UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4385
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM LINWOOD FOSTER,
Defendant - Appellant.
No. 04-4550
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WARREN WILLIAMS,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
03-462-JFM)
Argued: December 2, 2005 Decided: January 19, 2006
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded in part by
unpublished per curiam opinion.
ARGUED: Martin Gregory Bahl, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellants. Harry Mason Gruber, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal
Public Defender, Denise C. Barrett, Assistant Federal Public
Defender, Baltimore, Maryland; Bradley A. Goldbloom, SIEGEL &
HYATT, L.L.C., Baltimore, Maryland, for Appellants. Allen F.
Loucks, United States Attorney, Stephen M. Schenning, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
The defendants, William Foster and Warren Williams, were
convicted by a jury of various drug-related charges. Foster
appeals the district court’s denial of his motion to suppress his
unwarned statements, alleging that their admission violates his
Fifth and Fourteenth Amendment privilege against compelled self-
incrimination. Foster and Williams both appeal their sentences on
the ground that they are unconstitutional under United States v.
Booker, 543 U.S 220, 125 S. Ct. 738 (2005). We affirm the district
court’s denial of Foster’s motion to suppress on the ground that
Foster was not under interrogation or its functional equivalent at
the time that he made these statements. Finding Sixth Amendment
error, we vacate Foster’s sentence and remand for resentencing. We
affirm Williams’s sentence.
I.
On January 25, 2003, Sergeant John Ambrose and Lieutenant
Leslie Banks of the Baltimore Police Department observed defendants
Foster and Williams conduct an apparent drug sale. A woman
approached the two men and handed Foster what appeared to be money;
in exchange, Williams retrieved a small object from the rear
passenger side of a car parked nearby and handed it to the woman.
As soon as the woman, who was walking, left the immediate vicinity
of the transaction, police officers stopped her and found in her
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possession a yellow ziplock bag containing roughly .2 grams of
cocaine base. Shortly thereafter, officers stopped Foster and
Williams who had left in the car. With the two men detained on the
sidewalk, Lieutenant Banks retrieved a plastic bag containing
roughly one gram of cocaine base from behind the fuel cap of the
car (on the rear passenger side) as well as $457 in small bills
from the front console. Foster and Williams were then arrested and
handcuffed.
Before the suspects were advised of their Miranda rights,
Sergeant Ambrose said aloud, “I can’t believe with all the money
and drugs we found we didn’t find a handgun.” J.A. 27. According
to Sergeant Ambrose, Foster replied, “If you want a gun I will get
you a handgun.” Id. Ambrose then said that “it would take four
handguns with whatever you have here,” meaning the seized evidence.
Id. Foster replied, “I can get you one right now. I need to go in
my car and go right around the corner and get you a nine
millimeter.” Id.; J.A. 163. This exchange occurred against the
backdrop of a well-known Baltimore Police Department policy that
may allow suspects to escape low-level drug charges if they turn
guns over to the police. In any event, Ambrose searched the trunk
of the car and found a nine millimeter buried in the wheel well.
The car is jointly owned by Foster and his mother.
On October 9, 2003, Foster and Williams were indicted on
several drug and firearms counts: conspiring to distribute cocaine
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base in violation of 21 U.S.C. § 846 (Count One); distributing
cocaine base in violation of 21 U.S.C. § 841 (Count Two);
possessing cocaine base with intent to distribute in violation of
21 U.S.C. § 841 (Count Three); possessing a firearm after a prior
felony conviction in violation of 18 U.S.C. § 922(g) (Count Six);
and possessing a firearm in furtherance of drug trafficking in
violation of 18 U.S.C. § 924(c) (Count Seven). Foster was also
indicted on two additional counts, distributing cocaine base (Count
Four) and possessing cocaine base with intent to distribute (Count
Five), relating to a later alleged drug sale.
Foster filed a pretrial motion to suppress his two
statements to Sergeant Ambrose. In the pretrial evidentiary
hearing, Sergeant Ambrose at first denied discussing cooperation
with Foster, but later conceded the possibility when defense
counsel confronted him with a piece of paper bearing his name and
phone number in his own handwriting, which he had handed Foster at
the scene of the stop. Sergeant Ambrose testified that he only
handed this paper to Foster after Foster had already volunteered
the statements and after he had already found the gun in Foster’s
trunk. Crediting Sergeant Ambrose’s testimony, the district court
determined that Sergeant Ambrose had handed Foster the paper only
after “[h]e obviously had a defendant who wanted to talk to
him. . . . He actually by that time had the gun itself. So he had
5
a potential real live informant, somebody who already expressed the
interest [in cooperating] on lesser evidence.” J.A. 134.
