply, yielding an offense
level of 28. Miller objected, contending that
the factual resume to which he stipulated did
not constitute fraud, so § 2F1.1 could not ap-
ply. In sum, after these objections were raised,
the question was whether (before grouping)
the total offense level for the first count would
be calculated under the fraud guideline (result-
ing in an offense level of 29) or the money
laundering guideline (resulting in a level of
28).
At the sentencing hearing, the court denied
credit for acceptance of responsibility and ap-
plied an enhancement for obstruction of justice
based on attempts to conceal funds after ar-
rest. The court then ruled that the factual
resume did not contain the necessary elements
to make out a fraud offense; opted to sustain
Miller’s objection; and rejected the contention
that § 2F1.1 applies. Implicitly, therefore, the
court adopted t he position argued in Miller’s
objection and articulated by the prosecutor at
sentencing that if § 2F1.1 did not apply, then
§ 2S1.2 o r § 2B1.1 would apply, with either
one generating an offense level of 28, which,
when grouped with the tax offense, yielded 29.
After sustaining Miller’s objection, the
court called a recess to allow the probation of-
ficer to recalculate the total offense level.
Notwithstanding this intention, the probation
officer could not be located, and the court

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3
eventually imposed sentence without consult-
ing her. The offense level used, 29, was of-
fered by the prosecution, and Miller’s counsel
agreed that this was the appropriate level, but
cautioned, “I did not do the grouping and,
once again, it was pretty cursory. I would
prefer to have [the probation officer] do the
calculation].” The court subsequently ordered
Miller imprisoned for 96 months (a sentence
within the 87 to 108 months delineated by the
guidelines for an offense level of 29).
Miller was also sentenced to a three-year
term of supervised release, as a condition of
which the court ordered him to make restitu-
tion of $1,485,074.24, a large portion of which
would be covered by the property Miller
agreed to forfeit under the terms of the plea
agreement. The restitution is payable immedi-
ately, but nonpayment is not a violation of su-
pervised release so long as Miller makes the
ordered payments of at least $500 per month
during his supervised release.
II.
Miller alleges a number of errors in the cal-
culation and imposition of restitution. Not-
withstanding these arguments on appeal, how-
ever, Miller made no objection with respect to
any aspect of the restitution order. Accord-
ingly, we review for plain error. See United
States v. Branam, 231 F.3d 931, 933 (5th Cir.
2000). This standard requires that we find
(1) that an error has occurred; (2) that the
error is plain; and (3) that it affects a substan-
tial right. United States v. Olano, 507 U.S.
725, 732- 34 (1993). Nevertheless, even if we
find plain error, “we will not exercise our
discretion to correct a forfeited error unless it
seriously affects the fairness, integrity, or
public reputation of judicial proceedings.”
Branam, 231 F.3d at 933 (citing Olano, 507
U.S. at 735-36).
A.
Miller complains that the court erred in im-
posing an unrealistic schedule of payments for
the restitution. The Mandatory Victim’s Res-
titution Act requires a court to order restitu-
tion irrespective of ability to pay. 18 U.S.C. §
3664(f)(1)(A). In determining the manner and
schedule with respect to which restitution will
be paid, however, a court must consider, inter
alia, the defendant’s financial resources. Id. §
3664(f)(2)(A).
The restitution order, as noted above, man-
dates as a condition of supervised release that
Miller return approximately $1.4 million to his
former employer and the IRS. This restitution
is payable immediately (and accordingly, a
substantial portion will be paid with the pro-
ceeds of numerous large forfeitures of prop-
erty to which Miller agreed), yet Miller’s
nonpayment will not be deemed a violation of
his supervised release so long as he pays in
accordance with the conditions of supervised
release.1 Miller avers that the order that resti-
tution is payable immediately is plain error
where the court conceded that he is unable to
afford both restitution and a fine.
Miller relies exclusively on United States v.
