United States v. Shawn Louis Goodman ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 29, 2005
No. 05-10126 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00033-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN LOUIS GOODMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 29, 2005)
Before BIRCH, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Shawn Louis Goodman appeals his conviction and 112-month sentence for
bank robbery in violation of 18 U.S.C. § 2113(a). He argues on appeal that the
district court (1) erred by finding that he knowingly and voluntarily waived his
Miranda rights, and (2) plainly erred by sentencing him under the formerly
mandatory Federal Sentencing Guidelines. For the reasons stated more fully
below, we affirm.
Goodman pled not guilty to one count of bank robbery and proceeded to
trial. Prior to trial, Goodman filed a motion to suppress statements made to federal
and state law enforcement agents and requested a hearing to determine whether or
not the statements were made voluntarily and not in violation of Miranda v.
Arizona, 384 U.S. 436, 458-71, 86 S.Ct. 1602, 1619-26, 16 L.Ed.2d 694 (1966).
The district court conducted a hearing, and first heard testimony from
Plaquemine, Louisiana1 Police Officer Christopher Joffrion, who was present at the
time of Goodman’s arrest. Joffrion testified that Goodman was arrested after a
traffic stop based on a “Be-On-The-Lookout” flier issued by the Federal Bureau of
Investigation (“FBI”). Goodman was then placed in the back of a police car and
another officer on the scene read Goodman his Miranda rights off the back of a
card. Next, Goodman was taken to the police station booking room where Joffrion
1
The robbery in this case took place in Georgia, but Goodman fled and was arrested by the
Plaquemine, Louisiana police department.
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reread Goodman his Miranda rights, this time off of a typed form. Joffrion
testified that Goodman appeared to understand his rights and was given an
opportunity to read and review the sheet, which he signed.
However, the sheet itself contained an ambiguity in the section marked
“Waiver.” That section contained two questions, the first being, “Do you
understand each of the rights I have explained to you,” which on the form was
marked “Yes,” and the second being, “Having been read these rights, do you wish
to make a statement to us now,” which on the form was marked both “Yes” and
“No.” Joffrion was asked about the inconsistent marks and explained that, at the
time Joffrion asked the second question (whether Goodman wished to make a
statement) Goodman initially said no, prompting Joffrion to mark “no” on the
form. However, as Joffrion continued to gather information, Goodman said
“Whatever. You got me,” and proceeded to voluntarily give information about
how long he had been running and where he had been, prompting Joffrion to mark
the “yes” box on the form. Joffrion further testified that, before he had checked
“yes” on the form, he had confirmed that Goodman wanted to talk to him. Joffrion
indicated that he had made no promises to Goodman, stating only that whatever
Goodman wanted to say, Joffrion was there to listen, and that it took only a few
seconds from the time Joffrion had first marked “no” on the form for Goodman to
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begin volunteering information.
Nonetheless, Joffrion did not begin questioning Goodman at that time
because his supervisor informed Joffrion to wait for the FBI to arrive. When asked
why Goodman was Mirandized if there were no intention of interrogating him,
Joffrion responded that it was a routine policy and procedure to Mirandize all
suspects under arrest. Joffrion testified that Goodman was booked and read his
rights at approximately 3:30 p.m., the FBI did not arrive until between 5:45 p.m.
and 6:00 p.m., and during the interim period, Goodman was issued several
cigarette breaks as well as given a hot dog and cold drink. At no time did
Goodman request a lawyer or appear under the influence of drugs or alcohol.
On cross-examination, Joffrion admitted that, when a discrepancy appears
and both a “yes” and “no” box are checked on the same Miranda form, the
suspect’s intent is not entirely clear. However, Joffrion further admitted that, when
Goodman was arrested, Goodman’s Uncle, Willie Cain, was arrested and
Mirandized at the police station using the same form as Goodman’s. Cain’s form,
like Goodman’s, had both a “yes” and a “no” box checked regarding whether or
not the suspect wished to make a statement. That form, which had the check in the
“no” box crossed-out, also contained the initials “W.C.” next to it, and Joffrion
admitted that it appeared as though a mistake had been made.
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The government next called FBI Agent Glenn Methvin, who received a
phone call indicating that Goodman had been arrested, prompting him to the
Plaquemine police department where Goodman was detained in order to take him
into federal custody. Methvin testified that he received the phone call around 3:30
p.m. and did not arrive at the police department where Goodman was detained until
sometime between 5:30 p.m. and 6:30 p.m. that same day. At the time Methvin
arrived, Goodman was on a cigarette break and, after his break was over, was taken
to a place similar to a booking room for interviewing and was handcuffed to a bar.
