United States v. Collins

• Decision Date: 12 June 2012
• Docket Number: No. 10–6454.,10–6454.
• Citation: 683 F.3d 697
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael Anthony COLLINS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

683 F.3d 697

UNITED STATES of America, Plaintiff–Appellee,

v.Michael Anthony COLLINS, Defendant–Appellant.

No. 10–6454.

United States Court of Appeals,Sixth Circuit.

Argued: March 2, 2012.

Decided and Filed: June 12, 2012.

ARGUED:William Joshua Morrow, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. James Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee. ON BRIEF:William Joshua Morrow, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. James Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.

Before: MARTIN and McKEAGUE, Circuit Judges; CALDWELL, District Judge.^*

OPINION

CALDWELL, District Judge.

Defendant–Appellant Michael Anthony Collins pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He appeals the district court's denial of his motion to suppress the gun and certain statements he made indicating the gun was his. He also appeals the district court's decision that the government did not act arbitrarily or unconstitutionally when it failed to move for the additional one-level reduction in offense level for acceptance of responsibility provided in § 3E1.1(b) of the United States Sentencing Guidelines Manual. For the following reasons, we AFFIRM the district court's judgment.

I. Background

Collins was a passenger in a Jeep that was pulled over for speeding in the early morning hours of November 30, 2008. The police officers performing the traffic stop ultimately searched the car and found a gun. In its opinion on Collins' motion to suppress, the district court found the following facts, none of which has been disputed by the parties:

At approximately 2:30 A.M. on November 30, 2008, Officer [Shaun] Gary, a patrolman with the Jackson, Tennessee Police Department, was “running stationaryradar” in his patrol car on Highland Avenue in Jackson—meaning that he was using his radar gun inside of his parked police cruiser. The Jeep Cherokee in which the Defendant was a passenger passed Officer Gary, at which time he clocked the vehicle traveling fifty-five miles per hour in a forty-miles-per-hour zone. He initiated a traffic stop, and [Orlando] Whisnant—the driver of the Jeep—pulled over on a nearby side street. Neither Whisnant nor the Defendant owned the Jeep, which belonged to a mutual friend—Robert Smith—but they had borrowed it with Smith's permission.

After pulling the Jeep over and making contact with the occupants, Gary returned to his police cruiser with Whisnant's driver's license and Collins's personal information. He was able to determine that there were no outstanding warrants on either individual, and that Whisnant's driver's license was valid. Because Whisnant admitted that he had been drinking earlier in the evening, the officer asked him to perform a field sobriety test, which Whisnant passed satisfactorily. Gary then issued him a citation for speeding. Throughout the course of these events, as many as four additional officers arrived on the scene to assist Gary. One of these officers, Officer [Antonio] Rhodes, identified Whisnant as someone who had a history of drug possession. Rhodes positioned himself at the rear of the passenger side of the Jeep while Gary conducted the field sobriety test on Whisnant, and from that vantage point, Rhodes observed that the Defendant made “a furtive gesture reaching down toward the floorboard as if he was trying to retrieve something or conceal something.”

Whisnant accompanied Gary to his police car where the officer explained the citation to him. He then asked Whisnant for consent to search the Jeep, whereupon the latter replied that because the vehicle did not belong to him, he was not sure he could agree to the request. Gary assured him that because he was the driver, he had the right to consent, and as such, Whisnant responded, “Well, I guess you can search. There's nothing to hide.” After both Whisnant and Collins exited the Jeep, the officers searched it. During the search, Rhodes discovered a loaded .22 caliber handgun under the front passenger seat in the area where he previously had seen Collins gesturing. The officers then placed both men in custody and asked them to whom the handgun belonged. Both men replied that they “didn't know anything about it,” to which Gary responded that he would have to take them both into custody and charge them with possession of the firearm. At that point, Collins said, “I'll take the charge,” and he was retained in custody while Whisnant was allowed to leave. (Id.) The entire detention, from Gary's initiation of the traffic stop to his transportation of Collins to the police station, lasted approximately forty-nine minutes.

