United States v. Potter

• Decision Date: 11 June 2019
• Docket Number: No. 18-5830,18-5830
• Citation: 927 F.3d 446
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael J.W. POTTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

927 F.3d 446

UNITED STATES of America, Plaintiff-Appellee,

v.Michael J.W. POTTER, Defendant-Appellant.

No. 18-5830

United States Court of Appeals, Sixth Circuit.

Argued: May 2, 2019

Decided and Filed: June 11, 2019

ARGUED: Joseph O. McAfee, MCAFEE & MCAFEE, PLLC, Greeneville, Tennessee, for Appellant. Brian Samuelson, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Joseph O. McAfee, MCAFEE & MCAFEE, PLLC, Greeneville, Tennessee, for Appellant. Brian Samuelson, J. Gregory Bowman, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

Before: MOORE, SUTTON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

An average "dose" of methamphetamine weighs between one-tenth and one-quarter of a gram. And there are 28.3 grams to an ounce. So Michael Potter confessed to peddling a lot of doses of meth when he told police that he had sold some ten pounds. To make matters worse for Potter, he had been convicted of seven prior drug offenses. His prior statements about his drug sales supported his conviction for a different conspiracy to distribute methamphetamine that used similar methods. 21 U.S.C. §§ 841(a)(1), 846. His prior drug offenses supported his mandatory life sentence. 21 U.S.C. § 841(b)(1)(A)(viii) (2012) (amended 2018).

On appeal, Potter challenges his conviction and sentence. As for his conviction, he argues that the police elicited his statements after he invoked his right to an attorney under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and so violated the bright-line rule to stop questioning adopted by Edwards v. Arizona , 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). As for his sentence, he argues that the Eighth Amendment bars his mandatory term of life because the child-focused logic of Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), should expand to cover adults who commit nonviolent offenses. We disagree with Potter on both fronts, reject his remaining arguments, and affirm his conviction and sentence.

I.

In early 2015, Potter struck a deal with an acquaintance, Tammy Goodson, to make money by selling methamphetamine in east Tennessee. Goodson would introduce Potter to Nathan Hogan, a Georgia meth supplier, and Potter would reciprocate by giving her a certain amount of money and meth for each ounce he bought from Hogan. In the first half of 2015, Potter and Goodson twice drove to Georgia to buy between eight and ten ounces of meth from Hogan (or his runner). After Goodson’s arrest, Potter made a third trip during which he bought 20 ounces from Hogan. Upon each return to Tennessee, Potter went about selling the drugs. About this time, for example, Brandin Hyde contacted Potter in search of a new supplier. Potter offered Hyde an eventual price discount to undercut Potter’s "competition" if Hyde brought repeat business his way. Yet Potter and Hyde completed just one transaction.

That is because, on June 26, 2015, police arrested Potter on unrelated charges. That night, he told police he did not want to talk. The next day, he changed his mind. After signing a Miranda waiver, he spoke with Agents Jason Roark and Shannon Russell from the Tennessee Second Judicial District Drug Task Force. During this interrogation, Potter admitted that, starting in August 2014, he had bought about ten pounds of methamphetamine from a different Georgia supplier (not Hogan) and sold it in east Tennessee.

Shortly after his arrest, Potter asked his younger brother, Steven Hilliard, to collect debts from people who owed him. Hilliard recouped funds from several people, including $ 4,700 from a person who owed Potter for meth purchases. At Potter’s urging, Hilliard also contacted Hogan to give him a heads up that Potter had been arrested. That call provided the spark that eventually led Hilliard to take his brother’s place in the distribution scheme. During the second half of 2015, Hilliard traveled to Georgia to buy methamphetamine from Hogan using the money he had collected for Potter. Potter was initially upset upon learning of this arrangement, but the brothers ultimately agreed that Hilliard would reimburse Potter in full and pay Potter a "couple of hundred dollars" for each visit to see Hogan. Hilliard bought a pound or two of meth on each trip.

Potter remained in custody during this time, but renewed his distribution efforts soon after his October 2016 release. He contacted Hogan via Facebook, leading to a four-ounce meth purchase. He later bought eight ounces from Hogan. In February 2017, Hogan had arranged to meet Potter for another exchange, but police arrested Hogan on the day of the deal. Potter still completed the transaction through Hogan’s runner. Their transactions ended shortly thereafter. The United States indicted Potter and twenty-four others—including Hogan, Goodson, and Hilliard—for a conspiracy starting on or around January 2015 to distribute fifty grams or more of methamphetamine.

