United States Court of Appeals FOR THE EIGHTH CIRCUIT

______________ No. 97-2396WM

_____________ Craig L. Patterson, * * Appellant, * * v. * On Appeal from the United * States District Court * for the Western District United States of America, * of Missouri. * * Appellee. *

___________ Submitted: November 18, 1997 Filed: January 9, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and MAGILL, Circui t Judges.

___________ RICHARD S. ARNOLD, Chief Judge.

A jury convicted Craig L. Patterson of one count of possession with intent t o distribute cocaine bas e (“crack”) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)The Hon. Dean Whip ple, United States District Judge for the Western District 1 of Missouri. -2- (1994). The District Court sentenced him to 405 months’ im prisonment, the top of the 1 Guid elines range of 324 to 405 months. Patterson now appeals his conviction an d sentence on the ground of ineffective assistance of counsel. Patterson also argues that the gov ernment failed to prove for sentencing purposes that he possessed “crack ” cocaine. We affirm.
I. On September 11, 1996, the Kans as City, Missouri, Police Department’s Street Narcotics Unit executed a search warrant on a Kansas City residenc e. When the police off icers arrived at the residence, Craig L. Patterson was sitting on the front porch

. Inside the house, in a bedroom in t he basement, the officers found two lock-box safes. The safes contained a total of three and one-half kilograms o f cocaine base, or “crack.” One of the safes contained $5,66 5 in bills. In the basement bedroom, the officers also found two documents bearing the defendant’s name and two pistols. The police officers arrested Mr. Patterson and took him to police headquarters, where he was interviewed by two detectives. Patterson told the detectives that h e could read and write, and, after rea ding aloud a Miranda rights waiver form, told them that he understood it. Patterson then signed the form and began answering questions about the cocaine seized at the house. Responding to questions, Patterson admitte d that the cocaine was his and that it had been in the hous e for about a week. He refused to tell the police how much he paid for the cocaine or who sold it to him. When th e detectives asked Patterson if he sold cocaine, Patterson asked for an attorney, and the interview concluded. At some point before the detectives ended the interview, one of them told Patterson that the house might be seized by the police because the cocaine was found in the basement. Patterson’s mother owned the house and lived there withAn ineffective-assistance-o f-counsel claim is typically not cognizable on direct 2 appeal. See United States v. Rhodenizer , 106 F.3d 222, 227 (8th Cir. 1997)

. Howeve r, the government does not object to our considering the argument, and th e answer to it is clear on the record before us. -3- him. It is not clear from the record whether information ab out possible forfeiture of the house was discussed before or after Patterson told the police that he owned the cocaine, or whether it occurred before or after Patterson requested an attorney. Patterson’s trial counsel did not move to suppress either the physical evidence found in th e house or Patterson’s statements made in the police interview. The jury found Patt erson guilty of possession of “crack” with intent to distribute. The District Judge sentenced Patterson to 405 months, a sentence at the top of the Sentencin g Guidel ines range, on the basis of a total offense level of 40 and a criminal history category of II. Patterson now raises the issue of ineffective assistance of counsel on appeal. 2
II. Patterson first argues that his lawyer at trial was ineffective because he failed to mo ve to suppress the physical evidence seized in the basement and Patterson’ s confession dur

ing the interview with the detectives. To establish a Sixth Amendment violation for ineffective assistance of counsel, a d efendant must prove that his lawyer’s performa nce was constitutionally deficient, and he must prove prejudice, or th e rea sonable probability that the outcome of the trial would have been different

. St ricklandv. Washington , 466 U.S. 668, 687 (1984); Mills v. Armontrout , 926 F.2 d 773, 773-74 (8th Cir . 1991). The defendant has the burden of proving deficiency and prejudi ce. English v. United States , 998 F.2d 609, 613 (8th Cir.), cert. denied , 51 0 U.S. 1001 ( 1993). Patterson argues three points. First, he argues that his attorne y should have moved to suppress evidence of incriminating statements Patterson made-4-

to the police. Second, he maintains that his trial counsel was in effective because he did not move to suppress the physical evidence obtained by the police at Patterson’ s residence. Finally , Patterson claims that his attorney should have raised objections to the presentence report. We reject Patterson’s arguments because, even if he coul d establish that his attorney’s trial strategy was constitutionally deficient, he has no t shown that he has been prejudiced.
FirstPatterson challenges his trial counsel’s failure to move to suppress hi s confession. The testimony at trial was that Patterson was questioned for a relatively brief period of time, a

