[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 29, 2005
No. 04-16745 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00199-CR-T-26TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMIE GENARDO GLOVER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 29, 2005)
Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.
PER CURIAM:
Jamie Genardo Glover appeals his conviction and sentence for being a felon
in possession of a firearm. 18 U.S.C. § 922(g)(1). Glover raises three arguments
on appeal: (1) the district court erroneously found that Glover’s statement to
federal agents was admissible because he waived his Miranda rights, (2) the
evidence was insufficient to support a guilty verdict, and (3) during sentencing the
district court erroneously enhanced his sentence based on an extra-verdict finding
that Glover’s previous conviction constituted a “crime of violence” and applied the
United States Sentencing Guidelines as mandatory. Because the district court did
not err in admitting Glover’s statement and the evidence was sufficient to support
the guilty verdict, we affirm the conviction. Because the district court erred in
sentencing Glover under a mandatory guidelines scheme and the error was not
harmless, we vacate the sentence and remand for resentencing.
I. BACKGROUND
On July 15, 2003, police officers executed a search warrant on Glover’s
residence and found a semi-automatic handgun hidden under Glover’s mattress.
Glover was not present at the time of the search, but his roommate and a guest,
who were present, both denied ownership of the gun and offered to make a
telephone call to Glover, monitored by the police, to verify that the gun was his.
During the call, Glover made statements about the gun.
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Glover was indicted on one count of being a felon in possession of a firearm.
See 18 U.S.C. § 922(g)(1). After his arrest, Glover was advised of his rights and
waived them in writing. While transporting Glover for arraignment, federal agents
questioned him regarding the gun. In response to the questioning, Glover admitted
that he purchased the firearm.
Before trial, Glover moved to suppress his statement to the federal agents.
The district court held a hearing and denied the motion on the ground that Glover
had waived his Miranda rights. Glover moved for reconsideration and to
supplement the record with testimony from his mother, Carol Durr. The district
court granted the motion, and Durr testified that Glover was “mentally disabled,”
had a “tenth grade education,” and had an “IQ of 57 or 67.” After hearing this
testimony, the district court again denied the motion to suppress.
At trial, the prosecution presented evidence that Glover occupied the
bedroom in which the firearm was found, two occupants of the residence at the
time of the search stated the gun belonged to Glover, and Glover admitted
purchasing the gun. The jury convicted Glover. Glover moved for a post-verdict
judgment of acquittal based on insufficient evidence. The district court denied this
motion.
At sentencing, Glover objected to the classification of his previous
conviction for battery on a law enforcement officer under Florida law as a crime of
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violence on the ground that it would violate his Sixth Amendment right to a jury
trial. See U.S. Const. Amend. VI; cf. Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
The district court invoked the “prior convictions” exception to the Apprendi line of
cases, denied the motion, and applied the enhancement. Glover had a total offense
level of 20, a criminal history category of VI, and a sentencing guideline range of
70 to 87 months. The district court commented that “notwithstanding Blakely and
Apprendi, it’s business as usual under the Federal Sentencing Guidelines,” and
sentenced Glover to 78 months of imprisonment.
II. STANDARD OF REVIEW
This Court reviews the denial of a motion to suppress a confession under a
mixed standard: findings of fact are reviewed for clear error and the application of
law to the facts is reviewed de novo. United States v. Gil, 204 F.3d 1347, 1350
(11th Cir. 2000). We review de novo the denial of a motion for post-verdict
judgment of acquittal based on insufficiency of the evidence. United States v.
Braithwaite, 709 F.2d 1450, 1457 (11th Cir. 1983); see also United States v.
Abbell, 271 F.3d 1286, 1291 n.2 (11th Cir. 2001). We view the evidence in the
light most favorable to the prosecution and determine whether “a reasonably-
minded jury could accept the relevant evidence as adequate and sufficient to
support the conclusion of the defendant’s guilt beyond a reasonable doubt.”
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Braithwaite, 709 F.2d at 1457. We review de novo questions of law arising under
the United States Sentencing Guidelines. United States v. Crawford, 407 F.3d
1174, 1178 (11th Cir. 2005).
