Filed: September 11, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-4169

(CR-95-84)

United States of America,

Plaintiff - Appellee,

versus

Lloyd Lenwood Walker,

Defendant - Appellant.

ORDER

The Court amends its opinion filed August 14, 1997, as

follows:

On page 5, first paragraph, line 2 -- the citation is

corrected to begin "United State s v. Hayden."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4169

LLOYD LENWOOD WALKER,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Lynchburg.

Samuel G. Wilson, Chief District Judge.

(CR-95-84)

Submitted: February 11, 1997

Decided: August 14, 1997

Before HALL and NIEMEYER, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Joseph Abraham Sanzone, JOSEPH A. SANZONE ASSOCIATES,

Lynchburg, Virginia, for Appellant. Robert P. Crouch, Jr., United

States Attorney, Thomas L. Eckert, Assistant United States Attorney,

Washington, D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lloyd L. Walker appeals from his conviction of distribution of

crack cocaine, 21 U.S.C. § 841(a)(1) (1994), for which he received a

151-month prison sentence. Walker claims, first, that his unwarned

statements to the police were the result of a custodial interrogation in

violation of Miranda v. Arizona, 384 U.S. 436 (1966), and, therefore,

should have been suppressed. Walker also claims that the 100-to-1

sentencing ratio for crack cocaine as compared to cocaine powder

adversely affects blacks in violation of due process and equal protection. We affirm.

On April 26, 1995, Officer William Dance of the Lynchburg, Virginia, police department directed a controlled purchase of crack

cocaine from Walker at his residence in Lynchburg. After the informant returned from purchasing the cocaine, Dance applied for a

search warrant for Walker's residence while Officer Thomas was

directed to proceed to Walker's house and keep him under surveillance until officers arrived with the search warrant. When Thomas

observed Walker leaving his residence with another person, Thomas

was ordered to follow Walker and to stop his car when he was joined

by a backup unit. Walker was intercepted in the parking lot of a convenience store. The passenger, upon seeing the police approaching,

opened the door and dropped a small bag of cocaine on the ground.

The officers searched Walker's car in the parking lot but found no

weapons or drugs. Walker's car was taken for an inventory search and

Walker, handcuffed, was taken by Commander Cyrus back to his residence. Dance had arrived a few moments earlier with a search warrant.

Once inside the residence, Dance asked Walker, "The cocaine is in

the bottom drawer upstairs in the safe, isn't it?" to which Walker

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responded, "Yes." After other agents went upstairs to find the cocaine,

Walker turned to Dance and said that the cocaine belonged to him and

that his girlfriend (who was at the residence at the time the search was

taking place) "had nothing to do with it." According to Dance, Walker

made this statement approximately 20 to 30 seconds after Dance had

asked him about the location of the cocaine. Dance and the other officers eventually retrieved the cocaine from a locked chest of drawers

in an upstairs bedroom, using a key found on a key ring in Walker's

car. Dance then asked Walker "where the weapon was." Walker first

said it was "downstairs" and then told Dance that it was behind a television in the room in which they were standing. Dance retrieved the

gun and removed the clip. As Dance was speaking to another officer,

Walker said that the firearm was registered in his name. It is undisputed that, up to this point, no one had read Walker his Miranda

rights.

Walker filed a motion to suppress his statements made to Dance

about the location of the cocaine and the weapon and to suppress the

key seized from his car. After a hearing on the motion, the district

court granted the motion to suppress the unwarned statements concerning the locations of the gun and the cocaine. The court also suppressed the key because it was not relevant evidence. However, the

district court denied the motion with respect to Walker's statement

that the gun was registered to him and other statements that were not

in response to questions, on the grounds that they were volunteered

and, therefore, not fruit of the Miranda violation.

Walker elected to be tried by the court and was found guilty of (1)

distribution of crack cocaine and (2) using or carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)

(1994). However, the district court subsequently vacated Walker's

§ 924(c) conviction in light of Bailey v. United States, ___ U.S. ___,

64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448/7492). Walker

noted a timely appeal.

The district court's legal conclusion regarding the motion to suppress is reviewed de novo, and its findings of fact are reviewed for

clear error. United States v. Han, 74 F.3d 537, 540 (4th Cir.), cert.

denied, ___ U.S. ___, 63 U.S.L.W. 3807 (U.S. June 3, 1996) (No. 95-

8891); United States v. Williams, 10 F.3d 1070, 1077 (4th Cir. 1993).

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Walker's statement regarding ownership of the cocaine was properly

admitted by the district court. It is well settled that spontaneous or

volunteered statements are not barred under Miranda. "Volunteered

statements of any kind are not barred by the Fifth Amendment and

their admissibility is not affected by our holding today." Miranda v.

Arizona, 384 U.S. at 478. A statement that is unsolicited or unresponsive to an earlier question is deemed voluntary and, therefore, admissible. See, e.g., United States v. Wright, 991 F.2d 1182, 1186-87 (4th

Cir. 1993); United States v. Cordova, 990 F.2d 1035, 1037-38 (8th

Cir. 1993); Anderson v. Thieret, 903 F.2d 526, 532 (7th Cir. 1990)

(lapse of time and nonresponsive nature of defendant's statement "removes any possibility that [defendant] was responding to police interrogation"); United States v. Suggs, 755 F.2d 1538, 1542 (11th Cir.

1985) (voluntary comments unresponsive to police questioning are

admissible even after Miranda rights are asserted).

Walker's statement regarding ownership of the drugs was

volunteered--Dance had already asked the question concerning the

location of the drugs and had turned away from Walker without asking any more questions. In any event, any error in the admission of

this statement was harmless because the other evidence presented by

the government was sufficient to convict him. See United States v.

Mobley, 40 F.3d 688, 694 (4th Cir. 1994) (statement obtained in violation of Miranda was harmless error where other evidence at trial

clearly established guilt), cert. denied, ___ U.S. ___, 63 U.S.L.W.

3832 (U.S. May 22, 1995) (No. 94-8158); United States v. Khan, 993

F.2d 1368, 1376 (9th Cir. 1993) (same).

This court has held that the higher guideline range applicable to

crack cocaine, as compared to powder cocaine, does not violate equal

protection or the due process clause. United States v. Fisher, 58 F.3d

96, 98-100 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3270

(U.S. Oct. 10, 1995) (No. 95-5923). See also United States v.

Jackson, 84 F.3d 1154 (9th Cir. 1996), cert. denied, ___ U.S. ___, 65

U.S.L.W. 3353 (U.S. Nov. 12. 1996) (No. 96-6320); United States v.

Steen, 55 F.3d 1022, 1029 n.15 (5th Cir. 1995), cert. denied, ___ U.S.

___, 64 U.S.L.W. 3397 (U.S. Dec. 4, 1995) (No. 95-6564); United

States v. Shorter, 54 F.3d 1248, 1253 n.11 (7th Cir. 1995), cert.

denied, ___ U.S. ___, 64 U.S.L.W. 3247 (U.S. Oct. 2, 1995) (No. 95-

5456). Moreover, Congress has recently rejected the Sentencing Com-

 4
mission's recommendation to lower the ratio between crack cocaine

and powder cocaine. See United States v. Hayden, 85 F.3d 153, 157-58

(4th Cir. 1996).

Accordingly, we affirm Walker's conviction and sentence. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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