United States v. Howard, 012407 FED6, 03-6446

Docket Nº:03-6446
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONNIE LEE HOWARD, Defendant-Appellant.
Case Date:January 24, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

RONNIE LEE HOWARD, Defendant-Appellant.

No. 03-6446

United States Court of Appeals, Sixth Circuit

January 24, 2007

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

BEFORE: BATCHELDER and MOORE, Circuit Judges; and COHN, District Judge.[*]

AVERN COHN, District Judge.

This is a criminal case. Defendant-Appellant Ronnie Lee Howard appeals from his conviction for felon in possession of a firearm and felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1) and § 924(e)(1) and his 293 month sentence. Defendant, through counsel,1 raises several issues on appeal and defendant raises two issues pro se. The issues encompass evidentiary issues, trial procedure issues, and sentencing and appellate issues. For the reasons that follow, defendant's conviction is AFFIRMED and the case is REMANDED for resentencing.

I. BACKGROUND

On September 5, 2001, a Kentucky State Police trooper received a call from Larry Brock, an agent with the United States Bureau of Alcohol, Tobacco, and Firearms (ATF), who stated that he had received information from a confidential informant (CI) that defendant, a convicted felon, was shooting a gun in his backyard. The trooper responded to the call with another trooper. The two went to defendant's residence. Defendant was not home. The troopers asked defendant's wife, Lila Howard, if there was a gun in the house. She responded that there was not, and gave the troopers permission to search the residence. The trooper's search found a Marlin Glenfield .22 rifle located in a bedroom closet. Lila Howard subsequently told the troopers that she, Howard, and another person had previously shot the rifle in the backyard of the residence.

The police then obtained a search warrant and returned to the Howard's residence on September 14, 2001. AFT Agent Brock took part in the search. On this occasion, the officers located a partial box of .22 caliber ammunition, two rounds of Winchester .380 caliber ammunition, and a Remington .12 gauge shotgun shell. During the execution of the search warrant, the officers again spoke with Lila Howard, who repeated that it was she; Howard, and another person who shot the guns confiscated from the home.

Defendant was also interviewed during the search by Agent Brock. Although the initial interview was not recorded, a subsequent statement from defendant was recorded. Agent Brock testified that during the initial interview, defendant denied having shot the .22 caliber rifle, but admitted to firing a New England 12-gauge shotgun. In defendant's subsequent recorded statement, however, he wavered on whether he actually fired the shotgun and, at some point, stated that he was confused.

On December 6, 2001, Agent Brock attempted to serve defendant with a grand jury subpoena to fingerprint and photograph him while he was incarcerated on state charges. Defendant had not been charged with any federal crimes at the time. When Agent Brock explained that he was there to serve a subpoena, defendant said "All that stuff was mine." Agent Brock then asked defendant what he was talking about and asked him if he meant the items found in his home. Defendant responded something to the effect of "whatever you have charged me with." Agent Brock explained that defendant had not been charged and that if defendant wanted to discuss anything further, he would be advised of his rights. Defendant declined to say anything further.

A grand jury indicted defendant and Lila Howard for being felons in possession of a firearm and ammunition. Lila Howard pled guilty and agreed to testify against defendant. Before trial, defendant moved to suppress the rifle and ammunition as illegally seized. He also challenged the admissibility of his confession. All of his motions were denied. During voir dire, defendant moved for a mistrial due to a potential juror's comments. The motion was denied. Defendant was convicted as charged. A motion for acquittal was also denied.

At sentencing, defendant was classified as an armed career offender, which raised his offense level to 33. Combined with a criminal history category of VI, the resulting guideline sentence was 235 to 293 months. The district court sentenced defendant to the top of the range, over defendant's numerous objections.

Defendant appeals.

II. ANALYSIS

The government has organized the several issues on appeal in the following categories: (1) evidentiary issues, (2) trial procedure issues, and (3) sentencing and appellate issues. We address the issues in the order presented by the government.

A. Evidentiary Issues

1. Motion to Suppress

Defendant argues that the district court should have granted the motion to suppress the ammunition because the warrant for the September 14, 2001, search was not supported by a sufficient affidavit. Defendant says that the affidavit contains no information regarding the confidential informant's reliability and the information was not corroborated. In his pro se brief, defendant argues that the district court should have granted the motion to suppress the rifle because his wife, Lila Howard, was under the influence of drugs and could not voluntarily consent to the search on September 5, 2001.

The district court's ruling on the motion to suppress is subject to a two-part review. We review a district court's factual findings under the clearly erroneous standard of review and its legal conclusions de novo. United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). We also view the evidence in the light most favorable to the government. United States v. Harris, 255 F.3d 288, 291 (6th Cir. 2001).

We first address the warrantless search of the Howard residence on September 5, 2001 which yielded the .22 caliber rifle. Defendant argues that the search was invalid because Lila Howard was intoxicated at the time and was therefore unable to give consent. Although it is not clear that defendant raised this argument in his motion to suppress, the issue was presented to the district court during the hearing on the motion. In denying the motion, the district court noted that the government presented witnesses who testified as to Lila Howard's consent and defendant had an opportunity to cross-examine these witnesses. After hearing all of the testimony, the district court held that "Lila Howard consented to the September 5, 2001 search, and therefore evidence found during the search on that date would not be suppressed." JA at p. 53-54. Moreover, the government has not argued that this issue was waived. Thus, we will address the issue.

The Fourth Amendment states that "no warrants shall issue but upon probable cause, supported by oath or affirmation ••••" U.S. Const. amend. IV. "It is well-settled that a person may waive his [or her] Fourth Amendment rights by consenting to a search. Consent to a search may be in the form of words, gesture, or conduct. In whatever form, consent has effect only if it is given freely and voluntarily." United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc) (citations and internal quotation marks omitted). Valid consent must "be determined from the totality of all the circumstances." Id.

The defendant asserts that Lila Howard was under the influence of drugs at the time of the search. However, there is no evidence in the record to support the assertion. Here, the district court evaluated the witnesses' testimony and determined that Lila Howard had given consent. The district court "is given wide latitude to assess the credibility of witnesses." United States v. Haynes, 301 F.3d 669, 679-80 (6th Cir. 2002) (citation omitted). We find no basis to conclude that Lila Howard's consent was involuntary. As such, the district court did not err in declining to suppress the .22 caliber rifle.

We also note that, despite defendant's argument to the contrary, the United States Supreme Court's decision in Georgia v. Randolph, 126 S.Ct. 1515 (2006), does not apply. In Randolph, the Supreme Court held that a warrantless search of a residence, which was conducted on the basis of the defendant's wife's consent, was invalid as to the defendant who was physically present at the time of the search and expressly refused to consent. Here, there is no evidence that defendant was present at the time of the search or that he refused to consent. Randolph does not require that the police specifically determine whether defendant was present in the home before conducting the search after they obtained Lila Howard's consent.

Next, as to defendant's argument regarding the sufficiency of the affidavit in support of the search warrant, in order to demonstrate probable cause to support issuance of a search warrant, the affidavit must contain facts that indicate "a fair probability that evidence of a crime will be located on the...

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