III. DISCUSSION
Glover raises three arguments on appeal. First, he argues that the district
court erroneously admitted his incriminating statements because he had not validly
waived his right against self-incrimination. Second, Glover argues that the district
court erred in denying his motion for judgment of acquittal because the evidence
was insufficient to support a guilty verdict. Third, Glover argues that the district
court erroneously enhanced his sentence by classifying his previous conviction as a
crime of violence and by viewing the Guidelines as mandatory. We address each
argument in turn.
A. Motion to Suppress
Glover argues that the district court erroneously admitted his statement to
the federal agents in violation of his Fifth Amendment right against self-
incrimination. U.S. Const. Amend. V; see Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602 (1966). Under Miranda, a police officer must read certain
warnings—including the right to remain silent—to a suspect before subjecting him
to “custodial interrogation.” 384 U.S. at 444-45, 86 S. Ct. at 1612. Evidence
obtained in violation of Miranda is inadmissible at trial. Id.
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The government stipulates that Glover was subject to “custodial
interrogation” but contends that Glover waived his Miranda rights. The
government had to prove by a preponderance of the evidence that the defendant
waived his rights “voluntarily, knowingly, and intelligently.” Colorado v. Spring,
479 U.S. 564, 572-73, 107 S. Ct. 851, 856-57 (1987); Hart v. Attorney General,
323 F.3d 884, 892-93 (11th Cir. 2003). To satisfy this burden, the government had
to prove the defendant had capacity to understand the Miranda warnings. See
Tague v. Louisiana, 444 U.S. 469, 100 S. Ct. 652 (1980) (per curiam); Coleman v.
Singletary, 30 F.3d 1420, 1426-27 (11th Cir. 1994).
Glover concedes that he signed a written waiver but argues that his waiver
was not voluntary, knowing, and intelligent because he lacked the mental capacity
to comprehend the warnings. Glover relies on Durr’s testimony as to his level of
education and his Intelligence Quotient. Durr’s testimony was not corroborated by
an expert evaluation, and her recollection was vague: “his IQ level was like -- I’m
not sure, I believe they said 57, 67.”
Although Durr’s testimony supported Glover’s argument, the government
presented evidence that contradicted Durr’s vague and uncorroborated testimony.
The government presented evidence that Glover interacted normally and
intelligently with the arresting agents and Glover was familiar with the criminal
justice system. Because the district court could credit the proof provided by the
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government, the district court did not clearly err in finding that Glover’s waiver
was knowing, voluntary, and intelligent.
B. Motion for Judgment of Acquittal
Glover argues that the district court erroneously denied his judgment for
acquittal based on insufficiency of the evidence. To obtain a conviction for being a
felon in possession of a firearm, the prosecution must prove beyond a reasonable
doubt that “the defendant was (1) in knowing possession of a firearm, (2) a
convicted felon, and (3) that the firearm affected interstate commerce.” United
States v. Hall, 77 F.3d 398, 402 n.4 (11th Cir. 1996). Glover concedes the second
and third elements and argues that the prosecution failed to provide sufficient
evidence to prove he knowingly possessed the firearm.
Glover’s argument fails. Knowing possession can be demonstrated by proof
of “either actual or constructive” possession. United States v. Sweeting, 933 F.2d
962, 965 (11th Cir. 1991). To establish constructive possession, the government
must show “ownership, dominion, or control” over the firearm. United States v.
Smith, 591 F.2d 1105, 1107 (5th Cir. 1979). Glover admitted to purchasing the
gun, two witnesses testified that the gun belonged to him, and Glover occupied the
bedroom in which the gun was located. Viewing this evidence in the light most
favorable to the government, we conclude that a reasonable jury could find Glover
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had constructive possession of the gun. See id. Because the government met its
burden of proof of constructive possession, we affirm Glover’s conviction.
C. Sentencing
Glover argues that he was sentenced in violation of United States v. Booker,
___ U.S. ___, 125 S. Ct. 738 (2005), because the district court (1) classified his
previous conviction as a “crime of violence” and (2) considered the Guidelines to
be mandatory rather than advisory. We have defined the former issue as one of
“constitutional Booker error” and the latter issue as one of “statutory Booker
error.” See United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir.), reh’g en
banc denied, 406 F.3d 1261, cert. denied, ___ U.S. ___, 125 S. Ct. 2935 (2005).
We address each argument in turn.
