U.S. v. HARGROVE

he grounds for that objection. . . . A ruling or order that admits or excludes evidence is governed by Federal Rule of Evidence 103."); see also Federal Rule of Evidence 103(a) ("Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal"). Consequently, the Court reviews the district court's findings of fact for clear error, and its conclusions of law de novo. United States v. Uzenski 434 F.3d 690, 704 (4th Cir. 2006) (citing United States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001)). The Court views the evidence in the light most favorable to the Government, the prevailing party below. Id. (citing United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998)).

The Supreme Court has described the test for whether an individual is "in custody" despite the lack of a formal arrest to be whether, under the totality of the circumstances, "a suspect's freedom of action is curtailed to a `degree associated with formal arrest. `" Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam)). The operative question is whether, viewed objectively, "a reasonable man in the suspect's position would have understood his situation" to be one of custody. Id. at 442, 104 S.Ct. 3138. This determination is made by examining "all of the circumstances surrounding the interrogation" and determining "how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her `freedom of action. `" Stansbury v. California, 511 U.S. 318, 322, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam) (quoting Berkemer, 468 U.S. at 440, 104 S.Ct. 3138). In conducting this inquiry it is important to remember that "[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime." Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). But only when there is a custodial interrogation is it necessary for the police to provide the suspect with Miranda warnings. Id. (holding law enforcement officials are not required to administer Miranda warnings to everyone they question).

Hargrove relies primarily on United States v. Colonna, 511 F.3d 431 (4th Cir. 2007), where this Court held that the totality of the circumstances indicated Colonna was "in custody" during police questioning. Id. at 436. There, the defendant was awakened when police kicked open his bedroom door and, at gun point, ordered him to dress and come downstairs. During that process, an agent injured the defendant by slamming him into a door jam. Colonna and the other individuals in the home were continuously guarded by agents. Id. at 433. Colonna's home was "inundated with approximately 24 officers" who controlled where Colonna and the other individuals sat and restricted their access to the home. Id. at 435. Colonna was asked to accompany an FBI agent to a vehicle located outside, where a "full-fledged interrogation took place." Id. The interrogation lasted "for almost three hours, albeit with breaks." Id. Although Colonna was not placed under arrest, he was informed that lying to a federal agent was a federal offense. Moreover, while agents informed Colonna that he was "not under arrest," they did not inform him that he was "free to leave." Id. The Court noted that "a law enforcement officer simply stating to a suspect that he is `not under arrest `"is not sufficient to "end the inquiry into whether the suspect was `in custody. `" Id. Based on the totality of the circumstances, the Court noted that Colonna "did not initiate police questioning and was never told he was free to leave or that he did not have to respond to questions." Id. at 436. Moreover, the "interrogation occurred in a police dominated environment where the agents did everything to make Colonna, or any reasonable man believe that he was not free to leave." Id.

Our decision in United States v. Parker, 262 F.3d 415 (4th Cir. 2001), exemplifies where the totality of the circumstances do not indicate the defendant was "in custody" for Miranda purposes. There, the district court found the officers informed Parker she was not under arrest, Parker `Vas not handcuffed or otherwise restrained, and the agents did not draw their weapons in her presence." id. at 419. The interview occurred in Parker's home, and a relative twice entered the room where agents were interviewing Parker. Parker "was not forced to enter the room with the officers, and she was never told that she was not free to leave." Id. Under these circurestances, the Court concluded Parker was not "in custody" and the district court did not err in declining to suppress Parker's statements. Id.

In the case sub judice, our task, as always, is to assess the totality of the circumstances rather than focusing on any one component of the interview. Based on the totality of the circumstances, we conclude that Hargrove was not subject to "custodial interrogation" at the time of Agent Chance's interview.

