United States v. David Brown , 443 F. App'x 956 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0743n.06
FILED
No. 10-6458
Nov 01, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DAVID E. BROWN ) EASTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
Before: SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge*
SUTTON, Circuit Judge. David Brown appeals his conviction and sentence for being a felon
in possession of a firearm. We affirm.
I.
When a Glock .40 caliber pistol and a silver necklace disappeared from his home, Jason
Helms suspected David Brown was the culprit. Detective Robert Harbison located Brown and
brought him to the station for questioning. Harbison read Brown his Miranda rights and, after
securing a written waiver, asked him about the robbery. Brown confessed he had taken the gun and
traded it for methamphetamine. He promised to try to get the gun back, but he would not disclose
who had it.
*
The Honorable Robert Jonker, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 10-6458
United States v. Brown
Two months later, a federal grand jury indicted Brown for being a felon in possession of a
firearm. After taking Brown back into custody, Detective Carl Maskew again read Brown his
Miranda rights, and Brown again waived his rights in writing. After denying that he knew anything
about the robbery, Brown told Maskew a different story: Brown claimed that two other individuals
took the gun from Helms’ house and gave it to him. He then traded the gun to his cousin for
methamphetamine. Brown again promised to help retrieve the gun.
Before trial, Brown moved to suppress both statements. Finding no evidence that the police
“engaged in any sort of threatening or coercive behavior” or that Brown did not understand his
rights, the district court denied the motion. The jury convicted Brown, but the district court granted
his post-verdict motion for acquittal, holding that the only pieces of evidence linking him to the
crime were his uncorroborated confessions, which could not sustain the conviction by themselves.
The United States appealed and we reversed, holding that “sufficient independent evidence
establishe[d] the trustworthiness of Brown’s statements.” United States v. Brown, 617 F.3d 857, 859
(6th Cir. 2010).
On remand, the district court concluded that Brown’s three prior state convictions for
aggravated burglary made him an armed career criminal, subjecting him to a mandatory minimum
sentence of 180 months. 18 U.S.C. § 924(e). Even though Brown’s advisory guidelines range was
210 to 262 months, the district court imposed the mandatory minimum—180 months.
-2-
No. 10-6458
United States v. Brown
II.
Corroboration. With respect to his conviction, Brown seeks to relitigate whether sufficient
evidence corroborated his confessions, but that ship has sailed. In the first appeal, we held that other
evidence adequately corroborated Brown’s confessions, 617 F.3d at 863–64, and if Brown thought
our decision “overlooked or misapprehended” any questions “of law or fact,” he could have filed a
petition for rehearing. Fed. R. App. P. 40(a). He did not. Nor has Brown identified any change in
controlling authority. That decision binds us here.
Suppression of Statements. Brown made two statements to police in which he confessed that,
one way or another, he had possessed the gun that was stolen from Helms’ house. Brown made these
statements two months apart, and the officers each time read the Miranda warnings to him and
secured a written waiver, which “generally produce[s] a virtual ticket of admissibility.” Missouri
v. Seibert, 542 U.S. 600, 609 (2004). Brown nevertheless argues that the district court should have
suppressed these statements because his cognitive infirmities and the possibility that he was under
the influence of drugs mean that he did not knowingly and intelligently waive his Miranda rights.
The district court found “nothing in the record whatsoever” suggesting that Brown “did not
understand his legal rights” or “the gravity of his waiver of those rights,” R. 46 at 12, and Brown has
not identified any evidence demonstrating clear error. The only evidence of cognitive impairments
that Brown mentions is a psychological evaluation that the Bureau of Prisons performed to assess
his competency to stand trial. Although the evaluation states that Brown has some “relatively mild
-3-
No. 10-6458
United States v. Brown
intellectual limitations,” it found no “significant impairment in his ability to comprehend basic
information provided to him or to make reasoned decisions based on this information.” Competency
Evaluation at 8. The evaluation concluded that Brown was competent to stand trial. The district
court found, quite correctly, that the competency evaluation supported rather than undermined the
conclusion that Brown knowingly and intelligently waived his Miranda rights. “[T]here is nothing
cognitively complex about” the Miranda warnings; this is not Heisenberg’s Uncertainty Principle
after all but the straightforward “advice that one has a right to remain silent and not to talk to the
police.” Jackson v. McKee, 525 F.3d 430, 436 (6th Cir. 2008). Brown’s mild cognitive limitations
do not defeat the waivers.
