United States v. Shawn Louis Goodman

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 29, 2005
No. 05-10126 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 04-00033-CR-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHAWN LOUIS GOODMAN,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(August 29, 2005)

Before BIRCH, BARKETT and FAY, Circuit Judges.

PER CURIAM:
 Shawn Louis Goodman appeals his conviction and 112-month sentence for

bank robbery in violation of 18 U.S.C. § 2113(a). He argues on appeal that the

district court (1) erred by finding that he knowingly and voluntarily waived his

Miranda rights, and (2) plainly erred by sentencing him under the formerly

mandatory Federal Sentencing Guidelines. For the reasons stated more fully

below, we affirm.

Goodman pled not guilty to one count of bank robbery and proceeded to

trial. Prior to trial, Goodman filed a motion to suppress statements made to federal

and state law enforcement agents and requested a hearing to determine whether or

not the statements were made voluntarily and not in violation of Miranda v.

Arizona, 384 U.S. 436, 458-71, 86 S.Ct. 1602, 1619-26, 16 L.Ed.2d 694 (1966).

The district court conducted a hearing, and first heard testimony from

Plaquemine, Louisiana1 Police Officer Christopher Joffrion, who was present at the

time of Goodman’s arrest. Joffrion testified that Goodman was arrested after a

traffic stop based on a “Be-On-The-Lookout” flier issued by the Federal Bureau of

Investigation (“FBI”). Goodman was then placed in the back of a police car and

another officer on the scene read Goodman his Miranda rights off the back of a

card. Next, Goodman was taken to the police station booking room where Joffrion

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The robbery in this case took place in Georgia, but Goodman fled and was arrested by the
Plaquemine, Louisiana police department.

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reread Goodman his Miranda rights, this time off of a typed form. Joffrion

testified that Goodman appeared to understand his rights and was given an

opportunity to read and review the sheet, which he signed.

However, the sheet itself contained an ambiguity in the section marked

“Waiver.” That section contained two questions, the first being, “Do you

understand each of the rights I have explained to you,” which on the form was

marked “Yes,” and the second being, “Having been read these rights, do you wish

to make a statement to us now,” which on the form was marked both “Yes” and

“No.” Joffrion was asked about the inconsistent marks and explained that, at the

time Joffrion asked the second question (whether Goodman wished to make a

statement) Goodman initially said no, prompting Joffrion to mark “no” on the

form. However, as Joffrion continued to gather information, Goodman said

“Whatever. You got me,” and proceeded to voluntarily give information about

how long he had been running and where he had been, prompting Joffrion to mark

the “yes” box on the form. Joffrion further testified that, before he had checked

“yes” on the form, he had confirmed that Goodman wanted to talk to him. Joffrion

indicated that he had made no promises to Goodman, stating only that whatever

Goodman wanted to say, Joffrion was there to listen, and that it took only a few

seconds from the time Joffrion had first marked “no” on the form for Goodman to

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begin volunteering information.

Nonetheless, Joffrion did not begin questioning Goodman at that time

because his supervisor informed Joffrion to wait for the FBI to arrive. When asked

why Goodman was Mirandized if there were no intention of interrogating him,

Joffrion responded that it was a routine policy and procedure to Mirandize all

suspects under arrest. Joffrion testified that Goodman was booked and read his

rights at approximately 3:30 p.m., the FBI did not arrive until between 5:45 p.m.

and 6:00 p.m., and during the interim period, Goodman was issued several

cigarette breaks as well as given a hot dog and cold drink. At no time did

Goodman request a lawyer or appear under the influence of drugs or alcohol.

On cross-examination, Joffrion admitted that, when a discrepancy appears

and both a “yes” and “no” box are checked on the same Miranda form, the

suspect’s intent is not entirely clear. However, Joffrion further admitted that, when

Goodman was arrested, Goodman’s Uncle, Willie Cain, was arrested and

Mirandized at the police station using the same form as Goodman’s. Cain’s form,

like Goodman’s, had both a “yes” and a “no” box checked regarding whether or

not the suspect wished to make a statement. That form, which had the check in the

“no” box crossed-out, also contained the initials “W.C.” next to it, and Joffrion

admitted that it appeared as though a mistake had been made.

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 The government next called FBI Agent Glenn Methvin, who received a

phone call indicating that Goodman had been arrested, prompting him to the

Plaquemine police department where Goodman was detained in order to take him

into federal custody. Methvin testified that he received the phone call around 3:30

p.m. and did not arrive at the police department where Goodman was detained until

sometime between 5:30 p.m. and 6:30 p.m. that same day. At the time Methvin

arrived, Goodman was on a cigarette break and, after his break was over, was taken

to a place similar to a booking room for interviewing and was handcuffed to a bar.

