438 F.3d 437 (4th Cir. 2006), 04-5020, United States v. Nichols

Docket Nº:04-5020, 04-5021.
Citation:438 F.3d 437
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. James David NICHOLS, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. James David Nichols, Defendant-Appellant.
Case Date:February 28, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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438 F.3d 437 (4th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellant,

v.

James David NICHOLS, Defendant-Appellee.

United States of America, Plaintiff-Appellee,

v.

James David Nichols, Defendant-Appellant.

Nos. 04-5020, 04-5021.

United States Court of Appeals, Fourth Circuit.

February 28, 2006.

Argued Oct. 28, 2005.

Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. CR-03-54-MU.

COUNSEL

ARGUED:

Matthew Theodore Martens, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellant/Cross-Appellee.

Randolph Marshall Lee, Charlotte, North Carolina, for Appellee/Cross-Appellant.

ON BRIEF: Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellant/Cross-Appellee.

Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit Judges.

OPINION

WILKINS, Chief Judge:

The United States appeals James David Nichols'sentence for bank robbery, see 18 U.S.C.A. § 2113(a) (West 2000), arguing

Page 438

that the district court improperly refused to consider at sentencing a statement obtained from Nichols in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981). Because the Fifth Amendment does not prohibit the district court from considering this statement at sentencing, we vacate Nichols' sentence and remand for resentencing.1

I.

On March 13, 2003, Nichols entered a branch of First Citizens Bank in Charlotte, North Carolina, and handed a bank teller a note stating, "This is A Robbery Give up the money or I shoot." J.A. 355. The teller gave Nichols approximately $5,000. Shortly after the bank robbery, Nichols' father telephoned authorities to report that his son may have committed the robbery. A few days later, Detective James Michael Sanders of the Charlotte-Mecklenburg Police Department telephoned Nichols, who was then with his father, to arrange for Nichols to surrender to police. According to Nichols and his father, during this conversation Nichols informed Detective Sanders that he wanted an attorney, and Sanders assured Nichols he would receive one. Nichols and his father then met Detective Sanders at an agreed-upon location, and Nichols voluntarily returned what was left of the money obtained in the bank robbery. According to Nichols and his father, Nichols again informed Detective Sanders that he wanted an attorney, and Sanders again responded that Nichols would receive one.

Nichols was then taken into custody and transported to the police station. Although Nichols did not initiate further contact with police, Detective Sanders took Nichols to an interview room and reviewed with him an "Adult Waiver of Rights" form, id. at 94, which Nichols initialed in several places and signed at the bottom. In particular, Nichols initialed statements acknowledging that he had the rights to consult with an attorney, to have an attorney present during questioning, and to stop answering questions until he spoke with an attorney. Nichols also circled, initialed, and signed a portion of the form indicating that he voluntarily agreed to answer questions without an attorney present. Detective Sanders then interviewed Nichols, who confessed to robbing the bank and to carrying a .45-caliber pistol in his pants pocket during the robbery.

Nichols was indicted by a federal grand jury on charges of bank robbery, see 18 U.S.C.A. § 2113(a); armed bank robbery, see 18 U.S.C.A. § 2113(d) (West 2000); and using or carrying a firearm during and in relation to a crime of violence, see 18 U.S.C.A. § 924(c)(1)(A) (West Supp. 2005). Nichols moved to suppress his confession — specifically, his admission to carrying a firearm during the robbery. He claimed that before he made any statements to police, he had requested an attorney and had been assured — despite his signing of the "Adult Waiver of Rights" form — that counsel would be made available to him. Thus, Nichols argued that the statements he gave in response to

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police questioning after he requested counsel were inadmissible. See Edwards, 451 U.S. at 484-85; Miranda, 384 U.S. at 474-76.

A magistrate judge conducted a hearing on Nichols' suppression motion. Nichols and his father testified (as described above) that Nichols twice requested counsel before his confession. Detective Sanders, however, testified that Nichols never requested an attorney prior to questioning. Noting that the resolution of Nichols' motion "comes down to a single factual question: namely, whether [Nichols] asked for an attorney before he was interrogated," J.A. 76, the magistrate judge found that the testimony of Nichols and his father "credibly establishes that an attorney was requested not once but twice," id. at 80. Because Nichols did not initiate the further communications with police after requesting an attorney, the magistrate judge recommended that Nichols' confession be suppressed.

The Government filed objections to the magistrate judge's recommended decision, arguing primarily that Nichols had not, in fact, requested counsel before police questioned him. Following a hearing, the district court adopted the findings and conclusions of the magistrate judge, including the finding that Nichols twice requested an attorney. The district court therefore granted Nichols' motion to suppress. Due to the suppression of Nichols' statement that he carried a firearm during the robbery — the only direct evidence that a firearm was present — the Government dismissed the armed bank robbery and firearm charges.

Nichols pleaded guilty to the bank robbery charge. In the presentence report (PSR), the probation officer did not recommend an enhancement for possession of a firearm during the robbery, see U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(C) (2004). The Government objected to this omission, arguing that Nichols had admitted to possessing a firearm during the robbery and that this statement, though suppressed for purposes of conviction, could be considered at sentencing. The probation officer rejected the Government's argument, stating that because "one of [Nichols'] fundamental rights under the United States Constitution was violated in securing this statement," enhancing Nichols' sentence based on that statement "would only compound the violation." J.A. 375. At sentencing, the district court adopted the probation officer's recommendation not to apply a firearm enhancement. The district court sentenced Nichols to 46 months imprisonment.

II.

The Government contends that the district court erroneously excluded from consideration at sentencing Nichols' statement that he possessed a firearm during the robbery. The Government argues that although this statement is inadmissible for purposes of conviction, there is no constitutional impediment to considering the statement in determining Nichols' sentence. We review this legal issue de novo. See United States v. Acosta, 303 F.3d 78, 84 (1st Cir. 2002).

District courts traditionally have been "given wide...

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