1. Constitutional Booker Error
Constitutional Booker error arises when “a sentence is increased because of
an enhancement based on facts found by the judge that were neither admitted by
the defendant nor found by the jury.” Id. (citations omitted). Glover argues that
the district court made a finding of fact that his offense of battery on a law
enforcement officer constitutes a “crime of violence.” We disagree.
Glover’s argument fails for two reasons. First, Booker left undisturbed the
“prior convictions” exception to the rule that a jury must find facts that enhance a
sentence. Booker, ___ U.S. at ___, 125 S. Ct. at 756; see also United States v.
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Camacho-Ibarquen, 404 F.3d 1283, 1290 n.3 (11th Cir. 2005). Second, whether a
previous conviction is a “crime of violence” is a question of law, not of fact, as it
must be determined by interpreting Guidelines section 4B1.2. U.S.S.G. § 4B1.2;
see also United States v. Farris, 77 F.3d 391, 398 (11th Cir. 1996).
Guidelines section 4B1.2 defines “crime of violence” as “any offense under
federal or state law, punishable by imprisonment for a term exceeding one year,
that--(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another . . . .” U.S.S.G. § 4B1.2(a). Under Florida law,
“battery occurs when a person: (1) Actually and intentionally touches or strikes
another person . . . or (2) Intentionally causes bodily harm to another person.” Fla.
Stat. §§ 784.03, 784.07. Because battery on a law enforcement officer is a crime of
violence under Guidelines section 4B1.2, the district court did not err when it
enhanced Glover’s sentence.
2. Statutory Booker Error
Statutory Booker error arises “when the district court misapplies the
Guidelines by considering them as binding as opposed to advisory.” United States
v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). The district court stated
during the sentencing hearing that “notwithstanding Blakely [v. Washington, 524
U.S. 296, 124 S. Ct. 2531 (2004)] and Apprendi [v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348 (2000)], it’s business as usual under the Federal Sentencing
9
Guidelines[.]” Because the district court considered the Guidelines to be
mandatory, it committed statutory Booker error.
Because Glover properly preserved his Booker objection, we review for
harmless error. See United States v. Mejia-Giovani, 416 F.3d 1323, 1326-27 (11th
Cir. 2005) (citing United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir.
2005)). The burden is on the government to show that the statutory error was
harmless, and that burden is to prove “that ‘viewing the proceedings in their
entirety, . . . the error did not affect the sentence, or had but very slight effect. If
one can say with fair assurance that the sentence was not substantially swayed by
the error, the sentence is due to be affirmed even though there was error.’” Id.
(quoting Mathenia, 409 F.3d at 1291).
The argument of the government is twofold and erroneous on both counts.
First, the government argues that “nothing in the record suggests that the district
court would have sentenced Glover differently had it understood the guidelines to
be advisory instead of mandatory,” but that argument is not enough to satisfy the
burden of the government. The government must prove that something in the
record suggests that the district court would have imposed the same or a greater
sentence. See id. Second, the government argues that a sentence in the middle of
the guidelines range establishes that any error was harmless, but that argument fails
10
because the sentence alone tells us nothing about whether the district could would
have imposed a lesser sentence under an advisory guidelines scheme.
Although we recognize that two of our sister circuits have ruled that a mid-
range sentence alone establishes that a statutory error was harmless, see United
States v. Perez-Ramirez, 415 F.3d 876, 878 (8th Cir. 2005); United States v.
Paxton, 422 F.3d 1203, 1207-08 (10th Cir. 2005), we disagree. We have
recognized that “[i]t is as difficult for the government to meet [the harmless error]
standard as it is for a defendant to meet the . . . standard for plain error review,” see
Mejia-Giovani, 416 F.3d at 1327 (quoting Mathenia, 409 F.3d at 1291), and “the
fact that the district court sentenced the defendant to the bottom of the applicable
guidelines range” does not establish plain error, United States v. Fields, 408 F.3d
1356, 1361 (11th Cir. 2005). To announce a rule that a mid-range sentence
establishes harmless error would run counter to these holdings. The government
must do more than rely upon a mid-range sentence to satisfy its burden under the
harmless error standard.