The district court ultimately denied Foster’s motion to
suppress on the ground that Ambrose’s statements did not constitute
interrogation or its functional equivalent under Miranda. “[T]he
whole conversation, as the evidence shows it happened, . . . wasn’t
a discussion [about cooperation], oh, by the way, if you have a gun
let me know, I will take that to the State’s Attorney and we’ll see
what we can do.” J.A. 142. Ambrose’s statements were only “smart-
alec,” “sarcastic,” and “facetious,” not genuine offers of
cooperation. J.A. 142. As such, they did not constitute
interrogation of an unwarned suspect in custody. Furthermore, the
court concluded that the note with the sergeant’s name and number
was not evidence that Sergeant Ambrose elicited Foster’s
incriminating statements by promising to help him, since Sergeant
Ambrose handed Foster the paper only after finding the gun and as
“he [was] leaving to take [Foster] to the paddy wagon.” J.A. 142.
The district court thus denied Foster’s motion to suppress.
Foster and Williams were tried from March 15 to March 18,
2004. The district court dismissed Count One of the indictment,
conspiracy to distribute cocaine base, after the jury submitted a
question on that count. On March 18, 2004, the jury convicted
Foster on all remaining counts in the indictment except Count
Seven, possessing a firearm in furtherance of drug trafficking.
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The jury convicted Williams on Counts Two and Three and acquitted
him on Counts Six and Seven.
The district court sentenced Foster to 87 months’
imprisonment and Williams to 51 months’ imprisonment, applying the
then-mandatory sentencing guidelines. See 18 U.S.C. § 3551 et seq.
In calculating Foster’s base offense level, the district court
imposed a two-point enhancement based on a fact found by the court
alone, not by the jury: that the gun that Foster possessed had
previously been stolen. See U.S.S.G. § 2K2.1(b)(4). Foster
objected to this enhancement on the ground that its factual
predicate, the gun being stolen, was based on unreliable
information. The court similarly enhanced Williams’s offense level
based on a fact not found by the jury: that the quantity of
cocaine base attributable to Williams was at least one gram but
less than two grams. Williams, however, did not object to the
resulting enhanced offense level, stating that it was “the
appropriate level in this case.” J.A. 727.
Foster appeals the district court’s denial of his motion
to suppress his unwarned statements. Foster and Williams both
appeal their sentences.
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II.
A.
Foster argues that the district court erred by admitting
his unwarned statements after determining that he was not under
interrogation (or its functional equivalent) at the time that he
made them. Under Miranda v. Arizona, “the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege
against self-incrimination.” 384 U.S. 436, 444 (1966). These
safeguards include the now-familiar Miranda warnings or their
equivalent. See Rhode Island v. Innis, 446 U.S. 291, 297 (1980).
Because, Foster argues, he was under custodial interrogation at the
time but had received no Miranda warnings, his statements to
Sergeant Ambrose should be suppressed. When reviewing the district
court’s denial of a suppression motion, we view the evidence in the
light most favorable to the government, and we accept the court’s
factual findings unless they are clearly erroneous. See United
States v. Hamlin, 319 F.3d 666, 671 (4th Cir. 2003). We review the
district court’s legal determinations de novo. See id.
B.
The parties agree that Foster was in custody when he made
his statements to Sergeant Ambrose, since he was under formal
8
arrest at the time. See Stansbury v. California, 511 U.S. 318, 322
(1994) (defining custody for Miranda purposes). They also agree
that Foster had not been advised of his Miranda rights. What the
parties dispute is whether Foster was under interrogation at the
time. According to Rhode Island v. Innis, a suspect is
interrogated by the law enforcement officers when “subjected to
either express questioning or its functional equivalent.” 466 U.S.
at 300-01. This “functional equivalent” language is meant to
capture “interrogation environments” in which the suspect’s will is
subjugated to that of his examiner, undermining the privilege
against self-incrimination. Id. at 299. A suspect is subjected to
the “functional equivalent” of interrogation when the police use
“words or actions . . . (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,”
meaning any response that the prosecution may seek to introduce at
trial. Id. at 301 & n.5. The Supreme Court cautioned, however,
that the police “surely cannot be held accountable for the
unforeseeable results of their words or actions.” Id. at 301-02.
