[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                           JULY 27, 2010
                             No. 09-15878                   JOHN LEY
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 09-00049-CR-JEC-1-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ANTHONY SAGOES,

                                                         Defendant-Appellant.


                       ________________________

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

                              (July 27, 2010)

Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:
      A Northern District of Georgia found Anthony Sagoes guilty of being a felon

in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and the

district court sentenced him to prison for 216 months. He now appeals his

conviction and sentence. Sagoes challenges his conviction on three grounds. First,

the district court erred in denying his motion to suppress statements he made to an

agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) while

in custody and after being advised of his Miranda1 rights; he argues that the

statements were tainted by an Atlanta Police Department (“APD”) officer’s previous

questioning of him in the absence of an advice of rights. Second, he challenges the

sufficiency of the evidence to prove beyond a reasonable doubt that he had either

actual or constructive possession of the firearm at issue; third, he argues that the

district court abused its discretion in preventing him from cross-examining a witness

regarding the theory of his defense. Sagoes attacks his sentence on the ground that

the court erred in treating him as an armed career offender under U.S.S.G. § 4B1.4.

We find no merit in Sagoes’s appeal and, accordingly, affirm his conviction and

sentence.

                                               I.




      1
          See Miranda v. Arizona, 

, 

, 

(1966).

                                                2
      We consider first the argument that the district court erred in denying

Sagoes’s motion to suppress.

                                                 A.

      These are the circumstances bearing on the court’s ruling. In the late

afternoon of January 8, 2009, twenty-two APD officers arrived at the residence

located at 7 Gould Street in Atlanta to execute a search warrant for crack cocaine

and other evidence of drug trafficking.2 On arrival, the officers found numerous

individuals on the front porch; they placed them in handcuffs, and had them sit

down. As the officers approached the front door with guns drawn, Sagoes opened it.

Officer Vayens recognized him as someone who previously had sold drugs to a

confidential informant. He handcuffed Sagoes and asked him if there were any

weapons or drugs in the house; Sagoes said there might be a toy handgun. Vayens

asked Sagoes where his bedroom was located; Sagoes said it was in the right rear of

the house. Vayens spoke to Sagoes without advising him of his Miranda rights.

Their conversation lasted no more than a minute.

      After the officers cleared the house of individuals, and handcuffed and placed

them on the porch with the others—there were over 30 people on the porch—the

officers searched the house. They uncovered crack cocaine, marijuana, scales, and



      2
          It turned out that the house was under lease to Sagoes.

                                                  3
empty plastic baggies in various locations, and, in Sagoes’s bedroom, a pistol in the

entertainment center and a single hit of crack cocaine. On finding the gun, the

officers contacted the ATF. Special Agent Joseph of the ATF was aware that the

search of the Gould Street residence was underway,3 and he and Officer Oliver, who

was assigned to Joseph’s ATF task force on drugs, drove to 7 Gould Street,

intending to question Sagoes about the firearm. They arrived at the scene in about

30 minutes. The magistrate judge, to whom the district court referred Sagoes’s

motion to suppress, described what took place after Joseph contacted Sagoes.

               When Agent Joseph first made contact with [Sagoes], he allowed
               [him] to use the bathroom inside the residence. . . .Then Agent
               Joseph took [Sagoes] to a marked APD vehicle in front of the
               property. At this time, there were still numerous APD officers
               and civilians in and around the property. Agent Joseph sat in the
               back seat of the police car with [Sagoes], while [Officer] Oliver
               sat in the front seat. . . . No APD officers who participated
               in the execution of the search warrant participated in Agent
               Joseph’s conversation with [Sagoes]. Although Agent
               Joseph was armed, he kept his firearm concealed from
               [Sagoes] during the interview. Agent Joseph then read
               [Sagoes] his Miranda rights from a pre-printed “Advice of
               Rights and Waiver” form. Agent Joseph showed the form
               to [Sagoes] as he read the form. [Sagoes] leaned over
               toward Agent Joseph as Agent Joseph read the form and
               appeared to be following along with Agent Joseph’s
               recitation of his Miranda rights. When Agent Joseph
               finished reading [Sagoes] his Miranda rights, he read the
               waiver language from the “Advice of Rights and Waiver”
               form. [Sagoes] then agreed to speak with Agent Joseph and

