United States v. Hendrix, Larry

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 06-4355
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

LARRY HENDRIX,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 CR 54—Barbara B. Crabb, Chief Judge.
____________
ARGUED SEPTEMBER 19, 2007—DECIDED DECEMBER 3, 2007
____________

Before BAUER, MANION, and WOOD, Circuit Judges.
BAUER, Circuit Judge. A jury convicted Larry Hendrix
of possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). The district
court sentenced him to 262 months’ imprisonment.
Hendrix challenges his conviction, claiming that the
district court erred in (1) finding that the prosecution
made a race-neutral showing for striking two African-
Americans during voir dire; (2) allowing testimonial
evidence that a judge approved a warrant to search
Hendrix’s home; and (3) concluding that Hendrix was not
subject to interrogation under Miranda. Hendrix also
challenges his sentence. For the following reasons, we
affirm.
2 No. 06-4355

I. Background
On February 9, 2006, agents of the Dane County Narcot-
ics and Gang Task Force received information from a
confidential informant about a man named “Chase,” whom
the informant later identified as Larry Hendrix. The
informant told the agents that earlier that day he was
at Hendrix’s apartment and saw Hendrix move two
firearms from the kitchen table to the back of the apart-
ment where the bedrooms were located. The informant
also told the agents that Hendrix was supposed to meet
a man named “Meat” to sell heroin later that day. Detec-
tive Steven Wegner obtained a search warrant for
Hendrix’s apartment at 220 Deer Valley Road, Apart-
ment 1, in Madison, Wisconsin.
That evening, the agents arrived at Hendrix’s apart-
ment and took Hendrix into custody on an outstanding
arrest warrant for a traffic offense. After Detective Wegner
read the search warrant to Hendrix, Officer Lester Moore
transported Hendrix to Dane County Jail to book him on
the traffic offense. The other agents, including Detective
Wegner and Detective Bill Hendrickson, executed the
search warrant and confiscated a sawed-off shotgun and
ammunition, which they found in a back bedroom.
While Officer Moore booked Hendrix at the jail, he
learned that the agents who executed the search warrant
had recovered a firearm and ammunition at Hendrix’s
apartment. Hendrix was anxious as he waited in the
booking area, and repeatedly asked Officer Moore about
the charges against him. When Officer Moore told him
that items found at his residence would lead to more
charges against him, Hendrix replied that “all they were
going to find would be a pistol.” Officer Moore told Hendrix
that the agents found something larger than a pistol, to
which Hendrix responded that he “call[ed] everything a
pistol,” and that he had only obtained the weapon because
No. 06-4355 3

his “apartment had been broken into . . . and [that he]
needed some protection.”
Hendrix was indicted under 18 U.S.C. § 922(g)(1) for
possession of a firearm and ammunition as a convicted
felon. Hendrix moved to suppress his statements made
to Officer Moore during booking, and an evidentiary
hearing was held on July 7, 2006. A magistrate judge
found that Hendrix’s post-arrest statements were volun-
teered and that Officer Moore did not subject Hendrix
to questioning that afforded Hendrix protection under
Miranda. The magistrate judge recommended that
Hendrix’s motion be denied. The district court accepted
and adopted this recommendation, noting that the record
showed that Hendrix was the one that did most of the
talking and that Officer Moore merely responded in an
effort to calm Hendrix down.1
Voir dire took place on September 5, 2006. The venire
consisted of thirty-three people, and after questioning
by the court, both sides exercised a combined total of
eighteen peremptory challenges. The court noted that the
prosecution used two of its challenges to exclude Juror
Nos. 22 and 16, the only African-Americans in the venire.
Recognizing that a prima facie case of discrimination had
been established, pursuant to Batson v. Kentucky, 476 U.S.
79 (1986), the court sua sponte called both parties to the
bench for a sidebar. The prosecution offered an explana-
tion as to why he struck those particular jurors, stating,
“Mr. Woodland, number 22, he said his stepson is in prison
for armed robbery, and that gave me pause. I struck from