Methvin indicated that when he arrived at the police department, he asked whether

Goodman had been read his Miranda rights and received an affirmative answer.

After receiving the Miranda form that Goodman signed, Methvin stated that he

went over the form with Goodman, although not in great detail, and asked him

whether he knew the form, had read the form and, although he did not formally

read Goodman the Miranda warnings per se, asked Goodman if he had signed the

form and was willing to talk, to which Goodman replied “yes.” Based on

Goodman’s demeanor and interactions, Methvin believed that Goodman was

willing to speak with him. Two other FBI agents participated in the interview.

Methvin then proceeded to interview Goodman, and indicated that no

promises were made, no threats levied, no guns drawn, and no physical touching or

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other intimidation used. Goodman responded appropriately to Methvin’s

questions. On cross-examination, Methvin could not recall whether the

Plaquemine police officers had offered to record his interview of Goodman, but

stated that he probably would have declined such an offer as it was FBI policy not

to record interviews. Methvin admitted to noticing that a camera was present in

the interview room after the fact, but that no video recording had been done.

Finally, the defense submitted the police report of Officer Scott Blackley,

who made the initial traffic stop of Goodman that led to his arrest. Goodman

wanted the report included in the record to show that no mention was made of a

Miranda warning being given at the time Goodman was arrested and placed in the

backseat of the police car. The district court, after admitting the report, stated that,

even assuming that no Miranda warning was given at the time of the arrest, “we

have another witness who came here and said he did give [Goodman] his Miranda

warnings. . . . And we do have this discrepancy about both boxes being checked,

and we have explanations about that.”

The district court then found as follows:

. . . It is my finding that Mr. Goodman was Mirandized at the scene
when he was arrested. More importantly, he was reMirandized at
police headquarters in Plaquemine when he arrived there. It is true
that both boxes saying yes and no were checked by the - -
investigation officer. And the . . . sequence of it was explained by
him and there isn’t anything to contradict that. [Goodman] expressed

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 a willingness to talk about his situation . . . The Plaquemine police
officers did not discuss it with him. Instead, they simply held him for
the arrival of the [FBI]. . . . Agent Methvin went over the Miranda
form to be sure that Mr. Goodman understood it, that he in fact signed
it. . . . He determined and made sure that Mr. Goodman indeed was
willing to and wanted to talk to him at that point in time. I find that at
no time did Mr. Goodman ever ask for the services of a lawyer or at
least at no relevant time. . . . Whatever statement he made to the
agents was made by him freely and voluntarily after having been
adequately informed of his Miranda rights.

Thereafter, the district court declared a mistrial because, due to a medical

condition, Goodman was unable to properly assist his lawyers in his defense.

Shortly after the mistrial was declared, the government filed a superseding

indictment that included two special findings by the grand jury: (1) that the

National Bank of Commerce in Duluth, Georgia, was a financial institution and

(2) that Goodman made a threat of death during the commission of the instant

crime. Goodman again pled not guilty.

Ultimately, the court presented a redacted indictment and, after the jury

returned a general verdict of guilty on the bank robbery count, asked the jury to

make the two additional special findings on a special verdict form. The jury found

Goodman guilty of the robbery and further found, beyond a reasonable doubt, that

the bank was a financial institution and that Goodman had made a death threat

during the commission of the robbery.

A presentence investigation report (“PSI”) reflected that Goodman’s base

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offense level was 20 pursuant to U.S.S.G. § 2B3.1. Goodman then received a two-

level enhancement because property of a financial institution was taken, U.S.S.G

§ 2B3.1(b)(1), and another two-level enhancement because a threat of death was

made during commission of the offense, U.S.S.G. § 2B3.1(b)(2)(F). Goodman

received no reductions for a total offense level of 24. Goodman’s criminal history

category was calculated at VI which, at offense level 24, provided for a guidelines

sentence of 100-125 months’ imprisonment. Goodman sought a downward

departure pursuant to U.S.S.G. § 5K2.0, arguing that the conditions of his

confinement were “atypical” and overly restrictive.

At the sentencing hearing, the court heard from Goodman regarding his

treatment during pre-trial incarceration and ultimately denied the downward

departure, first finding that it did not believe it had the authority to downwardly

depart on the basis of complaints surrounding administrative actions taken by

prison authorities but, even assuming it had that authority, it was disinclined to do

so under the circumstances. The court did, however, indicate that it could take into

account Goodman’s pre-trial custody when deciding where to fix a sentence within

the applicable guidelines’ range.