Myers, 19 F.3d 160, 168-69 (5th Cir. 1999),
for his contention that where the record dem-
onstrates that a defendant is not capable of
making immediate restitution, the perfunctory
reference to the fact that he is unable to pay
both a fine and restitution is not sufficient con-
sideration of his ability to pay to justify the
restitution schedule. Myers, however is readi-
ly distinguishable.
1 Miller is required to make monthly payments
of at least $500 beginning sixty days after his
release from prison.

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4
In Myers, the court ordered a lump sum
payment, in contrast to the monthly restitution
payments here. Although the restitution in this
case is payable immediately, Miller is not
ordered to make full restitution at once.
Rather, the forfeiture will commence immedi-
ately, and presuming no other property of his
materializes between now and his release, he
will begin making monthly payments after his
release. This schedule, therefore, is not plain
error, if it is error at all, in light of the court’s
consideration of Miller’s financial situation
evident in its decision that he is unable to pay
both restitution and a fine.
B.
As part of the restitution order, Miller is re-
quired to pay the IRS $335,074.24, which os-
tensibly represents the taxes unpaid on his
unreported income for 2000. Miller contends
that because he paid $78,808 in taxes for that
year, the restitution should be reduced by that
amount. Miller reported his taxable income
for 2000 as $265,999, with a tax due of
$78,808. In reality, counting the embezzled
funds, his income was $915,167.52, which
would have generated a tax liability of
$335,074.24 (the amount that the restitution
order mandates be paid to the IRS). Con-
sequently, it is Miller’s position that the res-
titution order should require him to pay only
the difference, or $256,266.24.2
The government concedes that this was er-
ror. It nevertheless maintains that no relief
should be afforded because the error was
harmless, resulted in no prejudice to Miller,
and cannot constitute plain error. In his plea
agreement, Miller agreed to pay all restitution
“arising from all relevant conduct, not limited
to that arising from the offenses of conviction
alone.” Though he pleaded guilty to a charge
of evading income tax only in 2000, he omitted
embezzled income from his 1998 and 1999 tax
returns as well. In those years, he avoided
paying $149,136.01 in income taxes. As a
result, the court could have ordered signifi-
cantly more restitution than the $78,808 about
which Miller complains. Consequently, the
failure to deduct the taxes he did pay in 2000
was not plain error.
C.
According to Miller, it was plain error for
the court to order any restitution to the IRS
because, he says, such an order is not autho-
rized by any federal statute. The government
responds that such restitution is authorized un-
der several different theories. First, the gov-
ernment contends that the court possesses the
power to order restitution as a condition of su-
pervised release. In United States v. Dahl-
strom, 180 F.3d 677, 686 (5th Cir. 1999), we
held that “although restitution may not be di-
rectly permitted under § 3663(a), a district
court may order restitution within the context
of a supervised release” pursuant to 18 U.S.C.
§ 3583(d). Thus, although the Victim and
Witness Protection Act, 18 U.S.C. § 3663,
does not expressly cover tax offenses such as
that under which Miller was convicted,
§ 3583(d) authorizes such restitution as a con-
dition of Miller’s supervised release.
In response, Miller argues that United
States v. Stout, 32 F.3d 901, 904 (5th Cir.
1994), limits the court’s ability to impose resti-
tution, even as a condition of supervised
release, to situations in which the defendant
agreed to such restitution as part of a plea
agreement. Therefore, Miller contends, be-
cause as he did not so agree, § 3583(d) does
not apply.
2 Miller also asserts, and we address, infra, that
no restitution may be properly ordered to the IRS
at all.

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5
This argument, limiting § 3583(d) to cases
in which restitution is agreed to in a plea
agreement, is the subject of vigorous debate by
the parties. According to the government,
Stout’s limitation of restitution to cases in
which it is agreed to in the plea agreement is
limited to cases in which such restitution
would otherwise have been foreclosed by stat-
utes that formerly barred restitution for uncon-
victed offenses.3 Thus, goes the argument,
Stout limits restitution, by requiring the plea
agreement to allow for it, only in cases in
which the harm for which restitution is sought
was caused by conduct beyond the counts of
conviction. Because Miller pleaded guilty of
tax evasion, Stout’s limitation is inapplicable.
