* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-60779

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM LEE YOUNG, a/k/a

WILLIAM YOUNG

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:95-CR-44-LN

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September 20, 1996

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

William Lee Young appeals his jury convictions for mail

theft. Young complains that the district court erred by denying

his motion to suppress evidence, by admitting as evidence a prior

statement of culpability, by denying a base-offense-level

adjustment for acceptance of responsibility, by increasing his

base offense level under U.S.S.G. § 4B1.3, and by departing

upwardly from the sentencing guidelines based on his recidivism. 
No. 95-60779

- 2 -

Our review of the record and the arguments and authorities

convince us that no reversible error was committed. The district

court did not err in denying Young’s motion to suppress his

statements and the seized evidence because Young was not in

custody prior to his arrest and, therefore, his rights under

Miranda did not attach. See Berkemer v. McCarty, 468 U.S. 420,

439 (1984). The district court did not err by admitting a video

tape of a previous interview with Young because it fell under an

exception to Rule 404(b) as evidence to show “modus operandi,” or

knowledge, intent, and a plan. See United States v. Beechum, 582

F.2d 898, 911 (5th Cir. 1978)(en banc), cert. denied, 440 U.S.

920 (1979). The district court did not err by denying the

downward adjustment for acceptance of responsibility because by

going to trial, Young denied his guilt and put the Government to

its burden of proof on every element of the crime. See U.S.S.G.

§ 3E1.1, comment. (n.2). Young did not need to proceed to trial

to assert or preserve his Fourth Amendment claims because he

raised these challenges in his pretrial motion to suppress

evidence. The district court did not err by adjusting Young’s

base offense level upward pursuant to § 4B1.3 because it properly

used the stolen credit card limits to determine the income

derived from Young’s criminal activity, see United States v.

Sowels, 998 F.3d 249, 251-52 (5th Cir. 1993); United States v.

Quertermous, 946 F.2d 375, 377 (5th Cir. 1991), and because the

crime of stealing mail was his primary occupation by his own

admissions. The district court did not abuse its discretion by
No. 95-60779

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departing upwardly from the sentencing guidelines based on its

finding that Young’s Criminal History Category did not adequately

reflect the seriousness of his past criminal activity. See

United States v. Lambert, 984 F.2d 658, 660 (5th Cir. 1993)(en

banc); §§ 4A1.3, p.s.; 5K2.0, p.s. The district court issued a

reasonable upward departure based on valid reasons. United

States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994)(en banc),

cert. denied, 115 S. Ct. 1969 (1995); United States v. Chappell,

6 F.3d 1095, 1102 (5th Cir. 1993). 

The reply brief submitted on appeal is composed of material

written and typed by Young, yet is signed by Young’s courtappointed counsel. This brief is stricken from the record

because it constitutes hybrid representation, and there is no

right to such representation on appeal. See United States v.

Daniels, 572 F.2d 535, 540 (5th Cir. 1978).

AFFIRMED; REPLY BRIEF STRICKEN.