United States v. Anderson, 10–3273.

• Citation: 695 F.3d 390
• Decision Date: 13 September 2012
• Docket Number: No. 10–3273.,10–3273.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ramone ANDERSON, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

695 F.3d 390

UNITED STATES of America, Plaintiff–Appellee,

v.Ramone ANDERSON, Defendant–Appellant.

No. 10–3273.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 6, 2011.

Decided and Filed: Sept. 13, 2012.

ARGUED:Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Segev Phillips, United States Attorney's Office, Columbus, Ohio, for Appellee. ON BRIEF:Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Segev Phillips, United States Attorney's Office, Columbus, Ohio, for Appellee.

Before: CLAY, GIBBONS, and WHITE, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which CLAY, J., joined, and WHITE, J., joined except with respect to Part VII. WHITE, J. (pp. 403–06), delivered a separate concurring opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Ramone Anderson was convicted of unlawful possession of a firearm by a felon who had previously been convicted of at least three prior violent felonies, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He was sentenced to 293 months of imprisonment. Anderson now appeals both his conviction and sentence. For the reasons set forth below, we affirm.

I.

In the early morning hours of October 11, 2007, Anderson was involved in an altercation in and outside of a bar in Cincinnati. The altercation escalated and Anderson discharged a firearm. In response to the shooting, Cincinnati police issued a broadcast for a white sedan with license plates that were registered in Anderson's name, spotted Anderson's vehicle, and pulled him over. However, after the officers commanded Anderson to turn off his vehicle and put his hands in the air, Anderson sped off. The officers immediately pursued him. While fleeing, Anderson lost control of his vehicle, crashed through a fence, and drove down an embankment. Anderson then attempted to flee on foot and the officers pursued him. After a brief chase, Anderson was apprehended. He was read his Miranda rights at the scene. Officers then found a loaded handgun ten feet away from the passenger's side of Anderson's car.

At the police station, Anderson initialed and signed a notification of rights form, stating that he understood his Miranda rights, including his right to remain silent. Anderson then made a recorded statement in which he admitted to possessing the firearm. He also admitted to discharging the firearm, but claimed he had done so in self-defense.

On February 21, 2008, a grand jury returned a single-count indictment against Anderson for being a felon in possession of a firearm who had already been convicted of at least three prior violent felonies, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Anderson proceeded to trial and was convicted on November 5, 2009.

Anderson's Presentence Investigation Report (“PSR”) calculated his final offense level to be 33, noting that under § 4B1.4(a) of the Sentencing Guidelines, a defendant who is subject to the enhanced sentence provisions of 18 U.S.C. § 924(e) is an armed career criminal. The trial judge, in line with the recommendations of the PSR, found that Anderson was an armed career criminal and sentenced him to 293 months' imprisonment plus a term of supervised release.

Anderson now appeals both his conviction and sentence. The district court had subject matter jurisdiction over this federal criminal prosecution pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

Anderson first argues that the district court improperly denied his motion to suppress the statement he made at the police station. When reviewing a trial court's decision on a motion to suppress, we review the trial court's factual findings for clear error and its legal conclusions de novo. United States v. Howard, 621 F.3d 433, 450 (6th Cir.2010). Factual findings are viewed in the light most favorable to the prevailing party in the district court—here, the government. Id. (citing United States v. Smith, 594 F.3d 530, 535 (6th Cir.2010)).

To be valid, a Miranda waiver must be both knowing and voluntary. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). In other words, the waiver must be both “the product of a free and deliberate choice rather than intimidation, coercion, or deception” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. “The relevant question is not whether the ‘criminal suspect knew and understood every possible consequence of a waiver of the Fifth Amendment privilege,’ but rather whether the ‘suspect knew that he could choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time.’ ” Garner v. Mitchell, 557 F.3d 257, 261 (6th Cir.2009) ( en banc ) (quoting Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987)) (internal alterations omitted). This court looks to the “conduct, speech, and appearance” of the accused “during, and leading up to, the interrogation” to determine whether a Miranda waiver was knowing and voluntary. Id. at 265.

