UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4467
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS MITCHELL STUCK,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Robert C. Chambers,
District Judge. (CR-04-190)
Submitted: March 9, 2007 Decided: March 16, 2007
Before WILKINS, Chief Judge, and WIDENER and WILKINSON, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Matthew A. Victor, VICTOR, VICTOR & HELGOE, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
Susan M. Arnold, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This is an appeal from a judgment and sentence in a criminal
case. Following a jury trial in the district court for the
Southern District of West Virginia, the defendant, Thomas M. Stuck
was convicted of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) and of possession
of stolen firearm transported in interstate commerce, in violation
of 18 U.S.C. § 922(j) and 924(a)(2). Stuck was sentenced to a term
of imprisonment of 264 months, supervised release of 5 years and a
fine of $2,000. Stuck timely appealed both the conviction and the
sentence. We have jurisdiction under 28 U.S.C. § 1291. For the
reasons below we affirm.
I.
Defendant was charged in a two-count indictment on September
21, 2004, with violations arising out of his multiple possessions
of stolen firearms. On January 5, 2005, a superceding four count
indictment was returned against the defendant. Counts 1 & 2 of the
superceding indictment charged the defendant with knowing
possession of firearms despite previous felony convictions in
violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). Counts 3 & 4
charged the defendant with knowing possession of a stolen firearm
that was transported in interstate commerce, in violation of 18
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U.S.C. § 922(j) and 924(a)(2). The relevant events that gave rise
to the charges are as follows.
On September 5, 2003, the private residence of Cpl. Michael
Greenhouse of the South Charleston Police Department was
burglarized. Stolen were a duty issued firearm (Smith & Wesson
model 4586), along with several Smith & Wesson magazines, a badge,
and other credentials. The South Charleston Police and Bureau of
Alcohol Tobacco and Firearms eventually identified the defendant as
a person of interest in the theft.
At around the same time, a series of burglaries occurred in
Kanawha and Putnam counties. West Virginia State Police
identified the defendant as a suspect in these crimes.
On October 9, 2003, the State Police went to the defendant’s
house and questioned Stuck regarding the Kanawha and Putnam
burglaries. It is undisputed that the officers read Stuck his
Miranda rights, and that Stuck voluntarily waived these rights by
signing a Miranda waiver card. While the State Police officers
questioned Stuck, officers from the South Charleston Police and ATF
arrived to question him about the Greenhouse burglary. The South
Charleston officers arrived approximately two hours after the
initial interrogation by the State Police began. The South
Charleston officers confirmed with the State Police that Stuck had
been advised of his Miranda rights and then personally reminded
Stuck that he had waived his Miranda rights. Then the South
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Charleston officers proceeded to question the defendant about he
Greenhouse burglary. At least part of the interrogation occurred
in the police cruiser.
At no time did either police agency inform Stuck that he was
under arrest or not free to leave and end the conversation. During
the conversation the defendant admitted to possessing the stolen
Greenhouse pistol and selling it to a third party. The defendant
denied actually stealing the gun. This confession (along with the
testimony of Mr. Stuck’s cousin, Henry Stuck) gave rise to counts
2 & 4 of the indictment. Counts 1 and 3 related to the burglaries
in Kanawha and Putnam counties. Stuck was convicted on counts 2
and 4 and acquitted on Counts 1 and 3.
Following the conviction, the district court sentenced the
defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e),
to a term of imprisonment of 264 months.
Stuck timely appealed both the conviction and the sentence.
On appeal Stuck raises several points. First, he argues that
the sentence enhancement under the Armed Career Criminal Act was
improper because his prior convictions were not proven to the
jury.1 Second, Stuck argues that the district court improperly
refused to dismiss the indictment by denying his request to review
grand jury information to assure himself that grand jurors were not
1
Stuck stipulated to the jury that he has been previously
convicted of felony offenses, but did not admit to any specific
type of offense.
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biased or predisposed against him. Third, Stuck contends that the
district court erred in denying his motion to suppress his
statement to the South Charleston officers. Fourth, Stuck
challenges the district court’s denial of his motion to sever
counts 1 & 3 of the indictment from counts 2 & 4. Finally, Stuck
argues that the 22 year sentence imposed by the district court is
“unreasonable, excessive and disproportionate.”
We address each of the defendant's contentions in turn.
II.
We are of opinion that each of the defendant’s arguments is
without merit and accordingly, we affirm the judgment of the
district court in its entirety.
A.
Stuck’s first argument that his prior felony convictions
needed to be proved to a jury beyond a reasonable doubt prior to
being used for sentencing purposes is without merit. The Court
stated explicitly in Booker that the fact of a prior conviction
need not be established by a jury. United States v. Booker, 543
U.S. 220, 244 (2005) (“Any fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
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beyond a reasonable doubt.”)(emphasis added). The defendant argues
that Shepard v. United States, 544 U.S. 13 (2005), casts doubt on
the prior conviction exception first articulated in
Almendarez-Torres v. United States, 523 U.S. 224 (1998). We
disagree.