The record does show that some of the officers were armed upon entry of Hargrove's home, directed the occupant's actions during the initial safety sweep of the residence, and conducted a safety pat down of Hargrove. The agents had authority to secure the premises and detain the occupants temporarily in order to secure the site for conducting a search pursuant to a valid search warrant. See United States v. Photogrammetric Data Servs., 259 F.3d 229, 239 (4th Cir. 2001) (citing Michigan v. Summers, 452 U.S. 692, 702-03, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)), overruled on other grounds by Cravrford v. Washington, 541 U.S. 36, 124 S.Ct., 1354, 158 L. .Ed.2d 177 (2004). Although securing premises and controlling occupants pursuant to a search could support a custody finding in the appropriate circumstances, see. e.g. . United States v. Revels, 510 F.3d 1269, 1274-77 (10th Cir. 2007); United States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir. 2007), there is no evidence in this case that a custodial level of control extended beyond the initial entry by the search team. As such, the agents' actions did not place Hargrove "in custody" when Agent Chance interviewed him some time later, after the search was underway. See id., (rejecting defendant's argument that he was under custodial interrogation during an interview that took place during the execution of a search warrant and after armed officers "entered his apartment" to execute a search warrant and "frisked him" during the initial entry). While between ten and fifteen agents participated in the initial execution of the search warrant, only two agents were with Hargrove during the interview. Moreover, Hargrove testified that he was never placed in handcuffs and that although Agents Chance and Shumaker were armed, their firearms were not drawn during the interview and they did not threaten him. The mere presence of armed law enforcement officers during the interview is not sufficient to create a custodial situation.

Significantly, the district court found two important facts concerning what Agent Chance told Hargrove prior to the interview: both that Hargrove was not under arrest and that he was free to leave. We must accept those findings because they have ample support in the record and we have no basis upon which to conclude that they are clearly erroneous. See United States v. Murphy, 552 F.3d 405, 409-10 (4th Cir. 2009). The district court also found that the testimony of Hargrove, Agent Chance, and Agent Shumaker was consistent as to key facts underlying its ultimate determination that under the totality of the circumstances Hargrove was not "in custody" at the time of the interview. Those facts included: Hargrove was not handcuffed at the time of the interview, "the agents did not draw their weapons in the kitchen," and the conversation was "amicable and non-threatening in tone."

While Colonna held that informing a suspect that he was not under arrest was insufficient, standing alone, to sustain a ruling that questioning was non-custodial, the court affirmed that such a statement was a factor in assessing the totality of the circumstances. 511 F.3d at 435; see also Davis v. Allsbrooks, 778 F.2d 168, 171-72 (4th Cir. 1985) ("Though informing a suspect that he is not under arrest is one factor frequently considered to show lack of custody, it is not a talismanic factor." (citations omitted)). Moreover, the second statement — that Hargrove was free to leave — was not present in Colonna, and affirmatively informed Hargrove that he did not have to participate in the interview or even remain in the house. See Colonna, 511 F.3d at 436 (citing with approval United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir. 2006), which "not[ed] that although advising someone that he or she is not under arrest mitigates an interview's custodial nature, `an explicit assertion that the person may end the encounter is stronger medicine.'"). This affirmative statement of being free to leave goes beyond the merely implied permission to leave that the Court in Parker noted was important to its totality of the circumstances analysis. Agent Chance did not simply refrain from telling Hargrove that he was not free to leave, but he explicitly informed him he could leave. Cf. 262 F.3d at 419; see also Uzenski 434 F.3d at 705 (finding no custodial interrogation where the interviewee was permitted to use the bathroom, the door to the room where the interview was conducted was left partially open at times, and the agents told him he was free to leave at any time). Such a statement, that the interviewee is free to leave, is not "talismanic" or sufficient in and of itself to show a lack of custody. However, it is highly probative of whether, in the totality of the circumstances, a reasonable person would have reason to believe he was "in custody."

Additional factors distinguish this case from Colonna: for example, fewer officers were involved, the officers met Hargrove at the front door rather than entering the home and startling him in his bedroom, there is no evidence that Hargrove was constantly guarded, and the interview occurred in Hargrove's kitchen rather than in a law enforcement vehicle outside the residence.

