United States v. Hill , 340 F. App'x 950 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5023
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTOINE HILL,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cr-00407-RLW-1)
Submitted: July 6, 2009 Decided: August 13, 2009
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Timothy V. Anderson, ANDERSON & ASSOCIATES, Virginia Beach,
Virginia, for Appellant. Dana J. Boente, Acting United States
Attorney, Michael A. Jagels, Special Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antoine Hill appeals his jury conviction and 300-month
variant sentence for possession with intent to distribute
heroin, in violation of 21 U.S.C. § 841 (2006), possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c) (2006), and possession of ammunition by a
felon, in violation of 18 U.S.C. § 922(g)(1) (2006). Hill
asserts that: (i) the district court erred when it denied his
suppression motion by allegedly misapplying the public safety
exception to pre-Miranda 1 custodial statements and then
incorrectly admitted his post-Miranda statements; (ii) the
district court erred when it refused to instruct the jury that
it could not conclude that Hill had “knowledge” of his drug
possession from negligence, carelessness, or his belief in an
inaccurate proposition; and (iii) ineffective assistance of
counsel conclusively appears on the record because trial counsel
failed to argue for an appropriate sentence and instead moved to
withdraw just prior to sentencing. 2 Finding no reversible error,
we affirm.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Hill has also moved to file a pro se supplemental brief
and to relieve his counsel and proceed pro se on appeal.
Because there is no constitutional right to self-representation
on appeal, see Martinez v. Court of Appeal, 528 U.S. 152, 161
(2000), and because we find that Hill did not move to proceed
(Continued)
2
We find that Hill’s pre-Miranda statement pertaining
to a weapon located in his residence implicates the public
safety exception to Miranda under New York v. Quarles, 467 U.S.
649 (1984). Police were aware that Hill did not reside in the
apartment alone, and had reason to suspect that weapons were
located in the residence. Moreover, at the time Hill was
questioned, the residence had not yet been secured. Based on
these circumstances, we find that Hill’s pre-Miranda statement
regarding the existence of a weapon in his apartment falls
within the Quarles exception to Miranda and was properly
admitted by the district court.
pro se at the earliest possible time, 4th Cir. R. 46(f), we deny
Hill’s motion to relieve counsel and to proceed pro se.
Moreover, although Hill explains that he wishes to proceed pro
se so he may move this Court for release pending appeal, because
we affirm Hill’s conviction and sentence, Hill’s motion for
release would be denied. See 18 U.S.C. § 3143(b) (2006)
(providing that a criminal defendant should be detained pending
appeal unless it appears, by clear and convincing evidence, that
the appeal raises a substantial question of law or fact that
requires reversal, an order for a new trial, a non-prison
sentence, or “a reduced sentence to a term of imprisonment less
than the total of the time already served plus the expected
duration of the appeal process”). We grant Hill’s motion to
file a pro se supplemental brief, but after considering the
arguments raised therein, conclude that Hill’s ineffective
assistance of counsel claim is not cognizable on direct appeal.
See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.
2006) (ineffective assistance of counsel claims are generally
not cognizable on direct appeal unless the ineffectiveness
“conclusively appears” on the record).
3
We nonetheless find that the transporting officer’s
pre-Miranda inquiry into whether drugs were located in Hill’s
residence does not implicate the Quarles exception. In fact,
one of the officers admitted at the suppression hearing that
there “is no officer safety purpose in knowing whether or not
there [we]re drugs in the apartment.” This finding, however,
affords Hill no relief. Because the district court correctly
admitted Hill’s post-Miranda statements 3 —which were essentially
identical to his pre-Miranda statements—we conclude that the
jury “would not have found the [Government's] case significantly
less persuasive” if the pre-Miranda statements had been
excluded. See Schneble v. Florida, 405 U.S. 427, 432 (1972);
see also United States v. Abu Ali, 528 F.3d 210, 231 (4th Cir.
2008) (recognizing that an error “will be deemed harmless if a
3
Hill’s assertions to the contrary, the mere fact that
Hill’s post-Miranda statements confirmed his pre-Miranda
admissions does not, in and of itself, render the post-Miranda
statements involuntary and inadmissible. See Oregon v. Elstad,
470 U.S. 298, 314 (1985) (holding that “absent deliberately
coercive or improper tactics in obtaining the initial statement,
the mere fact that a suspect has made an unwarned admission does
not warrant a presumption of compulsion” as to any subsequent,
post-warning statement); United States v. Mashburn, 406 F.3d
303, 307-10 (4th Cir. 2005) (holding that a few pre-warning
questions will not render post-warning responses involuntary and
inadmissible if: (i) there was no evidence that an officer’s
failure to convey Miranda warnings was deliberate or
intentional; and (ii) there was no evidence that the post-
warning statement was involuntarily made). Accordingly, we
conclude that the district court did not err in allowing Hill’s
post-Miranda statements to be presented to the jury.
4
reviewing court is able to say, with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error”) (internal citations and quotation marks
omitted), cert. denied, 129 S. Ct. 1312 (2009). Thus, because
the jury would have received the same evidence even if Hill’s
pre-Miranda statements were suppressed by the district court,
any error by the district court to admit Hill’s pre-Miranda
statement was harmless beyond a reasonable doubt.
We also conclude that the district court did not abuse
its discretion when it denied Hill’s proposed jury instruction.
A district court’s refusal to provide an
instruction requested by a defendant
constitutes reversible error only if the
instruction: (1) was correct; (2) was not
substantially covered by the court’s charge
to the jury; and (3) dealt with some point
in the trial so important[] that failure to
give the requested instruction seriously
impaired the defendant’s ability to conduct
his defense.
United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal
quotation marks and citation omitted). Although the Government
does not dispute that Hill’s proposed jury instruction was a
correct statement of the law, we find that Hill’s requested
instruction was substantially covered by the district court’s
remaining jury instructions.
5
Hill last asserts that his counsel was ineffective
because he failed to file a sentencing memorandum with the
district court, failed to argue for a variant sentence at his
sentencing hearing, and instead moved to withdraw as counsel a
day prior to Hill’s sentencing hearing. Although Hill
recognizes that this issue may be better left for review on a
habeas corpus motion, Hill suggests that if the Court finds
merit to his other arguments, “a remand for sentencing with
prepared counsel” would be appropriate.
Even assuming, without deciding, that it was error for
Hill’s trial counsel to move to withdraw from representation
just prior to his sentencing and to fail to argue for an
appropriate sentence on his behalf, it does not conclusively
appear on the record that but for counsel’s purported errors,
Hill’s sentence would have been different. In fact, Hill’s
counsel concedes that “[i]t is impossible to know what factors
could have or should have been presented to the Court at
sentencing that may have persuaded the Court to depart by
variance from the recommend[ed] sentencing guidelines.”
Moreover, although the Government asked the district
court to sentence Hill within his 360-month to life Guidelines
range, the district court varied from the Guidelines range and
imposed a 300-month sentence. Because it is not apparent that
the district court would have varied further based on any
6
argument counsel may have made, we find that Hill’s ineffective
assistance claim based on counsel’s failure does not
conclusively appear on the record and, thus, is not cognizable
on direct appeal. See Strickland v. Washington, 466 U.S. 668,
694 (1984); United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006).
Based on the foregoing, we deny Hill’s motion to
relieve his counsel and to proceed pro se on appeal, grant
Hill’s motion to file a pro se supplemental brief, deny Hill’s
motions for bail or release pending appeal as moot, and affirm
the district court’s judgment. 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
7