United States v. Hodges

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2001
• Docket: 00-60211
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60211 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TONY LEWIS HODGES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 4:99-CR-23-ALL-LS -------------------- June 12, 2001

Before JOLLY, DAVIS and JONES, Circuit Judges.

PER CURIAM:*

Tony Lewis Hodges appeals his conviction and sentence for

making a false statement to a federal agent in violation of 18

U.S.C. § 1001(a)(2). He argues that the district court erred in

holding that his statement to a federal agent was voluntary and

denying his motion to suppress his statement. Although Hodges

refused to sign a form containing a waiver of his rights under

Miranda v. Arizona, 384 U.S. 436 (1966), he stated that he was

willing to talk to the federal agent and, therefore, his

statement was voluntary. See North Carolina v. Butler, 441 U.S.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-60211 -2-

369, 373 (1979). Hodges has not shown that his statement was

involuntary because his probation officer told him to meet with

the federal agent. Hodges was advised of his constitutional

rights, chose to answer the agent’s questions rather than invoke

his privilege against self-incrimination, and would not have

suffered a penalty for invoking his privilege. See Minnesota v.

Murphy, 465 U.S. 420, 427-28 (1984).

Hodges also argues that the district court erred in

calculating his offense level under U.S.S.G. § 2K1.3 governing

offenses involving the unlawful receipt, possession, or

transportation of explosive materials, rather than U.S.S.G.

§ 2F1.1, governing fraud and deceit. In cases involving

fraudulent statements prosecuted under a general statute such as

18 U.S.C. § 1001, the court should apply a more specific

guideline if it is more apt. See U.S. Sentencing Guidelines

Manual § 2F1.1, comment. n.14 (1998); United States v. Clements,

73 F.3d 1330, 1339 n.15 (5th Cir. 1996); United States v.

Castaneda-Gallardo, 951 F.2d 1451, 1452 (5th Cir. 1992). Hodges

was convicted of making a statement falsely denying any knowledge

concerning explosive devices found hidden in the ceiling of a

business which had previously been run by his former girlfriend.

Because Hodges’ offense was more aptly covered by the more

specific guideline in § 2K1.3 governing possession of explosive

materials, the district court did not err in calculating his

sentence under § 2K1.3. See U.S. Sentencing Guidelines Manual

§ 2F1.1, comment n.14 (1998); Clements, 73 F.3d at 1339 n.15;

Castaneda-Gallardo, 951 F.2d at 1452. No. 00-60211 -3-

AFFIRMED.