Methvin indicated that when he arrived at the police department, he asked whether
Goodman had been read his Miranda rights and received an affirmative answer.
After receiving the Miranda form that Goodman signed, Methvin stated that he
went over the form with Goodman, although not in great detail, and asked him
whether he knew the form, had read the form and, although he did not formally
read Goodman the Miranda warnings per se, asked Goodman if he had signed the
form and was willing to talk, to which Goodman replied “yes.” Based on
Goodman’s demeanor and interactions, Methvin believed that Goodman was
willing to speak with him. Two other FBI agents participated in the interview.
Methvin then proceeded to interview Goodman, and indicated that no
promises were made, no threats levied, no guns drawn, and no physical touching or
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other intimidation used. Goodman responded appropriately to Methvin’s
questions. On cross-examination, Methvin could not recall whether the
Plaquemine police officers had offered to record his interview of Goodman, but
stated that he probably would have declined such an offer as it was FBI policy not
to record interviews. Methvin admitted to noticing that a camera was present in
the interview room after the fact, but that no video recording had been done.
Finally, the defense submitted the police report of Officer Scott Blackley,
who made the initial traffic stop of Goodman that led to his arrest. Goodman
wanted the report included in the record to show that no mention was made of a
Miranda warning being given at the time Goodman was arrested and placed in the
backseat of the police car. The district court, after admitting the report, stated that,
even assuming that no Miranda warning was given at the time of the arrest, “we
have another witness who came here and said he did give [Goodman] his Miranda
warnings. . . . And we do have this discrepancy about both boxes being checked,
and we have explanations about that.”
The district court then found as follows:
. . . It is my finding that Mr. Goodman was Mirandized at the scene
when he was arrested. More importantly, he was reMirandized at
police headquarters in Plaquemine when he arrived there. It is true
that both boxes saying yes and no were checked by the - -
investigation officer. And the . . . sequence of it was explained by
him and there isn’t anything to contradict that. [Goodman] expressed
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a willingness to talk about his situation . . . The Plaquemine police
officers did not discuss it with him. Instead, they simply held him for
the arrival of the [FBI]. . . . Agent Methvin went over the Miranda
form to be sure that Mr. Goodman understood it, that he in fact signed
it. . . . He determined and made sure that Mr. Goodman indeed was
willing to and wanted to talk to him at that point in time. I find that at
no time did Mr. Goodman ever ask for the services of a lawyer or at
least at no relevant time. . . . Whatever statement he made to the
agents was made by him freely and voluntarily after having been
adequately informed of his Miranda rights.
Thereafter, the district court declared a mistrial because, due to a medical
condition, Goodman was unable to properly assist his lawyers in his defense.
Shortly after the mistrial was declared, the government filed a superseding
indictment that included two special findings by the grand jury: (1) that the
National Bank of Commerce in Duluth, Georgia, was a financial institution and
(2) that Goodman made a threat of death during the commission of the instant
crime. Goodman again pled not guilty.
Ultimately, the court presented a redacted indictment and, after the jury
returned a general verdict of guilty on the bank robbery count, asked the jury to
make the two additional special findings on a special verdict form. The jury found
Goodman guilty of the robbery and further found, beyond a reasonable doubt, that
the bank was a financial institution and that Goodman had made a death threat
during the commission of the robbery.
A presentence investigation report (“PSI”) reflected that Goodman’s base
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offense level was 20 pursuant to U.S.S.G. § 2B3.1. Goodman then received a two-
level enhancement because property of a financial institution was taken, U.S.S.G
§ 2B3.1(b)(1), and another two-level enhancement because a threat of death was
made during commission of the offense, U.S.S.G. § 2B3.1(b)(2)(F). Goodman
received no reductions for a total offense level of 24. Goodman’s criminal history
category was calculated at VI which, at offense level 24, provided for a guidelines
sentence of 100-125 months’ imprisonment. Goodman sought a downward
departure pursuant to U.S.S.G. § 5K2.0, arguing that the conditions of his
confinement were “atypical” and overly restrictive.