Miller disputes this logic, concluding that
Stout’s limitation is wholly unrelated to wheth-
er the restitution is sought for unconvicted
conduct. Instead, Miller believes that Stout
stands squarely against any imposition of
restitution as a condition of supervised release
without the defendant’s consent in a plea
agreement.
As the government points out, this interpre-
tation of § 3583 and Stout would preclude the
imposition of restitution as a condition of su-
pervised release in any case in which the de-
fendant goes to trial and is convicted. Yet, no-
where in the statute is such a counterintuitive
intention manifest.
We need not resolve that particular dispute.
Despite Miller’s protestations to the contrary,
he did give his consent to the restitution. In
the plea agreement, he acknowledges that the
maximum penalties for both counts to which
he pleaded guilty (including tax evasion) in-
clude “restitution to victims or to the commu-
nity, which may be mandatory under the law,
and which Miller agrees may include restitu-
tion arising from all relevant conduct, not lim-
ited to that arising from the offenses of con-
viction alone . . . .”
Miller contends this section is ambiguous
and that all such ambiguities must be resolved
in his favor, because the government drafted
the agreement. See Spacek v. Mar.
Ass’nSSI.L.A. Pension Plan, 134 F.3d 283,
298-99 (5th Cir. 1998). There is, however, no
ambiguity. Miller was pleading guilty of, inter
alia, tax evasion. He agreed that by pleading
guilty he recognized that the maximum penal-
ties that might be imposed on him included
restitution for all relevant conduct. Stout is
therefore inapplicable, because Miller con-
sented to the restitution. Ordering restitution
was, consequently, not plain error.
D.
Miller is simultaneously being asked to
make restitution to his former employer of
$1,150,000 and to the IRS of $335,074.24.
According to Miller, this order is plain error
because it directs him to make his employer
whole, yet he still must pay restitution in the
amount of taxes he would have been liable for
if he had reported the embezzled fundsSSthe
same embezzled funds he is ordered to re-
turnSSon his income tax returns. Once again,
however, Miller failed to object and raise this
argument with the district court. Under the
ensuing plain error standard of review, he
cannot prevail.
In the first instance, the argument that Mil-
ler makes, although possessing some intuitive
3 Congress later changed this situation by al-
lowing restitution based on any harm caused by a
scheme, conspiracy, or pattern of criminal activity,
even if no harm resulted from the offense to which
a defendant pleads guilty. See 18 U.S.C.
§ 3663A(a)(2).

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6
appeal, is a novel one in this circuit. It would
therefore be a stretch of language to dub the
district court’s decision “‘obvious,’ ‘clear,’ or
‘readily apparent,’ [an error that is] so con-
spicuous that ‘the trial judge and prosecutor
were derelict in countenancing [it], even ab-
sent the defendant’s timely assistance in de-
tecting [it].’” United States v. Dupre, 117
F.3d 810, 817 (5th Cir. 1997) (quoting United
States v. Calverley, 37 F.3d 160, 163 (5th Cir.
1994) (en banc )). Absent any precedent
directly supporting Miller’s contention, it can-
not be said that the alleged error was “plain”
for purposes of our review.
Furthermore, even if we were to say that
such an error is “plain,” Miller would not nec-
essarily be entitled to relief. As discussed
above, plain error review precludes relief ex-
cept where the putative error affects a substan-
tial right. Olano, 507 U.S. at 732- 34. Even
then, “we will not exercise our discretion to
correct a forfeited error unless it seriously af-
fects the fairness, integrity, or public reputa-
tion of judicial proceedings.” Branam, 231
F.3d at 933 (citing Olano, 507 U.S. at
735-36).
