United States v. Leonte Mack ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4432
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEONTE MACK,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:09-cr-00247-PJM-1)
Submitted: July 11, 2011 Decided: August 11, 2011
Before KING and DAVIS, Circuit Judges, and Hamilton, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, William D. Moomau, Adam K. Ake, Assistant United
States Attorneys, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonte Demetrius Mack appeals his 300-month sentence
following his conviction of two counts of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006) (“Counts One and Four”); one count of
possession with intent to distribute cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (2006) (“Count Two”); and one count of
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (2006) (“Count
Three”). The convictions stemmed from an investigation of a
shooting. On appeal, Mack claims that the district court erred
in denying his motions to suppress an eyewitness identification
and statements he made during custodial interrogation, and that
the district court imposed an unreasonable sentence. Finding no
reversible error, we affirm.
Mack first challenges the district court’s admission
of an out-of-court eyewitness identification in a photo array
and the related in-court identification. We review de novo a
district court’s admission of an eyewitness identification.
United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007).
“Due process principles prohibit the admission at trial of an
out-of-court identification obtained through procedures ‘so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.’” Id. (quoting
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Simmons v. United States, 390 U.S. 377, 384 (1968)). No due
process violation occurs if the “identification was sufficiently
reliable to preclude the substantial likelihood of
misidentification.” United States v. Johnson, 114 F.3d 435, 442
(4th Cir. 1997).
The defendant bears the initial burden of production
in challenging the admissibility of an out-of-court
identification. See id. at 441. First, the defendant must show
that the identification procedure was impermissibly suggestive.
Saunders, 501 F.3d at 389. If the defendant is successful, the
Court must then consider any evidence adduced by the Government
as to “whether the identification was nevertheless reliable in
the context of all of the circumstances.” Id. at 389-90. If a
witness’s out-of-court photo identification is unreliable and,
therefore, inadmissible, any in-court identification lacking an
independent source is also inadmissible. Simmons, 390 U.S. at
383-84; cf. Coleman v. Alabama, 399 U.S. 1 (1970); United States
v. Wade, 388 U.S. 218, 241 (1968).
On appeal, we may uphold a district court’s denial of
a motion to suppress an out-of-court identification if we find
the identification reliable, without determining whether the
identification procedure was unduly suggestive. Holdren v.
Legursky, 16 F.3d 57, 61 (4th Cir. 1994). In assessing the
reliability of an out-of-court identification, we examine
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(1) the witness’s opportunity to view the suspect at
the time of the crime; (2) the witness’s degree of
attention at the time; (3) the accuracy of the
witness’s initial description of the suspect; (4) the
witness’s level of certainty in making the
identification; and (5) the length of time between the
crime and the identification.
Saunders, 501 F.3d at 391.
Even assuming that the photo identification was
impermissibly suggestive as Mack contends, we hold that the
district court did not err in permitting the testimony as
reliable. The eyewitness had a good opportunity to view the
shooter at close range and selected Mack’s picture from the
photo array with confidence less than seven hours after the
shooting. Mack argues that the eyewitness’s identification was
unreliable because the witness’s description of him was
inadequate. To the contrary, we conclude that the district
court correctly determined that, though sparse, the eyewitness’s
description was accurate. Accordingly, because the five factors
weigh in favor of reliability, we hold that the district court
did not err in admitting the identification testimony.
Mack next claims that the district court erred in
admitting the statements he made during custodial interrogation.
We review the factual findings underlying a denial of a motion
to suppress for clear error and the legal conclusions de novo.
United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009), cert.
denied, 130 S. Ct. 1104 (2010). Statements obtained from a
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defendant during custodial interrogation are admissible only if
the Government shows that law enforcement officers adequately
informed the defendant of his rights under Miranda v. Arizona,
384 U.S. 436 (1966), and obtained a waiver of those rights.
United States v. Cardwell, 433 F.3d 378, 389 (4th Cir. 2005). A
waiver is only valid if the defendant waives his rights
knowingly and voluntarily. Id. This Court assesses a Miranda
waiver by examining the totality of the circumstances to
determine (1) “whether the defendant ‘had full awareness of both
the nature of the right being abandoned and the consequences of
the decision to abandon it;’” and (2) “whether the defendant’s
statement was ‘the product of a free and deliberate choice [or
the result of] intimidation coercion, or deception.’” Id.(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).
