U.S. v. McConer

• Decision Date: 27 June 2008
• Docket Number: No. 06-1909.,06-1909.
• Citation: 530 F.3d 484
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arone McCONER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

530 F.3d 484

UNITED STATES of America, Plaintiff-Appellee, v. Arone McCONER, Defendant-Appellant.

No. 06-1909.

United States Court of Appeals, Sixth Circuit.

Argued: June 3, 2008.

Decided and Filed: June 27, 2008.

ARGUED: Todd A. Shanker, Federal Defender Office, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Todd A. Shanker, David C. Tholen, Federal Defender Office, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: ROGERS, COOK, and McKEAGUE, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Arone McConer appeals his criminal conviction and sentence. McConer and a handful of other individuals were present at 4062 Lawrence Street in Detroit, Michigan, when the apartment was raided by police. Narcotics and weapons were found in the apartment, and McConer was charged in state court with possession with intent to deliver both cocaine and marijuana, felon in possession of a firearm, and habitual felony firearm. The State informed him that if he pled guilty as charged, his case would not be referred for federal prosecution. McConer did not plead guilty, however, and the State dismissed its case when a criminal complaint was filed against McConer by the federal government. On this appeal from his federal conviction, McConer argues that the district court misinterpreted its authority to remedy the errors McConer perceived in his state proceedings; that his statements to one of the police officers were introduced in violation of Miranda; that his right to a fair trial was violated by the introduction of prejudicial evidence in violation of the district court's exclusion orders; and that his sentence is procedurally and substantively unreasonable. Because reversal is not warranted by any of McConer's arguments, we affirm his conviction. The district court misstated its sentencing standard, however, and we vacate McConer's sentence and remand for resentencing under the proper standard.

I. Background

On January 19, 2005, nine Detroit police officers executed a search warrant at 4062 Lawrence Street, the upper-level unit in a two-family duplex. Officer Hughes was the first to enter the apartment. As he entered, he saw Kanota Thompson in the living room with his hands up. He also saw the defendant, Arone McConer, running from the southeast bedroom through the living room, into the kitchen, and down the back stairs. McConer ignored Officer Hughes's orders to stop and freeze, and Hughes followed him into the basement. Upon detaining him, Officer Hughes patted McConer down for weapons and found none. Hughes led McConer up to the first floor, where the other officers handcuffed him and eventually returned him to the second-floor apartment where Kanota Thompson was being detained.

Officer Penn, who entered the apartment after Officer Hughes, saw Hughes running toward the kitchen when the officers first entered the apartment. He also saw Brian McConer, Arone's cousin, run from the bathroom into the kitchen and throw cocaine packaged in nine Ziploc bags on the floor as he ran. Officer Penn eventually found Brian under a bed in the first-floor unit and arrested him.

Once the house was secured and all of its occupants were in a central location, Officer Hamilton formally arrested Arone McConer. During a search incident to the arrest, Hamilton found two house keys in McConer's pants pocket. One of the keys fit the front door of the residence, and the other fit the steel grate on the front door.

In searching the upper-level unit, Officer Hughes found 24.32 grams of cocaine base in a dresser drawer in the southeast bedroom from which McConer had fled. The cocaine had not yet been broken down for sale and had a street value of between $6,000 and $12,000. Officer Jarmons recovered 368.56 grams of marijuana from the bedroom, packaged for distribution, along with two digital scales and empty sandwich and Ziploc bags. Jarmons also recovered a loaded .38 caliber revolver handgun from the top of the dresser. Based on the quantity of marijuana, cocaine, and money recovered, Officer Hughes concluded that the house was likely used as "a stash house, or a wait spot, a spot where they're holding large quantities of narcotics used for sales, either broken down there and transported to other places, or actually done out of that location."

Officers Hughes and Jarmons also found paperwork in Arone McConer's name, including receipts, in the bedroom dresser. The documents included letters McConer had mailed to his girlfriend during a previous stint in prison, a traffic ticket addressed to McConer, a court document addressed to McConer, and McConer's prison identification card bearing his picture. Six envelopes listed McConer's address as 461 West Savannah, and the traffic ticket listed his address as 9639 Stahelin. None of the items were addressed to McConer at the searched residence.