Given that the district court was statutorily
empowered to impose a fine in addition to res-
titution, it cannot be that Miller’s substantial
rights were affected. In the absence of the or-
der mandating restitution to the IRS that Mil-
ler seeks to have vacated, the district court
could have, and indeed likely would have im-
posed a fine, making any error harmless.4
Thus, considering the novelty of Miller’s claim
(a fact that belies the “plain” nature of the
supposed error), coupled with the likely harm-
less nature of the purported error, we cannot
say that the trial court’s action was plain error.
E.
Miller contends that the restitution order
incorrectly identifies the corporate entity to
which restitution is owed. Miller is undeterred
by the fact that if the alleged error is corrected
and restitution is payable to a different entity,
he will still be liable for the same amount of
restitution. Apparently, in Miller’s eyes, this
constitutes plain errorSSan error affecting
substantial rights that “seriously affects the
fairness, integrity, or public reputation of
judicial proceedings.” Olano, 507 U.S. at 732.
The basis of Miller’s argument is rooted in
the changes in corporate structure that his em-
ployer underwent during his tenure. Essen-
tially, according to Miller, although restitution
was ordered payable to MSM, only a small
portion of the embezzled funds was embezzled
from MSM. Instead, Miller contends that he
initially was employed by HMS, which was
controlled by Harris Methodist Health Systems
(“HMHS”), which was in turn owned by Texas
Health Resources (“THR”). At the beginning
of 1999, allegedly HMHS, and thus THR,
divested itself of all interest in HMS, and HMS
subsequently became MSM. As part of this
transaction, Miller states that THR agreed to
assume almost $25 million in liabilities on
behalf of HMS. Thus, goes the argument, any
embezzlement occurring before the formation
of MSM should be payable to THR, not
MSM.
The government counters with multiple ar-
guments. According to its first theory, even if
restitution was ordered to the wrong entity
and “should go to either HMHS or THR
because of some contractual obligation, then
that is a matter for those parties to determine
4 It was only after noting that Miller would not
be able to afford both restitution and a fine that the
court declined to impose a fine.

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7
among themselves.” This argument is unper-
suasive. If the court truly incorrectly divined
the correct victim to which restitution is owed,
the dictates of § 3663 would be violated,
because under the terms of that section restitu-
tion would not be going to the “victim.”
Perhaps it could be argued that this is not plain
error, but forcing private “victims” to litigate,
in civil court, the question of who is entitled to
the restitution likely affects the integrity and
public reputation of the courtSSnot to mention
the fact that it is inefficient.
The government next posits that the change
from HMS to MSM was merely a name alter-
ation and that no relevant change took place.
Additionally, it contends that the PSR, on
which the court relied, constituted sufficient
evidence for the court to conclude that MSM
was due the restitution, and Miller did not pre-
sent evidence to the contrary.5 The evidence
in the record seems to support Miller’s posi-
tion. According to the PSR, much of the
embezzlement took place before the corporate
changed took place, so a substantial portion of
the restitution would seem properly payable
not to MSM, but to THR.
Nevertheless, because Miller would be re-
quired to pay the same amount in restitution,
regardless of which entity receives it, he can-
not show that any error affects his substantial
rights. As inefficient as it may seem to force
the competing entities to sort out this dispute
themselves, our scope of review is highly
circumscribed where an error is unobjected to,
and because neither THR nor MSM is a party
to this proceeding, neither can claim that its
substantial rights are affected. We therefore
affirm the restitution order.
III.
Miller raises a number of issues with re-
spect to his sentencing. We reject these chal-
lenges and affirm the sentence.
A.
Miller contends that the district court vio-
lated Federal Rule of Criminal Procedure
32(d)(1)6 and U.S.S.G. §§ 6A1.2 and 6A1.37
by failing to allow the probation officer to
“identify all applicable guidelines” after the
court sustained Miller’s objection to the use of
the fraud guideline as initially suggested in the
PSR. Specifically, Miller suggests that the
decision to sentence him without benefit of the
probation officer’s recalculation of the applica-
ble offense level deprived him of a meaningful
sentencing hearing and requires a vacatur of
his sentence.