During the interrogation, Mack told the interviewing
officer that Jesus told him to stop talking and the
interrogation ceased. Mack contends that this circumstance
suggests that he did not have full awareness of the rights he
was abandoning. We hold that the district court did not err in
rejecting this contention. The district court properly credited
the officers’ testimony and weighed the presence of Mack’s
initials and signature on the waiver form in finding the
evidence insufficient to show that Mack lacked the capacity to
understand the waiver. Mack did not present any other evidence
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of his alleged incompetency in the district court, and he does
not claim that his waiver was coerced. Accordingly, we conclude
that the district court did not err in finding that Mack
knowingly and voluntarily waived his Miranda rights. *
Finally, Mack contends that the district court imposed
an unreasonable sentence. Because Mack did not request a
specific sentence other than the one ultimately imposed, his
claim is reviewed for plain error. See United States v. Lynn,
592 F.3d 572, 578-79 (4th Cir. 2010). We begin by reviewing the
sentence for significant procedural error, including such errors
as “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence including an explanation for any deviation from
the Guidelines.” Gall v. United States, 552 U.S. 38, 51 (2007).
*
Mack also argues, without support, that the statements
should have been suppressed because the interrogating officer
failed to adequately document them. We hold that documentation
of the interrogation is relevant only to the officer’s
credibility, not the voluntariness of Mack’s statements.
Further, because the officer prepared notes immediately
following the interrogation and Mack did not present any
evidence showing that the officer’s testimony was incredible,
the district court did not clearly err in admitting the
statements. See United States v. Murray, 65 F.3d 1161, 1169
(4th Cir. 1995) (noting that we review credibility
determinations at hearings on pre-trial motions to suppress for
clear error, according deference to the district court).
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“When rendering a sentence, the district court ‘must make an
individualized assessment based on the facts presented.’”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(quoting Gall, 552 U.S. at 50). Accordingly, a sentencing court
must apply the relevant § 3553(a) factors to the particular
facts presented and must “state in open court” the particular
reasons that support its chosen sentence, showing that it has a
reasoned basis for its decision and has considered the parties’
arguments. Id. A sentencing court need not, however,
“robotically tick through” otherwise irrelevant subsections of
§ 3553(a). See United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006).
If there are no procedural errors, we then consider
the substantive reasonableness of the sentence, taking into
account the totality of the circumstances. United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). “If the district
court decides to impose a sentence outside the Guidelines range,
it must ensure that its justification supports the degree of the
variance.” United States v. Evans, 526 F.3d 155, 161 (4th Cir.
2008). While we may presume that a sentence within the
Guidelines range is reasonable, we may not presume that a
sentence outside the Guidelines range is unreasonable. Gall,
552 U.S. at 51.
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Mack claims that his sentence was unreasonable because
the district court failed to adequately analyze the § 3553(a)
factors in support of its above-Guidelines sentence. The record
belies Mack’s contention, however, as the district court
explicitly discussed several of the § 3553(a) factors and their
application to Mack. Mack argues that his 300-month sentence
runs contrary to the court’s rejection of the career offender
Guidelines. In fact, Mack’s sentence remains sixty months below
the low end of the applicable career offender Guidelines range.
The court also stated that it believed the Guidelines
insufficient to reflect the seriousness of the offense and
adequately protect the public. In light of the court’s careful
discussion of its reasons for the upward variance, the district
court did not abuse its discretion in sentencing Mack to an
above-Guidelines sentence.
For the foregoing reasons, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid in the
decisional process.
AFFIRMED
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