RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 23a0064p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v .
J OSHUA L. W OOLRIDGE , Defendant

- Appellant

. ┐ │ │ │ │ │ │ │ │ ┘ No. 22

- 3243

Appeal from the United States District Court for the Northern District of Ohio at Akron.

No. 5:21

- cr
- 00145

- 1

— John R. Adams, District Judge.

Decided and Filed: April 6, 2023 Before: SUTTON, Chief Judge; BATCHELDER and MURPHY, Circuit Judges.

_________________ COUNSEL ON BRIEF : Stephanie F. Kessler, PINALES STACHLER YOUNG & BURRELL CO., L.P.A., Cincinnati, Ohio, for Appellant. Damoun Delaviz, UNITED STATES ATTORNEY’S OFFICE, Akron, Ohio, for Appellee.

_________________ OPINION

_________________ SUTTON, Chief Judge. After police detained Joshua Woolridge but before they read him the required Miranda warnings, Woolridge told the officers that he was out on parole and that he had carried a gun. Woolridge said the same after the officers gave him t he Miranda warnings minutes later. The district court refused to suppress Woolridge’s post

- warning 

### >No. 22

- 3243 United States v. Woolridge Page 2

statements and imposed a sentence above the Sentencing Guidelines range. Finding no reversible error, we affirm.
I. After visiting a convenience store ju st before midnight, Joshua Woolridge walked through an Akron neighborhood toward his girlfriend’s apartment. As it happens, police officers were searching for a fugitive in the area. When Woolridge cut across a vacant lot, Officer Brandon Collins approac hed him and asked for his name. Woolridge turned and ran. As he sprinted, Woolridge tossed several items. Within a few hundred yards, two officers caught Woolridge. Woolridge began talking immediately. As Officer Collins searched him, Woolridge said, “I got a warrant” out for me. R.19 at 2. Moments later, he added “I got a parole violation, sir.” Id. Collins moved Woolridge to a containment van and took his biographical information. All the while, Woolridge tried to speak with Collins: “Let me t ell you something, sir.” Gov’t Exhibit 1 at 3:32

– 35. “Can I talk to you, sir?” Id. at 3:40

– 45. “Sir, let me talk to you for one second.” Id. at 4:00

– 03. “Listen, sir, I got to tell you something else.” Id. at 4:40

– 45. Collins brushed him off each t ime: “Not right now, man.” Id. at 3:43

– 44. “Just hang tight, okay?” Id. at 7:15

– 20. After a few minutes, Collins asked Woolridge about the items he threw during the chase: “Nothing illegal then, right?” Id. at 6:20

– 30. Woolridge said no. As Colli ns turned away, Woolridge called him back. “Sir? So, we’ll keep it 100, sir. Let me tell you.” Id. at 6:30

– 35. Woolridge explained that his brother had been murdered, and that Woolridge had been trying to stay out of the way. “I understand that,” Col lins said. Id. at 6:50

– 53. Woolridge added “I had a firearm on me, sir.” Id. at 6:53

– 55. “Where’s it at now?” Collins asked. Id. During the next few minutes, officers searched for the gun. They spotted it only after asking Woolridge to specify where he threw the gun. With the gun secured, Woolridge remained talkative. “Can I just talk to you though?” he asked Collins several times. Id. at 15:55

– 16:00; id. at 16:20

– 35. Eventually, Collins promised that they would talk soon. “But listen,” Woolrid ge insisted, “‘cus I’m telling you the reason INo. 22

- 3243 United States v. Woolridge Page 3

had the gun and everything.” Id. at 16:10

– 33. “I understand that,” Collins responded. Id. “Now that we have [the gun],

. . . I’ll talk to you. I promise.” Id. at 16:30

– 40.
Collins returned a few minu tes later. As he began to read the Miranda warnings, Woolridge interrupted, saying “I know my rights, sir.” Id. at 21:20

– 23. Collins explained that he needed to give the warnings anyway and p roceeded to give them. At the end, Collins added “and you can decide at any time to exercise these rights and not answer the questions.” Id. at 21:38

– 42. “Okay,” Woolridge acknowledged. Id. at 21:41

– 43. Collins returned to the subject that Woolridge raised earlier: “Do you want to tell me what happened and why you were carrying a gun?” Id. at 21:43

