NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0853n.06
No. 11-1735
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. OSCAR HARRI S,
Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : MARTI

N and CL AY, Circuit J udg es; HOOD , District J udg e. *

PER CURI AM. Osca

r Har ris , w h o i s r e p r e s e n t e d b y c o u n s e l , a p p e a l s h i s c o n v i c t i o n f o r being

a felon in possession of a firea rm, following three serious felony convictions, in viol at i o n o f 18 U.S.C. §§ 922(g) (1) a

nd 924(e)

. After an evidentiar

y hear ing, the district court denied Har ris’s motion to suppress statements he made to the police and the case proce eded t o t ri al. A jury subsequently convicted Har ris of violating sections 922(g )(1) and 924(e)

. Although Har ris’s p re s en t ence repor

t rec ommended an applicable senten ci n g gu i d eli ne’s rang e of 210 to 262 months of imprisonment, the district court
sentenc ed Ha

rris to 300 months of imprisonment. On appea l, Har

ris argues that: 1 ) t h e district court err ed when it denied his motion to suppress beca

use his statements to the police wer e coer ced and involuntary ; 2) the district court err ed when it denied his motion to dismiss the ind i ct m en t b as ed on selec tive prosec ution; 3) the
g overnme nt failed to pres en t sufficie nt evidenc e to support his § 922(g ) conviction; and 4) his
sentenc e is proce durally

and substantively

unrea sonable.

The Honora

ble J oseph M

. Ho od, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.No. 11-1735 - 2 - Harri s has waived his rig ht to challeng e the indictment on the g rounds of selec tive
prosec ution be cause he did not f ile a pre trial motion to di smiss t he indictment pursuant to F eder al Rule of Criminal Procedur e 12(b)( 1). See Un i t ed States v. Abboud , 438 F.3d 554, 579 (6th Cir. 2006). The district court did not err when it denied Har ris’s motion to suppress. When considering

a district court’s denial of a motion to suppress, “[w]e revie w the district court’s finding s of fac t for clea r err or and its conclusions of law de novo .” United States v. Blair , 524 F.3d 740, 747 (6th Cir. 2008). “A fac tual finding is clea rly err oneous when the revie wing court on the entire evidenc e is left with the definite and firm conviction that a mistake has been committed.” United States v. Garrido , 4 6 7 F. 3 d 9 71, 977 (6th Cir. 2006) (citation and internal quotation marks omitted). We view the evidenc e “in the light most favor able to the party that preva iled in the court below—in this case , the
g overnme nt.” Id. Har ris argues that the arr esting office rs place d him in a coer cive setting following his arr est, without rea ding him his rig hts under Miranda v. Arizona , 384 U.S. 436, 479 (1966). He states that
t h e all eg edly threa tening environment cause d him to make incriminating statements. Har ris ’s
arg ument is unavailing beca use Miranda war

nings are not triggere d by the mere place ment of an individual into an officer ’s cu s t o d y . R at her, the war nings must be given before any interrog ation beg ins. See Rhode Island v. Innis , 446 U.S. 291, 300 (1980); United States v. Cole , 315 F.3d 633, 636 (6th Cir. 2003). During the suppression hear ing, office rs Al i J ab er and Br ian Hea dapohl testified that they did not threa ten Har ris, promise him any

thing, or coer ce him into making any statements. I nstead, J aber testified that Har ris ap p ea re d nervous and that, during the two-minute drive to the pol ice station, Ha rris bl urted out the challeng ed st atements. Given these fac ts, Har ris failed to prese nt sufficie nt evidenc e that the arr esting office rs eng ag ed in any conduct or actions that would have amounted to an interrog ation. See Pennsylv ania v. Muniz , 496 U.S. 582, 600–01 (1990). There fore , the office rs wer e not obliga ted to provide Har ris with a Miranda war

ning and the district court did not err

when it denied his motion to suppress.No. 11-1735 - 3 - There was sufficie nt evidenc e to support Har ris’s conviction for being a felon in possession of a firea rm. We revie w de novo a district cour t’s denial of a

motion for acquittal cha lleng ing the sufficie ncy of the evidenc e. United States v. Howard , 621 F. 3 d 433, 459 (6th Cir. 2010). I n challeng ing the sufficie ncy of t he evidence to support his conviction, Harris must show that, afte r construing the evidenc e in the light most favor able to the g overnme nt, a rational trier of fac t c ould
not have found him g uilty of the crime’ s essential elements bey ond a rea sonable doubt. Jack son v. Virginia , 443 U.S. 307, 319 (1979); United St ates v. Staf ford , 639 F.3d 270, 273 (6th Cir. 2011). When revie wing Har

ris’s challeng e, we do not re- weig h the evidenc e, re- evalua te the cre dibilit y of witnesses, or substitut e our judgme nt for that of the jury

. Gar r i d o , 4 6 7 F. 3d at 984. To obtain a conviction under § 922(g ), the g overnme nt was require d to pr ove that: 1) the defe ndant previously had been convicted of a crime punishable by imprisonment for a term exceeding one y ear ; 2) the defe ndant possessed the firea rm or ammunition; and 3) such possession was in or aff ecting interstate or for eig n commerc e. United States v. Gardne r , 488 F.3d 700, 713 ( 6th Cir. 2007). The g overnme nt prese nted the testimony of the arr esting police office rs, including J aber and Hea d ap o hl, who stated that they chase d Har ris. They observe d Har

ris remove a firea

rm from the rig ht side of his waistband and toss it towards a fenc e. J aber testified that he maintained a flashlig ht trained on Har

ris and never lost sight of him. J aber also testified that he retrie ved a loaded firea rm and a mag azine of ammunition near t h e ar ea wher e Har ris tossed the firea

rm. I n addition, Har

ris advised the police that he was try ing to p rotec t himself and his g irlfriend, which the j ury was free
to consider as an admission that he had possessed a firea rm. Finally , a g overnme nt witness testified that the fire arm ha d been ma nufac tured in Hung ary

and had tr avele d in interstate commer ce. Har ris’s arguments conce rning the acc urac y of the witnesses’ testimony and his a rg uments

conce rning the lack of

lightingat the sce ne of the arr est constitute a challeng e to the credibility of the arr esting officers