At the sentencing hearing, the court heard from Goodman regarding his
treatment during pre-trial incarceration and ultimately denied the downward
departure, first finding that it did not believe it had the authority to downwardly
depart on the basis of complaints surrounding administrative actions taken by
prison authorities but, even assuming it had that authority, it was disinclined to do
so under the circumstances. The court did, however, indicate that it could take into
account Goodman’s pre-trial custody when deciding where to fix a sentence within
the applicable guidelines’ range.
After hearing from Goodman and the government, the district court decided
that “it’s a middle of the range case and I think a middle of the custody guideline
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range is appropriate. And in doing that, I am taking into account and giving him
some small credit for the complaints he makes about his pretrial custody.”
Goodman was then sentenced to 112 months’ imprisonment, the middle of the
applicable guidelines range.
I. Miranda Rights
On appeal, Goodman argues that the totality of the circumstances
demonstrate that he did not knowingly and voluntarily waive his Miranda rights
and initiate a conversation with law enforcement officers. Specifically, Goodman
argues that the discrepancy in the waiver form coupled with the fact that Goodman
was handcuffed to a bar, questioned by three FBI agents without a recording
despite the availability of a video camera, and not specifically given a renewed
Miranda warning prior to being questioned by the FBI call into doubt his
statements.
We review “the district court's findings of fact on a motion to suppress
evidence for clear error and the district court's application of the law to those facts
de novo.” United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997). “It is
well established that ‘[t]he government must prove by a preponderance of the
evidence that [the defendant] made a knowing, voluntary and intelligent waiver of
his Miranda rights.’” Id. When considering a ruling on a motion to suppress, all
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facts are construed in a light most favorable to the successful party. United States
v. Behety, 32 F.3d 503, 510 (11th Cir. 1994). Finally, we will not reverse a district
court’s factual findings unless “contrary to the laws of nature, or . . . so
inconsistent or improbable on [their] face that no reasonable factfinder could
accept [them].” United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004).
In Miranda v. Arizona, the Supreme Court considered the scope of the Fifth
Amendment privilege against self-incrimination and held that the government
“may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation from the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Accordingly, the
Supreme Court delineated the following procedure that, although not
constitutionally mandated, safeguards the right against compelled self-
incrimination: (1) before a person in custody is interrogated, he must be informed
in clear and unequivocal terms of his right to remain silent; (2) the admonition
against self-incrimination must be accompanied by an explanation that anything
said can and will be used against the individual in court; (3) the person must be
clearly informed that he has the right to consult with a lawyer and to have a lawyer
with him during the interrogation; and (4) the advice of the right to counsel must
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be accompanied by the explanation that, if the person is indigent, a lawyer will be
appointed to represent him. Id. at 467-73, 86 S.Ct. at 1624-27.
As with most rights, the accused may waive the right against self-
incrimination, so long as the waiver is voluntary, knowing, and intelligent. Id. at
444, 86 S.Ct. at 1612. A waiver is effective where the “totality of the
circumstances surrounding the interrogation reveal both an uncoerced choice and
the requisite level of comprehension.” Moran v. Burbine, 475 U.S. 412, 421, 106
S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (quotation omitted). Where a defendant
invokes his right to remain silent, the interrogation must cease. Miranda, 384 U.S.
at 473-74, 86 S.Ct. at 1627. However, where a defendant only asserts his right to
remain silent, and does not invoke his right to counsel, law enforcement may
resume the interrogation at some later time. United States v. Bosby, 675 F.2d
1174, 1182 (11th Cir. 1982).
In the present case, the district court’s conclusion that Goodman understood
his rights and knowingly and voluntarily waived them is amply supported. At the
time of his arrest, the undisputed testimony was that Goodman was read his
Miranda rights. Later, at the Plaquemine police department, Goodman was again
read his Miranda rights, this time off of a form that Goodman was also permitted to
read and required to sign. Notwithstanding the fact that a discrepancy existed on
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Goodman’s Miranda waiver form as to whether Goodman, after hearing his
Miranda rights, wanted to make a statement, the undisputed evidence was that
immediately after Officer Joffrion had checked the “no” box, Goodman began
volunteering information regarding the commission of his crimes. It was at that
point that Joffrion checked the “yes” box on the form and, importantly, neither
Joffrion nor any other Plaquemine police officer questioned Goodman at that point.
Upon FBI Agent Methvin’s arrival, Goodman was again shown the signed
form and was asked if he had seen the form, signed the form, understood the form,
and asked again whether he was, in fact, willing to speak with the FBI agents.