1
Hendrix also moved to quash the search warrant and for the
government to disclose the identity of the confidential informant.
Both motions were also denied, as recommended by the magis-
trate judge, and adopted by the district court.
4 No. 06-4355

the panel everyone that I could that has relatives in pris-
on . . . Ms. Hairston, number 16, who said her brother
was in prison for murder . . . . ” The prosecution also noted
that he struck Juror No. 13, Ms. Strock, a Caucasian
woman, “who said her [step]father was in prison.” Defense
counsel expressed concern that the only two African-
Americans were gone, stating “[it] leaves us with a jury
without any minorities. And Mr. Hendrix is obviously
African-American, and so that gives us some concern.”
Defense counsel did not address the fact that Juror
Martin, a Caucasian woman, was not struck from the
panel, despite the fact that she had a brother who was
sent to a reform school for armed robbery at age sixteen.
The prosecution then added that Mr. Woodland was “one
of those CSI guys,” and that he had “great concern about
the jurors who watch a lot of CSI,” because it was a
“straightforward case.”2 Additionally, the prosecution
noted that Mr. Woodland had a friend who was a Wis-
consin Department of Corrections officer, and Ms. Hairston
had a good friend who was a police officer. Defense coun-
sel did not respond, and the court stated, “Okay, I think
that’s a legitimate showing,” and excused Jurors Wood-
land, Hairston, Strock and fifteen other individuals as a
result of the parties’ peremptory challenges. When voir
dire ended, defense counsel requested a copy of the
transcript of the proceeding.
The trial began on September 11, 2006. Before opening
statements, defense counsel stated on the record that he
wanted “the record to be clear the defense has made . . . a
challenge to the [prosecution’s] use of its peremptory
challenges under Batson,” to which the court replied,

2
“CSI” refers to the television show “CSI: Crime Scene Investiga-
tion.”
No. 06-4355 5

“Thank you.”3
During opening statements, the prosecution told the
jury that police officers had information to believe that
Hendrix had a firearm in his apartment, and obtained a
search warrant from a judge to search the apartment.
After opening statements ended, defense counsel re-
quested a sidebar, and moved to enjoin the prosecution
from referring to the fact that a judge approved the
search warrant for Hendrix’s apartment.4 The court
granted defense counsel’s motion, noting that the pros-
ecution was allowed to say that the officers had a war-
rant, but was not permitted to refer to a judge’s approval
of the warrant.
The prosecution’s first witness was Detective
Hendrickson. During direct examination, the prosecution
asked, “Prior to the execution of [the] warrant, had the
warrant been approved?” Detective Hendrickson answered,
“Yes, by a Dane County Judge, yes.” After the detective
finished testifying, defense counsel moved for a mistrial,
arguing that the prosecution was not permitted to elicit
testimony about a judge’s approval of the search war-
rant. The court stated, “I did say that [the prosecution]
couldn’t mention the judge approved [the warrant].” The
court did not rule explicitly on Hendrix’s motion for
mistrial, and the trial continued.
The jury found Hendrix guilty. On September 28, 2006,
Hendrix filed a motion for a new trial, arguing that the
district court denied him a fair trial in finding that the

3
In its brief, the prosecution argues that defense counsel’s
statements during the Batson inquiry and before trial did not
properly preserve a Batson claim, requiring us to review the
district court’s ruling for plain error. We decline to do so.
4
Defense counsel argued that the jury could infer that a judge
had already determined that evidence to the crime existed.
6 No. 06-4355

prosecution made a race-neutral showing in striking the
only two African-Americans in the venire, and in denying
Hendrix’s motion for a mistrial after the prosecution made
improper references to a judge’s approval of a search
warrant.
On November 30, 2006, the district court denied
Hendrix’s motion for new trial. The court held that the
prosecution’s explanation of its strikes were race-neutral,
credible, and lacked purposeful discrimination under
Batson. The court found that the prosecution’s explana-
tions were sufficient, in that the two African-American
jurors and one Caucasian juror were struck because they
might be biased against the government, due to having
relatives that had been convicted of serious crimes. The
court also noted that in his motion for a new trial,
Hendrix argued for the first time that the prosecution
did not strike all of the jurors in the venire with relatives
in prison, referring to Juror Martin. The court explained:
“If this is true, [Hendrix] did not bring it to my attention
at the sidebar conference, when [the prosecution] could
have responded and when any problem could have been
cured.”
Furthermore, the court held that Hendrix did not
raise any specific concerns at the sidebar during voir dire
about the prosecution’s reasons for striking the jurors, nor
did he identify any new grounds for his challenge on the
morning of trial, despite having a week to review the voir
dire transcript. The court found that Hendrix failed to
show during voir dire that the prosecution’s exercise of its
peremptory challenges violated his right to equal protec-
tion, Hendrix waived the right to make any additional
showings, and the reasons given by the prosecution for
No. 06-4355 7