The focus of this inquiry is primarily on the suspect’s perceptions
and not on the police officers’ intentions. Id. at 301.
In Innis police officers arrested the defendant for
robbery with a sawed-off shotgun but found him unarmed. While in
transit to the police station, the officers had a “brief
9
conversation” with each other about the missing shotgun, which
everyone in the car (including the defendant) heard. Innis, 446
U.S. at 294, 303. Referring to a nearby school for handicapped
children, one officer said to another, “[I]t would be too bad if
[a] little [handicapped] . . . girl . . . pick[s] up the gun, maybe
kill[s] herself.” Id. at 295. The defendant at this point
interrupted the conversation and offered to show the officers where
the gun was located. Id. The Court ruled that the officers’
conversation among themselves did not constitute interrogation for
Miranda purposes because the entire conversation consisted of “no
more than a few offhand remarks” and was not “a lengthy harangue in
the presence of the suspect.” Id. at 303. The officers’ comments,
moreover, were not “particularly ‘evocative.’” Id. Further, there
was no evidence that the officers were “aware that the [defendant]
was particularly susceptible to an appeal to his conscience
concerning the safety of handicapped children.” Id. at 302. For
these reasons, the Court concluded that the officers should not
have known that their conversation was reasonably likely to elicit
an incriminating response from the defendant, and therefore did not
subject the defendant to the functional equivalent of interrogation
under Miranda. Id.
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C.
The issue in this case is whether Sergeant Ambrose should
have known that his two comments were reasonably likely to elicit
an incriminating response from Foster. Because this inquiry is
necessarily contextual, focusing primarily on the suspect’s
perceptions, we owe trial courts “substantial deference on the
question of what constitutes interrogation,” since trial courts
“can best evaluate the circumstances in which such statements are
made and detect their coercive aspects.” United States v. Payne,
954 F.2d 199, 203 (4th Cir. 1992).
We examine Sergeant Ambrose’s statements separately: the
first said aloud in Foster’s presence (“I can’t believe with all
the money and drugs we found we didn’t find a handgun”); and the
second said directly to Foster (“It would take four handguns with
whatever you have here,” meaning the seized evidence). J.A. 27.
While the second statement presents a closer question than the
first, we ultimately conclude that neither statement constitutes
interrogation for Miranda purposes.
1.
The first statement is easily analyzed under Innis.
Because it was only an isolated, offhand remark and not a “lengthy
harangue in the presence of the suspect,” Innis suggests that this
statement does not constitute interrogation or its functional
11
equivalent. Innis, 446 U.S. at 303. The only complicating factor
is whether Foster was “peculiarly susceptible” to statements of
this kind, as discussed briefly in Innis. Id. at 302. There is at
least some evidence in the record that the Baltimore Police
Department has a well-known policy of allowing suspects to escape
low-level drug charges if they turn over guns to the police. Even
assuming that Foster was aware of this policy, however, it alone
does not transform Sergeant Ambrose’s off-the-cuff comment into the
functional equivalent of direct questioning. The statement was
only a glib characterization of the seized evidence; Sergeant
Ambrose was expressing his surprise that he found no gun alongside
the drugs and money. As we explained in Payne, “[T]he Innis
definition of interrogation is not so broad as to capture within
Miranda’s reach all declaratory statements by police officers
concerning the nature of the charges against the suspect and the
evidence relating to those charges” -- or by extension the lack of
evidence against the suspect (for example, the absence of guns).
Payne, 954 F.2d at 202.
In Payne we held that an officer’s statement to the
defendant, “They [the FBI] found a gun at your house,” did not
constitute interrogation or its functional equivalent because the
statement “was not one that sought or required a response.” Payne,
954 F.2d at 201, 203 (internal quotation marks omitted). Because
it was merely a declaratory statement of the charges or evidence
12
against the defendant, the officer should not have known that it
was “‘reasonably likely to elicit an incriminating response.’” Id.
(quoting Innis, 446 U.S at 302).
