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. Af ter Omaha, Nebraska police officers received word of 911 calls reporting a dr ive-by shooting, an officer began to follow a car matching the description of th e vehicle involved in the shooting. The officer stopped the suspect car when its driver, Car dell Larry, exceeded the speed limit. On learning Larry was driving with a suspended license, the officer arrested him . Another officer saw ammunition scattered
aro und inside the car in plain view. The officer searched the car and found thre e firearms an d a quantity of ammunition. At the police station, more ammunition wa s 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 (AT F) testified the ammunition seized from the car and from Larry had bee n 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 beg in, Larry’s challenge to the constitutionality of 18 U.S.C. § 922(g)(1) is foreclosed by our decision in United States v. Ba tes , 77 F.3d 1101, 1103-04 (8th Cir.), cert. denied , 11 7 S. Ct. 215 (1996). Next, Larry contends his indictment should have be en dismissed because of preindictment delay. About one year passed betwee n Larry’s arrest and indictment, and in the meantime the tapes of the 911 calls wer e destro yed. Larry claims that because the tapes may have shown police lacke d reasonable suspicion for an investigative stop, their destruction prejudiced his defense. Larry failed to establish the required preju dice, however, see United States v. Pratt , 31 F.3d 6 25, 627 (8th Cir. 1994), because the officer could have stopped Larry for th e spee ding violation alone, see United States v. Pollington , 98 F.3d 341, 342 (8th Cir

. 1996).

Af ter stopping Larry, the officer arrested him for driving with a suspende d license , and so the ensuing vehicle search was a lawful search incident to arrest. See United St ates v. Snook , 88 F.3d 605, 608 (8th Cir. 1996). Alternatively, when th e 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 warrantle ss 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 conte nds 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-

ammunit ion had been made outside Nebraska should have been excluded. The agent hadextensive firearms training and experience, and access to the ATF’s data o n ammunit ionmanufacturers. Despite the agent’s lack of specialized training i n ammunition iden

tification, we conclude the district court acted within its discretion in allowing the challenged testimony, see United States v. Rose , 731 F.2d 133 7, 1346 (8th Cir. 1984), which sufficiently establis hed the ammunition’s interstate connection. The evid ence was also sufficient to establish Larry’s underlying felony conviction. Th e recor d shows Larry was convicted of a Georgia felony on a counseled plea of guilt y and sentenced to three years’ confinement. Turning to Larry’s sentence, La rry 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 d istrict court found the statement was made after the police promised Larry h e wo uld be released from jail and would not be prosecuted for the drive-by shooting

. Concluding the promise of n o 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
ac count in arriving at Larry’s base offense level. See U.S. Sentencing Guideline s Manual § 6A1.3(a), p.s. (1995) (permitting sentencing court to consider sufficientl y reliable info rmation “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 th e 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 35 0, 353 (8th Cir. 1995) (alteration and internal quotations omitted). In making thi s 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 pr essure.” Id. Here, Larry was thirty-one years old, he had a high schoo l equivalency diploma, he had an extensive criminal history with thirteen earlie r convictions, an d 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 stemmi ng 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 , La rry was then released and was not prosecuted on the felony charges. Larry wa s neither intimidated nor threatened during his brief questioning.
Instead of treating the promised nonprosecution as one of the circumstances to be co nsidered in assessing the conduct of the police and the characteristics of th e accused, see S chneckloth v. Bustamonte , 412 U.S. 218, 226 (1973), the district court ruled o n a per se basis that “a confession induced by a promise that there will be n o 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 involuntar y); Tippitt v. Lockhart , 859 F.2d 595, 597 (8th Cir. 1988) (promise of nonprosecution does not in itself make statemen t involuntary). After considering Larry’s capacity to resist police pressure and the nature of the interrogation, we conclude Larry was neither coerced nor was hi s will overborne, and his stat ement was voluntarily given. Thus, the district court properly relied o n Larry’s statement at sentencing.

Fi nally, the district court’s refusal to grant Larry’s motion for a downwar d departure is unreviewable. The district court understood it had authority to depart downwa rdand 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.