United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-3145

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Julian Mitchell

lllllllllllllllllllll Defendant - Appellant

___________________________

No. 14-3148

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Julian Mitchell

lllllllllllllllllllll Defendant - Appellant

____________

Appeals from United States District Court 

for the Western District of Missouri - Kansas City

____________
 Submitted: June 5, 2015

Filed: June 8, 2015

[Unpublished]

____________

Before WOLLMAN, LOKEN, and BENTON, Circuit Judges. 

____________

PER CURIAM.

In these consolidated matters, Julian Mitchell–proceeding pro se–directly

appeals following imposition of sentence by the district court upon his guilty plea 1

to a felon-in-possession charge and the revocation of his supervised release in a prior

criminal matter. We affirm.

While Mitchell was serving a 5-year term of supervised release, authorities

found a firearm in his residence, and he was charged with being a felon in possession

of a firearm. Mitchell’s supervising probation officer thereafter obtained a violator’s

warrant against Mitchell for violating his supervised release conditions. The new

criminal matter and the supervised release proceedings were combined for

disposition. 

Mitchell moved to suppress the firearm found during the search of his

residence. Following an evidentiary hearing, the district court adopted (without

objection) the magistrate judge’s report and recommendation to deny the motion. 2

Mitchell thereafter pleaded guilty to the felon-in-possession charge, reserving his

The Honorable Brian C. Wimes, United States District Judge for the Western 1

District of Missouri.

The Honorable Robert E. Larsen, United States Magistrate Judge for the

2

Western District of Missouri.

-2-
right to appeal the denial of his suppression motion. At a combined sentencing and

revocation hearing, Mitchell admitted violating several of his release conditions, as

charged in the violation report, and supervised release was revoked. Following

argument by both sides and Mitchell’s opportunity for allocution, the district court

sentenced Mitchell to serve 46 months in prison and three years ofsupervised release

on the felon-in-possession charge, and to serve 30 months in prison as a revocation

sentence on the prior criminal matter, with the sentences to run consecutively.

On appeal Mitchell argues that the district court erred in denying his

suppression motion, because (1) the search was conducted based on consent given by

his mother, who was mentally incompetent to give consent, and (2) he did not consent

to the search. These arguments fail. See United States v. Sigillito, 759 F.3d 913, 923

(8th Cir. 2014) (standard of review); United States v. Newton, 259 F.3d 964, 966 (8th

Cir. 2001) (failure to object to magistrate judge’s report). We agree with the district

court that the searching officers reasonably relied on the consent given by Mitchell’s

mother: she opened the door to the residence, indicated that she lived there with her

son, and demonstrated familiarity with the premises. We see nothing in these facts,

or the testimony developed at the suppression hearing, that would have suggested to

the officers that the mother lacked mental capacity to consent to a search of the

premises. See United States v. Lindsey, 702 F.3d 1092, 1096-97 (8th Cir. 2013)

(discussing officer’s reasonable reliance on third party’s demonstration of apparent

authority to consent to search of premises). As to Mitchell’s refusal to give his

consent, we note that he did not object to the search in his mother’s presence. Indeed,

he was at police headquarters at the time and had agreed to think about whether he

would consent to the search. Cf. Fernandez v. California, 134 S. Ct. 1126, 1129-30,

1132-37 (2014) (discussing narrow exception that finds third-party consent

insufficient when another occupant is present and objects to search).

Mitchell also contests his revocation sentence, arguing for the first time on

appeal that the district court wrongly inflated his revocation range, failed to announce

-3-
what the range was, and failed to explain its variance from the range. We find no

abuse of discretion. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)

(en banc) (deferential abuse-of-discretion standard); United States v. Brandon, 521

F.3d 1019, 1027 (8th Cir. 2008) (unobjected-to procedural errors are reviewed for

plain error). The probation officer’s supervised-release-violation packet–including

a list of violations, as well as a worksheet reflecting the “grade” assigned to each

violation and the resulting Guidelines revocation range–was before the court and the

parties and was referred to at times. Mitchell stipulated that he had violated a

supervised condition (among others) prohibiting his commission of another

crime–which the worksheet noted was a Grade A violation yielding a range of 24-30

months in prison based on his criminal history category. We find no basis to

conclude that error (plain or otherwise) occurred in calculating or stating the

revocation range. See United States v. Whirlwind Soldier, 499 F.3d 862, 874 (8th

Cir. 2007). We also find that the 30-month sentence, falling at the top of the range,

was substantively reasonable. See Feemster, 572 F.3d at 461. Finally, we conclude

that the ineffective assistance claims that Mitchell has raised are not properly before

us in this direct criminal appeal. See United States v. McAdory, 501 F.3d 868,

872-73 (8th Cir. 2007).

The judgment is affirmed.

______________________________

-4-