Retaliatory-Intent Upward Variances and Digital Constructive Possession Under § 922(g): United States v. Andrew Miller

Introduction

This Sixth Circuit decision, though designated “Not Recommended for Publication,” offers a detailed and timely reaffirmation of two important points in federal criminal law: (1) the sufficiency of circumstantial and digital evidence to prove constructive possession in a felon-in-possession prosecution under 18 U.S.C. § 922(g), and (2) the substantive reasonableness of a significant upward variance where the district court grounds its decision in the defendant’s explicit statements of retaliatory intent, violent history, and risk of future harm—thoroughly linked to the § 3553(a) factors.

The Government charged Andrew Miller with possessing a firearm with an obliterated serial number as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8), after an ATF-controlled buy in which an AR-style rifle changed hands in a Cleveland grocery store parking lot. A jury convicted Miller. The district court calculated a Guidelines range of 78–97 months (total offense level 26, criminal history category III), but imposed 130 months’ imprisonment, citing multiple aggravating features—including Miller’s expressed desire to retaliate against the person who had shot him, his prior violent conduct, and his behavior in custody. On appeal, Miller challenged the sufficiency of the evidence of possession and the substantive reasonableness of the upward-variant sentence.

Court: U.S. Court of Appeals for the Sixth Circuit
Panel: Judges Stranch (author), Bush, and Davis
Date: October 20, 2025
Disposition: Conviction and sentence affirmed

Summary of the Opinion

The Sixth Circuit affirmed. On the conviction, the court held that the Government presented ample circumstantial evidence from which a rational juror could find that Miller constructively possessed the AR-style rifle: coordinated text messages arranging a sale to a CI; photos from Miller’s seized phone of firearms matching the gun recovered (including unique scratch marks); surveillance video and agent testimony identifying Miller at the scene; and post-transaction texts (“How u like the AR? I blessed you on that one.”). The court rejected arguments premised on the absence of DNA/fingerprint evidence and on the relatively short jury deliberation period, noting that neither is required to sustain a verdict.

On the sentence, the panel held that the 33-month upward variance was substantively reasonable. The district court gave a reasoned, factor-by-factor explanation under § 3553(a), emphasizing Miller’s violent record, attempted sales beyond the charged conduct, in-custody violence, aggressive conduct toward marshals, and—critically—his in-court statements expressing an intent to retaliate. Because those reasons were particularized and grounded in the record, the variance was neither arbitrary nor based on impermissible factors, and it fell outside the “heartland” of typical cases in a manner the district court adequately explained.

Analysis

Precedents Cited and Their Role

Sufficiency standard: The court applied de novo review while viewing the record in the light most favorable to the Government, sustaining the verdict if any rational trier of fact could find the elements beyond a reasonable doubt (United States v. Woods; United States v. Hendricks). The court reiterated that appellate courts neither reweigh evidence nor reassess witness credibility (United States v. Garcia).
Elements of § 922(g): The panel cited Rehaif v. United States for the knowledge-of-status requirement and a recent Sixth Circuit decision (United States v. Johnson, 2025 WL 720930) for the familiar four-part test: prior felony, knowledge of that status, knowing possession, and interstate commerce.
Constructive possession: The opinion relied on longstanding Sixth Circuit doctrine that constructive possession exists when the defendant has the power and intent to exercise dominion and control, even indirectly (United States v. Campbell; United States v. Fisher; United States v. Montague). It emphasized a required “nexus” beyond proximity (United States v. Bailey), and the sufficiency of eyewitness accounts that match later-recovered firearms (United States v. Arnold).
No requirement of physical-forensic evidence: The panel cited United States v. Pinkney and United States v. Morrison in rejecting the notion that DNA or fingerprints are necessary to support a § 922(g) conviction, and it cautioned against focusing on evidence that was not introduced (Garcia).
Short jury deliberations: The court noted there is no constitutional or precedential minimum deliberation time and cited United States v. Bartos to illustrate that even an hour can be adequate, depending on the evidence.
Sentencing review: Substantive reasonableness is reviewed for abuse of discretion and centers on whether a sentence is too long or short in light of § 3553(a) (United States v. Parrish; United States v. Rayyan; United States v. Robinson). A within-Guidelines sentence is presumed reasonable (United States v. Christman), but an outside-Guidelines sentence is not presumptively unreasonable (United States v. Borho); district courts have broad discretion to craft individualized sentences (United States v. Boucher).
“Heartland” concept and explanation duty: Kimbrough v. United States and Rita v. United States teach that Guidelines cabins the heartland of typical cases. When varying, courts should explain what makes the case atypical; reasoned explanations attract “greatest respect.”
Weighting factors and overreliance: The court acknowledged that a sentence may be unreasonable if a court gives an impermissible or unreasonable amount of weight to one factor (United States v. Horton; United States v. Warren). Here, the panel found no such error; the district court weighed multiple factors and tied them to public safety and deterrence.
Future-danger analysis: The panel endorsed the district court’s reliance on specific, record-grounded indications of danger (Miller’s explicit statements and violent conduct), distinguishing this from speculation (United States v. Scurry; United States v. Tristan-Madrigal).
Recidivism as variance ground: The court cited United States v. Jeter in approving an upward variance justified by the seriousness of the offense and the defendant’s failure to learn from prior incarcerations—mirroring Miller’s repeated reoffending.