nd that he read, understood, and signed a Miranda rights waiver form before he admitted to owning the “cr ack.” Patterson argues that he was coerced, and that a motion to supp ress the confession would have been successful, because the police told him that his mo ther’s house might be seized after cocaine was found in the basement. Howe ver, these statements alone do not amount to coercion by the police. Patter son has failed to show whether the detectives’ statements about his mother’ s house came before or after he admitted to owning the cocaine, a crucial fact i n determining whether the statements were coerced. Even if the police told Patterson his mother’ s house might be seized before he made incriminating statements, th e detective’s statements cannot be said to have rendered the confession involuntary

. Patterson was not physically harmed or threatened; he was merely informed (truthfully) of potenti al legal consequences of the discovery of drugs in the house. Thes e statements, by themselves, are not coercive. See United States v. Makes Room , 4 9 F.3d 410, 415 (8th Cir. 1995); Jenner v. Smith , 982 F.2d 329, 333-34 (8th Cir.), cert. den ied , 510 U.S. 822 (1993). There is no claim that Patterson was told that hi s m o ther’s house would be seized if he did not confess. Because a motion to suppress his confession would not have been successful, his Sixth Amendment argument must fail with regard to the confession.
Related to the coercion argument is Patterson’s claim that the District Court should have held a hearing to determine whether his statements to the police were-5-

volunta ry, despite the fact that Patterson did not object to the confession before o r during the trial. We do not agree. A district court has no duty to hold a hearing on the vo luntariness of a confession when the defendant does not make a timely objection

. See United States v. Miller , 987 F.2d 1462, 1464 (10th Cir. 1993); United States v

. Wilson , 895 F.2d 168, 172-73 (4th Cir. 1990). Patterson cites one case, Lufkins v

. Solem , 716 F.2d 532 (8th Cir. 1983), cert. denied , 467 U.S. 1219 (1984), for th e proposition that the District Court should ha ve held such a hearing sua sponte . In fact, in Lufkins , the defendant filed written objections to testimonyby a sheriff regarding the defendant’s confession, and the defendant’s lawyer objected during trial to the sheriff’s testimony

. Id. at 535. There is no legal support for the idea that a district court must hold a hearing on voluntariness without an objection by the defendant, and we therefore reject the defendant’s argument.
Patterson also challenges his attorney’s failure to move to suppress physica l evidence obtained as a result of the search of the home. However, Patterson fails to provide any reason as to why such a motion would have been successful. It i s undi sputedthat the search was conducted pursuant to a warrant issued by a Jackso n County, Missouri, judge. Patterson does not attack the validity of the warrant or the actions of the police in executing the warrant. Because P atterson has not demonstrated a reasonable probabi lity the outcome of the trial would have been different even if his attorneyhad filed a motion to suppress the physical evidence, his argument must fail. Finally, Patterson argues that his attorney should have objected to th e presentence report. His base offense level was 38, because of the three and one-half kilograms of “crack” cocaine found in the house. Patterson argues that his attorne y should have objected to this calculation because of the 100-to-1 ratio of “crack” t o powder cocaine. This Court has repeatedly held that the disparity b etween “crack” and powd er cocaine is not a basis for a downward departure under the Sentencin g Guidelines. See United States v. Lewis , 90 F.3d 302, 304-06 (8th Cir. 1996), cert
. denied , 117 S. Ct. 713 ( 1997); United States v. Maxwell , 25 F.3d 1389, 1400-01 (8th-6-

Cir.), cert . denied , 513 U.S. 1031 (1994). Because this motion would not have been succe ssful if Patterson’s attorney had made it before the District Court, we rejec t Patterson’s argument that his trial counsel was inadequate for not making it.
III.
We als o reject Patterson’s argument that the government failed to prove by a prep onderance of the evidence during the sentencing phase that Patterson wa s responsible for the possession of “crack” cocaine. At trial, a forensic chemist testified that he had performed tests on the substance obtained from Patterson’s home, and that th e substance was cocaine base, or “crack” as defined in the Sentencing Guidelines

. See U.S.S.G. § 2D1.1 (Note (D)). This evidence is sufficient to support the sentence imposed by the District Court. See United Sta tes v. Wilson , 103 F.3d 1402, 1407 (8th Cir. 1997).
IV. For the reasons discussed above, the judgment and sentence of th e District Court are affirmed.
It is so ordered. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.