Police officers advised Anderson of his Miranda rights twice, once at the scene of the arrest and again at the police station. At the station, Anderson initialed a “Notification of Rights” form after each right he agreed to waive, and then signed the bottom of the form. Despite this express waiver, Anderson argues that his mental and physical condition at the time of his arrest prevented him from making a voluntary waiver. Anderson concedes that low intelligence alone does not render a Miranda waiver invalid, Garner, 557 F.3d at 264–65, but argues, that when coupled with an injury to his head, his waiver was neither knowing nor voluntary.

The facts in the record do not support Anderson's claim. At trial, the arresting officer testified that Anderson “was out of breath. He had a scratch on his face. But other than that, he was coherent.” The officer who interviewed Anderson drew a similar conclusion, stating that Anderson appeared to understand his rights and that he did not appear traumatized or incoherent. The officers did state that Anderson had a swollen bump on his head. But when Anderson was asked if he needed medical treatment upon entering the police station, he responded that he did not. Further, while giving his statement, Anderson did not complain of his head injury, did not ask for medical treatment, and did not give any indication that his injury was affecting his ability to understand. Anderson's apparent comprehension of the events transpiring around him, as well as his refusal to seek medical treatment, convinces us that the trial court did not err in concluding that his “conduct, speech, and appearance at the time of interrogation indicated that his waiver was knowing and intelligent.” See Garner, 557 F.3d at 265.

III.

Anderson next asserts that the district court erred in ordering a competency evaluation to determine whether he was fit to stand trial. “We review, under an abuse of discretion standard, a district court's determination whether there is ‘reasonable cause’ to believe that a defendant is incompetent, and thus whether to hold a competency hearing.” United States v. Jones, 495 F.3d 274, 277 (6th Cir.2007).

There is no indication that the trial judge abused his discretion in ordering a competency hearing. The trial judge was presented with an unopposed motion filed by Anderson's counsel which stated that Anderson had reported “a history of mental illness and/or defects of the mind.” ¹ At the hearing on the motion to determine competency, counsel for Anderson repeated that Anderson had told him of his history of mental health issues. The trial judge's decision to grant the motion for a competency determination was ultimately precautionary, in order to protect the interests of Anderson. Further, the only effect of conducting a competency evaluation was to delay the start of his trial; it had absolutely no effect on either his conviction or sentence. Therefore, the trial judge did not abuse his discretion by ordering a competency evaluation.

IV.

Anderson further contends that his waiver of his right to testify was not voluntary. Anderson did not raise this issue in the district court; thus, we review for plain error. United States v. Williams, 612 F.3d 500, 514 (6th Cir.2010). To establish plain error, Anderson must show (1) an error (2) that is plain (3) that affects his substantial rights and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Hunter, 558 F.3d 495, 501 (6th Cir.2009).

A criminal defendant has a constitutional right to testify and any waiver of this right must be knowing and voluntary. Goff v. Bagley, 601 F.3d 445, 471 (6th Cir.2010). However, “ ‘[b]arring any statements or actions from the defendant indicating disagreement with counsel or the desire to testify, the trial court is neither required to sua sponte address a silent defendant and inquire whether the defendant knowingly and intentionally waived the right to testify, nor ensure that the defendant has waived the right on the record.’ ” Id. (quoting United States v. Webber, 208 F.3d 545, 550–51 (6th Cir.2000)). Because Anderson did not manifest disagreement with his counsel regarding the decision not to testify, the district court had no affirmative duty to engage Anderson on the subject.

Although the trial judge was not obligated to address Anderson regarding his decision, he did so anyway. After Anderson's counsel told the judge that he had informed Anderson of his right to testify and that together they had decided that Anderson would not testify, the trial judge nonetheless engaged Anderson to confirm that decision. The trial judge told Anderson, “All right. Well, you certainly have...