– 46. Woolridge did not hesitate. He again explained that he had carried the gun due to his brother’s murder. “I had a firearm on me,” he added, “but I had no intent to try to hurt nobody.” Id. at 22:00

– 30. A g rand jury charged Woolridge with being a felon in possession of a firearm. 18 U.S.C. § 922(g). Woolridge moved to suppress the statements he made to Collins before receiving the Miranda warnings. He did not argue that the post

- warning statements violate d Miranda . After a hearing, the district court suppressed the unwarned statements and permitted the admission of the post

- Miranda statements. Woolridge pleaded guilty, reserving the right to appeal the rejected suppression motion and any sentence outside his Guidelines range. At sentencing, the court varied upward by 13 months, imposing a 46

- month sentence. Woolridge appeals.
II. Suppressio n challenge. Woolridge claims that we must vacate his conviction because the district court should have suppressed the statements he made after he received Miranda warnings. We review the district court’s fact finding for clear error and its legal decisi ons afresh. United States v. Prigmore , 15 F.4th 768, 777 (6th Cir. 2021). The Fifth Amendment guarantees that no person “shall be compelled in any criminal case to be a witness against himself.” To protect this right, Miranda requires police officers t o warn suspects taken into custody of the right to remain silent and the risk of speaking without a lawyerNo. 22

- 3243 United States v. Woolridge Page 4

present, along with other warnings. Miranda v. Arizona , 384 U.S. 436, 478

– 79 (1966). Generally speaking, courts honor the Miranda rule by suppressi ng unwarned statements and by admitting warned statements, the latter because the warnings enable a suspect “to exercise his own volition in deciding whether” to speak again. Oregon v. Elstad , 470 U.S. 298, 308 (1985). But the warnings do not always suf fice to admit post

- Miranda statements. If police officers coerce a suspect in custody or “undermine the suspect’s ability to” stay silent, courts will refuse to admit even post

- Miranda statements. Id. at 309. One fact pattern that has caught judges’ att ention in this area arises when the police withhold warnings until a suspect confesses, administer Miranda , then pressure the suspect to repeat the confession. Missouri v. Seibert , 542 U.S. 600, 612

– 13 (2004) (plurality); United States v. Ray ( Ray I ), 803 F.3d 244, 272 (6th Cir. 2015) (adopting the Seibert plurality). Even in such cases, post

- warning statements remain admissible if the Miranda warnings nevertheless functioned effectively

— if the warnings informed the suspect that he had a genuine choice t o continue speaking. Seibert , 542 U.S. at 611

– 12 & n.4. Absent an interrogation of this sort or another coercive tactic, the admissibility of a post

- warning statement turns “solely” on whether the suspect spoke “knowingly and voluntarily.” Elstad , 470 U .S. at 309. The district court correctly admitted Woolridge’s post

- Miranda statements. Woolridge spoke voluntarily after receiving Miranda warnings. No coercion or coercive interrogation tactic compromised the voluntariness of his statements or impaire d the effectiveness of the warnings. Woolridge talked voluntarily. He eagerly spoke to the officers at every opportunity, “unquestionably” seeking “to volunteer information.” R.19 at 5. He also “freely acknowledged” his parole status and pressed for a chance to explain why he was carrying a gun that night. Bobby v. Dixon , 565 U.S. 23, 29, 31 (2011) (per curiam); see Elstad , 470 U.S. at 301, 315. That holds true both before and after the Miranda warnings. For their part, the officers showed little int erest in getting Woolridge to talk. They did not compel Woolridge to speak through abuse, threats, or incentives. Dixon , 565 U.S. at 29

– 30; Elstad , 470 U.S. at 302, 315. Nor did they employ improper tactics to secure a confession. They did not initiate the conversations, and in fact they hardly spoke to him at all, repeatedly resistingNo. 22

- 3243 United States v. Woolridge Page 5

his efforts to talk. Officer Collins refused to talk to Woolridge numerous times. And Woolridge’s own insistence led Collins to speak with Woolridge after the officers found the gun: “Can I just talk to you for a minute?” Gov’t Exhibit 1 at 16:20

– 25. Before doing so, Collins read the Miranda warnings. And Woolridge “cho[se] to speak after being informed of his rights,” a reality that proves “highly probative” of volu ntariness. Elstad , 470 U.S. at 318. This case does not present the coercive qualities that undermined the Miranda warnings in Seibert . Police officers subjected Patrice Seibert to “systematic, exhaustive” questioning. Seibert , 542 U.S. at 616. Seibert confessed a half hour later. Id. at 605. Only after they had a confession in hand did the officers administer Miranda warnings. Then they pressed Seibert to confess again by recounting her earlier confession. Id. at 616