5 See United States v. Londono, 285 F.3d 348,
354 (5th Cir. 2002) (“In general the PSR bears
sufficient indicia of reliability to be considered as
evidence by the district court, especially when there
is no evidence in rebuttal.”).
6 The rule reads, in pertinent part,
The presentence report must:
(A) identify all applicable guidelines and policy
statements of the Sentencing Commission;
(B) calculate the defendant’s offense level and
criminal history category . . . .
FED R. CRIM. P. 32(d)(1).
7 These provisions prescribe that “[c]ourts shall
adopt procedures for the timely disclosure of the
presentence report [and] the narrowing and res-
olution . . . of issues in dispute,” U.S.S.G.
§ 6A1.2, and that “the parties shall be given an ad-
equate opportunity to present information to the
court regarding the factor,” id. § 6A1.3.

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8
At the outset, there is some dispute as to
whether Miller properly objected on this issue.
If not, our review is for plain error rather than
abuse of discretion.8
Apparently the court was aware of Miller’s
request that the probation officer make the re-
calculation; therefore the court had an oppor-
tunity to correct the alleged error. As Miller
points out, requiring him to renew his objec-
tion once the court decided to impose sentence
without further input would be tantamount to
requiring him to continue objecting after the
court had ruled (a rule akin to the old require-
ment of taking exceptions). Miller’s counsel
communicated to the court, in no uncertain
terms, that he would “prefer to have Ms. Mc-
Millan,” the probation officer, do the calcula-
tion. This articulation served the purposes of
rule 52(b), which is designed to “provide the
trial judge an opportunity to avoid or correct
any error.” United States v. Rodriguez, 15
F.3d 408, 417 (5th Cir. 1994); FED. R. CRIM.
P. 52(b) . The proper standard of review,
therefore, is abuse of discretion.
Even under that standard (more generous
than plain error), Miller’s argument is merit-
less. He objected to the guideline used to
calculate the applicable offense level in the
PSR and instead suggested the use of a differ-
ent guideline. The court sustained the objec-
tion. It is therefore difficult to imagine how
any alleged error in procedure could have pre-
judiced Miller. If the sentence were vacated,
on resentencing the probation officer would
merely reach the same conclusion that the
court correctly reached without benefit of the
probation officer’s assistance. Any error,
therefore, is harmless.
Further, it does not appear that the decision
to proceed with sentencing was error at all.
Contrary to Miller’s assertions, neither the text
of rule 32 nor §§ 6A1.2 and 6A1.3, nor our
precedents interpreting them, require the court
to allow the probation officer to make a recal-
culation following the sustaining of an ob-
jection to the PSR. Rule 32(d), the provision
on which Miller most heavily relies, merely
requires that the PSR include an identification
of all applicable guidelines. Nowhere does the
rule indicate that a new PSR must be gener-
ated after every decision by the court with
respect to those calculations.
In United States v. Knight, 76 F.3d 86, 88
(5th Cir. 1996), we held that “at least if the de-
fendant has actual knowledge of the facts on
which the district court bases an enhancement
or a denial of a reduction, the Sentencing
Guidelines themselves provide notice of the
grounds relevant to the proceeding sufficient
to satisfy the requirements of Rule 32 and
U.S.S.G. § 6A1.3.” Miller was provided with
more than adequate notice of the grounds on
which the court would impose sentence. In
fact, the main issue of dispute at the sentencing
hearingSSthe choice of applicable guideline for
the money laundering countSSwas the subject
of Miller’s own objection to the PSR.
