United States v. Leonte Mack, 4th Cir. (2011)
Uploaded by
Scribd Government DocsUnited States v. Leonte Mack, 4th Cir. (2011)
Uploaded by
Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4432
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
LEONTE MACK,
Defendant Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Peter J. Messitte, Senior District
Judge. (8:09-cr-00247-PJM-1)
Submitted:
July 11, 2011
Before KING and
Circuit Judge.
DAVIS,
Decided:
Circuit
Judges,
and
August 11, 2011
Hamilton,
Senior
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant.
Rod J. Rosenstein, United States
Attorney, William D. Moomau, Adam K. Ake, Assistant United
States Attorneys, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonte Demetrius Mack appeals his 300-month sentence
following
firearm
his
by
conviction
922(g)(1)
convicted
(2006)
of
two
felon,
(Counts
counts
in
One
of
possession
violation
and
Four);
of
18
one
of
U.S.C.
count
of
possession with intent to distribute cocaine base, in violation
of 21 U.S.C. 841(a)(1) (2006) (Count Two); and one count of
possession of a firearm in furtherance of a drug trafficking
crime,
in
violation
of
18
U.S.C.
924(c)
(2006)
(Count
Three).
The convictions stemmed from an investigation of a
shooting.
On appeal, Mack claims that the district court erred
in denying his motions to suppress an eyewitness identification
and statements he made during custodial interrogation, and that
the district court imposed an unreasonable sentence.
Finding no
reversible error, we affirm.
Mack first challenges the district courts admission
of an out-of-court eyewitness identification in a photo array
and the related in-court identification.
district
courts
admission
of
an
We review de novo a
eyewitness
identification.
United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007).
Due process principles prohibit the admission at trial of an
out-of-court
identification
obtained
through
procedures
so
impermissibly suggestive as to give rise to a very substantial
likelihood
of
irreparable
misidentification.
2
Id.
(quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)).
No due
process violation occurs if the identification was sufficiently
reliable
to
preclude
misidentification.
the
substantial
likelihood
of
United States v. Johnson, 114 F.3d 435, 442
(4th Cir. 1997).
The defendant bears the initial burden of production
in
challenging
identification.
the
admissibility
See id. at 441.
of
an
out-of-court
First, the defendant must show
that the identification procedure was impermissibly suggestive.
Saunders, 501 F.3d at 389.
If the defendant is successful, the
Court must then consider any evidence adduced by the Government
as to whether the identification was nevertheless reliable in
the context of all of the circumstances.
Id. at 389-90.
If a
witnesss out-of-court photo identification is unreliable and,
therefore, inadmissible, any in-court identification lacking an
independent source is also inadmissible.
Simmons, 390 U.S. at
383-84; cf. Coleman v. Alabama, 399 U.S. 1 (1970); United States
v. Wade, 388 U.S. 218, 241 (1968).
On appeal, we may uphold a district courts denial of
a motion to suppress an out-of-court identification if we find
the
identification
identification
reliable,
procedure
was
without
unduly
determining
suggestive.
Legursky, 16 F.3d 57, 61 (4th Cir. 1994).
reliability
of
an
out-of-court
3
whether
Holdren
the
v.
In assessing the
identification,
we
examine
(1) the witnesss opportunity to view the suspect at
the time of the crime; (2) the witnesss degree of
attention at the time; (3) the accuracy of the
witnesss initial description of the suspect; (4) the
witnesss
level
of
certainty
in
making
the
identification; and (5) the length of time between the
crime and the identification.
Saunders, 501 F.3d at 391.
Even
impermissibly
district
assuming
suggestive
court
did
not
that
as
err
the
photo
Mack
contends,
in
permitting
identification
we
hold
the
that
testimony
was
the
as
reliable.
The eyewitness had a good opportunity to view the
shooter at
close
photo
array
shooting.
with
range
and
confidence
selected
less
Macks
than
picture
seven
hours
from
the
after
the
Mack argues that the eyewitnesss identification was
unreliable
because
inadequate.
To
the
the
witnesss
contrary,
we
description
conclude
that
of
him
was
the
district
court correctly determined that, though sparse, the eyewitnesss
description was accurate.
Accordingly, because the five factors
weigh in favor of reliability, we hold that the district court
did not err in admitting the identification testimony.
Mack
next
claims
that
the
district
court
erred
in
admitting the statements he made during custodial interrogation.
We review the factual findings underlying a denial of a motion
to suppress for clear error and the legal conclusions de novo.
United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009), cert.
denied, 130 S. Ct. 1104 (2010).