striking the two African-American jurors were legitimate.5
The district court also held that the prosecution’s
improper references to the search warrant were limited,
and any error was harmless. The court noted that the
prosecution should not have asked Detective Hendrickson
about whether the search warrant had been approved, but
that the testimony “was not elaborated on and, given the
strong evidence against [Hendrix], it would not have
had any effect on the outcome of the trial.”
In preparing the pre-sentencing report (“PSR”), the
probation office found that Hendrix qualified as an Armed
Career Criminal under 18 U.S.C. § 924(e), which man-
dates a minimum fifteen-year prison sentence for anyone
possessing a firearm after three prior convictions for
violent felonies or serious drug offenses.6 The PSR calcu-
lated a sentencing guideline range of 262 to 327 months’
imprisonment, based on a category six criminal history and
an offense level of 34.7 At the sentencing hearing, Hendrix
objected to the PSR’s recommendation to sentence him
under the Armed Career Criminal Act, because a jury had
not determined that the previous convictions existed. The
court agreed with the recommendations of the PSR. In
determining Hendrix’s sentence, the court also considered

5
The court also explained that during the Batson inquiry, it
found that the prosecution’s showing was race-neutral and
credible, even though it did not explicitly make those state-
ments at that time.
6
The PSR indicated that Hendrix’s previous convictions
included two burglaries and possession with intent to distrib-
ute cocaine.
7
Hendrix’s offense level of 34, pursuant to U.S.S.G.
§4B1.4(b)(3)(A), reflected an 8-point enhancement because the
firearm possessed by Hendrix was a shotgun having a barrel
of less than 18 inches long, as described in 26 U.S.C. §5845(a).
8 No. 06-4355

the relevant 18 U.S.C. § 3553(a) factors, and sentenced
him to 262 months’ imprisonment. Hendrix timely filed
this appeal.

II. Discussion
A. The Batson Challenge.
Hendrix argues that, under Batson, the prosecution’s
race-based exercise of its peremptory strikes deprived
Hendrix of his right to equal protection of the law. Hendrix
contends that (1) the prosecution’s strikes were not race-
neutral, because the prosecution did not strike Juror
Martin—who is Caucasian—even though she had a
brother who went to reform school for armed robbery8;
(2) the prosecution’s recognition that Jurors Woodland
and Hairston had friends in law enforcement should
have been appealing to the prosecution, and therefore
undercuts its assertion that the strikes were race-neutral;
(3) the prosecution’s “sudden proffer of a new explanation”
that Juror Woodland was “one of those CSI guys” was
pretextual, because other white jurors on the panel who
watched the show were not struck from the panel; and
(4) the district court erred when it did not explain why
it was satisfied with the prosecution’s explanations of
striking the African-American jurors.
Batson sets forth a three-step analysis that precludes
a prosecutor from striking a juror based on race under
the Equal Protection Clause. First, the defendant must
establish a prima facie case that the strike was racially
motivated. The burden then shifts to the prosecution to
articulate race-neutral reasons for the strike. Finally, the

8
Later in his brief, Hendrix incorrectly refers to Juror Martin’s
brother as being “incarcerated” for armed robbery.
No. 06-4355 9

trial judge must assess the credibility of the prosecution’s
explanation and determine if the defendant has estab-
lished purposeful discrimination. Batson v. Kentucky, 476
U.S. 79, 96-98 (1986); see also Lamon v. Boatwright, 467
F.3d 1097, 1099 (7th Cir. 2006). The ultimate burden of
persuasion regarding racial motivation rests with the
opponent of the strike. United States v. Jones, 224 F.3d
621, 624 (7th Cir. 2000) (internal quotations omitted)
(quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)).
Not every strike of a racial minority is a violation of
Batson. Jones, 224 F.3d at 624. A prosecutor’s motives are
a question of fact, United States v. George, 363 F.3d 666,
673 (7th Cir. 2004), to be determined by the trial judge,
who is in the best position to evaluate the demeanor of the
attorney exercising the challenge. Hernandez v. New York,
500 U.S. 352, 365 (1991). Because these are determina-
tions of credibility, we review a district court’s resolu-
tion of a Batson challenge for clear error. George, 363 F.3d
at 673; see also United States v. McMahan, 495 F.3d 410,
420 (7th Cir. 2007). We must have a firm and definite
conviction that a mistake was made before reversing a
trial court’s Batson ruling. United States v. White, 416 F.3d
634, 640 (7th Cir. 2005). We must keep in mind, however,
that “[o]nce the trial judge has been persuaded of the
neutrality of the prosecutor’s reason for striking a juror,
we have no basis for reversal on appeal unless the
reason given is completely outlandish or there is other
evidence which demonstrated its falsity.” United States v.
Griffin, 194 F.3d 808, 826 (7th Cir. 1999) (internal quota-
tions omitted) (quoting Morse v. Hanks, 172 F.3d 983, 985
(7th Cir. 1999)).
At the first stage of the Batson analysis, the burden is
low, requiring only circumstances raising a suspicion
that discrimination occurred, even where those circum-
stances are insufficient to indicate that it is more likely
10 No. 06-4355

