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United States v. Miller , 243 F. App'x 769 ( 2007 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MITCHELL RAY MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Matthew J. Perry, Jr., Senior
District Judge. (3:06-cr-00191-MJP)
Submitted:   May 30, 2007                  Decided:       July 11, 2007
Before WILLIAMS, Chief Judge,      NIEMEYER,    Circuit    Judge,   and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Langdon D. Long, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant.    Robert Claude Jendron, Jr., Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mitchell Ray Miller appeals his conviction for possession
of a firearm after having been convicted of a crime punishable by
more than one year of imprisonment, in violation of 18 U.S.C.
§ 922(g) (2000).       On appeal, counsel filed an Anders* brief, in
which he states there are no meritorious issues for appeal, but
questions whether the district court erred in denying the motion to
suppress the firearm discovered during the search of Miller’s car.
Miller has filed a pro se supplemental brief in which he asserts
that the district court erred in not finding his wife’s consent to
search involuntary, erred in not suppressing the evidence because
he was a suspect and therefore his consent was required, erred in
failing to suppress his post-arrest statements, erred in failing to
inform    him   of   his   right   to    address   the   jury,   and   erred   in
instructing the jury on constructive possession.                  Miller also
asserts that his arrest was unlawful, the evidence was insufficient
to link him to the firearm, and that counsel was ineffective.                  We
affirm.
The factual findings underlying a motion to suppress are
reviewed for clear error, while the legal determinations are
reviewed de novo.      See Ornelas v. United States,
    517 U.S. 690
    , 691
(1996); United States v. Rusher,
    966 F.2d 868
    , 873 (4th Cir. 1992).
When a suppression motion has been denied, this court reviews the
*
Anders v. California,
    386 U.S. 738
     (1967).
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evidence in the light most favorable to the government. See United
States v. Seidman,
    156 F.3d 542
    , 547 (4th Cir. 1998).             Whether
consent to a search is voluntary is a factual question determined
under the totality of the circumstances and reviewed under the
clearly erroneous standard.      Schneckloth v. Bustamonte,
    412 U.S. 218
    , 248-49 (1973); United States v. Jones,
    356 F.3d 529
    , 533 n.*
(4th Cir. 2004).     The government has the burden of proving that
consent was freely and voluntarily given. Schneckloth, 412 U.S. at
222.     “Written   consent   supports   a   finding   that   consent   was
voluntary.”    United States v. Boone,
    245 F.3d 352
    , 362 (4th Cir.
2001).      This court gives due regard to the district court’s
opportunity to judge the credibility of witnesses and does not
review credibility determinations.       See United States v. Lowe,
    65 F.3d 1137
    , 1142 (4th Cir. 1995).    Our review of the record leads us
to conclude that the district court correctly denied the motion to
suppress.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.        We have
considered the arguments raised in Miller’s pro se supplemental
brief, and find them to be without merit.          We therefore affirm
Miller’s conviction and sentence. This court requires that counsel
inform Miller, in writing, of the right to petition the Supreme
Court of the United States for further review.         If Miller requests
that a petition be filed, but counsel believes that such a petition
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would be frivolous, then counsel may move in this court for leave
to withdraw from representation.   Counsel’s motion must state that
a copy thereof was served on Miller.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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