Miller tries to distinguish Knight and urges
that United States v. Zapatka, 44 F.3d 112,
114 (2d Cir. 1994), is more on point. There,
the court held that the sentencing procedure
was violative of rule 32 and § 6A1.3. Refer-
ence to Zapatka, however, is unavailing, be-
cause there the district court, apparently sua
sponte, applied a guideline different from than
that used in the PSR. Id.
8 Compare United States v. Henry, 288 F.3d
657, 664 (5th Cir. 2002) (plain error where no ob-
jection) with United States v. Narvaez, 38 F.3d
162, 165 (5th Cir. 1994) (application of § 6A1.3
and rule 32(c) reviewed for abuse of discretion).

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9
In stark contrast, here the court sustained
Miller’s objection to the guideline used in the
PSR and utilized the guideline that Miller him-
self argued should apply. Consequently, the
procedures used in this case violated neither
the text of rule 32 or the guidelines nor their
underlying purpose of giving defendants ade-
quate notice such that there can be “focused,
adversarial resolution of the legal and factual
issues relevant to fixing Guidelines sentences
. . . .” Burns v. United States, 501 U.S. 129,
137 (1991).
B.
1.
Miller avers that he is entitled either to
withdraw his plea or to be resentenced before
another judge because the district court im-
properly considered self-incriminating state-
ments made by Miller to government agents.
Twelve days after his arrest, Miller entered in-
to a cooperation agreement with the govern-
ment. The government agreed that no self-
incriminating statements made by Miller in the
course of his interviews with government
agents would be used against him in any trial
or sentencing.
This broad proposition, however, was
subject to numerous caveats, including the
understanding that if Miller made any materi-
ally false or misleading statement, all state-
ments could be used against him. The gov-
ernment further agreed that any information
provided by Miller would be covered by
U.S.S.G. § 1B1.8, which (subject to some ex-
ceptions) deems self-incriminating statements
made pursuant to a cooperation agreement un-
usable at sentencing.
Miller made more trouble for himself when
he allegedly attempted to communicate with
his wife, in code, that she should remove and
conceal some $40,000 that was stashed in a
safe in their house. In previous interviews
with agents, Miller had admitted that some of
the stolen money was hidden in two safes in
his attic. Yet, when agents arrived to search
his residence, only one safe was there. Appar-
ently, Miller’s father-in-law then arrived with
the other, eventually admitting that Miller’s
wife had brought him the safe the previous
night.
Unbeknownst to Miller, his conversations
with his wife, during which he allegedly told
her to remove the money, were recorded.
When confronted with this fact and shown the
inmate call logs, Miller conceded, “It’s true
. . . okay, it’s true.”
Faced with these facts, the PSR recom-
mended that an obstruction-of-justice enhance-
ment be applied to Miller’s offense levelSSan
enhancement to which Miller objected, claim-
ing that he had later abandoned his attempt to
conceal the funds. After reviewing the tapes
of the conversations, the probation officer
concluded that the obstruction-of-justice
enhancement was justified. The district court,
based on Miller’s conduct with respect to the
concealed funds, denied a reduction for accep-
tance of responsibility and applied the ob-
struction-of-justice enhancement.
2.
Miller claims that his statements regarding
the concealed funds are protected by the co-
operation and plea agreements and § 1B1.8
and therefore could not be properly considered
at sentencing. He further argues that the gov-
ernment cannot now claim that he was in
breach of the agreements, because it failed to
declare a breach before sentencing. Attempt-
ing to preempt the government’s inevitable re-
sponse that the court could have reached the
same conclusion without relying on his state-
ments, Miller contends that the record does

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10
not demonstrate that the same information was
available absent the statements. He lastly
avers that regardless of any prejudice that may
or may not have befallen him, relief is war-
ranted because the consideration of the state-
ments was virtually a per se violation of the
cooperation and plea agreements that requires
a remedy.
