United States v. Heron Stepherson ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13265 OCTOBER 20, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-80095-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERON STEPHERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 20, 2005)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Heron Stepherson appeals his convictions and sentence for possession of
ammunition by a convicted felon and possession with the intent to distribute
cocaine base. See 18 U.S.C. §§ 922(g)(1), 924(a)(2), 841(a) & 841 (b)(1)(C). We
affirm Stepherson’s convictions because the district court did not clearly err when
it denied Stepherson’s motion to suppress and did not abuse its discretion when it
admitted testimony from the grand jury proceedings. We also affirm Stepherson’s
sentence because the district court did not clearly err when it applied the
enhancement for possession of ammunition in connection with another felony and
did not plainly err under United States v. Booker, 543 U.S. __, 125 S. Ct. 738(2005).
I. BACKGROUND
Stepherson was indicted by a grand jury for possession of ammunition by a
convicted felon and possession with intent to distribute crack cocaine. Stepherson
filed a motion to suppress evidence relating to an interrogation with the police.
Based on the recommendation of a magistrate judge, the district court denied the
motion to suppress. Stepherson was convicted of both counts by a jury, and the
district court sentenced him to 78 months’ imprisonment followed by three years’
supervised release.
II. DISCUSSION
Stepherson makes four arguments on appeal. He first argues that the district
court erred in when it denied his motion to suppress statements he made during a
custodial interrogation because he invoked his right to silence. Second, Stepherson
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argues that a the grand jury testimony of Sheanitha Salmon should not have been
admitted as substantive evidence at trial. Third, Stepherson contends that the
district court erred when it applied an enhancement for possession of ammunition
in connection with another felony offense. Finally, Stepherson argues that the
district court violated Booker when it enhanced his sentence under a mandatory
guideline system based on findings made by the court but neither admitted by
Stepherson nor found by the jury. We address each argument in turn.
A. Motion to Suppress
Because “rulings on motions to suppress involve mixed questions of fact and
law, the district court’s factual findings are reviewed under the clearly erroneous
standard, while that court’s application of the law is subject to de novo review.”
United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994) (citation omitted).
“When considering a ruling on a motion to suppress, the court must construe all
facts in the light most favorable to the party prevailing in the district court.”
United States v. Mikell, 102 F.3d 470, 474 (11th Cir. 1996). The question we must
consider is whether the district court clearly erred when it found that Stepherson
did not unambiguously and unequivocally invoke his right to silence.
The government “may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege
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against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct.
1602, 1612 (1966). After an accused has been informed of his rights under
Miranda, it is his burden to inform his interrogator that he wishes to invoke his
right to remain silent. United States v. Alegria, 721 F.2d 758, 761 (11th Cir.
1983). Officers do not have a duty to ask clarifying questions when an accused
makes an equivocal or ambiguous invocation of his Miranda rights. If “the
suspect’s statement is not an unambiguous or unequivocal request for [silence], the
officers have no obligation to stop questioning him.” Davis v. United States, 512
U.S. 452, 461-62, 114 S. Ct. 2350, 2356 (1994); see also Mikell, 102 F.3d at 477;
Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994). This determination is
an objective one. See Davis, 512 U.S. at 458-59, 114 S. Ct. at 2355.
Stepherson invoked his right to silence when he said “I don’t want wanna
talk no more.” After Stepherson made this statement, the detective immediately
responded, “Ok. That’s completely within your rights.” The record shows that
Stepherson then immediately engaged the officer in further conversation. That
Stepherson continued to talk to the officers after stating that he did not want to talk
leaves us with serious doubts that he effectively invoked his right to remain silent.
Because we cannot objectively say that Stepherson’s statement, followed by his
initiation of further conversation, reflects an unambiguous and unequivocal
invocation of his right to silence that would be clear to an objective police officer,
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Coleman, 30 F.3d at 1424, the district court did not clearly err.
B. Grand Jury Testimony
Stepherson argues that the district court abused its discretion when it
permitted the government to read into evidence at trial Salmon’s testimony to the
grand jury. He contends that his constitutional right of confrontation under
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), was violated. We
review the admission of testimony by a district court for abuse of discretion.
United States v. Day, 405 F.3d 1293, 1298 n.7 (11th Cir. 2005).
The Confrontation Clause provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. “The Confrontation Clause . . . forbids the introduction of
hearsay evidence against criminal defendants unless the offered hearsay falls into a
firmly rooted hearsay exception or the hearsay statement at issue carries a
particularized guarantee of trustworthiness.” United States v. Brown, 299 F.3d
1252, 1258 (11th Cir. 2002) (quotations omitted), vacated, 538 U.S. 1010 (2003),
opinion reinstated by 342 F.3d 1245, 1246 (11th Cir. 2003), cert. denied, 125 S.Ct.
37 (2004). In Crawford, the Supreme Court held that prior testimony may be
admitted only if the declarant is unavailable and the defendant had an opportunity
to cross-examine the declarant. Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.
The problem for Stepherson is that in Crawford the Supreme Court
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explained that the use of prior testimony does not violate that Confrontation Clause
when the declarant is available and appears for cross-examination at trial:
[W]e reiterate that, when the declarant appears for cross-examination
at trial, the Confrontation Clause places no constraints at all on the use
of his prior testimonial statements. It is therefore irrelevant that the
reliability of some out-of-court statements cannot be replicated, even
if the declarant testifies to the same matters in court. The Clause does
not bar admission of a statement so long as the declarant is present at
trial to defend or explain it. (The Clause also does not bar the use of
testimonial statements for purposes other than establishing the truth of
the matter asserted. . . .)
