United States v. Duke ( 2021 )

Case: 20-30489 Document: 00516013362 Page: 1 Date Filed: 09/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 14, 2021
No. 20-30489
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Anderson Curtel Duke,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:18-CR-343-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Anderson Curtel Duke appeals the denial of his motion to suppress,
along with his conviction by a jury and concurrent 288-month sentences for
two counts of possession with intent to distribute fentanyl and a single count
of possession with intent to distribute heroin. First, he contends that he did
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30489
not validly waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
We review that question of law de novo and the supporting factual
conclusions for clear error. United States v. Cardenas, 410 F.3d 287, 292 (5th
Cir. 2005).
We reject Duke’s argument that he never expressly waived his
Miranda rights, as a valid waiver may be “implied from all the
circumstances.” Berghuis v. Thompkins, 560 U.S. 370, 383-84 (2010). Duke
received the Miranda warnings before answering the agents’ questions, and
the totality of the circumstances reflect that he understood the warnings. See
id. at 383-84, 386; United States v. Hearn, 563 F.3d 95, 104 (5th Cir. 2009).
Alternatively, Duke contends that the waiver of his Miranda rights
was involuntary, unknowing, and unintelligent because he was mentally
impaired due to intoxication, fatigue, and emotional distress. The argument
is unavailing. See United States v. Reynolds, 367 F.3d 294, 297, 299 (5th Cir.
2004); Muniz v. Johnson, 132 F.3d 214, 220 (5th Cir. 1998). We defer to the
district court’s credibility finding as to agent testimony that Duke was not
impaired, as well as the court’s finding that Duke remained alert, lucid, and
responsive throughout the interview. See United States v. Wright, 777 F.3d
769, 773 (5th Cir. 2015). Viewing the evidence in the light most favorable to
the Government, we find no clear error in those findings. See id.; United
States v. Alvarado-Palacio, 951 F.3d 337, 340 (5th Cir. 2020). Duke’s
background and experience also indicate that he understood his Miranda
rights and the consequences of waiving them. See Moran v. Burbine, 475 U.S.
412, 421 (1986); see also Edwards v. Arizona, 451 U.S. 477, 482 (1981).
Nor is there merit to the contention that the Miranda waiver was
involuntary because agents used deceptive and coercive tactics to obtain his
cooperation. The customary police tactics cited by Duke, including a truthful
assessment that he was facing life in prison, did not constitute the sort of
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No. 20-30489
coercive acts that overcome the will of the accused. Compare Hopkins v.
Cockrell, 325 F.3d 579, 581, 583-85 (5th Cir. 2003), with Cardenas, 410 F.3d
at 295, 297; United States v. Rico, 51 F.3d 495, 507 (5th Cir. 1995); United
States v. Ballard, 586 F.2d 1060, 1063 (5th Cir. 1978). While certain
statements arguably created a favorable climate for confession by playing on
Duke’s emotions, see Self v. Collins, 973 F.2d 1198, 1205-06 (5th Cir. 1992),
they did not override his will, see Cardenas, 410 F.3d at 297, or deprive him
of the knowledge he needed to understand his Miranda rights or the
consequences of waiving them, see Soffar v. Cockrell, 300 F.3d 588, 596 (5th
Cir. 2002) (en banc). Inasmuch as the comments were made after he waived
his Miranda rights, they did not retroactively render the waiver involuntary.
See id.That one of the interrogators responded, “no,” when asked if Duke
was making his situation worse by talking does not alter the validity of his
earlier waiver. See Soffar, 300 F.3d at 596-97; Alvarado-Palacio, 951 F.3d at
342. Duke validly waived his Miranda rights because “the totality of the
circumstances surrounding the interrogation reveal both an uncoerced
choice and the requisite level of comprehension.” Burbine, 475 U.S. at 421(internal quotation marks and citation omitted).
Next, we consider Duke’s challenge to the authentication of
photographs depicting evidence seized during the search of his person. We
review the district court’s ruling for abuse of discretion. See United States v.
Lundy, 676 F.3d 444, 452 (5th Cir. 2012). The deputy’s testimony that he
recalled seizing the items during the search satisfied Federal Rule of
Evidence 901, which “is not a burdensome standard.” United States v.
Barlow, 568 F.3d 215, 220 (5th Cir. 2009); see Fed. R. Evid. 901(b)(1).
Any flaws in the testimony went to the weight of the evidence, not its
admissibility. See United States v. Isiwele, 635 F.3d 196, 200 (5th Cir. 2011).
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In addition, Duke contends that the evidence was insufficient to prove
the intent to distribute under 21 U.S.C. § 841(a)(1). Giving substantial
deference to the jury’s verdict and viewing the evidence in the light most
favorable to the Government, we conclude that a rational jury could have
found the element based on Duke’s own admissions and the testimony of an
associate who assisted him with drug sales. See United States v. Delgado, 672
F.3d 320, 330 (5th Cir. 2012) (en banc); United States v. Lopez, 74 F.3d 575,
577 (5th Cir. 1996), abrogated on other grounds by United State v. Vargas-
Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc).
Finally, we consider Duke’s contention that the district court erred by
applying the career offender enhancement in U.S.S.G. § 4B1.1. His claim
that an attempted marijuana distribution offense does not constitute a
“controlled substance offense” under U.S.S.G. § 4B1.2(b) is foreclosed by
United States v. Lightbourn, 115 F.3d 291, 293 (5th Cir. 1997), which remains
binding “absent an intervening change in law,” United States v. Petras, 879
F.3d 155, 164 (5th Cir. 2018). To the extent Duke asserts in his reply brief
that the Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400, 2415-
18 (2019), supplies such a change, he waived the argument by failing to raise
it in his original brief, see United States v. Jackson, 426 F.3d 301, 304 n.2 (5th
Cir. 2005). Because Duke’s challenge to the career offender enhancement is
unavailing, we agree with his concession that his alternative sentencing
claims are moot.
AFFIRMED.
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