As in Payne, Sergeant Ambrose’s first statement is a mere
description of the evidence (or lack thereof) against Foster. It
did not indicate to Foster that cooperation would benefit him in
any way. Cf. United States v. Montana, 958 F.2d 516, 518-19 (2d
Cir. 1992) (finding that agent’s unsolicited statement to suspect
that any cooperation would be brought to federal prosecutor’s
attention constituted interrogation); United States v. Johnson, 812
F.2d 1329, 1331 (11th Cir. 1990) (noting that police offers to help
defendants may constitute interrogation, for example suggesting,
“[We] will be good if [you] the accused will be good” or “Why don’t
you be good and tell us about it?”). Even when viewed against the
backdrop of the Baltimore Police Department policy, Sergeant
Ambrose’s offhand remark cannot fairly be seen as expressing or
even insinuating that he would help Foster bargain down his drug
charges if only Foster cooperated.
For these reasons, we conclude that Sergeant Ambrose
should not have known that his first statement was reasonably
likely to elicit an incriminating response from Foster. We thus
affirm the district court’s denial of Foster’s motion to suppress
his first response, “If you want a gun I will get you a handgun.”
J.A. 27.
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2.
Sergeant Ambrose’s second statement requires more
extensive analysis. This statement comes closer to interrogation
than the first because it suggests more openly that Foster could
benefit by cooperating, in particular by turning over several guns.
Police statements that expressly state or even insinuate that
cooperation would benefit the defendant may constitute
interrogation under Miranda. See Montana, 958 F.2d at 518-19;
Johnson, 812 F.2d at 1331.
In this analysis, we are bound by the court’s factual
findings unless they are clearly erroneous, as noted above. See
Hamlin, 319 F.3d at 671. The district court made the following
factual findings that are highly relevant to our examination here:
that Sergeant Ambrose’s second remark was “facetious,” “smart-
alec,” and “sarcastic” only (that is, “it will take a lot more than
one gun”), not a genuine offer of cooperation; and that Sergeant
Ambrose gave Foster the piece of paper bearing his name and number
only after Foster had already volunteered the incriminating
statements, at which point Sergeant Ambrose “[knew] that he may
have a potential cooperator . . . and [so he gave Foster] his name
as he [was] leaving to take [Foster] away in the paddy wagon.”
J.A. 142. In sum, the district court concluded that “the whole
conversation, as the evidence shows it happened, . . . wasn’t a
discussion, oh, by the way, if you have a gun let me know, I will
14
take that to the State’s Attorney and we’ll see what we can do.”
Id. Upon reviewing the record, we do not regard these findings as
clearly erroneous and therefore accept them as true. See, e.g.,
J.A. 55-58 (evidence supporting court’s findings).
In light of these factual findings, Sergeant Ambrose’s
second statement was not objectively likely to elicit Foster’s
incriminating response. Sergeant Ambrose was merely expressing
sarcasm and incredulity because of the degree of trouble Foster was
already in on account of the drugs; Ambrose had no apparent
intention of helping Foster avoid or reduce the impending drug
charges. Focusing primarily on the suspect’s perceptions, as Innis
instructs us to do, Foster could not reasonably have interpreted
Sergeant Ambrose’s second statement as a genuine offer to bargain
down the charges in exchange for guns, even assuming that Foster
knew about the police department policy of sometimes dropping
charges for guns. See Innis, 446 U.S. at 301. As the district
court found, Sergeant Ambrose’s tone was too sarcastic and
incredulous to interpret it as a genuine offer.
We therefore conclude that Sergeant Ambrose’s second
statement objectively invited no cooperation from Foster. Indeed,
it invited no reply at all. It was a gibe only, an evidently
“smart-alec” and “facetious” statement. J.A. 142. As such, it
“was not [a statement] that sought or required a response.” Payne,
954 F.2d at 203 (internal quotation marks omitted). Nothing in
15
this record allows us to disregard the district court’s factual
findings about Sergeant Ambrose’s tone and thereby reverse its
legal conclusion, especially given the “substantial deference” we
owe trial courts on what constitutes interrogation. Payne, 954
F.2d at 203. Accordingly, we conclude that Sergeant Ambrose should
not have known that his second statement was reasonably likely to
elicit an incriminating response. On this ground, we affirm the
district court’s denial of Foster’s motion to suppress his second
response, “I can get you one right now. I need to go in my car
and go right around the corner and get you a nine millimeter.”