Legal Reasoning

1) Constructive Possession Proven by Digital, Surveillance, and Testimonial Evidence

The court’s sufficiency analysis tracked a classic constructive-possession pathway:

Identity and transaction corroboration: Surveillance footage at the market, an agent’s direct observation, and Miller’s own probation officer collectively identified him as the seller at the controlled buy.
Digital breadcrumbs tying Miller to the rifle and the sale: Texts from a phone seized from Miller offered firearms to the CI, arranged the transaction, included photos of an AR-style rifle whose distinctive scratch marks matched the recovered gun, and contained post-sale confirmation (“How u like the AR? I blessed you on that one.”). Subscriber information, an iCloud account labeled “MillerAndrew216,” selfies, and a credit card image in Miller’s name provided powerful attribution of the device to Miller.
Chain-of-custody assurance: The CI and vehicle were searched pre-buy; an audio transmitter recorded the trip to the meet; and, although visual surveillance lapsed briefly post-buy, the CI’s in-car recording documented uninterrupted travel to law enforcement with no tampering or stops, supporting the integrity of the recovered firearm.

Against that mosaic, the absence of fingerprints or DNA on the firearm carried little weight in law. Sixth Circuit precedent explicitly rejects a requirement for such evidence, and appellate courts avoid speculating about evidence the Government did not present. Nor does the relatively short deliberation time help a sufficiency challenge: there is no minimum, and the question remains whether any rational juror could convict on the record presented—which here was substantial.

2) Substantive Reasonableness of the Upward Variance

The district court increased Miller’s sentence 33 months above the top of the 78–97 month range, imposing 130 months. The appellate court’s reasoning rested on several pillars:

Holistic § 3553(a) analysis: The district court addressed the nature and circumstances of the offense (including efforts to sell more firearms than charged), history and characteristics (a violent record underrepresented by the PSR), the need to protect the public (including a psychologist’s “imminent risk” concerns), deterrence, respect for the law, and avoiding unwarranted disparities.
Non-speculative danger: Miller’s statements at sentencing—“I’m trying to kill the person who shot me…” and his affirmation of a retaliatory focus—were not mere bluster in a vacuum. They were assessed alongside aggressive conduct toward marshals, a stabbing in pretrial detention, and a history of violence, creating a concrete, record-based assessment of danger. That satisfies Sixth Circuit guidance distinguishing speculation from permissible inference.
Outside the Guidelines “heartland”: The district court articulated why Miller’s case is atypical and warrants a higher sentence, including his pattern of reoffending “promptly” after release and the lack of prior deterrent effect. This kind of explanation is exactly what Kimbrough/Rita require when deviating from the advisory range.
No impermissible overweighting: While Miller argued the court overemphasized retaliation, the appellate panel found that the district court weighed multiple, mutually reinforcing factors and did not rely on an impermissible consideration. The record supported heavy concern about future dangerousness and public protection, and the ultimate sentence remained below the 15-year statutory maximum now applicable to § 922(g) offenses under § 924(a)(8).