– 17. The Court found that this

s trategy undermined Miranda

. Id. at 613, 616. Today’s facts do not “remotely resemble the police protocol invalidated in Seibert .” Hoffner v. Bradshaw , 622 F.3d 487, 512 (6th Cir. 2010); see Dixon , 565 U.S. at 31 (distinguishing Seibert ); United States v . McConer , 530 F.3d 484, 497 (6th Cir. 2008) (same). Officer Collins did not employ systematic, exhaustive, or coordinated questioning. And he never pushed for a confession or exploited Woolridge’s unwarned statements. Cf. Elstad , 470 U.S. at 316. But even if this had not been the case, even in other words if the police officers had used improper tactics, the post

- warning statements would be admissible because the Miranda warnings “effectively” conveyed that Woolridge “could choose to stop talking.” Seibert , 542 U.S. at 612. When Collins read the Miranda warnings, he explained that Woolridge had the “right to remain silent” and that he could “decide at any time to exercise these rights and not answer the questions.” Gov’t Exhibit 1 at 21:25

– 42. C ollins’ question bolstered those warnings, asking “Do you want to tell me what happened and why you were carrying a gun?” Id. at 21:43

– 46. Woolridge grasped the message. After hearing his rights, Woolridge acknowledged that he understood them. Id. at 2 1:41

– 43. Even before Collins finished the warnings, Woolridge interrupted to assert “I know my rights.” Id. at 21:20

– 25. By every indication, Woolridge knew he had a choice, and he decided to speak anyway.No. 22

- 3243 United States v. Woolridge Page 6

Other clues confirm the point. Officer Collins did not treat the pre

- and post

- Miranda periods as a single interrogation. Nor did Collins “exploit” Woolridge’s unwarned admission to pressure him into speaking a second time. Elstad , 470 U.S. at 316. Collins instead “began [his] questioning anew.” R .19 at 6. Fifteen minutes separated Woolridge’s post

- Miranda statements from his first admission that he carried a gun that night. That gap sufficed for Woolridge to refuse to repeat himself. Cf. McConer , 530 F.3d at 493. The discovery of the gun also differentiated the pre

- and post

- Miranda periods. That “change in circumstances” shifted the questioning from the gun’s location to the consequences of possession, Dixon , 565 U.S. at 32

— a shift that facilitated effective warnings, see Seibert , 542 U.S. at 618 (Breyer, J., concurring). Woolridge disputes this conclusion. He claims that the Seibert plurality’s test turns exclusively on five factors: (1) the completeness of the initial questions; (2) the overlap between the pre

- and post

- warning statement s; (3) “the timing and setting”; (4) “the continuity of police personnel”; and (5) “the degree to which the interrogator’s questions treated the second round as continuous with the first.” Id. at 615 (plurality). But we do not read the inquiry that rigid ly. The Seibert plurality did not “condemn[] us to a mechanical counting of items on a list.” United States v. Heron , 564 F.3d 879, 887 (7th Cir. 2009). The Supreme Court’s decision in Dixon did not do so either. See Dixon , 565 U.S. at 31

– 33. And Elst ad “direct[ed] courts to avoid” “a rigid rule” and to instead “examine the surrounding circumstances and the entire course of police conduct.” Elstad , 470 U.S. at 318. In Ray I , to be sure, we adopted the “ Seibert plurality’s multi

- factor test” and liste d some considerations that the plurality employed. Ray I , 803 F.3d at 272

– 73. But we also said that the analysis “hinges on” an encompassing question: Did the Miranda warning give the suspect “a genuine choice whether to follow up on [his] earlier admis sion”? Id. (quoting Seibert , 542 U.S. at 616). On this record, the answer is yes.
A blinkered focus on Ray I ’s factors would do little for Woolridge’s cause anyway. Some factors partially weigh in Woolridge’s favor: the officer and the setting staye d roughly the same, and some of the content of the statements overlapped. But others clearly do not. Fifteen minutes separated Woolridge’s initial statements from his post

