United States v. Tran

342 F. App'x 758
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 28, 2006
DocketNo. 05-12820
StatusPublished

This text of 342 F. App'x 758 (United States v. Tran) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tran, 342 F. App'x 758 (11th Cir. 2006).

Opinion

PER CURIAM:

Thong C. Tran appeals his convictions and 60-month concurrent sentences for one count of bankruptcy fraud and two counts of making a false declaration/certificate/verification/statement under penalty of perjury in relation to a bankruptcy proceeding, in violation of 18 U.S.C. §§ 152 and 157. On appeal, Tran argues that the district court reversibly erred by denying Tran’s motion to suppress his post-Miranda1 statement when the court failed to address explicitly Tran’s argument that, before receiving Miranda warnings, he had invoked his post-indictment Sixth Amendment right to counsel when he allegedly requested his bankruptcy lawyer’s business card. Second, he argues that the evidence presented at his suppression [760]*760hearing concerning the request for his bankruptcy attorney’s card and the court’s finding that he testified falsely was insufficient to support the court’s application of a two-level obstruction-of-justice enhancement under U.S.S.G. § 3C1.1.

I. Invocation of the Right to Counsel

“A district court’s ruling on a motion to suppress presents mixed questions of law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir.2002). We are “required to accept the district court’s factual findings as true unless they are clearly erroneous, but the district court’s application of the law to the facts is reviewed de novo.” Id. at 749 (quotation omitted).

“The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” Texas v. Cobb, 532 U.S. 162, 167, 121 S.Ct. 1335, 1340, 149 L.Ed.2d 321 (2001) (quotation and alteration omitted). The Supreme Court has explained that:

The Sixth Amendment right to counsel ... is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

Id. at 167-68, 121 S.Ct. 1335 (quotation and alterations omitted). The Sixth Amendment attaches at the initiation of adversary judicial proceedings. Michigan v. Jackson, 475 U.S. 625, 631, 106 S.Ct. 1404, 1408, 89 L.Ed.2d 631 (1986). “[OJnce a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right — even if voluntary, knowing, and intelligent under traditional standards — is presumed invalid if secured pursuant to police-initiated conversation.” Michigan v. Harvey, 494 U.S. 344, 345,110 S.Ct. 1176, 1177, 108 L.Ed.2d 293 (1990) (citing Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631). The district court must determine if the accused actually invoked his right to counsel. Smith v. Illinois, 469 U.S. 91, 95,105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984). Whether a defendant has invoked his right to counsel is an objective inquiry. Davis v. United States, 512 U.S. 452, 458-59, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994).

In Davis, the petitioner was interviewed regarding his possible involvement in a homicide. Id. at 454, 114 S.Ct. at 2353. Before being interviewed, Davis waived his rights to remain silent and to counsel. Id. at 455, 114 S.Ct. at 2353. A hour and a half into the interview Davis said, “Maybe I should talk to a lawyer.” At that point in the interview, the agents inquired as to whether the petitioner was asking for a lawyer or was just making a comment about a lawyer. Davis replied that he was not asking for a lawyer and that he did not want a lawyer. The interview then continued for another hour until Davis said, “I think I want a lawyer before I say anything else.” The interview then ceased. Id. The Supreme Court stated that:

if the suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. Rather, the suspect must unambiguously request counsel.

Id. at 459, 114 S.Ct. at 2355 (citations omitted). The Supreme Court recognized that the requirement for a clear assertion of the right to counsel might disadvantage suspects who because of a lack of linguistic skills would not clearly articulate their [761]*761right to counsel although they actually wanted to have a lawyer present. Id. at 460, 114 S.Ct. at 2356. Nonetheless, the Court believed requiring police officers to make difficult judgment calls about whether a suspect invoked his right to counsel was more problematic. See id. at 461, 114 S.Ct. at 2356.

In the instant case, the district court did not make a specific finding as to whether Tran made his alleged request for his bankruptcy lawyer’s card and, thus, did not explicitly address whether Tran invoked his right to counsel. Nevertheless, remand is unnecessary because, even if Tran had made the request to retrieve his bankruptcy lawyer’s business card, this request was too ambiguous to have constituted an invocation of his right to counsel. See Davis, 512 U.S. at 459, 114 S.Ct. at 2355. As the Supreme Court has stated, a “suspect must unambiguously request counsel.” Id. Here, Tran did not make an unambiguous request. Therefore, the district court did not err when it refused to grant Tran’s motion to suppress.

II. U.S.S.G. § 3C1.1

“Although Booker2 established a ‘reasonableness’ standard for the sentence finally imposed on a defendant, the Supreme Court concluded in Booker that district courts must still consider the Guidelines in determining a defendant’s sentence.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005) (citations omitted). Moreover, “[njothing in Booker suggests that a reasonableness standard should govern review of the interpretation and application as advisory of the Guidelines by a district court.” Id. (reaffirming that the pre-Booker standard as to the Guidelines still applies). “Although under Booker, the Sentencing Guidelines are an advisory rather than a mandatory regime, the district court remains obliged to consult and take into account the Guidelines in sentencing.” Id. (quotations omitted)(emphasis in original). “This consultation requirement, at a minimum, obliges the district court to calculate correctly

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Related

United States v. Carlos Enrique Ramirez-Chilel
289 F.3d 744 (Eleventh Circuit, 2002)
United States v. Ram Kumar Singh
291 F.3d 756 (Eleventh Circuit, 2002)
United States v. Banks
347 F.3d 1266 (Eleventh Circuit, 2003)
United States v. Charles Crawford, Jr.
407 F.3d 1174 (Eleventh Circuit, 2005)
Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
Smith v. Illinois
469 U.S. 91 (Supreme Court, 1984)
Michigan v. Jackson
475 U.S. 625 (Supreme Court, 1986)
Michigan v. Harvey
494 U.S. 344 (Supreme Court, 1990)
Davis v. United States
512 U.S. 452 (Supreme Court, 1994)
Texas v. Cobb
532 U.S. 162 (Supreme Court, 2001)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)

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Bluebook (online)
342 F. App'x 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tran-ca11-2006.