Before trial, Potter moved to suppress his statements to Agents Roark and Russell. At a suppression hearing, he testified that he had asked for a lawyer many times during the interview, but the agents ignored his requests. Russell disputed this account. He explained that Potter mentioned a lawyer and "may have" asked whether he needed one, but never requested an attorney or sought to stop the interrogation. The magistrate judge found Potter not credible, held that his statements about an attorney did not require the police to end their questioning, and recommended that the district court deny Potter’s motion. The district court adopted this recommendation.

Potter stood trial. Hogan, Goodson, Hilliard, and Hyde, among others, described his drug distribution. Roark and Russell also detailed Potter’s statements to them. The jury convicted Potter of the distribution conspiracy. 21 U.S.C. §§ 841(a)(1), 846. As this was his eighth felony drug conviction, Potter received a mandatory life sentence. 21 U.S.C. § 841(b)(1)(A)(viii) (2012) (amended 2018).

II.

Potter raises four objections. He asserts a constitutional, an evidentiary, and a sufficiency challenge to his conspiracy conviction, and a constitutional challenge to his life sentence.

1. Fifth Amendment Objection . Potter starts off with the Fifth Amendment, which gives an individual the right not to "be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. In Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court safeguarded this right by prescribing judicial rules of the road for officers who interrogate individuals in police custody, including that the individuals have a right to an attorney during the inquiry. Id. at 473–74, 86 S.Ct. 1602. Potter’s argument in this case concerns a second prophylaxis that the Court later adopted in Edwards v. Arizona , 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), to protect the Miranda right to an attorney that protects the Fifth Amendment right against self-incrimination. Edwards held that the police must immediately cease questioning if a suspect invokes the Miranda right. Id. at 484–85, 101 S.Ct. 1880. It thus invalidated a suspect’s waiver of the right because—even if knowingly and voluntarily made—the waiver arose from questioning after a request for a lawyer. Id. at 487, 101 S.Ct. 1880. Courts enforce Edwards ’s "second layer of prophylaxis" through "the threat of suppression," Davis v. United States , 512 U.S. 452, 458, 461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (internal quotation marks omitted), so much depends on whether statements about an attorney trigger Edwards ’s bright-line rule to stop questioning. Here, for example, Potter argues that the district court should have suppressed his statements about his distribution of ten pounds of methamphetamine because, contrary to Edwards , Roark and Russell obtained those statements after Potter had invoked his Miranda right.

We begin with a question about the standard of review. Refusing to credit Potter’s testimony that he had requested a lawyer many times, the magistrate judge (whose report the district court adopted) made several factual findings about what Potter told the agents. The judge then held that Potter’s statements did not suffice to launch Edwards ’s rule. We, of course, review for clear error the district court’s fact findings about Potter’s credibility and what he said to the agents. United States v. Scott , 693 F.3d 715, 718 (6th Cir. 2012). And we, of course, review legal questions de novo. Id. But where does the ultimate issue—whether a suspect’s credited statements sufficiently invoked a right to counsel to trigger Edwards —fall on this law-versus-fact divide?

We view it as a legal question (or at least a mixed question of law and fact) subject to de novo review. Circuit precedent supports that conclusion. See Van Hook v. Anderson , 488 F.3d 411, 415 (6th Cir. 2007) (en banc); see also United States v. Wysinger , 683 F.3d 784, 793 (7th Cir. 2012) ; Soffar v. Cockrell , 300 F.3d 588, 592 (5th Cir. 2002) (en banc); Valdez v. Ward , 219 F.3d 1222, 1232 (10th Cir. 2000). An analogy to the Supreme Court’s precedent does too. In the Fourth Amendment context, the Supreme Court has told lower courts to review de novo the ultimate question whether the historical circumstances (viewed from a reasonable officer’s perspective) created probable cause or reasonable suspicion. Ornelas v. United States , 517 U.S. 690, 696–97, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Its reasoning in that case, we think, covers the ultimate question in this case about whether the historical statements (again viewed from a reasonable officer’s perspective, Davis , 512 U.S. at 458–59, 114 S.Ct. 2350 ) sufficed to trigger Edwards .

On to the merits. The Supreme Court in Davis set a high bar to trigger Edwards . To compel officers to end questioning, a "suspect must unambiguously request counsel." Davis , 512 U.S. at 459, 114 S.Ct. 2350. So ...