IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60779
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM LEE YOUNG, a/k/a
WILLIAM YOUNG
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:95-CR-44-LN
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September 20, 1996
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
William Lee Young appeals his jury convictions for mail
theft. Young complains that the district court erred by denying
his motion to suppress evidence, by admitting as evidence a prior
statement of culpability, by denying a base-offense-level
adjustment for acceptance of responsibility, by increasing his
base offense level under U.S.S.G. § 4B1.3, and by departing
upwardly from the sentencing guidelines based on his recidivism.
*
Pursuant to Local 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 95-60779
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Our review of the record and the arguments and authorities
convince us that no reversible error was committed. The district
court did not err in denying Young’s motion to suppress his
statements and the seized evidence because Young was not in
custody prior to his arrest and, therefore, his rights under
Miranda did not attach. See Berkemer v. McCarty, 468 U.S. 420,
439 (1984). The district court did not err by admitting a video
tape of a previous interview with Young because it fell under an
exception to Rule 404(b) as evidence to show “modus operandi,” or
knowledge, intent, and a plan. See United States v. Beechum, 582
F.2d 898, 911 (5th Cir. 1978)(en banc), cert. denied, 440 U.S.
920 (1979). The district court did not err by denying the
downward adjustment for acceptance of responsibility because by
going to trial, Young denied his guilt and put the Government to
its burden of proof on every element of the crime. See U.S.S.G.
§ 3E1.1, comment. (n.2). Young did not need to proceed to trial
to assert or preserve his Fourth Amendment claims because he
raised these challenges in his pretrial motion to suppress
evidence. The district court did not err by adjusting Young’s
base offense level upward pursuant to § 4B1.3 because it properly
used the stolen credit card limits to determine the income
derived from Young’s criminal activity, see United States v.
Sowels, 998 F.3d 249, 251-52 (5th Cir. 1993); United States v.
Quertermous, 946 F.2d 375, 377 (5th Cir. 1991), and because the
crime of stealing mail was his primary occupation by his own
admissions. The district court did not abuse its discretion by
No. 95-60779
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departing upwardly from the sentencing guidelines based on its
finding that Young’s Criminal History Category did not adequately
reflect the seriousness of his past criminal activity. See
United States v. Lambert, 984 F.2d 658, 660 (5th Cir. 1993)(en
banc); §§ 4A1.3, p.s.; 5K2.0, p.s. The district court issued a
reasonable upward departure based on valid reasons. United
States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994)(en banc),
cert. denied, 115 S. Ct. 1969 (1995); United States v. Chappell,
6 F.3d 1095, 1102 (5th Cir. 1993).
The reply brief submitted on appeal is composed of material
written and typed by Young, yet is signed by Young’s court-
appointed counsel. This brief is stricken from the record
because it constitutes hybrid representation, and there is no
right to such representation on appeal. See United States v.
Daniels, 572 F.2d 535, 540 (5th Cir. 1978).
AFFIRMED; REPLY BRIEF STRICKEN.