No. 04-2483
File Name: 05a0953n.06
Filed: December 6, 2005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
TYRONE ORLONDE COX, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: MARTIN, NELSON, and ROGERS, Circuit Judges.
DAVID A. NELSON, Circuit Judge. This is an appeal from a judgment of conviction
and sentence in a federal criminal case. The defendant challenges (1) the denial of a motion
to suppress statements he made to a federal agent without having been advised of his
Miranda rights; (2) the denial of a motion to exclude evidence of prior convictions; and (3)
the sentence, which was imposed prior to the Supreme Court’s issuance of its decision in
United States v. Booker, 125 S. Ct. 738 (2005). We shall affirm the challenged judgment in
all respects.
I
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In November of 2003 Special Agent Mark Kloostra, of the Bureau of Alcohol,
Tobacco, and Firearms, obtained a warrant to search the residence of the defendant, Tyrone
Cox. To facilitate execution of the warrant Agent Kloostra arranged to speak with Mr. Cox
when the latter next reported to his probation officer. (Mr. Cox was on probation for a
Michigan conviction.) Kloostra told Cox about the warrant, handcuffed him “for the safety
of all the probation officers,” and asked for the keys to his house. Cox provided the keys,
which were in the possession of a friend who had accompanied him to the probation office.
Kloostra explained that Cox would have to remain at the probation office while the warrant
was executed and that Kloostra would return when the search was complete.
Agent Kloostra returned to the probation office about an hour and 20 minutes later.
He removed the handcuffs from Mr. Cox, gave back the borrowed keys, and handed Cox a
copy of the search warrant and a list of what had been discovered. Kloostra told Cox that
two firearms and a quantity of cocaine had been found in the house, and he said that an arrest
warrant would be issued for Cox “at a later date.” Kloostra told Cox that he was free to go
if his probation officer did not need him any longer.
Agent Kloostra then asked Mr. Cox how long he had lived in the house. Cox
answered that he had lived there eleven years, adding that he lived alone but that his young
son stayed with him sometimes. Mr. Cox then left the probation office.
A federal grand jury indicted Mr. Cox on charges of possession of cocaine base and
possession of a firearm by one convicted of a felony.
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Mr. Cox filed a motion in limine to suppress the statements made to Agent Kloostra
after the execution of the search warrant. The district court denied the motion on the ground
that Cox had not been in custody at the time the statements were made.
Mr. Cox also moved to exclude evidence of prior convictions. The district court
granted the motion in part and denied it in part, ruling that a 1987 conviction for attempted
uttering and publishing of altered money orders (a conviction that had resulted in a term of
imprisonment ending some eleven years earlier) and a 2003 conviction for attempted carrying
of a concealed weapon would be admissible for impeachment purposes should the defendant
elect to testify.
The evidence at trial showed that the police found a semi-automatic pistol in the
master bedroom of Cox’s house, a revolver in a hallway closet, and crack cocaine in a fish
food container in the living room. Mr. Cox took the stand and testified that several other
people had stayed at his house, including a brother who was addicted to crack cocaine. Cox
said he did not know there were guns and cocaine in the house.
In an effort to impeach Cox’s credibility, the government then brought out the
convictions for attempted carrying of a concealed weapon and attempted uttering and
publishing. The district court promptly instructed the jury that these convictions “were
brought to [the jury’s] attention only in one way of helping [it] decide how believable his
testimony was.” The court emphasized that the convictions are “not evidence that [Cox] is
guilty of crimes that he is on trial for now.”
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The jury found Mr. Cox guilty of both charges. At sentencing the district court
applied an obstruction-of-justice enhancement under § 3C1.1 of the United States Sentencing
Guidelines, the jury’s verdict having reflected a finding that Cox testified falsely. Without
the enhancement, the guideline sentence range would have been imprisonment for a term of
between 37 and 46 months. With the enhancement, the range was 46 to 57 months. The
court chose to impose a sentence of 48 months. The court also announced that it would
impose precisely the same sentence “in the event that the United States Supreme Court
determines that the sentencing guidelines are invalid or unconstitutional.”
Mr. Cox filed a timely appeal.
