[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 28, 2005
No. 04-14381
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00033-CR-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES LEE RUSH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 28, 2005)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
James Lee Rush was convicted of one count of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1), and one count of possession
of a firearm while subject to a court-issued restraining order, in violation of 18
U.S.C. § 922(g)(8). The district court sentenced him to forty-two months
imprisonment. Rush appeals both his conviction and his sentence.
I.
Rush challenges his conviction on the ground that the district court erred by
admitting incriminating statements he had made to Craig Roegner, a Special Agent
for the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Rush argues that
the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602 (1966), because the waiver he gave was not made voluntarily,
knowingly, and intelligently. He further argues that the statements themselves
were not made voluntarily. He also asserts that his Sixth Amendment rights were
violated because he did not freely and voluntarily consent to being questioned
without an attorney.
The district court found that Rush’s statements to Agent Roegner were made
knowingly and voluntarily, and that the statements were made in compliance with
all the requirements of the law. As a result, the district court permitted Roegner to
testify about those statements.
“A district court’s ruling on a motion to suppress presents mixed questions
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of law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748–49 (11th Cir.
2002). This Court must “accept the district court’s factual findings as true unless
they are clearly erroneous, but the district court’s application of the law to the facts
is reviewed de novo.” Id. at 749 (quotation omitted).
Under Miranda, before beginning a custodial interrogation, law enforcement
officers must warn the subject that he has the right to remain silent and the right to
have an attorney present during questioning. 384 U.S. at 444, 86 S. Ct. at 1612.
An individual can effectively waive his Miranda rights if the waiver is given
“voluntarily, knowingly and intelligently.” Id. “[I]f the totality of the
circumstances surrounding the interrogation reveal both an uncoerced choice and
the requisite level of comprehension, . . . a court [may] properly conclude that the
Miranda rights have been waived.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.
Ct. 1135, 1141 (1986).1
Once the Miranda waiver determination has been made, we must determine
whether the statement itself was made voluntarily. See United States v. Jones, 32
F.3d 1512, 1516 (11th Cir. 1994). “The determination of whether a [statement] is
1
In this case, Rush’s waiver of counsel was in regard only to Agent Roegner’s
questioning. Furthermore, Rush does not assert that he requested counsel at any point during
questioning. As a result, whether Rush’s Sixth Amendment right to counsel was violated
depends on whether his Miranda waiver was validly obtained. See Patterson v. Illinois, 487 U.S.
285, 293, 108 S. Ct. 2389, 2395 (1988).
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voluntary depends on whether, under all of the surrounding circumstances, the
statement was the product of the accused’s ‘free and rational’ choice.” Id.
Conduct sufficient to render a statement involuntary “normally involves subjecting
the accused to an exhaustingly long interrogation, the application of physical force
or the threat to do so, or the making of a promise that induces a confession.” Id. at
1517 (quoting United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.
1988)).
The circumstances surrounding Rush’s statements to Agent Roegner are as
follows. Rush was taken into custody after police officers found that he was
illegally in possession of a gun. According to Roegner’s testimony, once he
arrived at the police station to interview Rush, Rush began complaining of chest
pains. Rush was then immediately taken to a hospital. Roegner accompanied him
to the hospital. Rush was treated in a private room in the hospital’s emergency
room, where he was handcuffed to the hospital bed.
After Rush was in the hospital for approximately two hours, Agent Roegner
was cleared by the doctor to speak to him. Roegner spoke with the doctor and
made sure that Rush was not under any kind of narcotic or pain medication.
Roegner specifically asked the doctor whether Rush was given any kind of
medication that might affect his ability to think or reason. According to Roegner,
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the doctor responded that the only thing Rush had been administered was an IV
drip (the record does not reflect what was in the drip). Roegner also asked the
doctor if Rush was suffering from a heart attack or some other similar condition, to
which the doctor responded that Rush was not. Roegner further testified that Rush
did not appear impaired by any drugs, nor was he complaining of chest pains as he
had been earlier at the police station.