Our holding is also consistent with our precedents regarding statutory
Booker errors that were harmless. See Mejia-Giovani, 416 F.3d at 1327; United
States v. Gallegos-Aguero, 409 F.3d 1274, 1277 (11th Cir. 2005). In Mejia-
Giovani, in addition to noting that the defendant was sentenced in the middle of the
guideline range, we also based our decision on several statements by the district
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court that the sentence might have been harsher had the guidelines been considered
advisory. See 416 F.3d at 1326 (“No judge enjoys . . . departing upward, but I
think that you are . . . frankly at risk of it this morning.” (emphasis added)). In
Gallegos-Aguero, we similarly determined that the district court considered
sentencing the defendant to the “maximum allowable under the statute of
conviction.” 409 F.3d at 1277. Because a mid-range sentence alone is insufficient
to prove harmless error, we conclude that the statutory Booker error was not
harmless.
IV. CONCLUSION
Because the district court did not erroneously find that Glover waived his
Miranda rights and properly denied the motion for judgment of acquittal, we
AFFIRM Glover’s conviction for being a felon in possession of a firearm.
Because the district court committed statutory Booker error by treating the
Guidelines as mandatory, and the government failed to establish that the error was
harmless, we VACATE the sentence and REMAND for resentencing.
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TJOFLAT, Circuit Judge, specially concurring:
I concur in the court’s judgment, but write separately to emphasize why the
Government has not demonstrated that the Booker statutory error in this case is
harmless. If we were fully to take into account the extent to which the pre-Booker
sentencing model (under which Glover was sentenced) differs from the post-
Booker model, we would have to engage in pure guesswork to hold that the
Government has shown harmless error in this case. I described these two
sentencing models, and the extent to which they differ, in dissenting from this
court’s refusal to rehear en banc United States v. Rodriguez. 406 F.3d 1261, 1281
(11th Cir. 2005) (Tjoflat, J., dissenting from the denial of rehearing en banc).
Here is what I said:
It is difficult to overstate the extent to which Booker affects the
federal sentencing framework.
The starting point under both the old model (pre-Booker) and
new model (post-Booker) of federal sentencing is 18 U.S.C. §
3553(a), which states that
[t]he court shall impose a sentence sufficient, but not
greater than necessary, . . . (A) to reflect the seriousness
of the offense, to promote respect for law, and to provide
just punishment for the offense; (B) to afford adequate
deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide
the defendant with needed educational or vocational
training, medical care, or other correctional treatment in
the most effective manner[.]
18 U.S.C. § 3553(a)(2). In other words, the underlying goals of the
statute and the Guidelines are “retribution, general deterrence,
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incapacitation, and rehabilitation.” United States v. Mogel, 956 F.2d
1555, 1558 n.2 (11th Cir.1992). In selecting an appropriate sentence,
the sentencing court must also consider “the nature and circumstances
of the offense and the history and characteristics of the defendant”;
“the kinds of sentences available”; all relevant guidelines and policy
statements issued by the Sentencing Commission; “the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; and the need
to provide restitution to any victims of the offense.” 18 U.S.C. §
3553(a)(1), (3)-(7).
Under the old model, the district court was bound to sentence
the defendant within the applicable guideline range unless it
determined that
an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines . . .
should result in a sentence different from that described.
In determining whether a circumstance was adequately
taken into consideration, the court [could] consider only
the sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission.
18 U.S.C. § 3553(b)(1). Stated differently, the only way the
defendant was going to get a downward departure under the old model
was by showing that his case was not within the “heartland of typical
cases.” Koon v. United States, 518 U.S. 81, 94, 116 S.Ct. 2035, 2044,
135 L.Ed.2d 392 (1996). This was a difficult task. To start with, “the
Sentencing Commission has already considered, and the Sentencing
Guidelines have already factored in, many if not all circumstances that
are arguably relevant to criminal sentencing. . . . The Guidelines are,
as Congress intended them to be, comprehensive . . . .” Kate Stith &
Jose A. Cabranes, Fear of Judging: Sentencing Guidelines in the
Federal Courts 102 (1998). Thus, it was quite unlikely that the
defendant would be able to identify a circumstance that the
Commission had altogether failed to consider. And once the
sentencing court determined that the Commission had taken a
circumstance into account, the defendant could only argue that the
circumstance was present in his case to some atypical degree. This is
because the Commission’s substantive judgment as to the significance
of the circumstance in a heartland case was unassailable.