Around 6 P.M. on November 30, 2008, Investigator Phillip Kemper of the Jackson Police Department interviewed the Defendant in the Madison County Jail. After Kemper read Collins his Miranda rights, the Defendant signed a waiver thereof. Kemper then wrote down the statement given by Collins, in which he admitted that the gun was his, and that he had bought it for protection. Collins then signed the statement, which Kemper also signed as a witness.

(R. 48, Opinion at 1–3) (record citations and footnote omitted).

Collins was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He moved to suppress the gun, the statement he made to Officer Gary at the scene of the traffic stop that he would “take the charge,” and the written statement he signed after his interview with Investigator Kemper at the jail. After conducting an evidentiary hearing, the district court denied the motion to suppress. Collins pleaded guilty to the § 922(g) charge but reserved his right to appeal the district court's denial of the motion to suppress.

Prior to sentencing, the government filed a notice stating that it would not move for the additional one-level decrease in offense level applicable to defendants who demonstrate “acceptance of responsibility” as provided for in § 3E1.1(b) of the United States Sentencing Guidelines Manual. At the sentencing hearing, the district court found that the government's failure to make the § 3E1.1(b) motion was not arbitrary or unconstitutionally motivated. Thus, in calculating the applicable advisory Guidelines range, the district court applied only the two-level decrease for acceptance of responsibility provided for in § 3E1.1(a).

The district court also found that Collins qualified as an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), and U.S.S.G. § 4B1.4(a), meaning that Collins was subject to a minimum sentence of fifteen years. The court determined that Collins' advisory Guidelines range was 151 to 188 months and sentenced him to 184 months' imprisonment. Collins appeals the denial of his motion to suppress and his sentence.

II. Discussion

A. The motion to suppress

In its opinion on the motion to suppress, the district court noted that, while Collins had contested the reasonableness of the detention in his motion to suppress, his counsel conceded that the detention was reasonable at the suppression hearing. Collins agrees that he conceded before the district court that the detention was reasonable. Nevertheless, on appeal, he argues that the detention was unreasonable and that, therefore, the Court should find that Whisnant's consent to search the Jeep was not valid.

By conceding before the district court that the detention was reasonable, Collins has waived any objection to the legality of the detention. “[W]aiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quotation marks and citation omitted). When a defendant raises an argument by motion but then abandons the argument before the district court, the defendant has waived the argument and this Court cannot review that issue even for plain error. United States v. Denkins, 367 F.3d 537, 544 (6th Cir.2004) (“[W]e have held that this sort of abandonment of an issue raised by way of motion waives any right of appeal on that issue.”); United States v. Sheppard, 149 F.3d 458, 461 (6th Cir.1998) (“Sheppard did not forfeit his suppression argument; he waived the argument by withdrawing his motion to suppress prior to trial. Accordingly, we are without jurisdiction to consider the argument.”) (footnote omitted).

Collins argues that the district court erred in finding that Whisnant's consent to search the Jeep was voluntary. Because Whisnant himself testified that he consented to the search and never testified that his consent was coerced or otherwise illegally obtained, the district court did not clearly err in finding that Whisnant's consent to search the Jeep was voluntary.

Whether consent to search is voluntary is a question of fact. United States v. Crowder, 62 F.3d 782, 787 (6th Cir.1995). Thus, a district court's finding of voluntary consent will not be reversed unless it is clearly erroneous. United States v. Calhoun, 49 F.3d 231, 234 (6th Cir.1995). This means the district court's finding of voluntary consent will not be reversed unless this Court has a “definite and firm conviction that a mistake has been committed.” United States v. Worley, 193 F.3d 380, 384 (6th Cir.1999) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

The government had the burden before the district court of proving by “clear and positive testimony” that Whisnant's consent was voluntary. United States v. Beauchamp, 659 F.3d 560, 571 (6th Cir.2011) (quoting United States v. Salvo, 133 F.3d 943, 953 (6th Cir.1998)). Voluntariness is determined by examining the totality of the circumstances, including the individual's age, intelligence, and education; whether the individual understands his right to refuse consent and his constitutional rights; the length and nature of the detention...