Meanwhile, McConer was being detained in the living room. As all of the evidence was being brought to the front room of the apartment, McConer saw the cocaine, the paperwork, and the gun. At some point, McConer signaled to Officer Hughes that he wished to speak with him privately, and Officer Hughes took McConer into the bedroom. Without any prompting or questioning by Officer Hughes, McConer volunteered that he had just gotten out of prison and that he could not be around guns or dope. While the exact phrasing is not clear from the record, Hughes then appears to have asked McConer either where he lived, or if he lived at the searched residence. McConer stated either that he used to live at the residence, or that he does not live there anymore. Although it appears most likely that McConer's statements about his living situation were made in response to Hughes's question, a portion of Hughes's testimony indicates that McConer may have volunteered this information:

THE COURT: Well, I don't know what you are saying. When are you saying he didn't live there?

A: The first interview he said that.

THE COURT: You mean — what are you describing as the first interview?

A: Well, when he came in there and when all the narcotics and the weapon came out of there, even though — and the paperwork. He had paperwork that was brought in there stating that he lived there. He just told me "I just got out of prison, I don't even live here anymore," something like that.

JA 267. After this exchange, Hughes told McConer that "we'll get this all down on paper in a little while" and that he should go back to the living room to relax. Hughes testified that he did not give McConer Miranda warnings during the bedroom conversation and that the exchange lasted less than a minute.

After the search was completed, Officer Hughes interviewed McConer formally in the kitchen. This time, he gave McConer Miranda warnings, and McConer signed a waiver form. Hughes then produced a Detroit Police Department interrogation form, which also contained a statement of constitutional rights. Hughes read the rights to McConer again, and McConer signed the second form. McConer then agreed to give a statement. Hughes testified that while he was writing out the questions that he intended to ask McConer, McConer was panicky and kept asking questions, including "how much time could I get for this," and repeated that he "didn't live here anymore, ... I can't be around any of this stuff, man. You just don't know." Officer Hughes received the following answers to the questions that he had written:

1. Do you understand your constitutional rights? "Yes."

2. How long did you live at this location? "For a few months."

3. How much cocaine was in the bedroom? "I don't even know."

4. How long has the pistol been in the bedroom? "I don't know."

5. Why was all of your IDs & paperwork in the front bedroom? "I left all my paperwork & the [toy] motorcycle here when I left."

JA 33. McConer initialed each answer and signed his name at the bottom of the interrogation form.

Upon leaving the apartment, Officer Smith asked McConer which coat was his, and McConer pointed to a coat hanging on the door of the southeast bedroom. Officer Russell retrieved the coat and gave it to McConer. Earlier during the search, Russell had searched the coat and retrieved $6,278 in cash. Officer Russell testified that the particular cash denominations led him to believe that drug trafficking was occurring.

In January 2005, Arone McConer was charged in Michigan state court with possession with intent to deliver less than 50 grams of cocaine, felon in possession of a firearm, possession with intent to deliver marijuana, and habitual felony firearm. At a "pre-exam" hearing on January 27, the state prosecutor stated that if McConer "were to plead guilty as charged including the habitual this case would not be referred to the federal gun program," referring to Project Safe Neighborhoods, which is "a joint effort between the federal government and ... state authorities to address problems related to gun violence." United States v. Morris, 470 F.3d 596, 598 (6th Cir.2006). The state prosecutor did not offer McConer a plea agreement for a reduced plea or sentence. McConer elected not to plead guilty, and instead to take the matter to a preliminary examination. The state court explained to McConer that state and federal courts share joint jurisdiction in Project Safe Neighborhoods cases, and that sometimes such cases can be referred to and taken by the federal courts. The state judge explained that "[o]bviously, there are greater or more severe penalties in the federal system," but indicated that he agreed with McConer's decision to "roll the dice" on the preliminary exam. The state judge warned, however, that "[u]nderstanding that, the offer as stated would be withdrawn. I don't know if this matter will in fact be referred to the Feds but the option is available to the People." The...