United States v. Ryheeme Suni Nesbitt

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 19, 2006
No. 06-11752 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00386-CR-JTC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RYHEEME SUNI NESBITT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 19, 2006)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Ryheeme Suni Nesbitt appeals his conviction and sentence following a jury
trial for possession of ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g). Nesbitt asserts the district court erred by denying his motion to suppress
post-arrest statements he made to detectives that he claims were in violation of his
Miranda rights to silence and counsel. See Miranda v. Arizona, 86 S. Ct. 1602
(1966). Specifically, Nesbitt maintains the detectives induced him into cooperating
by assuring him that he had a meritorious self-defense claim.
We review a district court’s denial of a motion to suppress under a mixed
standard of review, reviewing the district court’s factual findings for clear error
and its legal conclusions de novo. United States v. Gil, 204 F.3d 1347, 1350 (11th
Cir. 2000). All facts are construed in a light most favorable to the successful party.
United States v. Behety, 32 F.3d 503, 510 (11th Cir. 1994).
Miranda, 86 S. Ct. at 1612, guarantees the right against self-incrimination by
ensuring the accused’s right to remain silent and right to have counsel present
during custodial interrogation. “The law in this area is clear: once an accused
requests counsel, the officer cannot ask questions, discuss the case, or present the
accused with possible sentences and the benefits of cooperation.” United States v.
Gomez, 927 F.2d 1530, 1539 (11th Cir. 1991). An accused waives his previously
asserted right to silence or right to counsel when he reinitiates conversation with
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law enforcement officers. Henderson v. Singletary, 968 F.2d 1070, 1072-73 (11th
Cir. 1992). “However, [] where the accused initiates a conversation after a request
for counsel, an officer’s explanation of the investigation and the possibility of
cooperation” is not improper. Gomez at 927 F.2d at 1537.
In the instant case, Nesbitt initiated conversation with the detectives when
they asked him for his shoes, then voluntarily questioned the officers about self-
defense, thereby waiving his Miranda rights. The district court did not clearly err
in finding that (1) Nesbitt reinitiated conversation with the detectives; and (2) the
detectives did not induce Nesbitt into cooperating by implying that he had a
meritorious self-defense claim.
Nesbitt also argues that the imposition of his sentence violated the Ex Post
Facto Clause. Nesbitt acknowledges that this Court rejected similar arguments in
United States v. Duncan, 400 F.3d 1297, 1306-07 (11th Cir.), cert. denied, 126 S.
Ct. 432 (2005), and United States v. Thomas, 446 F.3d 1348 (11th Cir. 2006), but
submits this argument to preserve the issue for further appellate review. The
district court did not sentence Nesbitt in excess of the statutory maximum in effect
at the time of the conduct and therefore did not violate the Ex Post Facto clause.
Upon review of the record on appeal and consideration of the parties’ briefs,
we have determined the district court did not err.
AFFIRMED.
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