than not that the challenges were used to discriminate.
United States v. Stephens, 421 F.3d 503, 512 (7th Cir.
2005) (citing Johnson v. California, 545 U.S. 162, 170
(2005)). We have confidence that trial judges, experienced
in supervising voir dire, will be able to decide if the
circumstances concerning the prosecutor’s use of peremp-
tory challenges creates a prima facie case of discrimina-
tion against black jurors. Batson, 476 U.S. at 97. Acknowl-
edging that the only two African-Americans had been
struck from the venire by the prosecution, the court
found that a prima facie case under Batson had been
established.
At the second stage of the Batson inquiry, the burden
shifts to the prosecution to make a race-neutral explana-
tion for its strikes. Unless a discriminatory intent is
inherent in the prosecution’s explanation, the reason
offered will be deemed race-neutral. Batson, 476 U.S. at
98 n.20.; see also George, 363 F.3d at 674 (citing United
States v. Jordan, 223 F.3d 676, 687 (7th Cir. 2000)) (“The
[prosecution’s] proffered reason for the strike need not
be particularly persuasive, or even based on quantifiable
data, so long as it is not pretextual.”).
The prosecution explained that Jurors Woodland,
Hairston, and Strock all had relatives in prison, which is
a valid and race-neutral basis for the strikes. Jurors with
relatives in prison may sympathize with a defendant, or
have feelings of animosity against the prosecution. See
United States v. Lewis, 117 F.3d 980, 983 (7th Cir. 1997)
(finding that the dismissal of a juror who had two rela-
tives in prison was a race-neutral explanation); United
States v. Hughes, 970 F.2d 227, 230-31 (7th Cir. 1992)
(finding that the fact that a juror’s cousin had served time
for a drug offense was a race-neutral reason). Hendrix
contends that the strikes were not race-neutral because
Juror Martin remained on the panel. Juror Martin had a
No. 06-4355 11

brother who was sent to reform school when he was
sixteen years old. The prosecution may recognize that a
juvenile sent to reform school is in a different category
than an adult who is sent to prison. Furthermore, Juror
Strock—a Caucasian—was also struck for the same
reason as Jurors Woodland and Hairston, which further
illuminates the non-discriminatory nature of the prosecu-
tion’s strikes and erodes notions of pretext in the prosecu-
tion’s motive for the strikes.
At the last stage of a Batson inquiry, the court must
determine whether the defendant has carried his burden
of proving purposeful discrimination by the prosecution.
Purkett, 514 U.S. at 768. The critical question in deter-
mining whether a defendant has proved purposeful
discrimination at the last stage is the persuasiveness of
the prosecution’s justification for his strike. Miller-El v.
Cockrell, 537 U.S. 322, 338-39 (2003) (“Miller-El I”). The
issue is whether the trial court finds the prosecutor’s race-
neutral explanations to be credible. Id. at 339. When
approaching the issue of credibility, the court assesses
“how reasonable, or how improbable, the [prosecutor’s]
explanations are; and by whether the proffered rationale
has some basis in accepted trial strategy.” Coulter v.
McCann, 484 F.3d 459, 465 (7th Cir. 2007) (quoting Miller-
El I at 339). Batson and its progeny direct trial judges to
assess the honesty—not the accuracy—of a proffered race-
neutral explanation. Lamon, 467 F.3d at 1101. Moreover,
at the third stage, the defendant may offer additional
evidence to demonstrate that the proffered justification
was pretextual. Stephens, 421 F.3d at 510.
The district court considered all of the prosecution’s
explanations as to why Jurors Woodland and Hairston
were struck when it found that the explanations were
proper. Along with the evidence before the court at that
time that two African-Americans and a Caucasian were
struck for the same race-neutral reason, the court also
12 No. 06-4355