The magistrate judge and district court also found that the interview conducted in Hargrove's kitchen was in a "comfortable atmosphere" and was "amicable" and "non-threatening." This finding is not clearly erroneous either. And although the setting of the interview is not singularly dispositive, an interview at a suspect's residence tends to be more neutral than one that occurs at a law enforcement facility. A more relaxed environment usually indicates less formal police control over the location or the defendant, and thus suggests a setting that is not of the degree typically associated with a formal arrest. Oregon v. Elstad, 470 U.S. 298, 315, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (environment not coercive where interview took place in living room of defendant's home, with his mother in the kitchen); United States v. Braxton, 112 F.3d 777, 785 (4th Cir. 1997) (statement not involuntary where defendant "was interviewed by law enforcement officers around the kitchen table in his mother's home"); see also United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994) ("Courts are much less likely to find the circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings" (alterations, quotation, and citation omitted)); United States v. Sutero, 933 F.2d 641, 647 (8th Cir. 1991) ("It is also relevant that [the defendant] was `on his own turf.' . . While a person may be deemed to be in custody even in his own home, it is not the type of coercive setting normally associated with custodial interrogation.").

Similarly, there is evidence that Hargrove was permitted to move about his house so long as doing so did not interfere; with the ongoing search. Agent Shumaker testified that Hargrove was permitted to move around the house, and specifically left the kitchen to attend to his cat. Hargrove relies on two occasions where he contends he was prevented from doing as he wished — he was not allowed in his bedroom to retrieve cigarettes and he was prevented from talking to his daughter and smoking a cigarette with her on his front porch. However, the record also indicates that these requests would have interfered with or compromised the Agents' search of the home. Hargrove's cigarettes were located "by [his] computer desk" in his bedroom, where officers were conducting their search and seizing his computer pursuant to the search wan-ant. Although Hargrove was not allowed to retrieve the cigarettes personally, they were brought to him so that he could smoke. Similarly, at the time Hargrove wanted to speak with his daughter on the porch and smoke together, other officers were interviewing her. Importantly, Hargrove's testimony was net just that he wanted to smoke outside and was prohibited from doing so, but that he specifically wanted to go out there in order to talk to his daughter. Thus, in both circumstances, the limitation on Hargrove's freedom of movement was minor. Moreover, because evidence in the record showed that Hargrove was permitted to move bout his house when it did not interfere with the ongoing search, it cannot be said that Hargrove's conduct was curtailed to a "degree associated with formal arrest." Cf. Berkemer, 468 U.S. at 440, 104 S.Ct. 3138 (quotation marks and citation omitted).

Similarly, although Hargrove described Agent Shumaker as "blocking" his exit from the kitchen, no evidence suggests that she was doing anything other than standing in the doorway overseeing both the interview and the ongoing search. Indeed, prior to being denominated as "blocking" by his attorney, Hargrove testified only that Shumaker was "standing in the doorway between the kitchen and the dining room, which is where she stood until the incident with the cat. . . ." (Supp. J.A. 76.) There is no evidence in the record that Agent Shumaker ever prevented Hargrove from exiting, or that she threatened or coerced Hargrove to remain in the kitchen. As such, her mere presence in the doorway of the kitchen was not sufficient to demonstrate that the agents restrained Hargrove's freedom of movement in a manner consistent with being in custody.

We further note that "[c]ustody determinations do not depend on the subjective views of either the interrogating law enforcement officers or of the person being questioned, but depend instead [on] the objective circumstances of the interrogation." Parker, 262 F.3d at 419. Accordingly, Agent Chance's and Agent Shumaker's intent not to arrest Hargrove at that time, and Hargrove's belief that he was going to be arrested are "of little weight" to our inquiry. See id.; see also Stansbury, 511 U.S. at 323, 114 S.Ct. 1526. "The relevant inquiry is how a reasonable man would have understood the suspect's position at the time." Parker, 262 F.3d at 419. Indeed, Hargrove's after-the-fact assertions that he felt like he was going to be arrested and had to cooperate are entitled to limited consideration given the rest of the record and considering the totality of the circumstances at the time of the interview. See Braxton, 112 F.3d at 781 ("Subsequent testimony by an accused about his prior subjective mental impressions and reactions must be carefully scrutinized, as such testimony is always influenced by his self-interest." (internal quotation marks and alterations omitted)).