The government makes a three-pronged re-
sponse. First, it maintains that there was more
than adequate information in the record, inde-
pendent of Miller’s statements, from which the
court divined that Miller was not entitled to an
acceptance of responsibility reduction (and in-
deed deserved an obstruction of justice en-
hancement). Second, the government con-
tends that § 1B1.8 is inapplicable because, by
its own terms, it covers only self-incriminating
evidence gleaned while the defendant provides
information concerning the unlawful activities
of others. Miller, in contrast, goes the argu-
ment, was only admitting to his own miscon-
duct. Lastly, the government posits that the
cooperation agreement was breached by
Miller’s initially false statements regarding the
concealed $40,000.
The government’s breach argument con-
tains a major weakness. As Miller correctly
points out, the government ratified the cooper-
ation agreement after the alleged breach when
it tendered the cooperation agreement to the
court at Miller’s rearraignment. As we held in
United States v. Castaneda, 162 F.3d 832, 836
(5th Cir. 1998), in the context of non-prosecu-
tion agreements the government is prevented
by due process considerations from unilaterally
determining that a defendant is in breach and
nullifying the agreement. At the very least,
notice must have been given to Miller that the
government considered him in breach, thus
giving him the opportunity to debate this issue
to the court.9 Nevertheless, there is a mean-
ingful difference between this case and
Castaneda in that Miller did not object, so our
review is for plain error.
Regardless of whether Miller breached the
agreement, however, the government argues
quite correctly that the record is replete with
information on which the court could have
reached the same conclusions independently of
the disputed admissions. Besides averring that
the record does not contain such evidence,
Miller contends that in the context of the gov-
ernment’s failure to honor its agreements, such
errors are never harmless and constitute plain
error in most cases.10
These cases, contrary to Miller’s conten-
tion, do not establish that a failure to fulfill
promises contained in agreements constitutes
per se plain error.11 Where, as here, the record
contains ample bases for the court to make the
same determination regardless of the disputed
admissions,12 it cannot be said that the use of
9 The obvious counter argument to this, how-
ever, is that the government never raised the spec-
ter of breach because Miller never objected to the
use of his statements. Nevertheless, it would be
unjust to say that the government forfeits this ar-
gument on appeal where it was not given a mean-
ingful motivation for bringing it in the district court
because of Miller’s failure to object.
10 See, e.g., United States v. Wilder, 15 F.3d
1292, 1301 (5th Cir. 1994).
11 See United States v. Goldfaden, 959 F.2d
1324, 1328 (5th Cir. 1992) (“We thus conclude
that a prosecutor’s breach of a plea agreement can
amount to plain error.” (emphasis added)).
12 In addition to the disputed statements, the
determination that Miller obstructed justice and did
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11
those admissions constitutes plain error that
seriously affects the fairness, integrity, or pub-
lic reputation of judicial proceedings. This is
especially so in Miller’s case, where he most
certainly breached the agreement, and his own
failure to object likely led to the government’s
not declaring this breach in the district court.
Therefore, in contrast to cases such as Gold-
faden, Miller’s sentencing did not constitute
plain error.13
C.
Miller avers that his counsel’s failure to ob-
ject to the application of the grouping rules
constituted ineffective assistance of counsel in
violation of the Sixth Amendment. Specifi-
cally, in following the recommendation of the
PSR, the court did not group the money laun-
dering offense with the tax evasion offense, the
result being a one-level upward adjustment to
the offense level for the money laundering
offense. Miller did not object.
The general rule in this circuit is that claims
of ineffective assistance will not be considered
on direct appeal “when, as here, it was not
raised in the district court, because there has
been no opportunity to develop record evi-
dence on the merits of the claim.” United
States v. Lampaziana, 251 F.3d 519, 527 (5th
Cir. 2001). Accordingly, we decline the invi-
tation to address Miller’s ineffective assistance
of counsel claim, and we express no opinion as
to its merits.
D.