Id. at 59 n.9, 124 S. Ct. at 1369 n.9 (citations and quotations omitted).
Stepherson’s claim that the grand jury testimony should not have been
admitted is without merit. The district court did not abuse its discretion under the
Confrontation Clause because Salmon was cross-examined at trial. See id.Stepherson’s argument about the unreliability of Salmon’s statement is without
merit because Crawford leaves the issue of credibility to the jury. See id. The
district court did not abuse its discretion when it admitted the testimony.
C. U.S.S.G. § 2K2.1(b)(5)
A challenge to the application of the sentencing guideline is a mixed
question of law and fact. United States v. Ferreira, 275 F.3d 1020, 1024 (11th Cir.
2001). “This Court reviews the district court’s findings of fact for clear error and
its application of the sentencing guidelines to those facts de novo.” United States
v. Anderson, 326 F.3d 1319, 1326 (11th Cir. 2003). Section 2K2.1 of the
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Sentencing Guidelines provides for a four-level increase “[i]f the defendant used or
possessed any firearm or ammunition in connection with another felony offense.”
U.S.S.G. § 2K2.1(b)(5).
Stepherson argues that the district court clearly erred because the testimony
of Salmon was inadmissible and unreliable. As explained above, the district court
properly admitted Salmon’s testimony to the grand jury. Because Salmon testified
that (1) she lent her car to Stepherson, (2) Stepherson told her that he had
possessed the bullets that were found in her car, (3) Stepherson apologized about
the drugs found in her car, and (4) Stepherson told her that he sold drugs, there was
sufficient evidence to prove that Stepherson possessed the ammunition in
connection with drug trafficking. The district court did not err when it applied the
enhancement.
D. Booker Error
Stepherson argues for the first time on appeal that the district court erred
when it enhanced his sentence under a mandatory guideline system. Because
Stepherson did not raise this issue in the district court, we review for plain error.
See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “An
appellate court may not correct an error the defendant failed to raise in the district
court unless there is: (1) error, (2) that is plain, and (3) that affects substantial
rights.” Id. (quotation and citation omitted). “If all three conditions are met, an
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appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id.After Booker, there are two kinds of sentencing errors. As to the first,
constitutional error, “the Sixth Amendment right to trial by jury is violated where
under a mandatory guidelines system a sentence is increased because of an
enhancement based on facts found by the judge that were neither admitted by the
defendant nor found by the jury.” United States v. Rodriguez, 398 F.3d 1291,
1297 (11th Cir. 2005). As to the second, statutory error, “Booker error exists when
the district court misapplies the Guidelines by considering them as binding as
opposed to advisory.” United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir.
2005). Stepherson raises both types of error for the first time on appeal.
As to the constitutional error, the first prong of the plain error test is satisfied
because the district court enhanced Stepherson’s sentence, under a mandatory
guideline system, as a result of findings made by the judge that were neither
admitted by Stepherson nor found by the jury. The second prong of the plain error
test is also satisfied because, although the error was not “plain” at the time of
sentencing, it is now plain under Booker. See Rodriguez, 398 F.3d at 1299.
Stepherson fails to satisfy the third prong of the plain error test. The third
prong “requires that an error have affect[ed] substantial rights, which almost
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always requires that the error must have affected the outcome of the district court
proceedings.” Id. (quotations and citations omitted). “It is the defendant rather
than the [g]overnment who bears the burden of persuasion with respect to
prejudice.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778
(1993). “In applying the third prong, we ask whether there is a reasonable
probability of a different result if the guidelines had been applied in an advisory
instead of binding fashion by the sentencing judge in this case.” Rodriguez, 398
F.3d at 1301.
Stepherson has not established that he would have received a more lenient
sentence had the district court considered the Guidelines advisory as opposed to
mandatory. The district court sentenced Stepherson at the highest point in the
guidelines range. Even if Stepherson’s sentence had been at the lowest point in the
guideline range, the likelihood of a different result would be speculative without a
clear statement from the district court that, but for the mandatory nature of the
guidelines, the court would have imposed a lighter sentence. See id. The district
court specifically addressed the factors in section 3553(a) of Title 18 of the United
States Code and imposed the highest sentence permitted by the Guidelines.
Because it is unclear whether the district court would have imposed a different
sentence if it had applied the Guidelines in an advisory fashion, Stepherson has not
established a reasonable probability that the result of his sentencing would have
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been different but for the Booker error. See id. We need not apply the fourth
prong of the plain error test.
Stepherson also cannot establish that the district court plainly erred when it
considered the Guidelines mandatory. Although Stepherson met the first two
prongs of the plain error test regarding the statutory error because “it was Booker
[statutory] error for the district court to sentence [the defendant] under a mandatory
Guidelines scheme, even in the absence of a Sixth Amendment enhancement
violation,” Shelton, 400 F.3d at 1330-31, as discussed above, Stepherson cannot
meet the third element of the plain error test because nothing in the record shows
that the district court would have given him a lower sentence had the court applied
the Guidelines in an advisory fashion. As a result, Stepherson has not
demonstrated that his substantial rights were affected by the Booker statutory error,
and we need not apply the fourth prong of the plain error test.
III. CONCLUSION
For the foregoing reasons, Stepherson’s convictions and sentence are
AFFIRMED.
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