Goodman responded in the affirmative and, at no point on the record, has there
been even a suggestion of improper coercion, threats, or any other inappropriate
means of securing a waiver and a confession. There is no requirement that an
interview be recorded, even if a video camera is available and, based on the
undisputed testimony at the hearing, the district court’s conclusion that Goodman
understood his Miranda rights and voluntarily spoke to law enforcement was well-
supported.
As the district court noted, any discrepancy on the Miranda form was
adequately explained and, while a better procedure may exist for curing such
discrepancies, the district court found the testimony of the law enforcement agents
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credible on this point, and we will not disturb a credibility determination. Viewing
the facts in a light most favorable to the government, we conclude that the totality
of the circumstances demonstrates that the district court’s factual findings were not
so improbable that no reasonable factfinder could accept them and, therefore, no
reversible error occurred by admitting Goodman’s post-arrest statements.
II. Sentencing Under Booker
Goodman also appeals his sentence in light of United States v. Booker, 543
U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), arguing that the mandatory
application of the guidelines was in error. Goodman concedes that he failed to
raise a constitutional challenge to his sentence and cannot meet the third prong of
plain error review (that his substantial rights were violated), but he wishes to raise
the issue to preserve it for certiorari with the United States Supreme Court.
Because Goodman failed to lodge an objection to his sentence based on
Booker, Blakely, or any constitutional grounds, we will review for plain error only.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) cert. denied
(June 20, 2005) (No. 04-1148). “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. at 1298 (quotation and citation
omitted). “If all three conditions are met, an appellate court may then exercise its
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discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id.In Booker, the Supreme Court found that the mandatory nature of the
Federal Guidelines rendered them incompatible with the Sixth Amendment’s
guarantee of a right to a jury trial. Booker, 543 U.S. at ___,125 S.Ct. at 749-51.
The Court ruled that sentencing courts nevertheless must consider the Guidelines
together with the factors set forth in 18 U.S.C. § 3553(a) when imposing sentences.
Id. at ___, 125 S.Ct. at 765. Section 3553(a) provides that district courts imposing
a sentence must consider, inter alia, the nature and circumstances of the offense,
the history and characteristics of the defendant, the need for adequate deterrence,
protection of the public, the pertinent Sentencing Commission policy statements,
and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a).
The Court cautioned, however, that not every sentence will give rise to a
Sixth Amendment violation, nor would every appeal lead to a new sentencing
hearing. Booker, 543 U.S. at ___, 125 S.Ct. at 769. The Court instructed
reviewing courts to apply “ordinary prudential doctrines, determining, for example,
whether the issue was raised below and whether it fails the ‘plain-error’ test.” Id.
Here there was no Sixth Amendment violation because all of the facts used
to judicially enhance Goodman’s sentence were found by the jury beyond a
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reasonable doubt in a special verdict. However, we have held that where a district
court imposes a sentence under the formerly binding mandatory guidelines, there
nevertheless exists plain statutory error under Booker. See United States v.
Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). To prevail, however, Goodman
must prove that the error affected his substantial rights by demonstrating “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. Where “[t]he record provides no reason to believe
any result is more likely than the other,” a defendant cannot prevail under plain
error review. Id.
Here, there is no evidence even suggesting that Goodman would have
received a different sentence under an advisory guidelines regime. The court had
discretion to sentence Goodman within a range of 100-125 months under the
guidelines as they were calculated and, rather than exercise its discretion to
sentence Goodman to the lowest possible sentence, it chose to sentence Goodman
to 112 months’ in the middle of the guidelines range, stating on the record that this
was “ a middle of the range case and I think a middle of the custody guideline
range is appropriate.” Given that imposition of the lowest possible sentence within
the range is insufficient, standing alone, to satisfy the third prong of plain error
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review, the imposition of a sentence above the lowest possible sentence forecloses
the possibility of showing a reasonable probability of a different outcome. See
United States v. Fields, No. 04-12486, slip op. at 2301 (11th Cir. May 16, 2005)
(holding that a sentence at the low end of the guidelines range alone is not enough
to carry the burden under plain error review because it is too speculative).
Thus, we conclude that Goodman’s substantial rights were not violated when
the district court sentenced him under the formerly mandatory Sentencing
Guidelines. In light of the foregoing, we conclude that Goodman has demonstrated
no reversible error warranting a reversal of his conviction or sentence. We,
therefore, affirm.
AFFIRMED.
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