Filed: May 27, 2011
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5211 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAURICIO MICHEL, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:07-cr-00111-IMK-JSK-1) Submitted: February 11, 2011 Decided: May 27, 2011 Before KING, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Barry P. Beck, POWER, B
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5211 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAURICIO MICHEL, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:07-cr-00111-IMK-JSK-1) Submitted: February 11, 2011 Decided: May 27, 2011 Before KING, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Barry P. Beck, POWER, BE..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5211
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURICIO MICHEL,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:07-cr-00111-IMK-JSK-1)
Submitted: February 11, 2011 Decided: May 27, 2011
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United States
Attorney, Shawn Angus Morgan, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mauricio Michel appeals from his convictions and
resulting 240-month sentence for assaulting a Bureau of Prisons’
(BOP) employee using a dangerous weapon, maiming a BOP employee,
forcibly resisting BOP employees using a dangerous weapon,
assaulting a West Virginia Corrections Officer inflicting bodily
injury, and forcibly resisting employees of West Virginia
inflicting bodily injury, in violation of 18 U.S.C.
§§ 111(a),(b), 114 (2006). Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal, but
raising the issues of whether the district court properly denied
Michel’s motions to suppress a shank and incriminating
statements he made to two investigating agents, whether the
district court erred in denying Michel’s discovery request for
the BOP Policies and Procedures on the Collection of Evidence in
Connection with Prison Assaults, whether the district court
erred in requiring him to wear humane leg restraints, and
whether his sentence is reasonable. Michel did not file a pro
se supplemental brief. The Government filed a reply brief.
Finding no error, we affirm.
Mauricio Michel was a prisoner at United States
Penitentiary Hazelton serving a 235-month sentence for a 2003
2
conviction for being a felon in possession of a firearm. 1 On
August 31, 2007, he was involved in an altercation with a BOP
corrections officer, Jeremy Sparks. The state corrections
officer charges stemmed from a March 19, 2009, incident at a
local jail in West Virginia where Michel was being held pending
charges on his original indictment. After a three-day jury
trial, Michel was found guilty on all seven counts. Michel was
deemed a career offender and was granted a downward variance
sentence of 240 months on each count, to be served concurrently.
We first address Michel’s motions to suppress the
shank recovered at the scene of the assault and incriminating
statements he made to investigating agents. We conclude that
the district court did not err in denying Michel’s motion to
suppress the shank. This court reviews the factual findings
underlying the district court’s denial of a motion to suppress
for clear error and the court’s legal conclusions de novo.
United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009), cert.
denied,
130 S. Ct. 1104 (2010). A factual finding is clearly
erroneous if this court “on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
United States v. Harvey,
532 F.3d 326, 336-37 (4th Cir. 2008)
(internal quotation marks omitted).
1
This conviction was later vacated.
3
Michel made an oral motion at the final pretrial
conference on August 11, 2009, to suppress the shank retrieved
at the scene of the assault. He argued that there was no
physical evidence of fingerprints or DNA evidence linking him to
the object. The court held that the Government would be
required to show chain of custody, but that whether the object
was a shank used by Michel was a question reserved for the jury.
The district court did not err in denying the motion.
“The factual determination of whether evidence is that which the
proponent claims is ultimately reserved for the jury.” United
States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009) (citing
United States v. Branch,
970 F.2d 1368, 1370 (4th Cir. 1992)).
The district court assesses whether the proponent has offered a
proper foundation from which “the jury could reasonably find
that the evidence is authentic.”
Vidacak, 553 F.3d at 349; see
also
Branch, 970 F.2d at 1371. Here, the item was recovered at
the scene of the assault and was placed in an evidence locker.
Michel was able to present evidence that neither his
fingerprints nor Sparks’ DNA was found on the shank. The
question of whether the shank admitted was used by Michel during
the assault was a question reserved for the jury. Therefore,
the district court did not err in denying the motion.
Michel moved to suppress the incriminating statements
he made to Agents Watson and Antonelli following the incident at
4
USP Hazelton. He argued that the agents threatened him and did
not give him Miranda 2 warnings. A suppression hearing was held
before a magistrate judge. At the evidentiary hearing, both
agents testified that Agent Watson read Michel his rights from a
card Watson had in his wallet and obtained a verbal waiver
before taking Michel’s statement or permitting Michel to
continue to speak. Agent Watson testified that Michel was very
agitated speaking about the incident, but did not appear
injured. After Watson read the rights to Michel, according to
Watson and Antonelli, Michel stated that he understood his
rights. Both agents testified that no one threatened or coerced
Michel to make a statement. After making several statements,
Michel said that he did not wish to speak any longer, and the
questioning ceased.
Michel alleged that he did not receive Miranda
warnings until after he gave his statements and that the agents
told him that, if he did not talk, they would “bury him” and
“get him for everything.” Michel alleged that the agents told
him that, if he did talk, he would not be charged with a crime.
The district court adopted the recommendation of the
magistrate judge and denied the motion to suppress. The
district court rejected Michel’s claims and found that each of
2
Miranda v. Arizona, 384 U.S. 436 (1966).
5
the agents’ testimony corroborated the other’s, that the
warnings were given, and that Michel was not involuntarily
coerced into giving the statements. Additionally, the court
found that Watson’s question “what’s up?” upon initially meeting
Michel was an icebreaker question and not meant to elicit an
incriminating response, in part because, as soon as Michel
replied, Watson stopped any discussion and read Michel his
Miranda rights.