      3
          He was part of an ATF task force that included Atlanta police officers.

                                                 4
             answered his questions. [Sagoes’s] oral statement to Agent
             Joseph lasted approximately thirty (30) minutes. [Sagoes]
             began by telling Agent Joseph that the APD had already
             asked him whether there were any drugs present in the
             residence and that he . . . responded that there should not
             be. Agent Joseph asked [Sagoes] whether there were any
             firearms in the residence, and [he] said that there was a toy
             gun in his bedroom. Agent Joseph then told [him] that
             APD had found a real gun. [Sagoes] eventually said,
             among other things, that he was holding a firearm for a
             female friend named “Dee.” He stated that he had had the
             firearm for approximately one week and that he kept it in
             his bedroom. [Sagoes] described the firearm and said that
             it was loaded. [Sagoes] signed the pre-printed waiver of
             rights form after the oral interview had ended. Agent
             Joseph verified that [Sagoes] signed the form, which
             stated that [he] understood his rights, waived those rights,
             and agreed to speak with Agent Joseph. Agent Joseph and
             [Officer] Oliver signed the form as witnesses after
             [Sagoes] signed it. After [that], Agent Joseph prepared a
             written statement based on [Sagoes’s] oral statements and
             read the written statement to [Sagoes] several times.
             [Sagoes] signed the written statement. [The] entire
             conversation . . . lasted approximately 45 minutes.

                                          B.

      Sagoes moved the district court to suppress his statements to Vayens and

Joseph. The district court referred the motion to a magistrate judge, who held an

evidentiary hearing. At the outset of the hearing, the Government stated that it

would not attempt to use Sagoes’s statements to Vayens at trial; the question then

became whether those statements, taken as they were without a Miranda warning,

tainted and rendered inadmissible the subsequent statements to Joseph. After

                                           5
considering the parties’ submissions, the magistrate judge found that Sagoes’s

statements to Vayens were voluntary, that law enforcement did not use calculated

tactics to undermine Sagoes’s Miranda rights,4 that Sagoes spoke to Joseph after

waiving his Miranda rights, and that his statements to Joseph were voluntary. In her

report to the district court, the magistrate judge therefore recommended that the

motion to suppress be denied. The court, after reviewing the record, adopted the

recommendation and denied the motion.

                                               C.

       In reviewing the denial of a motion to suppress, we examine the district

court’s findings of fact for clear error and its application of the law to those facts de

novo. United States v. Gonzalez-Lauzan, 

, 1132 n.4 (11th Cir. 2006).

“Even where a suspect, while in custody, has answered unwarned questions from

police, the suspect still may validly waive his Miranda rights and provide admissible

statements after Miranda warnings.” 

(citing Oregon v. Elstad, 

, 314, 

, 1296, 

(1985)). The “subsequent

administration of Miranda warnings to a suspect who has given a voluntary but

unwarned statement ordinarily should suffice to remove the conditions that



       4
         The magistrate judge found that at the time Joseph questioned Saegoes, Joseph did not
know that the information he had learned about the gun had come from Sagoes, much less that
Sagoes had been questioned by the APD without having been advised of his Miranda rights.

                                                6
precluded admission of the earlier statement.” 

requires that

the unwarned admission must be suppressed, the admissibility of any subsequent

statement should turn . . . solely on whether it is knowingly and voluntarily made.”

-34. In the absence of circumstances showing otherwise, a defendant’s

waiver of Miranda rights is presumed to be voluntary. 

      One exception to the rule set forth in Elstad is when police utilize a two-step

interrogation technique, calculated to undermine the Miranda warning, whereby they

use an unwarned incriminating statement to solicit a post-Miranda confession. 

(citing Missouri v. Seibert, 

, 622, 

, 2616, 

(2004)). In these infrequent instances, any post-Miranda statement,

substantively related to the pre-Miranda statement, must be excluded unless other

curative measures are taken to ensure that the import and effect of the Miranda

warning was properly conveyed. 

whether an impermissible two-

step interrogation technique was utilized, we consider the “totality of the

circumstances, including the timing, setting and completeness of the prewarning

interrogation, the continuity of police personnel and the overlapping content of the

pre- and post-warning statements.” United States v. Street, 

, 1314

(11th Cir. 2006).




                                           7
      We determine whether a statement was made voluntarily, and thus was “the

product of an essentially free and unconstrained choice,” by examining the totality of

the circumstances. Hubbard v. Haley, 

, 1252 (11th Cir. 2003).

Among the factors we consider are “the defendant’s intelligence, the length of his

detention, the nature of the interrogation, the use of any physical force against him,

or the use of any promises or inducements by police.” 

