UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-5023

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

ANTOINE HILL, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Richard L. Williams, Senior 

District Judge. (3:07-cr-00407-RLW-1) 

Submitted: July 6, 2009 Decided: August 13, 2009 

Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Timothy V. Anderson, ANDERSON & ASSOCIATES, Virginia Beach, 

Virginia, for Appellant. Dana J. Boente, Acting United States 

Attorney, Michael A. Jagels, Special Assistant United States 

Attorney, Richmond, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Antoine Hill appeals his jury conviction and 300-month 

variant sentence for possession with intent to distribute 

heroin, in violation of 21 U.S.C. § 841 (2006), possession of a 

firearm in furtherance of a drug trafficking crime, in violation 

of 18 U.S.C. § 924(c) (2006), and possession of ammunition by a 

felon, in violation of 18 U.S.C. § 922(g)(1) (2006). Hill 

asserts that: (i) the district court erred when it denied his 

suppression motion by allegedly misapplying the public safety 

exception to pre-Miranda1 custodial statements and then 

incorrectly admitted his post-Miranda statements; (ii) the 

district court erred when it refused to instruct the jury that 

it could not conclude that Hill had “knowledge” of his drug 

possession from negligence, carelessness, or his belief in an 

inaccurate proposition; and (iii) ineffective assistance of 

counsel conclusively appears on the record because trial counsel 

failed to argue for an appropriate sentence and instead moved to 

withdraw just prior to sentencing.2 Finding no reversible error, 

we affirm. 

 1 Miranda v. Arizona, 384 U.S. 436 (1966). 

2

 Hill has also moved to file a pro se supplemental brief 

and to relieve his counsel and proceed pro se on appeal. 

Because there is no constitutional right to self-representation 

on appeal, see Martinez v. Court of Appeal, 528 U.S. 152, 161 

(2000), and because we find that Hill did not move to proceed 

(Continued) 

2 
 We find that Hill’s pre-Miranda statement pertaining 

to a weapon located in his residence implicates the public 

safety exception to Miranda under New York v. Quarles, 467 U.S. 

649 (1984). Police were aware that Hill did not reside in the 

apartment alone, and had reason to suspect that weapons were 

located in the residence. Moreover, at the time Hill was 

questioned, the residence had not yet been secured. Based on 

these circumstances, we find that Hill’s pre-Miranda statement 

regarding the existence of a weapon in his apartment falls 

within the Quarles exception to Miranda and was properly 

admitted by the district court. 

 

pro se at the earliest possible time, 4th Cir. R. 46(f), we deny 

Hill’s motion to relieve counsel and to proceed pro se. 

Moreover, although Hill explains that he wishes to proceed pro 

se so he may move this Court for release pending appeal, because 

we affirm Hill’s conviction and sentence, Hill’s motion for 

release would be denied. See 18 U.S.C. § 3143(b) (2006) 

(providing that a criminal defendant should be detained pending 

appeal unless it appears, by clear and convincing evidence, that 

the appeal raises a substantial question of law or fact that 

requires reversal, an order for a new trial, a non-prison 

sentence, or “a reduced sentence to a term of imprisonment less 

than the total of the time already served plus the expected 

duration of the appeal process”). We grant Hill’s motion to 

file a pro se supplemental brief, but after considering the 

arguments raised therein, conclude that Hill’s ineffective 

assistance of counsel claim is not cognizable on direct appeal. 

See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 

2006) (ineffective assistance of counsel claims are generally 

not cognizable on direct appeal unless the ineffectiveness 

“conclusively appears” on the record). 

3 
 We nonetheless find that the transporting officer’s 

pre-Miranda inquiry into whether drugs were located in Hill’s 

residence does not implicate the Quarles exception. In fact, 

one of the officers admitted at the suppression hearing that 

there “is no officer safety purpose in knowing whether or not 

there [we]re drugs in the apartment.” This finding, however, 

affords Hill no relief. Because the district court correctly 

admitted Hill’s post-Miranda statements3—which were essentially 

identical to his pre-Miranda statements—we conclude that the 

jury “would not have found the [Government's] case significantly 

less persuasive” if the pre-Miranda statements had been 

excluded. See Schneble v. Florida, 405 U.S. 427, 432 (1972); 

