United States v. Cano , 311 F. App'x 665 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4248
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID CANO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00013)
Submitted: January 23, 2009 Decided: February 18, 2009
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Cano was convicted of possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g) (2006).
He was sentenced to sixty-three months’ imprisonment. Cano now
appeals. His attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that the district
court erred in denying Cano’s motion to suppress, but
acknowledging that there are no meritorious issues for appeal.
Cano has been apprised of his right to file a pro se brief, but
has not done so. We affirm.
In the Anders brief, counsel argues that the district
court improperly denied Cano’s motion to suppress in violation
of his Fourth and Fifth Amendment rights. Specifically, he
claims violation of Cano’s Fourth Amendment rights when police
entered his residence without a warrant and discovered a shotgun
and firearm shells. He also claims violation of his Fifth
Amendment rights relative to incriminating statements he made to
the police relative to the shotgun, on the ground that he
received inadequate warnings under Miranda v. Arizona, 384 U.S.
436 (1966). When considering a district court’s ruling on a
motion to suppress, we review the court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Cain, 524 F.3d 477, 481 (4th Cir. 2008).
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Here, the district court found that Cano repeatedly
and voluntarily consented to the search of his residence, during
which the shotgun and shells were discovered by officers in
plain view. The court’s findings on this issue are fully
supported by the testimony of the various officers at the scene,
and there is no evidence to the contrary. In addition, although
Cano was on house arrest and under electronic monitoring on an
unrelated offense when he made the incriminating statements
between the time the shotgun was found and the time he was
advised of his Miranda rights, the district court determined
that he was not “in custody” for Miranda purposes. We find no
infirmity in the district court’s legal conclusion. Such
circumstantial restraints upon a person’s liberty are not
tantamount to police-imposed restraints. See United States v.
Jamison, 509 F.3d 623, 633 (4th Cir. 2007); see also United
States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985).
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we affirm Cano’s
conviction and sentence. This court requires that counsel
inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
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this court for leave to withdraw from representation. Counsel’s
motion must state that a copy of the motion was served on the
client. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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