This is not an

exclusive list of factors that may be considered, however “the absence of official

coercion is a sine qua non of effective consent.” 

totality of the circumstances, we agree with the district court

that Sagoes’s statements to Vayens were voluntarily. The conversation lasted less

than one minute, and Sagoes was not threatened, promised anything, or physically

coerced into speaking. See 

. Further, because Sagoes’s

statements to Joseph were made more than 30 minutes later, in a different setting, to

a different officer, who was unaware of Vayens’s prior questioning, and because

there was very little overlap in the content of Sagoes’s statements to Vayens and

Joseph, we conclude that this case does not fall under the exception in Seibert. In

sum, the court did not err in denying Sagoes’s motion to suppress.

                                           II.




                                           8
      When, as here, the defendant fails to move for judgment of acquittal at the

close of all the evidence, we review the sufficiency of the evidence to convict only

for a “manifest miscarriage of justice,” which requires “a finding that the evidence

on a key element of the offense is so tenuous that a conviction would be shocking.”

United States v. Milkintas, 

, 1343 (11th Cir. 2006) (internal quotations

omitted). In doing so, we “must view the evidence in the light most favorable to the

government and accept all reasonable inferences and credibility determinations that

support the jury’s verdict.” 

an accused of being a convicted felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1), the government must prove beyond a reasonable

doubt three elements: (1) that the defendant was a convicted felon, (2) that the

defendant was in knowing possession of a firearm, and (3) that the firearm was in or

affecting interstate commerce. United States v. Wright, 

, 1273 (11th

Cir. 2004). To satisfy the second prong, the government may prove either actual or

constructive possession, using either direct or circumstantial evidence. 

actual possession the evidence must show that the defendant either had

physical possession of or personal dominion over the thing allegedly possessed.”

United States v. Leonard, 

, 909 (11th Cir. 1998). “Constructive

possession exists when a defendant has ownership, dominion, or control over an



                                           9
object itself or dominion or control over the premises or the vehicle in which the

object is concealed.” 

evidence in the light most favorable to the Government, we

conclude that the evidence was sufficient to demonstrate that Sagoes was in knowing

possession of the gun found in his bedroom. Although he asserted that he was just

holding the gun for a friend, he admitted that he had been keeping it in his bedroom

for two weeks. Since he had dominion and control over the house, the bedroom in

which the gun was found, and the gun itself, the evidence was sufficient to

demonstrate that he had constructive possession of it. See 

.

                                          III.

      We review a district court’s restriction of cross-examination for abuse of

discretion. United States v. Baptista-Rodriguez, 

, 1371 (11th Cir.

1994). In general, “courts should not prohibit a defendant from presenting a theory

of defense to the jury.” United States v. Thompson, 

, 1564 (11th Cir.

1994). However, the defendant must offer “some relevant factual basis for the

defense . . . before evidence or testimony is offered.” 

defendant offers no

relevant evidence to support a defense, the court may properly bar its presentation at

trial.” United States v. Anton, 

, 1357 (11th Cir. 2008), cert. denied,

(2009).



                                           10
      The testimony the district court precluded obviously was not relevant to

Sagoes’s theory of defense, and since his theory of defense would not have negated

his guilty for the crime charged, we conclude that the court did not abuse its

discretion in limiting the cross-examination as it did. See 

.

                                           IV

      We review de novo a district court’s interpretation and application of the

sentencing guidelines, as well as the district court’s decision to classify a defendant

as an armed career criminal. United States v. Gibson, 

, 1243 (11th Cir.

2006). Whether a defendant’s prior convictions qualify him as an armed career

criminal, pursuant to U.S.S.G. § 4B1.4 is a question of law to be answered by the

court. 

“[J]udicial fact-finding of a defendant’s prior convictions

does not violate the Sixth Amendment, even though a criminal defendant generally

has the right to have all facts that enhance his sentence proven to a jury beyond a

reasonable doubt.” 

The Supreme Court has affirmed this rule in

Apprendi v. New Jersey, 

, 

, 

(2000),

Blakely v. Washington, 

, 

, 

(2004), and

United States v. Booker, 

, 

, 

(2005) . 

Because the district court was authorized to make findings of fact regarding

Sagoes’s prior convictions for purposes of sentencing him as an armed career



                                           11
criminal, and because Sagoes did not have a right to have his prior convictions

proven by a jury beyond a reasonable doubt, the district court did not violate his

rights in determining his career offender status.

                                          IV.

      For the foregoing reasons, Sagoes’s conviction and sentence are

      AFFIRMED.




                                           12