United States v. Benjamin Langford , 155 F. App'x 936 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1256
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Benjamin Joseph Langford, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 12, 2005
Filed: November 17, 2005
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Before MELLOY, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Benjamin Joseph Langford was convicted of bank robbery, possession of a
firearm during a crime of violence, and being a felon in possession of a firearm.
Based on his prior felony convictions, the District Court1 sentenced Langford to two
life terms on the bank-robbery and felon-in-possession counts, with a consecutive
seven-year term for the possession-of-a-firearm count. Langford appeals. This court
affirms.
1
The Honorable Ronald E. Longstaff and The Honorable Harold D. Vietor,
Southern District of Iowa.
I.
Langford was convicted for two robberies in 2004. First, at a restaurant in Des
Moines, Iowa, Langford used a revolver to hold up the manager. Within weeks, he
robbed a bank in Iowa City, Iowa.
Two days later, the restaurant manager spotted Langford at a bus stop in
downtown Des Moines. The manager called the police, who responded and captured
him. During the arrest, officers found a pistol, bullets, and a large amount of cash in
Langford's pockets.
Langford testified that at the arrest, someone whom he assumes was an officer
asked him where he got the money. Langford claims he responded, "You're going to
have to ask my lawyer." Then, according to Langford, a different unknown person
asked, "Who's your lawyer?" He replied, "I don't know yet." Langford was then
placed in a police vehicle, taken in for questioning, and informed of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). He waived those rights and confessed.
At trial, Langford moved to have his confession suppressed. The district court
denied the motion, finding Langford did not communicate to the officers a desire to
remain silent. The court further concluded that even if the statements in question were
made, they did not unambiguously invoke the right to counsel.
II.
A.
Langford first complains that the district court erred by finding he did not
communicate clearly to the arresting officers his wish to remain silent and to have an
attorney present during questioning. This court reviews the district court’s factual
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findings for clear error and its conclusions of law de novo. See United States v. Barry,
United States v. Vanhorn, 296 F.3d 713, 717 (8th Cir.
2002).
An accused has the right to have counsel present during custodial
interrogations. See Miranda v. Arizona, 384 U.S. 436, 467-70 (1966). At trial,
Langford testified that when he said, "You're going to have to ask my lawyer," he
intended to invoke his right to counsel. Once an accused invokes this right, no further
interrogation may occur until counsel is available. See Edwards v. Arizona, 451 U.S.
477, 484 (1981). However, the accused must make a clear and unambiguous request
for counsel. See Davis v. United States, 512 U.S. 452, 459 (1994).
Although Langford defends his recollection of the arrest, the arresting officer
contradicted his testimony, stating that Langford said nothing during his arrest and
spoke for the first time only after waiving his Miranda rights. The district court,
expressly considering the credibility of the witnesses, concluded that Langford did not
say, "You're going to have to ask my lawyer."
A district court's credibility determination is entitled to great deference. See
United States v. Harris, 352 F.3d 362 (8th Cir. 2003); United States v. E.R.B., 86 F.3d
129, 130 (8th Cir. 1996). "When a trial judge's finding is based on his decision to
credit the testimony of one of two or more witnesses, each of whom has told a
coherent and facially plausible story that is not contradicted by extrinsic evidence, that
finding, if not internally inconsistent, can virtually never be clear error." Anderson v.
Bessemer City, 470 U.S. 564, 575 (1985).
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Because Langford did not clearly invoke his right to counsel, the motion to
suppress was correctly denied.
B.
Langford objects that the government should be compelled to prove to the jury
beyond a reasonable doubt that he was previously convicted of violent felonies.
Failure to do so, he believes, violates his Fifth and Sixth Amendment rights to due
process and to trial by jury.
Langford concedes that Almendarez-Torres v. United States, 523 U.S. 224
(1998), refutes his argument, but he asserts it was wrongly decided and should be
overruled.
This Court may not disregard or overturn Supreme Court precedents. See
United States v. Davis, 260 F.3d 965, 969 (8th Cir. 2001). True, the Supreme Court
has noted that it is "arguable that Almendarez-Torres was incorrectly decided."
Apprendi v. New Jersey, 530 U.S. 466, 489 (2000). This Court follows "what the
Supreme Court has said, not guess what it might say in the future." United States v.
Maynie, 257 F.3d 908, 918 (8th Cir. 2000).
"[A] prior felony conviction is a sentencing factor and not a separate offense
and it therefore does not need to be pled in the indictment or put to a jury." United
States v. Thomas, 398 F.3d 1058, 1063 (8th Cir. 2005). Therefore, following
Almendarez-Torrez, the district court properly considered Langford's prior
convictions.
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C.
Langford was convicted of being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). He attacks the life sentence imposed, claiming the statutory
maximum is 15 years. This is simply incorrect. "The Armed Career Criminal Act of
1984, 18 U.S.C. § 924 (e) (ACCA), raises the penalty for possession of a firearm by
a felon from a maximum of 10 years in prison to a mandatory minimum sentence of
15 years and a maximum of life in prison without parole if the defendant 'has three
previous convictions...for a violent felony or a serious drug offense.'" Custis v. United
States, 511 U.S. 485, 487 (1994) (emphasis added). The district court properly
imposed the sentence of life imprisonment. See United States v. Painter, 400 F.3d
1111, 1111 (8th Cir. 2005); United States v. Carey, 898 F.2d 642, 644 (8th Cir. 1990).
III.
The judgment of the district court is affirmed.
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