assessed the demeanor of the prosecutor and the honesty
of his explanations. Without any specific objections or
further evidence of pretext from Hendrix, the court
accepted the prosecution’s reasons for striking Jurors
Woodland and Hairston as legitimate and race-neutral.
Furthermore, Hendrix failed to demonstrate any pre-
text to the court during voir dire. Although he contends
on appeal that the prosecution’s strikes were not race-
neutral because Juror Martin was not struck, even though
she had a brother who was sent to reform school, he did
not challenge the prosecution’s explanations during voir
dire, nor did he offer any reasons for the court to cast
doubt on the explanations for the strikes. The only state-
ment he made at that time was that he had some con-
cern that the only two African-Americans were struck.
Hendrix also had the opportunity to review the transcript
of voir dire for six days before trial, yet he still failed to
bring any evidence of pretext to the court for its assess-
ment, where the court could have addressed any concerns.
The prosecution’s additional explanations that Juror
Woodland was a fan of CSI, and that Jurors Woodland and
Hairston had relatives in law enforcement, do not trans-
form the prosecution’s race-neutral explanation into a
pretextual one. The district court took these additional
factors into consideration, and in its written denial of
Hendrix’s motion for a new trial, it commented that
while the court agreed with Hendrix that “watching CSI
is not a valid reason by itself for striking . . . Woodland
when many other panelists had reported watching the
same show,” the court noted that the CSI factor gave
the prosecution’s decision “a modest amount of added
heft in combination with the fact that Woodland has a
relative in prison, particularly when the case was one
in which there was no scientific evidence to prove
[Hendrix’s] possession of the firearm.” See also United
States v. Fields, 483 F.3d 313, n.39 (5th Cir. 2007) (“Some
No. 06-4355 13

have claimed that jurors who see the high-quality forensic
evidence presented on CSI raise their standards in real
trials, in which actual evidence is typically more flawed
and uncertain.” (quoting Tom R. Tyler, Viewing CSI and
the Threshold of Guilt: Managing Truth and Justice in
Reality and Fiction, 115 Yale L.J. 1050, 1050 (Mar. 2006))).
We find no error in the district court’s assessment of
the honesty of the prosecution’s proffered explanations.
The district court had the opportunity to observe the
voir dire, and determined that the prosecution gave
legitimate and race-neutral showings as to why it struck
the two African-Americans from the venire. Hendrix has
not provided any sufficient reasons for us to conclude that
the district court committed clear error by making this
determination. Therefore, we find that the district court’s
ruling on the prosecution’s peremptory challenges on
Jurors Woodland and Hairston was proper and did not
violate Hendrix’s right to equal protection of the law.

B. Admission of Testimony That a Judge Ap-
proved the Search Warrant.
Hendrix argues that the district court erred in allowing
Detective Hendrickson’s testimony that a judge ap-
proved a search warrant for Hendrix’s apartment because
that information was irrelevant and unfairly prejudicial.
We review the district court’s evidentiary rulings for an
abuse of discretion. United States v. Holt, 460 F.3d 934,
936 (7th Cir. 2006). Even if there is a mistake, we will not
reverse if the error was harmless. Id.
Hendrix argues that, under United States v.
Cunningham, 462 F.3d 708 (7th Cir. 2006), the procedures
that agents follow to obtain authority to gather evidence
are not relevant, and evidence that a judge approved a
search warrant has the effect of “vouching for the gov-
14 No. 06-4355