After hearing from Goodman and the government, the district court decided

that “it’s a middle of the range case and I think a middle of the custody guideline

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range is appropriate. And in doing that, I am taking into account and giving him

some small credit for the complaints he makes about his pretrial custody.”

Goodman was then sentenced to 112 months’ imprisonment, the middle of the

applicable guidelines range.

I. Miranda Rights

On appeal, Goodman argues that the totality of the circumstances

demonstrate that he did not knowingly and voluntarily waive his Miranda rights

and initiate a conversation with law enforcement officers. Specifically, Goodman

argues that the discrepancy in the waiver form coupled with the fact that Goodman

was handcuffed to a bar, questioned by three FBI agents without a recording

despite the availability of a video camera, and not specifically given a renewed

Miranda warning prior to being questioned by the FBI call into doubt his

statements.

We review “the district court's findings of fact on a motion to suppress

evidence for clear error and the district court's application of the law to those facts

de novo.” United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997). “It is

well established that ‘[t]he government must prove by a preponderance of the

evidence that [the defendant] made a knowing, voluntary and intelligent waiver of

his Miranda rights.’” Id. When considering a ruling on a motion to suppress, all

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facts are construed in a light most favorable to the successful party. United States

v. Behety, 32 F.3d 503, 510 (11th Cir. 1994). Finally, we will not reverse a district

court’s factual findings unless “contrary to the laws of nature, or . . . so

inconsistent or improbable on [their] face that no reasonable factfinder could

accept [them].” United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004).

In Miranda v. Arizona, the Supreme Court considered the scope of the Fifth

Amendment privilege against self-incrimination and held that the government

“may not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation from the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege against self-incrimination.”

384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Accordingly, the

Supreme Court delineated the following procedure that, although not

constitutionally mandated, safeguards the right against compelled self-

incrimination: (1) before a person in custody is interrogated, he must be informed

in clear and unequivocal terms of his right to remain silent; (2) the admonition

against self-incrimination must be accompanied by an explanation that anything

said can and will be used against the individual in court; (3) the person must be

clearly informed that he has the right to consult with a lawyer and to have a lawyer

with him during the interrogation; and (4) the advice of the right to counsel must

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be accompanied by the explanation that, if the person is indigent, a lawyer will be

appointed to represent him. Id. at 467-73, 86 S.Ct. at 1624-27.

As with most rights, the accused may waive the right against self-

incrimination, so long as the waiver is voluntary, knowing, and intelligent. Id. at

444, 86 S.Ct. at 1612. A waiver is effective where the “totality of the

circumstances surrounding the interrogation reveal both an uncoerced choice and

the requisite level of comprehension.” Moran v. Burbine, 475 U.S. 412, 421, 106

S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (quotation omitted). Where a defendant

invokes his right to remain silent, the interrogation must cease. Miranda, 384 U.S.

at 473-74, 86 S.Ct. at 1627. However, where a defendant only asserts his right to

remain silent, and does not invoke his right to counsel, law enforcement may

resume the interrogation at some later time. United States v. Bosby, 675 F.2d

1174, 1182 (11th Cir. 1982).

In the present case, the district court’s conclusion that Goodman understood

his rights and knowingly and voluntarily waived them is amply supported. At the

time of his arrest, the undisputed testimony was that Goodman was read his

Miranda rights. Later, at the Plaquemine police department, Goodman was again

read his Miranda rights, this time off of a form that Goodman was also permitted to

read and required to sign. Notwithstanding the fact that a discrepancy existed on

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Goodman’s Miranda waiver form as to whether Goodman, after hearing his

Miranda rights, wanted to make a statement, the undisputed evidence was that

immediately after Officer Joffrion had checked the “no” box, Goodman began

volunteering information regarding the commission of his crimes. It was at that

point that Joffrion checked the “yes” box on the form and, importantly, neither

Joffrion nor any other Plaquemine police officer questioned Goodman at that point.

Upon FBI Agent Methvin’s arrival, Goodman was again shown the signed

form and was asked if he had seen the form, signed the form, understood the form,

and asked again whether he was, in fact, willing to speak with the FBI agents.

Goodman responded in the affirmative and, at no point on the record, has there

been even a suggestion of improper coercion, threats, or any other inappropriate

means of securing a waiver and a confession. There is no requirement that an

interview be recorded, even if a video camera is available and, based on the

undisputed testimony at the hearing, the district court’s conclusion that Goodman

understood his Miranda rights and voluntarily spoke to law enforcement was well-

supported.