- Miranda admissions. McConer , 530 F.3d at 493 (ten

- to

- fifteen

- minute gap). And Of ficer Collins asked few questions and did not treat the sessions as continuous. With only a few signals partially favoring Woolridge, theNo. 22

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district court did not err. See Heron , 564 F.3d at 886

– 87 (finding no error in admitting statements because one fact or favored that outcome). Woolridge persists that two cases dictate the outcome today, United States v. Ashmore , 609 F. App’x 306 (6th Cir. 2015), and United States v. Ray ( Ray II ), 690 F. App’x 366 (6th Cir. 2017). Not true. For one, these unpublished c ases do not bind. For another, they treat Seibert as if it created a rigid test for midstream

- Miranda cases, thus misreading Seibert , Elstad , and Dixon

. For still another, these cases do not match this one. Ashmore involved coercive tactics absent here, Ashmore , 609 F. App’x at 318

– 19, and Ray II involved a far more formal, detailed interrogation, Ray II

, 690 F. App’x at 368

– 69, 372

– 73. In neither case, notably, did the suspect try over and over to speak to the officers as Woolridge did. Woolridge also claims that the district court erred in finding that Officer Collins treated the pre

- and post

- Mirand a periods as distinct. But Woolridge points to no evidence showing that the court erred in concluding that Collins began his questioning “anew.” R.19 at 6. One last point. Although no opinion commanded a majority in Seibert , our circuit adopted the pl urality opinion’s objective approach to midstream Miranda warnings, which does not consider the intent of the officer’s conduct. Ray I , 803 F.3d at 272. In that conclusion, we are alone. Eight circuits hold that Justice Kennedy’s concurrence controls, w hich also asks whether police deliberately undermined Miranda

. See United States v. Capers , 627 F.3d 470, 476 (2d Cir. 2010); United States v. Naranjo , 426 F.3d 221, 231

– 32 (3d Cir. 2005); United States v. Khweis , 971 F.3d 453, 461 (4th Cir. 2020); United States v. Fernandez , 48 F.4th 405, 410 & n.1 (5th Cir. 2022); United States v. Magallon , 984 F.3d 1263, 1283 (8th Cir. 2021); United States v. Williams , 435 F.3d 1148, 1157 (9th Cir. 2006); United States v. Guillen , 995 F.3d 1095, 1116 (10th Cir. 2021); U

nited States v. Street , 472 F.3d 1298, 1313 (11th Cir. 2006). Two more have not decided. See United States v. Faust , 853 F.3d 39, 48 n.6 (1st Cir. 2017); United States v. Straker , 800 F.3d 570, 617 (D.C. Cir. 2015). And one has an intra

- circuit split. See United States v. Hernandez , 751 F.3d 538, 539

– 40 (7th Cir. 2014); Heron , 564 F.3d at 884

– 86. On another day, we should ask whether we must keep our side of this circuit split open.No. 22

- 3243 United States v. Woolridge Page 8

III. Sentencing challenge. Woolridge separately challenges the su bstantive reasonableness of his sentence, arguing that the court erred by imposing a sentence above the Guidelines range.
No abuse of discretion occurred. United States v. Rayyan , 885 F.3d 436, 442 (6th Cir. 2018). After calculating the Guidelines range of 27

– 33 months, the court sentenced Woolridge to 46 months in prison. The court ably explained its reasons, pointing to Woolridge’s numerous offenses, his pattern of illegally possessing firearms, and many prison rule infractions. Looking to Woolridge’ s statements at the sentencing hearing, the court also found that Woolridge would again “try to obtain a gun.” R.39 at 26. Together, these reasons support the court’s decision to vary the sentence upward in order to deter Woolridge, instill respect for t he law, and protect the public. Woolridge faults the court for considering his criminal history, pointing out that the Guidelines range accounts for that history already. But a sentencing court must look to a defendant’s “history and characteristics.” 18 U.S.C. § 3553(a)(1); United States v. Dunnican , 961 F.3d 859, 881 (6th Cir. 2020). Saying otherwise “would have the practical effect of making the Guidelines again mandatory.” United States v. Tristan

- Madrigal , 601 F.3d 629, 636 n.1 (6th Cir. 2010). Besides, the court did not rely exclusively on Woolridge’s criminal history. It also factored in Woolridge’s conduct during incarceration, his behavior at sentencing, and his pattern of carrying firearms

— all relevant, none fully captured in the Guidelines

. We affirm.