ernment’s case: a judge decided there was probably a gun
at the defendant’s house so he issued a warrant, and
the police discovered that the judge was correct.” In
Cunningham, the government introduced testimony
that explained the extensive procedures it used to obtain
court authorization for wiretaps on the defendants’
phones, and that suggested several senior government
attorneys and agents believed that probable cause existed
to show that the defendants were involved in a drug
conspiracy. Id. at 709, 712-13. We reversed the district
court’s ruling that allowed the admission of the evidence,
holding that “[t]he government witness was improperly
vouching for how good the evidence was,” and “[i]n short,
the government piled on needless, unfairly prejudicial
evidence that may have affected the jury’s judgment, and
this error was not harmless.” Id. at 713.
This case is a far cry from the facts in Cunningham.
Here, as the government pointed out in its brief, there
was no extensive testimony proffered to explain the
procedure of obtaining a search warrant, as there was
in Cunningham. One statement from a witness that a
judge approved a search warrant for Hendrix’s apart-
ment did not inappropriately strengthen the prosecu-
tion’s case and was not unfairly prejudicial to Hendrix,
unlike the extensive wiretap evidence admitted in
Cunningham. Furthermore, evidence that the police
obtained a search warrant is not unfairly prejudicial, and
the district court noted that “[the prosecution] is allowed
to say [the police] have a warrant.” As we held in
Cunningham, “[i]t is one thing for a government wit-
ness, when telling his story to the jury, to say a search
warrant had been obtained, and then the search was made.
Although arguably not technically relevant, the informa-
tion is simply part of the witness’s story.” 462 F.3d at 714.
In contravention of the district court’s ruling, the
prosecution elicited testimony from Detective Hendrickson
No. 06-4355 15

about a judge’s approval of the search warrant. The
district court acknowledged that the prosecution failed to
follow the ruling of the court, but noted that the testimony
of Detective Hendrickson “was not elaborated on” and
would not have an effect on the outcome of the trial. We
agree. We find no abuse of discretion in the court’s assess-
ment to allow the single statement that a judge ap-
proved a warrant into evidence. Furthermore, any error
was harmless, in light of the overwhelming evidence in
front of the jury. Detective Hendrickson and Detective
Wegner testified that they recovered a shotgun and four
rounds of ammunition from a dresser in the back bedroom
of Hendrix’s apartment. Officer Moore testified that
Hendrix made several incriminating statements at the
police station, acknowledging his ownership of the fire-
arm. Therefore, the district court’s admission of Detective
Hendrickson’s testimony into evidence was proper.

C. Admission of Hendrix’s Statements to Officer
Moore.
Hendrix challenges the district court’s denial of his
motion to suppress his statements on the grounds that a
“coy” discussion between Hendrix and Officer Moore
was the result of custodial interrogation, and thus Hendrix
was not given proper Miranda warnings. In reviewing
a denial of a motion to suppress, we review the district
court’s factual findings for clear error and questions of
law de novo. United States v. Thompson, 496 F.3d 807, 809
(7th Cir. 2007). Because the resolution of a motion to
suppress is a fact-specific inquiry, we give deference to
credibility determinations of the district court, who had
the opportunity to listen to testimony and observe the
witnesses at the suppression hearing. Id. Since the
district court adopted the credibility determinations of
the magistrate judge, we review the magistrate judge’s
16 No. 06-4355

findings for clear error. United States v. Biggs, 491 F.3d
616, 621 (7th Cir. 2007) (citing United States v. Gillaum,
372 F.3d 848, 854 (7th Cir. 2004)).
The magistrate judge thoroughly evaluated the evidence
and testimony of Officer Moore, and concluded that it
was not improper for Officer Moore to answer Hendrix’s
repeated questions as to the charges against him, and
Officer Moore did not intend to elicit an incriminating
response from Hendrix when he advised Hendrix that he
would face additional charges. The magistrate judge
credited the testimony of Officer Moore, and found that
Hendrix was agitated and confrontational throughout
the conversation with Officer Moore, and that it was
not improper for Officer Moore to respond to Hendrix’s
voluntary admission that all the officers were going to
find was a pistol by advising Hendrix that the police
found something “larger than a pistol.” The magistrate
judge also found that nothing Officer Moore said or did
prompted Hendrix’s explanation of the reason why he
kept the firearm in his apartment, and determined that
Hendrix chose to speak voluntarily. We find no clear error
in the magistrate judge’s thorough consideration of the
evidence and the testimony of Officer Moore.
Under Miranda, a suspect interrogated by law enforce-
ment officers while in custody must be notified of his
constitutional rights to counsel and against self-incrimina-
tion. There is no dispute that Hendrix was in custody
while he was under arrest and handcuffed in the booking
area of the jail. The only issue is whether Hendrix
was subjected to “interrogation” by Officer Moore.
Not all statements obtained by the police after a
person has been taken into custody are considered the
product of interrogation. Rhode Island v. Innis, 446 U.S.
291, 299 (1980). “Interrogation” refers to “express question-
ing” as well as “any words or actions on the part of the
No. 06-4355 17