As the district court noted, any discrepancy on the Miranda form was

adequately explained and, while a better procedure may exist for curing such

discrepancies, the district court found the testimony of the law enforcement agents

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credible on this point, and we will not disturb a credibility determination. Viewing

the facts in a light most favorable to the government, we conclude that the totality

of the circumstances demonstrates that the district court’s factual findings were not

so improbable that no reasonable factfinder could accept them and, therefore, no

reversible error occurred by admitting Goodman’s post-arrest statements.

II. Sentencing Under Booker

Goodman also appeals his sentence in light of United States v. Booker, 543

U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), arguing that the mandatory

application of the guidelines was in error. Goodman concedes that he failed to

raise a constitutional challenge to his sentence and cannot meet the third prong of

plain error review (that his substantial rights were violated), but he wishes to raise

the issue to preserve it for certiorari with the United States Supreme Court.

Because Goodman failed to lodge an objection to his sentence based on

Booker, Blakely, or any constitutional grounds, we will review for plain error only.

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) cert. denied

(June 20, 2005) (No. 04-1148). “An appellate court may not correct an error the

defendant failed to raise in the district court unless there is: (1) error, (2) that is

plain, and (3) that affects substantial rights.” Id. at 1298 (quotation and citation

omitted). “If all three conditions are met, an appellate court may then exercise its

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discretion to notice a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id.

In Booker, the Supreme Court found that the mandatory nature of the

Federal Guidelines rendered them incompatible with the Sixth Amendment’s

guarantee of a right to a jury trial. Booker, 543 U.S. at ___,125 S.Ct. at 749-51.

The Court ruled that sentencing courts nevertheless must consider the Guidelines

together with the factors set forth in 18 U.S.C. § 3553(a) when imposing sentences.

Id. at ___, 125 S.Ct. at 765. Section 3553(a) provides that district courts imposing

a sentence must consider, inter alia, the nature and circumstances of the offense,

the history and characteristics of the defendant, the need for adequate deterrence,

protection of the public, the pertinent Sentencing Commission policy statements,

and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a).

The Court cautioned, however, that not every sentence will give rise to a

Sixth Amendment violation, nor would every appeal lead to a new sentencing

hearing. Booker, 543 U.S. at ___, 125 S.Ct. at 769. The Court instructed

reviewing courts to apply “ordinary prudential doctrines, determining, for example,

whether the issue was raised below and whether it fails the ‘plain-error’ test.” Id.

Here there was no Sixth Amendment violation because all of the facts used

to judicially enhance Goodman’s sentence were found by the jury beyond a

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reasonable doubt in a special verdict. However, we have held that where a district

court imposes a sentence under the formerly binding mandatory guidelines, there

nevertheless exists plain statutory error under Booker. See United States v.

Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). To prevail, however, Goodman

must prove that the error affected his substantial rights by demonstrating “a

reasonable probability of a different result if the guidelines had been applied in an

advisory instead of binding fashion by the sentencing judge in this case.”

Rodriguez, 398 F.3d at 1301. Where “[t]he record provides no reason to believe

any result is more likely than the other,” a defendant cannot prevail under plain

error review. Id.

Here, there is no evidence even suggesting that Goodman would have

received a different sentence under an advisory guidelines regime. The court had

discretion to sentence Goodman within a range of 100-125 months under the

guidelines as they were calculated and, rather than exercise its discretion to

sentence Goodman to the lowest possible sentence, it chose to sentence Goodman

to 112 months’ in the middle of the guidelines range, stating on the record that this

was “ a middle of the range case and I think a middle of the custody guideline

range is appropriate.” Given that imposition of the lowest possible sentence within

the range is insufficient, standing alone, to satisfy the third prong of plain error

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review, the imposition of a sentence above the lowest possible sentence forecloses

the possibility of showing a reasonable probability of a different outcome. See

United States v. Fields, No. 04-12486, slip op. at 2301 (11th Cir. May 16, 2005)

(holding that a sentence at the low end of the guidelines range alone is not enough

to carry the burden under plain error review because it is too speculative).

Thus, we conclude that Goodman’s substantial rights were not violated when

the district court sentenced him under the formerly mandatory Sentencing

Guidelines. In light of the foregoing, we conclude that Goodman has demonstrated

no reversible error warranting a reversal of his conviction or sentence. We,

therefore, affirm.

AFFIRMED.

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