Here, the totality of the circumstances supports the finding that a reasonable man in Hargrove's position would have understood that he was not "in custody" from Agent Chance's statements that Hargrove was not under arrest and was free to leave, as well as the surrounding circumstances of the interview. This conclusion is further bolstered by the evidence in the record as to Hargrove's own conduct at the time — cooperative, loquacious, and expressing interest in working undercover to help the Task Force — as well as his testimony at the suppression hearing that he did not refuse to speak with the officers because "at that point I figured I was going to jail, [and talking to them] didn't make any difference one way or another." (Supp. J.A. 80.) Furthermore, Hargrove never asked for the interview to end, never objected to any of the questions, and remained "polite" and "cooperative" throughout the period. (Supp. J.A. 50-51.) For these reasons, we conclude the district court did not err in denying Hargrove's motion to suppress because the January 2007 interview did not constitute a "custodial interrogation" that invoked his right to be read Miranda warnings.

B. Hargrove's Sentence

Hargrove next asserts that his sentence should be vacated and the case remanded for resentencing because the district court erred by considering Hargrove's decision to go to trial as part of the explanation for the sentence it imposed. Relying on Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), Hargrove contends that the district court's statements violated his due process rights by penalizing him for exercising a constitutional right.

In Bordenkircher, the Supreme Court held that "punish[ing] a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort." 434 U.S. at 363, 98 S.Ct. 663; see also Burns v. Gammon, 260 F.3d 892, 896 (8th Cir. 2001) (holding the "prosecution cannot use the defendant's exercise of specific fundamental constitutional guarantees against him at trial" by encouraging the jury to consider that the defendant "by exercising his constitutional right to a jury trial and to confront witnesses, forced the victim to attend trial, take the stand and relive the attack.").

Since the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the federal Sentencing Guidelines have been "effectively advisory," id. at 245, 125 S.Ct. 738, and appellate review of district court sentences has been for "reasonableness." In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Supreme Court explained that appellate review for "reasonableness" involves both procedural and substantive components. The Court first reviews for procedural reasonableness,

ensur[ing] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [ 18 U.S.C. §] 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.

Id. at 51, 128 S.Ct. 586. Once the reviewing court determines that the sentence is procedurally reasonable, it proceeds to the second component of the analysis, the substantive reasonableness of the sentence. Id.

When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness . . . . The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.

Id.

Hargrove does not raise any issues challenging the procedural reasonableness of his sentence. Accordingly, we proceed to the substantive reasonableness of his sentence.

Ordinarily, we review the substantive reasonableness of a sentence for abuse of discretion. Id. However, the record shows that Hargrove did not object to the district court's explanation of the sentence imposed. For this reason, the Government asserts that we should review under plain error and relies on this Court's decision in United States v. Lynn, 592 F.3d 572 (4th Cir. 2010), to support its argument. Lynn's holding was limited to the appropriateness of plain error review when a party raised an objection to the procedural reasonableness of a sentence for the first time on appeal. Id. at 575. Lynn thus does not address the precise issue raised in this case, whether plain error review is appropriate when a specific challenge to the substantive reasonableness of a sentence is lodged for the first time on appeal.

At oral argument, Hargrove conceded that his failure to object to the district court's explanation of his sentence meant that we should review for plain error. However, because we have not previously addressed the appropriateness of plain error review in this context, we decline to rely on Hargrove's concession, and instead address the issue directly.

Several circuit courts of appeal have held that appellate courts review the substantive reasonableness of a sentence for abuse of discretion regardless of whether the parties noted an objection below. However, a close review of these decisions shows that the actual challenge on appeal was to the substantive reasonableness of the length of the sentence rather than another specific component of the substantive reasonableness of the sentence. The basis for the holding that a party need not specifically preserve an objection only to the length of the sentence appears to be the belief that it is unnecessary to require a defendant to "object" and in essence immediately request "reconsideration" of a court's sentencing decision after having just presented argument as to an appropriate length of the sentence. See, e.g., United States v. Wiley, 509 F.3d 474, 477 (8th Cir. 2007) ("such a[n] [after-the-fact objection requirement] is not warranted, at least where a party asserts only that the length of the sentence is unreasonable with regard to § 3553(a). . . ." (emphasis in original)); see also United States v. Autery, 555 F.3d 864, 870-71 (9th Cir. 2009); United States v. Bras, 483 F.3d 103, 113 (D.C. Cir. 2007); United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir. 2005).