police (other than those normally attendant to arrest
and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect.”
Id. at 300-01; United States v. Abdulla, 294 F.3d 830, 834
(7th Cir. 2002). Under our interpretation of Innis, the
test is whether a reasonable objective observer would
have believed that the law enforcement officer’s state-
ments to the defendant were reasonably likely to elicit
an incriminating response. Abdulla, 294 F.3d at 834
(internal quotations omitted); United States v. Westbrook,
125 F.3d 996, 1002 (7th Cir. 1997). A police officer’s
response to a direct inquiry by the defendant does not
constitute “interrogation.” United States v. Briggs, 273
F.3d 737, 740 (7th Cir. 2001). Moreover, voluntary state-
ments are not subject to Miranda warnings, and thus
are admissible as evidence. Miranda, 384 U.S. at 478.
Statements are volunteered when they are not the
result of “compelling influences, psychological ploys, or
direct questioning.” Arizona v. Mauro, 481 U.S. 520, 529
(1987); United States v. Jackson, 189 F.3d 502, 510 (7th
Cir. 1999).
Hendrix argues that his first statement to Officer Moore,
that “all they were going to find would be a pistol,” re-
sulted from Officer Moore’s “coy response” to Hendrix’s
inquiry as to the charges against him. After Hendrix’s
repeated demands for information about the charges
against him, Officer Moore responded that there would
be more charges against Hendrix (other than the initial
traffic offense that the arrest warrant was issued on) due
to the items found at Hendrix’s apartment. The fact
that he did not specify the nature of the charges was
not a “coy response,” but a direct answer, which con-
tained the only information that Officer Moore knew.
Therefore, Hendrix’s reply that “all they were going to
find would be a pistol” was not a result of any interroga-
tion by Officer Moore. It was a voluntary statement, not
18 No. 06-4355

prompted by any direct question or encouragement from
Officer Moore, and thus not protected by Miranda. The
statement was properly admitted into evidence.
Next, Hendrix argues his statements, “he call[ed]
everything a pistol,” and that he had only procured the
firearm because “[his] apartment had been broken into . . .
and [that he] needed some protection” should have been
suppressed because he was deliberately provoked by
Officer Moore, who made a “calculated attempt to elicit
an incriminating statement, and it worked as intended.”
After Hendrix stated that “all they were going to find
would be a pistol,” Officer Moore told Hendrix that the
agents found something larger than a pistol at his apart-
ment. While Officer Moore’s comment may have aroused
Hendrix’s curiosity, a reasonable, objective observer
would not believe that the comment was reasonably
likely to elicit incriminating statements. Hendrix was not
the victim of a “coy” discussion that forced him to make the
damning admissions about his knowledge and ownership
of the firearm. Rather, Hendrix was simply talking when
he should not have been. Hendrix repeatedly reinitiated
the conversation with Officer Moore. He was neither
coerced nor compelled by Officer Moore to talk about his
firearm, but rather encouraged the discussion by asking
Officer Moore questions and volunteering information. See
United States v. Cooper, 19 F.3d 1154, 1162 (7th Cir. 1994)
(citing Arizona v. Roberson, 486 U.S. 675, 681 (1988)) (“The
question of which party encouraged the dialogue between
the police and the accused plays an indicative role in the
determination of whether the statement was the result of
compelled influence.”). We conclude that Hendrix’s state-
ments were made voluntarily and were not the result of
interrogation by Officer Moore.
No. 06-4355 19

D. Sentencing.
In challenging his sentence, Hendrix first argues that
sentencing him under 18 U.S.C. § 924(e), the Armed
Career Criminal Act (the “Act”), in the absence of jury
findings as to the nature of his criminal history, violates
his Sixth Amendment right to a jury trial. Hendrix
asserts that the Act’s requirement that the crimes be
committed “on occasions different from one another” goes
beyond the fact of a prior conviction and is not subject to
Apprendi’s exception for prior convictions, and therefore
should be determined by a jury.9
The Act provides that a defendant who is found to violate
18 U.S.C. §922(g) “and has three previous convictions . . .
for a violent felony or serious drug offense or both, commit-
ted on occasions different from one another . . . shall be . . .
imprisoned not less than fifteen years.” The district
court does not violate a defendant’s Sixth Amendment
right to a jury trial by making findings as to his criminal
record that expose him to greater criminal penalties.
United States v. Williams, 410 F.3d 397, 402 (7th Cir.
2005). In Almendarez-Torres v. United States, the Su-
preme Court held that recidivism used to enhance a
defendant’s penalty need not be found beyond a reason-
able doubt, but instead is a sentencing factor. 523 U.S.
224, 239 (1998). As we noted in United States v. Stevens,
453 F.3d 963, 967 (7th Cir. 2006), Almendarez-Torres
remains intact, notwithstanding subsequent decisions.
See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 489 (2000)
(holding that “[o]ther than the fact of a prior conviction,