Impact

Constructive possession in the digital era: The case underscores that digital communications, device attribution evidence (subscriber records, cloud accounts, photos, selfies), and surveillance corroboration can together establish the nexus needed for constructive possession. Prosecutors can meet their burden without physical-forensic evidence if the circumstantial mosaic is coherent and persuasive.
Short deliberations do not undermine verdicts: Defense claims keyed to deliberation duration continue to face long odds absent evidence of coercion or other irregularities.
Sentencing: explicit retaliatory intent as a variance driver: The Sixth Circuit’s approval of a substantial upward variance grounded in the defendant’s own in-court statements—combined with a history of violence—signals robust appellate support for district courts that tie concrete future-danger indicators to § 3553(a)’s protection-of-the-public and deterrence aims. Defense counsel should exercise heightened care with client allocutions and sentencing presentations where the record suggests ongoing threats or retaliatory intent.
“Heartland” explanations matter: When varying upward, district courts that clearly articulate why the case departs from the typical profile, and that anchor their reasoning in multiple § 3553(a) purposes, will generally withstand substantive reasonableness challenges—even for sizeable variances.
Practical sentencing ceiling: With § 924(a)(8) now setting a 15-year maximum for § 922(g) offenses, a 130-month sentence reflects the availability of substantial—but statutorily bounded—variances for high-risk defendants whose conduct and statements demonstrate elevated danger.

Complex Concepts Simplified

Constructive possession: You “possess” something in law even if it’s not physically on you, so long as you knowingly have the power and intent to control it, directly or through someone else. Selling a gun to another person can be strong evidence that you controlled it at the time of the sale.
Nexus: Courts require more than proximity; there must be a link connecting the defendant to the firearm—such as texts arranging a sale, photos of the exact firearm, eyewitness identification, and post-transaction acknowledgments.
Substantive reasonableness: On appeal, the question is whether the sentence is too long or too short given the statutory factors (nature of offense, history, deterrence, public protection, etc.). Appellate courts give district judges considerable leeway.
“Heartland” of cases: The Guidelines are designed for typical cases. Courts may vary outside the range for atypical cases, but should explain what makes them different.
Upward variance: A sentence above the advisory range. It must be justified by case-specific facts and § 3553(a) factors. Courts may consider credible evidence of future danger, including the defendant’s own statements.
Obliterated serial number enhancement: Under U.S.S.G. § 2K2.1(b)(4)(B)(i), a firearm with an altered or removed serial number increases the offense level, reflecting added seriousness and traceability concerns.
Prohibited-person knowledge enhancement: The Guidelines enhance offense levels when a defendant has reason to believe a firearm is being sold to someone who is not allowed to possess it, reflecting trafficking and risk concerns (see § 2K2.1(b)(5)(B)(i) as cited by the court).
Controlled buy with a CI: A supervised law-enforcement operation where a confidential informant purchases contraband while officers monitor, search, and record to safeguard evidence integrity.

Conclusion

United States v. Andrew Miller reinforces two practical and doctrinal points with wide resonance in federal firearms cases. First, constructive possession can be convincingly established through a well-corroborated digital and circumstantial record: texts arranging the sale, images of the very gun recovered, surveillance video, and witness identifications—without the need for DNA or fingerprints. Second, a district court’s upward variance grounded in specific, non-speculative indicators of future danger—including the defendant’s own explicit statements of retaliatory intent—will be sustained when the court ties those facts to § 3553(a)’s aims, explains why the case lies outside the Guidelines “heartland,” and avoids impermissible considerations.

Though unpublished, the decision is a clear signal to trial courts within the Sixth Circuit: carefully articulated, fact-driven sentencing rationales—especially on public protection and deterrence—will draw “greatest respect” on appeal. And for litigants, Miller illustrates both the evidentiary power of digital breadcrumbs in constructive-possession cases and the high stakes of a defendant’s words at sentencing.