At that point, Agent Roegner read Rush his Miranda rights from the
Pensacola Police Department’s standard waiver of rights form. Rush, a high
school graduate who had been involved in at least thirteen previous offenses, then
signed the waiver. With the waiver in hand, Roegner began questioning Rush.
The initial questioning went on for approximately fifteen minutes, at which time
they took a short break. The questioning then continued for another fifteen to
twenty minutes. The entire session lasted for approximately forty to forty-five
minutes. Though various medical tests were being performed on Rush while he
was being questioned, Roegner testified that Rush did not appear to be
experiencing any pain or discomfort during the interview.
At no point did Rush ask Agent Roegner to stop questioning him. In fact,
according to Roegner, Rush said that he wanted to speak to Roegner. Furthermore,
Rush never asked to have an attorney present.
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Given this testimony, the district court did not err in finding that Rush
voluntarily, knowingly, and intelligently waived his Miranda rights. Nor did the
district court err in finding that Rush’s statement to Agent Roegner was given
voluntarily. See Jones, 32 F.3d at 1517.
II.
Rush challenges his sentence on the grounds that it was imposed in violation
of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), because his
sentence was increased under a mandatory guidelines system based on facts that
were neither found by a jury nor admitted by him.
Because Rush raised this argument before the district court, albeit in the
form of a challenge based on Blakely v. Washington, 542 U.S. ___, 124 S. Ct.
2531 (2004), our review is de novo. See United States v. Robles, 408 F.3d 1324,
2005 WL 1083487, *3 (11th Cir. May 10, 2005). Neither party disputes that the
district court committed a Booker constitutional error in sentencing Rush. As a
result, we will reverse the district court unless the government carries its burden of
demonstrating that the error was harmless. United States v. Paz, 405 F.3d 946, 948
(11th Cir. 2005).
“To find harmless error, we must determine that the error did not affect the
substantial rights of the parties. A constitutional error, such as a Booker error,
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must be disregarded as not affecting substantial rights if the error is harmless
beyond a reasonable doubt. This standard is only met where it is clear beyond a
reasonable doubt that the error complained of did not contribute to the sentence
obtained.” Id. (quotations, marks, and citations omitted).
Before announcing Rush’s sentence, the district court noted that the
guidelines range that Rush received for this offense, thirty-seven to forty-six
months, “is a relatively low guideline” range “for this serious offense.” The court
also recognized the uncertainty brought about by the Supreme Court’s decision in
Blakely and commented on the flexibility of the guidelines, even as they were
written at that time.
Just after pronouncing Rush’s forty-two month sentence, the district court
made the following statement:
This sentence is near the mid point of the guideline range and takes
into account all of the various factors that are identified in the policy
statements, as well as the guidelines themselves, and what I think reflects an
appropriate punishment under the total circumstances.
I find that the sentence meets the sentencing goals of punishment, as
well as specific and general deterrence, all of which are sentencing goals.
And in making my decision, I have considered all the factors set out
by statute in Section 3553(a) of Title 18, United States Code, as well as the
policy statements and guidelines from the Sentencing Commission.
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Although the district court did give some indication that Rush’s sentence
was appropriate, we cannot say that it is “clear beyond a reasonable doubt” that the
district court would not have given Rush a lesser sentence had it been operating
under an advisory guidelines scheme. Merely expressing approval of sentence
produced by a mandatory guidelines system does not settle beyond a reasonable
doubt whether a district court would have given a defendant a lesser sentence
under an advisory regime. Cf. Robles, 403 F.3d at ___, 2005 WL 1083487, at *3
(finding a Booker constitutional error harmless beyond a reasonable doubt where
the district court judge expressly stated that it would impose the same sentence had
the guidelines been advisory rather than mandatory). As a result, the government
has not met its difficult burden of demonstrating that the Booker constitutional
error was harmless beyond a reasonable doubt.
III.
Based on the foregoing, Rush’s conviction is AFFIRMED. His sentence is
VACATED and the case is REMANDED for resentencing.
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