Miller asserts that application of the sen-
tencing guidelines violates the Sixth Amend-
ment. This argument was initially grounded in
Blakely v. Washington, 124 S. Ct. 2531, 2537
(2004), in which the Court ruled unconstitu-
tional the State of Washington’s sentencing
scheme because it mandated the imposition of
sentences based on facts not reflected in the
verdict or admitted by the defendant. After
briefing and argument had been concluded in
the instant case, the Court issued United States
v. Booker, 125 S. Ct. 738 (2005), explicitly
extending the fundamental holding of Blakely
to the federal sentencing guidelines and declar-
ing that their mandatory nature runs afoul of
the Sixth Amendment. Essentially, Booker
makes the guidelines merely advisory. See
United States v. Mares, No. 03-21035, 2005
U.S. App. LEXIS 3653, at *17 (5th Cir. Mar.
4, 2005).
Nevertheless, the Court explicitly cautioned
that “we expect reviewing courts to apply or-
dinary prudential doctrines, determining, for
example, whether the issue was raised below
and whether it fails the ‘plain-error’ test.”
Booker, 125 S. Ct. at 769. Miller concedes
that this standard of review applies.
Before we can reverse based on error not
12(...continued)
not accept responsibility could easily have been
based on the government’s discovery of only one
safe, rather than the two Miller reported, at the
house. Add to this discrepancy the strange re-ap-
pearance of the safe at the hands of Miller’s father-
in-law, and it is further obvious that the govern-
ment was well aware something was amiss. The
recordings of Miller’s phone conversations, on
which the probation officer relied in making his
recommendation in the PSR, and on which the
court, in turn, explicitly relied, make certain that
there was ample evidence of Miller’s mischievous
scheme.
13 Given our conclusion that any breach of the
cooperation agreement by the government was ei-
ther justified by Miller’s own breach or was not
plain error because of the substantial amount of ad-
ditional evidence on which the court relied, we do
not reach the government’s contention that Miller’s
statements are not covered by § 1B1.8.

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12
raised at trial, there must be “‘(1) error, (2)
that is plain, and (3) that affects substantial
rights.’” Mares, 2005 U.S. App. LEXIS
3653, at *23 (quoting United States v. Cotton,
535 U.S. 625, 631.14 The plainness or ob-
viousness of the error is assessed by reference
to the law as it exists at the time of appellate
consideration.15 Therefore, in this case, where
the sentencing court applied the guidelines and
made factual findings that were neither au-
thorized by the verdict nor admitted by the
defendant, there is an error that is clear or
obvious under Blakely and Booker. See Cot-
ton, 535 U.S. at 632.
The crucial question, therefore, is whether
the error affects Miller’s substantial rights. In
Mares, 2005 U.S. App. LEXIS 3653, at *27-
*28, we said that “the pertinent question is
whether [the defendant] demonstrated that the
sentencing judgeSSsentencing under an advi-
sory scheme rather than a mandatory
oneSSwould have reached a significantly
different result.” That is, the plain error stan-
dard places the
burden of proof [on the defendant] and
requires “the defendant to show that the
error actually did make a difference: if it is
equally plausible that the error worked in
favor of the defense, the defendant loses; if
the effect of the error is uncertain so that
we do not know which, if either, side it
helped the defendant loses.”
Id. (quoting United States v. Rodriguez, 398
F.3d 1291, 1300 (11th Cir. 2005)).
Because Booker renders the guidelines ad-
visory, if we were to remand because of an er-
ror under Booker the district court would have
the discretion to impose the same sentence by
giving consideration to the guidelines and the
other factors enumerated in 18 U.S.C.
§ 3553(a). Miller can point to nothing in the
record to demonstrate that, operating under an
advisory sentencing scheme, the district court
would have reached a significantly different re-
sult. Miller’s substantial rights, therefore, have
not been affected, and he is unable to show
plain error.
AFFIRMED.
14 See also Olano, 507 U.S. at 732; Calverley,
37 U.S. at 162.
15 Cotton, 535 U.S. at 631-32; Johnson v.
United States, 520 U.S. 461, 467-68 (1997).

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