Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Beam, Circuit Judge.
Submitted: December 11, 2008
Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE, District Judge.*fn1
Reginald McGlothen appeals his conviction for unlawful possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). McGlothen alleges his custodial statements made prior to receiving Miranda*fn2 warnings should have been suppressed. McGlothen also argues his sentence was unreasonable because the district court*fn3 failed to consider 18 U.S.C. § 3553, failed to explain the basis for the length of the sentence, and treated the Guidelines as mandatory. We affirm.
Kansas City, Missouri, police officers executed a search warrant on McGlothen's home after making two controlled drug buys. McGlothen was not there at the time, but drove past the house during the search. Officers then stopped McGlothen and brought him back to the residence. Sergeant Huth, the officer in charge of the search, explained to McGlothen why officers were there, told McGlothen he was under arrest, and began recording biographical information for booking. While obtaining the booking information, an officer approached Huth with a gun found in the home during the search. Huth then explained to McGlothen that he would also be charged with being a felon in possession of a firearm. McGlothen stated that the gun was his and he bought it for protection. Huth told McGlothen not to say anything else because he had not been Mirandized. McGlothen responded by saying, "I just wanted to let you know I bought it for my own protection."
Prior to trial, McGlothen moved to suppress his un-Mirandized statements, but the district court accepted the magistrate judge's*fn4 recommendation that the motion be denied. At trial, the district court, over McGlothen's renewed objection, admitted McGlothen's statement that the gun was his and that he bought it for protection. McGlothen was convicted and sentenced to 262 months, the bottom of the Guidelines range. During sentencing, McGlothen argued that the Guidelines range was too harsh. In response, the district court, after reviewing the presentence investigation report, noted McGlothen's extensive criminal history, stated that the court had to sentence him within the Guidelines, and recommended that he receive therapy for his mental and drug problems. On appeal, McGlothen renews his objection to the admission of his un-Mirandized statements, arguing that he was in custody when he made them and that presenting him with the gun was the functional equivalent of interrogation. McGlothen also appeals his sentence.
We review a district court's factual findings for clear error and legal conclusions de novo when reviewing the denial of a motion to suppress. United States v. Londondio, 420 F.3d 777, 783 (8th Cir. 2005). Miranda warnings are required when a defendant is in custody and is being interrogated. Id. McGlothen was in custody when the contested statements were made. This case, therefore, turns on whether McGlothen was being interrogated when he made the un-Mirandized statements. Id. An interrogation includes both direct questions and "words or actions that officers should know are 'reasonably likely to elicit an incriminating response from the suspect.'" Id. (quoting United States v. Briones, 390 F.3d 610, 612 (8th Cir. 2004)). In this case, officers did not directly question McGlothen regarding the firearm. Thus, our focus is on whether the officers' words or actions were reasonably likely to elicit an incriminating response. Voluntary statements not in response to an interrogation are admissible with or without Miranda warnings. Id.
McGlothen contends that presenting him with the gun and accusing him of possessing it were actions and words reasonably likely to induce a response from McGlothen. Further, McGlothen argues that even though the statements were made during routine booking questions, Miranda still applied. Accordingly, he says, the officers' actions were the functional equivalent of an un-Mirandized interrogation. We disagree.
We addressed similar facts in United States v. Barnes and found the officer's actions were not the functional equivalent of interrogation. 195 F.3d 1027, 1029 (8th Cir. 1999). In Barnes, a defendant moved to suppress statements made after he invoked his right to counsel. Id. After invoking this right, officers told the defendant that he was going to be booked for possession of a firearm. Id. The defendant responded by saying he "didn't think so," and officers asked what he meant. Id. In response, the defendant made incriminating statements. Id. We found the statements spontaneous and that "the officer's remark to [the defendant] that he was going to be charged with possession of a firearm was a statement of fact, not the functional equivalent of interrogation." Id. As in Barnes, the officer's words indicating that McGlothen was to be charged with possession of a firearm were statements of fact, not the functional equivalent of an interrogation. Because McGlothen was not being interrogated, Miranda warnings were not required and the district court did not err in denying the motion to suppress.
Typically, we review a sentence for an abuse of discretion. But when, as here, a defendant alleges procedural sentencing errors on appeal and failed to object to the errors in the district court, our review is for plain error. United States v. Burnette, 518 F.3d 942, 945-46 (8th Cir.), cert. denied, 129 S.Ct. 138 (2008). Thus, we will reverse the sentencing court only if "there is (1) error (2) that is plain and (3) that affects the defendant's ...