9
Hendrix acknowledges that we have rejected this argument in
United States v. Browning, 436 F.3d 780 (7th Cir. 2006) and
United States v. Schlifer, 403 F.3d 849 (7th Cir. 2005), but
nevertheless raises it to preserve his right to review of the
issue by the Supreme Court.
20 No. 06-4355

any fact that increases the prescribed maximum must
be submitted to a jury and proven beyond a reasonable
doubt”); Shepard v. United States, 544 U.S. 13, 24-26, 37-
38 (2005) (acknowledging the continuing validity of
Almendarez-Torres); see also United States v. Skidmore,
254 F.3d 635, 642 (7th Cir. 2001) (holding that an enhance-
ment under 18 U.S.C. §924(e)(1) based on a defendant’s
three prior violent felonies is proper under Apprendi).
Furthermore, we have held that unless and until the
Supreme Court chooses to overrule Almendarez-Torres, we
are bound by it. Stevens, 453 F.3d at 967; United States v.
Morris, 293 F.3d 1010, 1012 (7th Cir. 2002); see, e.g.,
United States v. Browning, 436 F.3d 780, 782 (7th Cir.
2006) (holding that the continued authority of Almendarez-
Torres is not for us to decide).
With respect to Hendrix’s argument that the Act’s
requirement that the crimes be committed “on occasions
different from one another” goes beyond the fact of a prior
conviction, and should be determined by a jury, we have
already rejected this argument in United States v. Schlifer,
403 F.3d 849, 852 (7th Cir. 2005).10 Accordingly, the
district court’s determination from the PSR that Hendrix
had three previous convictions to satisfy the Armed
Career Criminal Act is not impermissible factfinding,
and Hendrix’s sentence does not violate the Sixth Amend-
ment.
Hendrix also argues that sentencing him with a pre-
sumption that within-Guideline sentences are entitled

10
In Schlifer, the defendant challenged the determination that
his convictions were for crimes of violence and whether they
were “related.” 403 F.3d at 852. We rejected his argument
and held that there was “no authority for parsing out the
recidivism inquiry,” and the enhancement under the Act was
not a violation of the Sixth Amendment. Id. (citing Morris,
293 F.3d at 1012).
No. 06-4355 21

to more deferential review than sentences outside the
Guidelines’ recommendation violates the Sixth Amend-
ment right to jury trial.11
A sentence within the defendant’s Guidelines range is
presumptively reasonable. United States v. Gammicchia,
498 F.3d 467, 468 (7th Cir. 2007); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). The Supreme
Court has held that this presumption is proper. Rita v.
United States, ___ U.S. ___, 127 S.Ct. 2456, 2462-63
(2007). As we held in United States v. Gama-Gonzalez, to
say a sentence within the Guideline range is presump-
tively reasonable, is not to say that district judges
should impose sentences within the range. 469 F.3d 1109,
1110 (7th Cir. 2006) (citing United States v. DeMaree, 459
F.3d 791, 794-95 (7th Cir. 2006)) (emphasis in original).
Rather, “[i]t is only to say that, if the district judge does
use the Guidelines, then the sentence is unlikely to be
problematic.” Id. (emphasis in original).
Hendrix was sentenced to the low end of the Guideline
range. In sentencing Hendrix, the district court con-
sidered the proper factors set out in 18 U.S.C. §3553(a),
noting that Hendrix’s lengthy criminal record qualified
him as an armed career criminal. The district court
considered the need to hold Hendrix accountable for
his actions, and to protect the community from further
crime. Accordingly, we do not find the district court’s
sentence of 262 months’ imprisonment to be unreason-
able, nor do we feel that the sentencing process infringed
upon Hendrix’s Sixth Amendment rights.

11
Hendrix acknowledges we have rejected this argument in
United States v. Wurzinger, 467 F.3d 649 (7th Cir. 2006),
however he again makes this argument to preserve the issue
for further appeal.
22 No. 06-4355

III. Conclusion
For the foregoing reasons, the judgment of the district
court is AFFIRMED.

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—12-3-07