This court defers to the district court’s credibility
determinations, “for it is the role of the district court to
observe witnesses and weigh their credibility during a pre-trial
motion to suppress.” United States v. Abu Ali, 528 F.3d 210,
232 (4th Cir. 2008) (internal quotation marks omitted). When a
motion to suppress has been denied by the district court, this
court construes the evidence in the light most favorable to the
Government. United States v. Farrior,
535 F.3d 210, 217 (4th
Cir. 2008).
We conclude that the district court did not err in
determining that Michel timely and fairly received his Miranda
rights, that Michel acknowledged that he understood them, and
that Michel continued to talk. The district court made a
credibility finding that the agents’ statements were more
credible than Michel’s and that each agent had similar testimony
that corroborated the other’s testimony. The district court’s
6
credibility findings should not be disturbed. Construing the
evidence in the light most favorable to the Government, the
court did not err in denying the motion to suppress the
statements.
Michel also contends the district court erred in
denying his request for discovery, after granting the
Government’s motion for reconsideration, of the BOP’s policies
and procedures pertaining to the collection of evidence in
connection with prison assaults. The Government moved to
reconsider the original order granting the motion and the court
conducted an in camera inspection of the policies and
procedures. The BOP policies and procedures are not public
documents. The district court held that Michel failed to show
that the discovery was material to his defense. An error of
law, such as the failure to mandate disclosure to the defense of
evidence or information essential to the conduct of a fair
trial, is by definition an abuse of discretion. See United
States v. Singh, 518 F.3d 236, 251 (4th Cir. 2008) (“By
definition, a district court abuses its discretion when it makes
an error of law.”). Because Michel did not provide details with
respect to why the documents would be material to the
preparation of his defense, we conclude that the district court
did not abuse its discretion. See
id.
7
Prior to trial, the Marshals Service requested that
Michel be placed in a device known as the humane leg restraint.
The device allows the wearer to move freely. It is worn on the
legs underneath clothing and is not noticeable. The district
court granted the Marshals Service’s request to place Michel in
humane leg restraints. The district court reasoned that the leg
restraints were not intrusive, that Michel had an admitted
history of violence and “eruptions,” and that trying a case, as
he was proceeding pro se, was a particularly stressful
situation.
This court reviews the district court’s decision to
place a defendant in restraints during trial for an abuse of
discretion. United States v. Midgett, 488 F.3d 288, 298 (4th
Cir. 2007). The district court must “balance the ‘accused's
right to the indicia of innocence before the jury’ against ‘the
competing rights of participants in the courtroom and society at
large.’”
Id. (quoting Billups v. Garrison,
718 F.3d 665, 668
(4th Cir. 1983). It was not an abuse of discretion for the
court to agree to place Michel in the humane leg restraints.
The court properly relied on the judgment of the Marshals
Service, considered Michel’s history of violence, and avoided
8
prejudice to Michel by the restraints being concealed from the
jury. 3 Therefore, there the court did not err.
Finally, counsel questioned whether Michel’s sentence
was reasonable. A review of the record reveals no error in
sentencing. When determining a sentence, the district court
must calculate the appropriate advisory Sentencing Guidelines
range and consider it in conjunction with the factors set forth
in 18 U.S.C. § 3553(a) (2006). Gall v. United States, 552 U.S.
38, 49-50 (2007); United States v. Lynn,
592 F.3d 572 (4th Cir.
2010). Appellate review of a district court’s imposition of a
sentence, “whether inside, just outside, or significantly
outside the [g]uidelines range,” is for abuse of discretion.
Gall, 552 U.S. at 41. Sentences within the applicable
Guidelines range may be presumed by the appellate court to be
reasonable. United States v. Pauley,
511 F.3d 468, 473 (4th
Cir. 2007).
At sentencing, the district court found that Michel
was a career offender under U.S. Sentencing Guidelines Manual
§ 4B1.1 (2008) because he had one previous felony conviction for
a crime of violence and one previous conviction for a controlled
3
Michel decided to show the jurors the leg restraint device
during his closing argument, but until that time there is no
evidence that the jurors were aware that Michel was wearing the
device.
9
substance offense. 4 The offenses were grouped, and the combined
adjusted offense level was 34, the same as that for a career
offender. Michel’s criminal history category was VI.
Therefore, the applicable Guidelines range was 262-327 months.
Under USSG § 5G1.2(d), the sentences on all counts of conviction
are to be run consecutively, but only to the extent necessary to
produce a combined sentence equal to the total punishment. The
statutory maximum on each count was twenty years. After
considering the evidence, the district court granted a downward
variance sentence of 240 months total, the statutory maximum on
each count, to be served concurrently. The court was satisfied
that 240 months was reasonable in light of Michel’s crime,
violent nature, and risk of recidivism.
The district court followed the necessary procedural
steps in sentencing Michel, appropriately treating the
Sentencing Guidelines as advisory, properly calculating and
considering the applicable Guidelines range, and weighing the
relevant § 3553(a) factors. The court gave detailed reasoning
for its sentence. The court’s sentence may be presumed
reasonable by this court. Pauley, 511 F.3d at 473. We conclude
4
The controlled substance offense was a 1993 conviction in
New Mexico state court for possession of marijuana with the
intent to distribute. Michel requested a below Guidelines
sentence based in part on the age of the 1993 marijuana offense.
10
that the district court did not abuse its discretion in imposing
the chosen sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Michel’s convictions and sentence. This
court requires that counsel inform Michel, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Michel requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Michel. 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
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