see also United States v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 

2008) (recognizing that an error “will be deemed harmless if a 

 3

 Hill’s assertions to the contrary, the mere fact that 

Hill’s post-Miranda statements confirmed his pre-Miranda

admissions does not, in and of itself, render the post-Miranda

statements involuntary and inadmissible. See Oregon v. Elstad, 

470 U.S. 298, 314 (1985) (holding that “absent deliberately 

coercive or improper tactics in obtaining the initial statement, 

the mere fact that a suspect has made an unwarned admission does 

not warrant a presumption of compulsion” as to any subsequent, 

post-warning statement); United States v. Mashburn, 406 F.3d 

303, 307-10 (4th Cir. 2005) (holding that a few pre-warning 

questions will not render post-warning responses involuntary and 

inadmissible if: (i) there was no evidence that an officer’s 

failure to convey Miranda warnings was deliberate or 

intentional; and (ii) there was no evidence that the postwarning statement was involuntarily made). Accordingly, we 

conclude that the district court did not err in allowing Hill’s 

post-Miranda statements to be presented to the jury. 

4 
reviewing court is able to say, with fair assurance, after 

pondering all that happened without stripping the erroneous 

action from the whole, that the judgment was not substantially 

swayed by the error”) (internal citations and quotation marks 

omitted), cert. denied, 129 S. Ct. 1312 (2009). Thus, because 

the jury would have received the same evidence even if Hill’s 

pre-Miranda statements were suppressed by the district court, 

any error by the district court to admit Hill’s pre-Miranda

statement was harmless beyond a reasonable doubt. 

 We also conclude that the district court did not abuse 

its discretion when it denied Hill’s proposed jury instruction. 

A district court’s refusal to provide an 

instruction requested by a defendant 

constitutes reversible error only if the 

instruction: (1) was correct; (2) was not 

substantially covered by the court’s charge 

to the jury; and (3) dealt with some point 

in the trial so important[] that failure to 

give the requested instruction seriously 

impaired the defendant’s ability to conduct 

his defense. 

United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal 

quotation marks and citation omitted). Although the Government 

does not dispute that Hill’s proposed jury instruction was a 

correct statement of the law, we find that Hill’s requested 

instruction was substantially covered by the district court’s 

remaining jury instructions. 

5 
 Hill last asserts that his counsel was ineffective 

because he failed to file a sentencing memorandum with the 

district court, failed to argue for a variant sentence at his 

sentencing hearing, and instead moved to withdraw as counsel a 

day prior to Hill’s sentencing hearing. Although Hill 

recognizes that this issue may be better left for review on a 

habeas corpus motion, Hill suggests that if the Court finds 

merit to his other arguments, “a remand for sentencing with 

prepared counsel” would be appropriate. 

 Even assuming, without deciding, that it was error for 

Hill’s trial counsel to move to withdraw from representation 

just prior to his sentencing and to fail to argue for an 

appropriate sentence on his behalf, it does not conclusively 

appear on the record that but for counsel’s purported errors, 

Hill’s sentence would have been different. In fact, Hill’s 

counsel concedes that “[i]t is impossible to know what factors 

could have or should have been presented to the Court at 

sentencing that may have persuaded the Court to depart by 

variance from the recommend[ed] sentencing guidelines.” 

 Moreover, although the Government asked the district 

court to sentence Hill within his 360-month to life Guidelines 

range, the district court varied from the Guidelines range and 

imposed a 300-month sentence. Because it is not apparent that 

the district court would have varied further based on any 

6 
7 

argument counsel may have made, we find that Hill’s ineffective 

assistance claim based on counsel’s failure does not 

conclusively appear on the record and, thus, is not cognizable 

on direct appeal. See Strickland v. Washington, 466 U.S. 668, 

694 (1984); United States v. Baldovinos, 434 F.3d 233, 239 (4th 

Cir. 2006). 

 Based on the foregoing, we deny Hill’s motion to 

relieve his counsel and to proceed pro se on appeal, grant 

Hill’s motion to file a pro se supplemental brief, deny Hill’s 

motions for bail or release pending appeal as moot, and affirm 

the district court’s judgment. 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