United States of America v. Ronald Jay Miller

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD JAY MILLER,
Defendant - Appellant.
No. 13-30225
D.C. No. 6:13-cr-00002-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Submitted April 7, 2014**
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
Ronald Jay Miller appeals from the district court’s judgment and challenges
the 120-month sentence imposed following his guilty-plea conviction for accessing
with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
APR 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Miller contends that the district court erred by concluding that his prior
conviction for sexual assault, in violation of Mont. Code Ann. § 45-5-502, was an
offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward,” triggering a 10-year statutory mandatory
minimum sentence. See 18 U.S.C. § 2252A(b)(2). This contention is foreclosed
by United States v. Sinerius, 504 F.3d 737, 744 (9th Cir. 2007). We reject Miller’s
argument that the rule of lenity, as recently described by the Supreme Court,
requires us to overrule Sinerius. See Barber v. Thomas, 560 U.S. 474, 488 (2010)
(rule of lenity “only applies if, after considering text, structure, history, and
purpose, there remains a grievous ambiguity or uncertainty in the statute”) (internal
quotations omitted); see also Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir.
2003) (en banc) (three-judge panel is bound by circuit precedent unless that
precedent is “clearly irreconcilable” with intervening higher authority).
Further, contrary to Miller’s contention, the existence of a prior conviction is
a sentencing factor, not an element of the crime; therefore, it need not be charged
in the indictment or found by the jury. See Almendarez-Torres v. United States,
523 U.S. 224, 235, 241 (1998); see also Alleyne v. United States, 133 S. Ct. 2151,
2160 n.1 (2013) (declining to revisit Almendarez-Torres).
AFFIRMED.
13-30225 2

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