4
Statements obtained from a
defendant during custodial interrogation are admissible only if
the Government shows that law enforcement officers adequately
informed the defendant of his rights under Miranda v. Arizona,
384 U.S. 436 (1966), and obtained a waiver of those rights.
United States v. Cardwell, 433 F.3d 378, 389 (4th Cir. 2005).
waiver
is
only
valid
if
knowingly and voluntarily.
waiver
by
examining
the
the
defendant
Id.
This Court assesses a Miranda
totality
of
waives
the
his
rights
circumstances
to
determine (1) whether the defendant had full awareness of both
the nature of the right being abandoned and the consequences of
the decision to abandon it; and (2) whether the defendants
statement was the product of a free and deliberate choice [or
the
result
of]
intimidation
coercion,
or
deception.
Id.
(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).
During the interrogation, Mack told the interviewing
officer
that
interrogation
Jesus
told
ceased.
Mack
him
to
stop
contends
talking
that
this
and
the
circumstance
suggests that he did not have full awareness of the rights he
was abandoning.
We hold that the district court did not err in
rejecting this contention. The district court properly credited
the
officers
initials
and
testimony
signature
and
on
weighed
the
the
waiver
presence
form
in
of
Macks
finding
the
evidence insufficient to show that Mack lacked the capacity to
understand the waiver.
Mack did not present any other evidence
5
of his alleged incompetency in the district court, and he does
not claim that his waiver was coerced.
that
the
district
court
did
not
Accordingly, we conclude
err
in
finding
that
Mack
knowingly and voluntarily waived his Miranda rights. *
Finally, Mack contends that the district court imposed
an
unreasonable
sentence.
Because
Mack
did
not
request
specific sentence other than the one ultimately imposed, his
claim is reviewed for plain error.
See United States v. Lynn,
592 F.3d 572, 578-79 (4th Cir. 2010).
We begin by reviewing the
sentence for significant procedural error, including such errors
as
failing
to
calculate
(or
improperly
calculating)
the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence including an explanation for any deviation from
the Guidelines.
Gall v. United States, 552 U.S. 38, 51 (2007).
Mack also argues, without support, that the statements
should have been suppressed because the interrogating officer
failed to adequately document them. We hold that documentation
of the interrogation is relevant only to the officers
credibility,
not
the
voluntariness
of
Macks
statements.
Further,
because
the
officer
prepared
notes
immediately
following the interrogation and Mack did not present any
evidence showing that the officers testimony was incredible,
the district court did not clearly err in admitting the
statements.
See United States v. Murray, 65 F.3d 1161, 1169
(4th
Cir.
1995)
(noting
that
we
review
credibility
determinations at hearings on pre-trial motions to suppress for
clear error, according deference to the district court).
When rendering a sentence, the district court must make an
individualized
United
assessment
States
v.
Carter,
based
564
F.3d
(quoting Gall, 552 U.S. at 50).
must
apply
the
relevant
on
the
325,
facts
328
presented.
(4th
Cir.
2009)
Accordingly, a sentencing court
3553(a)
factors
to
the
particular
facts presented and must state in open court the particular
reasons that support its chosen sentence, showing that it has a
reasoned basis for its decision and has considered the parties
arguments.
Id.
sentencing
court
need
not,
however,
robotically tick through otherwise irrelevant subsections of
3553(a).
See United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006).
If there are no procedural errors, we then consider
the
substantive
reasonableness
of
the
sentence,
taking
into
account the totality of the circumstances.
United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
If the district
court decides to impose a sentence outside the Guidelines range,
it must ensure that its justification supports the degree of the
variance.
2008).
Guidelines
United States v. Evans, 526 F.3d 155, 161 (4th Cir.
While
range
we
is
may
presume
reasonable,
that
we
a
may
sentence
not
within
presume
sentence outside the Guidelines range is unreasonable.
552 U.S. at 51.
the
that
Gall,
Mack claims that his sentence was unreasonable because
the district court failed to adequately analyze the 3553(a)
factors in support of its above-Guidelines sentence.
belies
Macks
contention,
however,
as
the
The record
district
court
explicitly discussed several of the 3553(a) factors and their
application to Mack.
Mack argues that his 300-month sentence
runs contrary to the courts rejection of the career offender
Guidelines.
In fact, Macks sentence remains sixty months below
the low end of the applicable career offender Guidelines range.
The
court
also
insufficient
to
stated
reflect
that
the
it
believed
seriousness
adequately protect the public.
of
the
the
Guidelines
offense
and
In light of the courts careful
discussion of its reasons for the upward variance, the district
court did not abuse its discretion in sentencing Mack to an
above-Guidelines sentence.
For
the
foregoing
courts judgment.
facts
and
legal
reasons,
we
affirm
the
district
We dispense with oral argument because the
contentions
are
adequately
presented
in
the
materials before this court and argument would not aid in the
decisional process.
AFFIRMED