The comprehensiveness of the Guidelines and the
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invulnerability of the policy judgments on which they rest essentially
rendered any evidence a defendant might present regarding the need
for “adequate deterrence” or the need for “just punishment” irrelevant
under the old model. The reason is simply that although reasonable
minds may differ as to the level of punishment needed to adequately
deter or justly punish a particular offense, once the Commission
announced its views on the subject, it was difficult to argue that any
particular case was atypical or outside the heartland with respect to
these issues. Rather, a party seeking a departure generally accepted
his base offense level as a starting point and then attempted to show
that the case was atypical because it was committed in an unusual
manner or for some unanticipated and unaccounted-for reason
warranted a downward departure.
Because the Guidelines are merely advisory under the new
model, the defendant is no longer limited to arguing that his case is
somehow atypical. Such arguments, of course, remain viable, but
under the new model the defendant can also simply concede that his
case is typical and challenge the wisdom of the Commission’s
judgment regarding the appropriate punishment in heartland cases.
That is, the defendant may simply argue that the applicable guideline
sentence is “greater than necessary” to achieve the purposes of the
Sentencing Reform Act. 18 U.S.C. § 3553(a). “[T]he Guidelines . . .
are the product of policy decisions by the Sentencing Commission . . .
. If those policy decisions are no longer mandatory, the sentencing
judge is free to disagree with them." Booker, 125 S.Ct. at 790 n.3
(Scalia, J., dissenting).
Subject to review for reasonableness, district judges are now
free to apply their “own perceptions of just punishment, deterrence,
and protection of the public even when these differ from the
perceptions of the Commission members who drew up the
Guidelines.” Id. at 790. Although “judges must still consider the
sentencing range contained in the Guidelines, . . . that range is now
nothing more than a suggestion that may or may not be persuasive . . .
when weighed against the numerous other considerations listed in [§
3553(a) ].” Id. at 787 (Stevens, J., dissenting). Indeed, as one district
judge has already observed,
the remedial majority in Booker [ ] direct[s] courts to
consider all of the § 3353(a) factors, many of which the
guidelines either reject or ignore. For example, under §
3553(a)(1) a sentencing court must consider the “history
15
and characteristics of the defendant.” But under the
guidelines, courts are generally forbidden to consider the
defendant’s age, his education and vocational skills, his
mental and emotional condition, his physical condition
including drug or alcohol dependence, his employment
record, his family ties and responsibilities, his
socio-economic status, his civic and military
contributions, and his lack of guidance as a youth. The
guidelines’ prohibition of considering these factors
cannot be squared with the § 3553(a)(1) requirement that
the court evaluate the “history and characteristics” of the
defendant.
United States v. Ranum, 353 F.Supp.2d 984, 986 (E.D.Wis.2005)
(citations omitted). Thus, mitigating circumstances and substantive
policy arguments that were formerly irrelevant in all but the most
unusual cases are now potentially relevant in every case.
United States v. Rodriguez, 406 F.3d 1286 - 89 (footnotes omitted).
As I understand the Government’s position, a sentence in the middle of the
Guidelines sentence range is presumptively harmless. How the Government can
say this—when the district court had absolutely no idea that the model it should
have been using rendered the Guidelines advisory and, moreover, gave it, instead
of the Sentencing Commission, the ultimate responsibility for assessing the “need”
for Glover’s sentences to achieve the sentencing purposes set out in 18 U.S.C. §
3553(a)(2)(A),(B),(C), or (D)—escapes me. Was the district court clairvoyant? Of
course not. This is why the court expressed no view as to the need for Glover’s
sentences to provide just punishment, or to deter the public from committing the
same offenses, or to incapacitate Glover to keep him from committing further
criminal acts. What the court would have done had it understood that the
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Guidelines were merely advisory and that it was “free to disregard them,” as
Justice Scalia expressed it, could not be known without putting the court under
oath and having it guess at what the sentencing hearing may have looked like had
the parties used the post-Booker model. Such speculation would necessarily
involve an imagined debate, possibly with or possibly without the introduction of
empirical evidence, regarding the wisdom of accepting Sentencing Commission
judgment calls made years ago as to the “need” of the sentences in Glover’s case to
achieve the objectives set out in § 3553(a)(2).
Where I come down is this. Except in the rarest of cases—say a case in
which a statutory mandatory minimum sentence controls or highly influences the
court’s decision or the court indicates that it fully understands, pre-Booker, the
post-Booker model—we can do nothing but guess whether the Booker statutory
error is harmless.
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