II
Mr. Cox argues that his statements to Agent Kloostra should have been suppressed
because he was not given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966).
The Miranda warnings must be given prior to interrogation of a suspect who is in police
custody. See Thompson v. Keohane, 516 U.S. 99, 107 (1995). The question here is whether
Cox was in custody when Kloostra asked how long he had lived in his house. This is a
mixed question of fact and law subject to de novo review. See id. at 112-13; United States
v. Swanson, 341 F.3d 524, 528 (6th Cir. 2003).
We are satisfied that Mr. Cox was not in custody at the time of the questioning. Agent
Kloostra had removed Mr. Cox’s handcuffs, returned his house keys, told Cox that an arrest
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warrant would be issued “later,” and told him that he was free to go as far as Kloostra was
concerned. These actions would have made it clear to any reasonable person, we believe,
that custody had, for the time being, come to an end. Cox could not reasonably have “felt
he was not at liberty to terminate the interrogation and leave.” Thompson, 516 U.S. at 112.
Indeed, Cox did “terminate the interrogation and leave” after responding to a single question
from Kloostra. Not only was there no formal arrest as of the critical juncture, there was no
“restraint on freedom of movement of the degree associated with a formal arrest.” Id.
(internal quotation marks omitted). We find no error in the admission of the statements.
III
Mr. Cox argues next that the government should not have been permitted to impeach
his credibility with the conviction for attempted uttering and publishing of altered money
orders and the conviction for attempted carrying of a concealed weapon. A district court’s
decision to admit evidence is reviewed for abuse of discretion. See United States v. Brown,
367 F.3d 549, 554 (6th Cir. 2004). “Under this standard, we take a maximal view of the
evidence’s probative effect and a minimal view of its unfairly prejudicial effect.” Id.
(internal quotation marks omitted).
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A
Under Rule 609(a), Fed. R. Evid., evidence that a defendant in a criminal case has
been convicted of a crime punishable by imprisonment in excess of one year “shall be
admitted if the court determines that the probative value of admitting this evidence outweighs
its prejudicial effect . . . .” A stricter standard applies if a period of more than ten years has
elapsed from the date of the conviction or from the date of the defendant’s release from
confinement for the conviction, whichever comes later. Once such a ten-year period has run,
evidence of the conviction is admissible only if “the court determines, in the interests of
justice, that the probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect.” Rule 609(b), Fed. R. Evid.
It is undisputed that Mr. Cox was released from confinement on his uttering-and-
publishing conviction approximately eleven years before the trial in the current case.
Admissibility of the conviction is therefore governed by the stricter standard.
We do not think the district court abused its discretion in admitting evidence of the
conviction under the prescribed standard. Mr. Cox’s credibility was a central issue at trial,
the main question for the jury being whether Cox knew the firearms and cocaine were in his
possession. Because uttering and publishing is a crime “involving dishonesty,” United States
v. Virta, Nos. 92-2343/2443/2453/2454/2471, 1994 WL 18023, at **11 (6th Cir. Jan. 21,
1994), cert. denied, 511 U.S. 1060 (1994), the conviction was particularly probative of the
credibility issue. As for potential prejudice, it seems to us that the dissimilarity between
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uttering and publishing and the crimes for which Cox was on trial made it unlikely that the
jury would draw an improper “propensity” inference. Nor was it likely that evidence of the
uttering-and-publishing conviction would inflame the jury’s passions.
Mr. Cox relies on United States v. Sims, 588 F.2d 1145 (6th Cir. 1978), where we said
that “evidence of convictions more than ten years old will be admitted very rarely and only
in exceptional circumstances.” Sims, 588 F.2d at 1150 (internal quotation marks omitted).
We do not read Sims as imposing a standard more stringent than that set out in Rule 609(b).
For the reasons we have indicated, we do not believe that the district court abused its
discretion in finding the Rule 609(b) standard met in the case at bar.
B
Because Mr. Cox’s concealed-weapon conviction is less than ten years old, evidence
of that conviction is admissible if its probative value outweighs (not “substantially
outweighs”) its prejudicial effect. See Rule 609(a), Fed. R. Evid.
