United States v. Franklin Lamar Kellogg

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 10, 2009
• Docket: 07-15807
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT FEB 10, 2009 No. 07-15807 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 06-00017-CR-LSC-PWG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANKLIN LAMAR KELLOGG,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Alabama _________________________

(February 10, 2009)

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM: Franklin Lamar Kellogg appeals his convictions and sentence for armed

bank robbery, use of a firearm during a crime of violence, and possession of a

firearm by a convicted felon. He contends that (1) the district erred by denying his

motion to suppress; (2) there was insufficient evidence to establish that he used a

firearm during a crime of violence; and (3) his 960-month sentence was

unreasonable. We affirm.

I.

Kellogg contends that the district court erred in denying his motion to

suppress evidence obtained during a search of an apartment where Kellogg had

been staying. He admits that he consented to the search. He also admits that he

signed a waiver of his Miranda rights and that he told the police that one of the

guns found in the apartment had been used during a bank robbery. He argues,

however, that his consent to the search and his statement about the gun were

involuntary because he was intoxicated. According to Kellogg, he had taken three

Xanax shortly before he consented to the search.

“We review a district court’s denial of a motion to suppress under a mixed

standard of review, examining the district court’s findings of fact for clear error

and the district court’s application of law to those facts de novo.” United States v.

King, 509 F.3d 1338, 1341 (11th Cir. 2007). Whether a defendant’s consent to a

2 search was voluntary “is a question of fact to be determined from all the

circumstances.” United States v. Garcia, 890 F.2d 355, 358 (11th Cir. 1989)

(internal quotation marks and citation omitted). “In order for consent to a search to

be deemed voluntary, it must be the product of an essentially free and

unconstrained choice.” Id. at 360. Similarly, the relinquishment of one’s Miranda

rights must have been “voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception.” Id. at 585

(citation omitted). “[B]ecause in the ordinary case a finding of voluntariness is

based on credibility choices, we will not overturn the trial judge’s finding that

defendant’s consent was voluntary, unless it is clearly erroneous.” Garcia, 890

F.2d at 359 (citation omitted).

The district court properly denied Kellogg’s motion to suppress. At the

suppression hearing, federal agent James Melia testified that Kellogg did not

appear intoxicated. Agent Melia further testified that Kellogg did not mention that

he had taken Xanax or any other medication and did not claim to be intoxicated.

Kellogg read and signed forms waiving his Miranda rights and consenting to the

search of the house. Here the district court rejected Kellogg’s claim of intoxication

and accepted Agent Melia’s version of the events. That credibility determination

was not clearly erroneous. See United States v. Ramirez-Chilel, 289 F.3d 744, 749

3 (11th Cir. 2002). Because the district court found that Kellogg was not intoxicated

when he consented to the search and waived his Miranda rights, its denial of

Kellogg’s motion to suppress was proper. See United States v. Durham, 587 F.2d

799, 800 (5th Cir. 1979).1

II.

Kellogg next contends that there was insufficient evidence to support his

conviction for the use of a firearm during a crime of violence. He argues that the

evidence failed to establish that he was carrying a firearm during the commission

of the bank robbery. That argument is meritless. Several witnesses testified that

Kellogg placed a gun on the counter when he demanded that the bank teller give

him money. They also testified that Kellogg shot a round into the bank’s ceiling

during the robbery. Surveillance cameras confirm that Kellogg was carrying a gun

in his hand when he entered the bank. The evidence is sufficient to sustain

Kellogg’s conviction.

III.

Kellogg’s final contention is that the severity of his sentence violated his due

process rights. Kellogg’s sentence of 960 months imprisonment is to be served

1 Decisions by the Fifth Circuit issued before October 1, 1981 are binding precedent. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

4 consecutive to an earlier sentence in Tennessee for drug and weapons charges.

Combined, those sentences equal a total of a life sentence plus 1,320 months

imprisonment, effectively a life sentence. Kellogg contends this sentence when

combined with the other one is unreasonable.

We review a final sentence for reasonableness according to the 18 U.S.C.

§ 3553(a) factors. United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.

2005). Where the district court imposes a within-guidelines sentence, it need only

“set forth enough to satisfy the appellate court that it has considered the parties’

arguments and has a reasoned basis for exercising [its] own legal decision making

authority.” Rita v. United States, 551 U.S. ___, 127 S. Ct. 2456, 2468 (2007). The

challenger “bears the burden of establishing that the sentence is unreasonable in

light of both [the] record and the factors in section 3553(a).” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). The district court need not state that it

has explicitly considered each factor and need not discuss each factor. Id. at 786.

The weight accorded to the § 3553(a) factors is left to the district court’s

discretion. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

Kellogg’s prior criminal history qualified him as both a career offender and

an armed career criminal. His guideline sentencing range was 960-months to life

imprisonment. After considering the § 3553(a) factors, the district court decided to

5 sentence him to 960-months imprisonment. That sentence was the low end of the

guideline range. It was also below the statutory maximum. The record reflects

that the district court properly considered the § 3553(a) factors and its sentence

was reasonable.

AFFIRMED.