As to drug use, Brown speculates that his status as an addict and his fidgeting during one of
the interviews suggest that he might have been under the influence of methamphetamine when he
made the statements. But Detectives Harbison and Maskew testified that Brown did not appear to
be under the influence of drugs when they interviewed him. Brown’s speculation—and that is all
it is in the absence of any evidence on this score—does not show clear error in the district court’s
determination that he knowingly and intelligently waived his Miranda rights.
Brown also argues that his cognitive impairments and possible drug use rendered his waiver,
and the confessions themselves, involuntary. But some kind of “coercive police activity” is required
to establish that a waiver of Miranda rights, or a confession for that matter, was involuntary.
Colorado v. Connelly, 479 U.S. 157, 167, 169–70 (1986). The district court did not find, and Brown
has not identified, any coercive or threatening behavior by the officers who took his statements.
-4-
No. 10-6458
United States v. Brown
Brown contends only that he suffered “from a condition or deficiency that impaired his cognitive or
volitional capacity,” but that “is never, by itself, sufficient to warrant the conclusion that his
confession was involuntary for purposes of due process.” United States v. Newman, 889 F.2d 88,
94 (6th Cir. 1989). “[S]ome element of police coercion” remains “necessary.” Id. In the absence
of police coercion, we have affirmed the admission of confessions made by defendants who were
actually (as opposed to possibly) under the influence of drugs, see, e.g., United States v. Dunn, 269
F. App’x 567, 572–73 (6th Cir. 2008); United States v. Chapman, 112 F. App’x 469, 474 (6th Cir.
2004), as well as confessions made by defendants who suffered from mental retardation, see, e.g.,
United States v. Macklin, 900 F.2d 948, 951–52 (6th Cir. 1990). The district court did not err in
admitting Brown’s statements.
Armed Career Criminal Act. The district court correctly determined that Brown qualified
as an armed career criminal. As relevant here, ACCA imposes a mandatory minimum sentence of
180 months on anyone who is convicted of being a felon in possession of a firearm and has three
previous convictions for “violent felon[ies],” which the Act defines to include “burglary.” 18 U.S.C.
§ 924(e). “[B]urglary,” as used in § 924(e), encompasses “any crime, regardless of its exact
definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining
in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575,
599 (1990). Brown has three prior convictions for aggravated burglary in Tennessee. PSR ¶¶
26–28. The charging documents for these offenses—which a court may examine in determining
whether the convictions constitute “burglary” under § 924(e), Shepard v. United States, 544 U.S. 13,
-5-
No. 10-6458
United States v. Brown
26 (2005)—show that all three satisfy the Taylor elements. In each case Brown pled guilty to an
indictment charging him with “unlawfully enter[ing] the habitation” of another “with intent to
commit theft.” R. 89-1 at 2; R. 89-2 at 2. Because Brown “necessarily admitted” that he satisfied
the Taylor elements for all three crimes by pleading guilty to the indictments, the district court
correctly applied ACCA’s mandatory minimum to him. Shepard, 544 U.S. at 16.
Constitutionality of ACCA in this setting. Brown argues that ACCA’s mandatory minimum
as applied to him violates his Fifth Amendment right to due process and equal protection and his
Eighth Amendment right to be spared cruel and unusual punishment. We have seen this movie
before, and each time it ends badly for the defendant. See, e.g., United States v. Moore, 643 F.3d
451, 456 (6th Cir. 2011); United States v. Jones, 52 F. App’x 244, 247 (6th Cir. 2002); United States
v. Warren, 973 F.2d 1304, 1311 (6th Cir. 1992). All for good reason: “Congress has the power to
define criminal punishments without giving the courts any sentencing discretion,” Chapman v.
United States, 500 U.S. 453, 467 (1991), and mandatory prison sentences are not cruel and unusual,
Harmelin v. Michigan, 501 U.S. 957, 995–96 (1991). In the teeth of these precedents Brown has not
identified, nor have we found, any decision from any court invalidating the application of ACCA’s
mandatory minimum to an individual on constitutional grounds. Brown gives no good reason for
making this case the first.
III.
For these reasons, we affirm.
-6-