United States v. Sanders , 16 F. App'x 203 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4661
JOE FRANKLIN SANDERS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Margaret B. Seymour, District Judge.
(CR-99-768)
Submitted: March 20, 2001
Decided: August 10, 2001
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Clarence Rauch Wise, WISE & TUNSTALL, Greenwood, South Car-
olina, for Appellant. J. Rene Josey, United States Attorney, A. Brad-
ley Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SANDERS
OPINION
PER CURIAM:
Joe Franklin Sanders appeals his conviction of possession of a fire-
arm by a convicted felon, in violation of 18 U.S.C.A. § 922(g) (West
2000), and his sentence as an armed career criminal under 18
U.S.C.A. § 924(e) (West 2000).
Before his federal indictment, Sanders was charged in state court
for crimes related to the incident that led to the federal charges. In
state court, counsel was appointed to represent Sanders. After he was
indicted by a federal grand jury, a local police detective went to Sand-
ers’ residence, took him into custody, and transported him to his
arraignment. The detective, who was aware that Sanders had been
appointed counsel, informed Sanders that he had a warrant for his
arrest on a federal gun violation, informed him of his Miranda rights
and confirmed that Sanders understood those rights. During the trip,
Sanders asked the detective questions about the arraignment process
in federal court and about the type of bond available. The detective
answered his questions, but did not ask Sanders any questions. Sand-
ers then made incriminating statements about the firearm.
At trial, Sanders moved to suppress these statements, arguing that
they were obtained in violation of his Sixth Amendment right to
counsel, and that they were involuntary. The district court found that
Sanders initiated the conversation with the detective and thereby
waived his right to counsel, and that his statements were voluntary,
and denied the motion to suppress.
At sentencing, Sanders argued that he should not be sentenced
under § 924(e) because he had not been convicted of three predicate
crimes, and that, because § 924(e) does not state a maximum punish-
ment, the maximum term of imprisonment is the same as the manda-
tory minimum term stated in the statute, fifteen years, and any
sentence in excess of that would violate Sanders’ due process rights.
The district court disagreed, finding that Sanders’ two convictions for
distribution of marijuana were separate offenses for purposes of trig-
gering the mandatory minimum sentence of § 924(e); and that the
maximum punishment under § 924(e) is life imprisonment. On
UNITED STATES v. SANDERS 3
appeal, Sanders argues that the district court erred in admitting his
statements to the detective, and in its rulings regarding his sentence.
The Supreme Court has repeatedly held that once the right to coun-
sel attaches and is invoked, any waiver of that right that results from
police initiated questioning will be invalid and any statements
obtained in that questioning must be suppressed. Michigan v. Jackson,
475 U.S. 625, 635-36 (1986). In this case, the record establishes that
the conversations between Sanders and the detective were initiated by
Sanders, and no violation of Jackson occurred. See United States v.
Walls, 70 F.3d 1323, 1326 (D.C. Cir. 1995).
Sanders also contends that his waiver of the right to counsel was
involuntary. This court reviews the determination of whether an
accused waived his right to counsel de novo. See United States v. Sin-
gleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997). Our review of the
record convinces us that Sanders’ waiver of his right to counsel was
completely voluntary. Sanders was properly advised of his right to
remain silent and right to counsel when the detective first took him
into custody, and there is no evidence that the detective used any form
of coercion or intimidation to persuade Sanders to speak. See United
States v. Muca, 945 F.2d 88, 90-91 (4th Cir. 1991). His statements
were not "deliberately elicited by the government," see United States
v. Love, 134 F.3d 595, 604 (4th Cir. 1998), and were properly admit-
ted at trial.
Sanders’ argument that the district court erred in failing to count
his two convictions for distribution of marijuana as part of one contin-
uing transaction, so as to avoid triggering the application of § 924(e),
is foreclosed by this court’s decision in United States v. Letterlough,
63 F.3d 332, 334 (4th Cir. 1995). In Letterlough, this court adopted
the holding of the other Courts of Appeal that "convictions occur on
occasions different from one another if each of the prior convictions
arose out of a separate and distinct criminal episode." Id. at 335(internal quotations omitted); see also United States v. Blackwood,
913 F.2d 139, 146 (4th Cir. 1990). Here, Sanders’ two offenses
occurred five days apart, an interval that was more than sufficient for
Sanders to "make a conscious and knowing decision to engage in
another" crime. Letterlough, 63 F.3d at 337. The district court cor-
4 UNITED STATES v. SANDERS
rectly concluded that the two marijuana distribution convictions were
separate for purposes of invoking § 924(e).
Sanders’ final argument on appeal is that, because 18 U.S.C.
§ 924(e) does not contain a maximum sentence, the maximum term
of imprisonment constitutionally allowed is the stated minimum of
fifteen years. This court has held, consistent with the other Courts of
Appeal, that the maximum term of imprisonment available under
§ 924(e) is life. United States v. Blannon, 836 F.2d 843, 845 (4th Cir.
1988); see also United States v. Brame, 997 F.2d 1426, 1428 (11th
Cir. 1993) (collecting cases). This court has also upheld the statute
against constitutional challenge. See United States v. Presley, 52 F.3d
64, 67-68 (4th Cir. 1995). The district court did not err in determining
that the maximum punishment under the statute was life imprison-
ment.
We therefore affirm Sanders’ conviction and sentence. We dis-
pense 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