. He asks us to re- weig h the evidenc e to conclude that the evidenc e was insufficient to support the jury ’s verdic t. Howeve r, we do not re- weig h the evidenc e or re- evaluate witness cre dibilit y . See Garrido , 467 F.3d at 984. The evidenc e was sufficie nt to support Har ris’s conviction.No. 11-1735 - 4 - The district c ourt’s sentenc e wa s rea sonable. We r eview sentenc es imposed by the district
court for rea sonablene ss, which has both a proce dural and a substantive component. Gall v. United States , 552 U.S. 38, 51 (2007). Procedur al err ors include instances wher e a sentenc ing court “fa il[ s]
to calc ulate (or improperly calc ulat[es] ) the Guidelines rang e, trea t[ s] the Guidelines as mandatory , fail[s] to consider the [18 U.S.C.] § 3553(a) fac tors, selec t[ s] a sentenc e based on clea rly err oneous fac ts, or fail[s] to adequa tely explai n t h e chosen sentenc e.” Id

. “The essenc e of a substantive-re asonable ness claim is whether the leng th of the sentenc e is ‘g reater than nece ssary ’ to achie ve the sentenc ing g oals set forth in 18 U.S.C. § 3553(a) .” United States v. Trist an-Madrigal , 601 F.3d 629, 632–33 (6th Cir. 2010). “A sentenc e may be substantively unrea sonable if the district
court selec ts the sentenc e arbitra rily , bases the sentenc e on impermissible f actor s, fails to c onsider pertinent § 3553(a) fac tors or g ives an unrea sonable amount of weig ht to an y p ertinent fac tor.” United States v. Vowell , 516 F.3d 503, 510 (6th Cir. 2008) (alter ations and internal quotation marks omitted). We revie w a sentenc ing determ i n at i o n for rea sonablene ss under a defe rential abuse- of-discr etion standard. United States v. Studabake r , 578 F.3d 423, 430 ( 6th Cir. 2009). Under the S u p re m e Court’s decision in United States v. Booke r , 543 U.S. 220 (2005), “a district court is require d to consult the sentenc ing rang e under the Fe dera l Sentencing Guidelines for advisory purposes only .” United States v. Ely , 468 F.3d 399, 403 (6th Cir. 2006). “The rang e is

. . . trea ted as just one of the numerous fac tors that a district court must consider when s en t en ci ng a defe ndant, and the district court must also addre ss the other fac tors provided for in section 3553(a) .” Id. (interna l quotation marks omitted). Har ris’s arg ument that the distric t court err ed when it counted three out-of-date prior convictions when calc ulating his criminal history score is r eviewe d for plain err or only beca use he did not raise the issue in the district court. See United States v. Simmons , 587 F.3d 348, 354 (6th Cir. 2009). The district c ourt did not err when it awa rded H arr is points for the challeng ed convic tions beca use the sentenc es for those offe nses wer e imposed on Marc h 20, 2001, less than ten y ear s befor e he committed the instant offe nse on Jul y 4, 2010. See USSG § 4A1.2(e)( 2).No. 11-1735 - 5 - The distric t co u rt proper ly deter mined that Har

ris had the requisite number of predic ate offe nses to be sentenc ed under the Armed Caree r Criminal Act. The statute provides that a person who violates section 922(g ) and has three previous convictions by any court for a violent felony or

a ser ious drug offe nse, or both, committed on occ asions differ ent from one another , shall be fine d and imprisoned for not less than fiftee n y ear s. 18 U.S.C. § 924(e) (1). Although Har ris argues that his conviction for third-deg ree flee ing and eluding a po lice office r is not a crime of violence, he

conce des that prec edent in this Court h olds that a violation of Michig an’s “fle eing and eluding ”
statute i s a cr i m e of violence. United States v. LaCass e , 567 F.3d 763, 764 (6th Cir. 2009). There fore , the district court prope rly counted the f

leeing and eluding conviction. The district court’s sentenc e is also substantively rea sonable. Har ris argues that his sentenc e

was g reater than nece ssary to comply with the sentenc ing purposes set for t h i n section 3553(a)

. Howeve r, a revie w of the sentenc ing transcr ipt ref lects that the district court considere d the rele vant section 3553(a) fac tors when sel ecting Har ris’s sentenc e, including the seriousness of Har ris’s offe nse, t he need t o p ro m o t e respe ct for the l aw, the need to provide just punishment, the need to provide deter

renc e, and the need to protec t the public. Fur thermore , the distr i ct court provided a sufficie nt rationale for its decision to sentenc e Har ris above the rec ommended g uideline’s rang e when it deter

mined that: 1) his extensive criminal history included offe nses that subjected the public and law e nforc ement off

icer s to r isk of injury ; 2) he had shown a complete lack of remorse for his conduct; and 3) he continued to repr esent a dang er to the community beca use he possessed a firea

rm less than thirty

day s after

being rele ased f

rom imprisonment.
T h e d i s t r i c t c o u r t ’ s j u d g m e n t i s a f f i r m e d

.