Even if we had the power to ignore Almendarez-Torres and
subsequent pronouncements in Booker, we still would disagree with
Stuck’s position. The Shepard case that Stuck cites stands for the
proposition that in reviewing past convictions for the purposes of
present-day sentencing, the district court is allowed only to look
“to statutory elements, charging documents, and jury instructions
to determine” the nature of the prior offense. 544 U.S. at 16.
Shepard did not hold, as Stuck suggests, that the very fact of
prior convictions must be tried to a jury. In the present case,
the district court did not consider anything but proper sources,
including charging documents, to determine the applicability of the
Armed Career Criminal Act, and Stuck does not allege that it did
so. Accordingly, we affirm on this point.
B.
We are also unpersuaded by Stuck’s argument that the district
court should have dismissed the indictment for it improperly denied
his motion to obtain information about grand jury proceedings.
Stuck argues that it is possible that grand jurors were biased
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against him because victims of his prior crimes may have been on
the jury. Stuck, however, fails to allege that any specific juror
was tainted. Instead he speculates that there is a possibility
that one of the jurors might have been tainted. This is not enough
to breach the grand jury’s secrecy. The “indispensable secrecy of
grand jury proceedings, must not be broken except where there is a
compelling necessity. There are instances when that need will
outweigh the countervailing policy. But they must be shown with
particularity.” United States v. Procter & Gamble Co., 356 U.S.
677, 682 (1958)(internal citations and quotations omitted, emphasis
added). As Stuck fails to particularly plead any circumstance that
would justify breaking the secrecy, his appeal on this issue
necessarily fails.2
C.
Stuck next argues that his confession to the South Charleston
officers should have been suppressed. The argument lacks merit.
To begin with, Stuck does not even allege that at the time he
made his confession he was in custody. This failure is fatal to
2
It should not go unsaid that if we were to adopt Stuck’s
argument, a criminal defendant would have a license to rummage
through the grand jury’s records. In fact, under Stuck’s argument,
the longer the defendant’s record, the more rights the defendant
would have as the odds of having a victim of the prior crime on the
grand jury would increase. We decline to adopt that rule and hold
to the notion that all defendants should be subject to the same set
of standards.
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the argument. “Miranda warnings need only be administered when the
defendant is in custody.” United States v. Uzenski, 434 F.3d 690,
704 (4th Cir. 2006).
To be sure, Stuck argues that the district court already held
that the interrogation was custodial and that the government
concedes the point. However, Stuck simply misconstrues the record.
During the oral argument on the motion to suppress in the district
court, the court posed the question “what if I agree that as a
practical matter he [the defendant] was in custody when he got into
the police car?” J.A. 98. That is a far cry from holding that the
defendant was actually in custody. Nor does the government concede
that Stuck was in custody. Gov. Br. at 18.
In any event, we conclude that the defendant was properly
advised of his Miranda rights by the State Police officers. The
mere fact that some time had elapsed from the beginning of
questioning by the State Police until the questioning by the South
Charleston Police does not vitiate the original Miranda warnings
and waivers. See United States v. Frankson, 83 F.3d 79, 83 (4th
Cir. 1996) (“The mere passage of time, however, does not compromise
a Miranda warning.”). Defendant would have us hold that every time
the police wish to question a suspect about an additional crime
they must read him his Miranda warnings anew and obtain a new
consent. We decline the invitation. Defendant was well aware of
his rights and knowingly and voluntarily waived them after being
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properly advised of his Miranda rights. Also, the South Charleston
Police satisfied themselves, by advising the defendant personally,
that his Miranda rights had already been explained to him.
D.
Next, Stuck argues that the district court erred in failing to
sever the trial on counts 1 & 3 from counts 2 & 4 of the
indictment.
Federal Rule of Criminal Procedure 8(a) allows joinder of the
offenses when the offenses charged “are of the same or similar
character.” Fed. R. Crim. P. 8(a). Counts 1 & 3 of the indictment
stemmed from the burglaries in the Kanawha and Putnam counties,
while counts 2 & 4 stemmed from the Greenhouse burglary. Both
counts alleged that the defendant possessed firearms despite
previous felony convictions and that he possessed stolen firearms
that were transported in interstate commerce. We thus conclude
that the offenses charged are of the same or similar character.
Nor does the defendant allege (beyond bare recitation of the
word “prejudice”) that he qualified for a relief from joinder under
Rule 14(a) of the Federal Rules of Criminal Procedure. We have
held that “the burden is on the defendant in his appeal following
denial of a motion to sever to show that joinder was so manifestly
prejudicial that it outweighed the dominate concern with judicial
economy and compelled exercise of the court's discretion to sever.”
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United States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995). Stuck
failed to carry the burden. The fact that the jury acquitted him
on two counts is evidence of careful consideration by the jury as
it decided the conviction on the remaining two counts separately
from the first two.
E.
“[A] sentence imposed within the properly calculated
Guidelines range . . . is presumptively reasonable.” Green, 436
F.3d at 457. The defendant made no effort to rebut this
presumption. Accordingly, we conclude that the district court did
not abuse its discretion in sentencing the defendant to a term of
imprisonment of 264 months.
The judgment of the district court is accordingly
AFFIRMED.
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