Although carrying a concealed weapon is not a crime involving dishonesty per se, the
concealed-weapon conviction was probative of Mr. Cox’s credibility. Cf. United States v.
Moore, 917 F.2d 215, 235 (6th Cir. 1990) (holding that an armed-robbery conviction “went
to credibility, and had impeachment value”), cert. denied, 499 U.S. 963 (1991). There was
a risk that the jury would draw an improper “propensity” inference from the prior conviction,
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particularly if the jury assumed that the weapon Cox attempted to carry was a firearm, but
that risk was mitigated by an immediate limiting instruction.
In Moore, where the government used evidence of a prior armed-robbery conviction
to impeach a defendant charged with armed robbery, we held that a limiting instruction
sufficiently avoided the potential prejudice:
“Although the crimes were similar, the trial court was quick to limit any
prejudicial effect by an immediate admonishment to the jury to consider the
evidence only as to witness credibility. This cautionary admonishment to the
jury, we believe, provided an adequate safeguard against any potential
prejudice possibly engendered by the admission of the prior conviction.” Id.
In light of Moore, we cannot say that the district court abused its discretion in determining
that the probative value of the concealed-weapon conviction outweighed its prejudicial
effect.
IV
Finally, Mr. Cox argues both that the obstruction-of-justice sentence enhancement
violated his Sixth Amendment right to a jury trial and that the district court erred to his
prejudice in viewing the sentencing guidelines as mandatory. Both arguments are grounded
on the line of cases culminated by United States v. Booker, 125 S. Ct. 738 (2005).
Under Booker and its precursors, “[a]ny 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.” Booker, 125 S. Ct. at 756; see Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531, 2537 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). If the
guideline system under which the district court enhanced Mr. Cox’s sentence were
mandatory, therefore, the fact or facts supporting the enhancement would have had to have
been submitted to and found by the jury.
As we now know, of course, the guidelines are not mandatory. Booker, which was
decided about two months after Mr. Cox’s sentencing, altered the federal sentencing scheme
in such a way that the guidelines must be treated as merely advisory. See Booker, 125 S. Ct.
at 767. The district court understandably failed to anticipate that specific development. The
court did anticipate, however, the possibility that the guidelines would be invalidated
altogether. “[I]n the interest of judicial economy,” therefore, and in accordance with interim
guidance provided by United States v. Koch, No. 02-6278, 2004 WL 1870438 (6th Cir. Aug.
13, 2004) (en banc), vacated, 125 S.Ct. 1944 (2005), the court announced that it would
impose “the same identical sentence” should that eventuality come to pass.
But for this alternative sentence, the court’s selection of a 48-month term under
guidelines that the court understood to be mandatory would necessitate a remand for
resentencing. See United States v. Christopher, 415 F.3d 590, 593 (6th Cir. 2005). On
remand the court would be required to take the advice provided by the guidelines into
account, but the court would be free to impose a sentence outside the guideline range under
the court’s own weighing of the sentencing factors enumerated in 18 U.S.C. § 3553(a).
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As matters now stand, the district court has told us rather emphatically what it would
do if there were no guidelines at all; the court would impose a sentence of 48 months. The
court did not specifically refer to the statutory factors in this connection, but we do not
believe that an incantation of § 3553(a) factors was required. The sentencing transcript
shows that the court carefully reviewed the defendant’s personal history, probed his
motivations and attitudes, reviewed his record of past criminal convictions, and came up with
an individualized sentence the substance of which is unassailable under the statute.
(Although the mere fact that a district court has provided for an alternate identical sentence
does not mean that affirmance of a defendant’s sentence is automatic, Mr. Cox is not
contending here that the alternate sentence is unreasonable; the district court’s analysis
satisfies us that it is not.) We take at face value the court’s statement as to what it would do
in the absence of any guidelines at all, and the fact that the guidelines must still be consulted,
even though they are not mandatory, leaves no room for meaningful doubt in this case as to
what the result of a post-Booker resentencing would be. On the record before us, we are
satisfied that the district court’s alternative sentence renders any sentencing error harmless.
See Christopher, 415 F.3d at 593-94.
AFFIRMED.