In contrast, the Fifth, Sixth, and Tenth Circuits have held that the substantive reasonableness of a sentence is subject to plain error review when the defendant raises a specific claim of legal error on appeal and not merely a challenge to the length of the sentence, but failed to raise the same basis in the district court. See United States v. Stall, 581 F.3d 276, 283 (6th Cir. 2009) (citing United States v. Vonner, 516 F.3d 382, 391-92 (6th Cir. 2008) (en banc)); United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009) (citing United States v. Peltier, 505 F.3d 389, 390-92 (5th Cir. 2007)); United States v. Lopez-Flores, 444 F.3d 1218, 1220-21 (10th Cir. 2006).

In particular, the Fifth Circuit has noted that presenting "a specific legal error distinguishes [a] case from those that have held that the defendant need not specifically object that a sentence is `unreasonable' to preserve a reasonableness objection on appeal." United States v. Hernandez-Martinez, 485 F.3d 270, 272 n. 1 (5th Cir. 2007). Thus, where a defendant raised the "specific legal error" that the sentencing judge "considered an inappropriate factor" in deciding what sentence to impose, the court reviewed only for plain error because the defendant failed to raise the objection below. Id. at 272. Similarly, the Tenth Circuit has noted the difference between challenging the reasonableness of the length of the sentence generally and challenging the method of getting there, and concluded that plain error review is appropriate in the latter circumstance, where "the usual reasons for requiring a contemporaneous objection apply." Lopez-Flores, 444 F.3d at 1221.

Here, rather than simply challenging the substantive reasonableness of his sentence due to its length or non-specific considerations, Hargrove raises a specific allegation of error — that the district court considered the improper factor of exercising his right to trial — during the sentencing hearing. This claim of error was not addressed at all in Hargrove's earlier arguments in favor of a below-Guidelines sentence. It was an alleged error that arose during the court's statements explaining the basis for the sentence it imposed. Hargrove failed to object to it at the time, thus denying the district court the opportunity to consider Hargrove's argument and correct the purported error. Hargrove raises this specific issue for the first time on appeal. Under these circumstances, we conclude that it is appropriate to apply the general principle established in Federal Rule of Criminal Procedure 52(b), that in the absence of proper preservation, plain-error review applies. See Fed.R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the [district] court's attention."). Accordingly, we review Hargrove's argument for plain error.

To establish plain error, Hargrove must show (1) that the trial court erred, (2) that the error is clear and obvious, and (3) that the error affected his substantial rights. See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even when this burden is met, we have discretion whether to recognize the error, and should not do so unless the error "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. at 736, 113 S.Ct. 1770 (quotation marks and alterations omitted).

Assuming, without deciding, that the first two requirements are met, we nonetheless conclude that Hargrove has not satisfied the third requirement of showing that the district court's reference to the victim testifying at trial affected Hargrove's substantial rights. An error affects a defendant's substantial rights if the error "affected the outcome of the district court proceedings." Olano, 507 U.S. at 734, 113 S.Ct. 1770. "To satisfy this requirement in the sentencing context, the defendant must show that he would have received a lower sentence had the error not occurred." United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010). Hargrove cannot clear this high hurdle. The district court's sentence was within both the statutory maximum and the properly-calculated Sentencing Guidelines range. The district court considered and addressed the § 3553(a) factors in explaining why it was imposing the sentence. In particular, it reiterated that Hargrove's criminal history and the seriousness of the offense justified the sentence it was imposing. And it emphasized that it would impose the identical sentence even if Hargrove had a lower Guidelines range for any reason because it would have varied upward to life imprisonment due to the nature of Hargrove's conduct, which had led the court to conclude that `'Hargrove should never see the light of day." (J.A. 1050.) Given this context and the district court's clear statements, Hargrove cannot; show that he "would have received a lower sentence" had the district court not also mentioned that the victim incurred further harm by testifying at trial. Accordingly, Hargrove has not showed that the district court plainly erred and that resentencing is required.

At oral argument, Hargrove asserted that he need only show that he could have received a lower sentence in order to satisfy this requirement. Under our circuit's precedent, that argument is clearly wrong.

III.

For the aforementioned reasons, we hold that the district court did not err in denying Hargrove's motion to suppress statements he made to law enforcement agents in January 2007. In addition, we hold that the district court did not commit plain error during sentencing. Accordingly, we affirm the district court's judgment.

AFFIRMED