J.A. 27, 163.
III.
We turn now to the defendants’ challenges to their
sentences. Foster and Williams both argue that their sentences are
unconstitutional under United States v. Booker, 543 U.S. 220, 125
S.Ct. 738 (2005). Because neither defendant raised this issue
below, we review their sentences for plain error. See United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
Under Booker sentence enhancements imposed under a
mandatory sentencing regime violate the Sixth Amendment if they are
based on facts found by the court alone, not by the jury or by the
defendant’s admission. Booker, 125 S.Ct. at 756. If a defendant’s
actual sentence exceeds the maximum authorized by the facts
16
admitted by the defendant or proven to the jury beyond a reasonable
doubt, it constitutes plain and prejudicial Sixth Amendment error.
See Hughes, 401 F.3d at 547-49, 555-56. As such, it warrants
remand and resentencing according to Booker’s remedial scheme. Id.
at 555-56; Booker, 125 S.Ct. at 764-68. Applying this framework,
we conclude that Foster’s sentence constitutes plain Booker error
but that Williams’s sentence does not.
A.
In sentencing Foster, the district court relied on a fact
found by the court alone, not by the jury: that the gun Foster
possessed had previously been stolen. See U.S.S.G. § 2K2.1(b)(4).
This fact enhanced Foster’s base offense level by two points, from
20 to 22. The resulting guidelines range, given Foster’s criminal
history category of V, was 77 to 96 months; the range authorized by
the jury verdict alone was 63 to 78 months. U.S.S.G. Ch. 5, Pt. A.
Foster was ultimately sentenced to 87 months. Because Foster’s
sentence exceeded the maximum authorized by the jury verdict alone,
it constitutes plain and prejudicial Sixth Amendment error and
warrants resentencing. See Hughes, 401 F.3d at 555-56.
On remand the district court should first calculate the
appropriate sentencing range under the guidelines and then consider
this range, along with other factors enumerated in 18 U.S.C.
§ 3553(a), when imposing a sentence. See Hughes, 401 F.3d at 546.
17
The sentence must be “within the statutorily prescribed range and
. . . reasonable.” Id. at 547. If the sentence falls outside the
guidelines range, the court should explain its reasons for
departure as required under 18 U.S.C. § 3553(c)(2). See id. at
546.
B.
In sentencing Williams, the district court relied on a
fact contained in his presentence report that was not contained in
the indictment: that Williams’s offense involved at least one gram
but less than two grams of cocaine base. The indictment did not
charge any specific drug weight, and the jury made no findings
regarding drug weight. The court-found drug weight enhanced
Williams’s base offense level by six points, from 12 to 18. A base
offense level of 18, when combined with Williams’s criminal history
category of V, yields a range of 51 to 63 months; a base offense
level of 12 (for an unspecified quantity of cocaine base, that is,
less than .25 grams) yields a range of 27 to 33 months. U.S.S.G.
§§ 2D1.1(c)(11), (14); U.S.S.G. Ch. 5, Pt. A. Williams was
ultimately sentenced to 51 months.
At sentencing, Williams admitted to the drug weight that
the court used to enhance his base offense level by stating that
“18 is the appropriate offense level in this case.” J.A. 727. He
had no objection to “the way Probation added [Williams’s] offense
18
level.” J.A. 727. Williams thereby converted a court-found fact
into one that he admitted.
In light of this admission, Williams’s sentence was not
enhanced based on a fact found by the court alone; it did not
exceed the maximum authorized by facts admitted by the defendant or
established by the jury verdict. Accordingly, we conclude that
Williams’s sentence was not Sixth Amendment error under Booker.
Booker, 125 S.Ct. at 756; see also United States v. Evans, 416 F.3d
298, 300-01 (4th Cir. 2005). We thus affirm Williams’s sentence.
IV.
We affirm the district court’s denial of Foster’s motion
to suppress his unwarned statements. We vacate Foster’s sentence
and remand for resentencing, but affirm Williams’s sentence.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED IN PART
19
United States v. Foster
Court: Court of Appeals for the Fourth Circuit
Date filed: 2006-01-19
Citations: 166 F. App'x 13
Copy CitationsCombined Opinion