United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 97-1255NE

_____________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the District of

v. * Nebraska.

*

Cardell Larry, also known as Larry * [PUBLISHED] 

Cardell, *

*

Appellant. *

_____________

 Submitted: September 12, 1997

Filed: October 6, 1997

_____________

Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.

_____________

PER CURIAM.

After Omaha, Nebraska police officers received word of 911 calls reporting a

drive-by shooting, an officer began to follow a car matching the description of the

vehicle involved in the shooting. The officer stopped the suspect car when its driver,

Cardell Larry, exceeded the speed limit. On learning Larry was driving with a

suspended license, the officer arrested him. Another officer saw ammunition scattered

around inside the car in plain view. The officer searched the car and found three

firearms and a quantity of ammunition. At the police station, more ammunition was

discovered in Larry’s possession, and Larry told police he knew there was a sawed-off
-2-

shotgun in the car. At trial, an agent of the Bureau of Alcohol, Tobacco and Firearms

(ATF) testified the ammunition seized from the car and from Larry had been

manufactured outside Nebraska. Based on this evidence and an earlier Georgia felony

conviction, Larry was found guilty of being a felon in possession of ammunition. See

18 U.S.C. § 922(g)(1) (1994). Larry appeals, challenging his conviction and sentence.

We affirm.

To begin, Larry’s challenge to the constitutionality of 18 U.S.C. § 922(g)(1) is

foreclosed by our decision in United States v. Bates, 77 F.3d 1101, 1103-04 (8th Cir.),

cert. denied, 117 S. Ct. 215 (1996). Next, Larry contends his indictment should have

been dismissed because of preindictment delay. About one year passed between

Larry’s arrest and indictment, and in the meantime the tapes of the 911 calls were

destroyed. Larry claims that because the tapes may have shown police lacked

reasonable suspicion for an investigative stop, their destruction prejudiced his defense.

Larry failed to establish the required prejudice, however, see United States v. Pratt, 31

F.3d 625, 627 (8th Cir. 1994), because the officer could have stopped Larry for the

speeding violation alone, see United States v. Pollington, 98 F.3d 341, 342 (8th Cir.

1996).

After stopping Larry, the officer arrested him for driving with a suspended

license, and so the ensuing vehicle search was a lawful search incident to arrest. See

United States v. Snook, 88 F.3d 605, 608 (8th Cir. 1996). Alternatively, when the

assisting officer saw ammunition in the car, he had probable cause to believe the car

contained evidence of the earlier drive-by shooting, justifying a warrantless search. See

United States v. Brown, 49 F.3d 1346, 1350 (8th Cir. 1995). Consequently, the district

court correctly denied Larry’s motion to suppress ammunition seized in the course of

this search.

Larry next contends the Government’s witness from the ATF was not qualified

as an expert on ammunition manufacture, and so the agent’s opinion that Larry’s 
-3-

ammunition had been made outside Nebraska should have been excluded. The agent

had extensive firearms training and experience, and access to the ATF’s data on

ammunition manufacturers. Despite the agent’s lack of specialized training in

ammunition identification, we conclude the district court acted within its discretion in

allowing the challenged testimony, see United States v. Rose, 731 F.2d 1337, 1346 (8th

Cir. 1984), which sufficiently established the ammunition’s interstate connection. The

evidence was also sufficient to establish Larry’s underlying felony conviction. The

record shows Larry was convicted of a Georgia felony on a counseled plea of guilty

and sentenced to three years’ confinement. 

Turning to Larry’s sentence, Larry argues the district court incorrectly relied on

Larry’s statement to the police that he knew there was a sawed-off shotgun in his car.

The district court found the statement was made after the police promised Larry he

would be released from jail and would not be prosecuted for the drive-by shooting.

Concluding the promise of no prosecution rendered Larry’s statement involuntary, the

district court suppressed the statement at trial. Nevertheless, citing section 6A1.3(a)

of the Sentencing Guidelines, the district court took Larry’s suppressed statement into

account in arriving at Larry’s base offense level. See U.S. Sentencing Guidelines

Manual § 6A1.3(a), p.s. (1995) (permitting sentencing court to consider sufficiently

reliable information “without regard to its admissibility under the rules of evidence”).

We need not decide whether section 6A1.3(a) permits the sentencing court to consider

involuntary statements suppressed on constitutional grounds because Larry’s statement

was voluntary.

Although the district court’s factual findings stand unless clearly erroneous, we

review the district court’s decision on the issue of voluntariness de novo, and the

voluntariness of Larry’s statement depends on whether his “will was overborne and his

capacity for self-determination critically impaired.” United States v. Kilgore, 58 F.3d

350, 353 (8th Cir. 1995) (alteration and internal quotations omitted). In making this

assessment, it is well established that we look to the totality of the circumstances and
-4-

consider both “the conduct of law enforcement officials and [Larry’s] capacity to resist

any pressure.” Id. Here, Larry was thirty-one years old, he had a high school

equivalency diploma, he had an extensive criminal history with thirteen earlier

convictions, and his remarks to the police show he was not particularly susceptible to

police pressure. Larry was held overnight after he was booked on four felony charges

stemming from the drive-by shooting. The next day, the police informed Larry of his

Miranda rights, and then told Larry he would be released from jail and not prosecuted

for the drive-by shooting if he told them what he knew about the shooting. Larry did

so, making along the way his statement about the sawed-off shotgun. As promised,

Larry was then released and was not prosecuted on the felony charges. Larry was

neither intimidated nor threatened during his brief questioning. 

Instead of treating the promised nonprosecution as one of the circumstances to

be considered in assessing the conduct of the police and the characteristics of the

accused, see Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973), the district court

ruled on a per se basis that “a confession induced by a promise that there will be no

prosecution is not voluntary.” In doing so, the district court misapplied the Schneckloth

rule and ignored our earlier holdings. See Kilgore, 58 F.3d at 353 (promise of leniency

does not in itself make confession involuntary); Tippitt v. Lockhart, 859 F.2d 595, 597

(8th Cir. 1988) (promise of nonprosecution does not in itself make statement

involuntary). After considering Larry’s capacity to resist police pressure and the nature

of the interrogation, we conclude Larry was neither coerced nor was his will overborne,

and his statement was voluntarily given. Thus, the district court properly relied on

Larry’s statement at sentencing.

Finally, the district court’s refusal to grant Larry’s motion for a downward

departure is unreviewable. The district court understood it had authority to depart

downward and simply decided a departure was not warranted. See United States v.

Rawe, 21 F.3d 850, 852 (8th Cir. 1994) (per curiam).
-5-

We affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.