                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-4654



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


JAMES HAMPTON WILLIAMS, II,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (CR-02-548)


Argued:   March 15, 2007                     Decided:   May 16, 2007


Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


ARGUED: Leland Bland Greeley, Rock Hill, South Carolina, for
Appellant. Jane Barrett Taylor, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Reginald I. Lloyd, United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            James Hampton Williams II (Williams) was convicted in a

jury trial on several counts related to his participation in a

conspiracy to distribute cocaine and cocaine base.           The district

court sentenced Williams to life in prison.        Williams appeals both

his conviction and his sentence.          We conclude that the district

court improperly denied Williams’s motion to suppress certain self-

incriminating statements made in the absence of Miranda warnings.

Because the error was harmless, however, we affirm Williams’s

conviction.     No similar Fifth Amendment violation tainted the

authentication of audio recordings featuring Williams’s voice, and

the district court properly admitted the recordings into evidence.

In light of the district court’s application of the sentencing

guidelines in a mandatory fashion, we vacate Williams’s sentence

and remand for resentencing under United States v. Booker, 543 U.S.

220 (2005).


                                     I.

            The events leading to Williams’s prosecution began in

2001.     As part of an ongoing investigation, an undercover agent,

James Abraham, met Jonathan Stroman for the purpose of obtaining

significant quantities of cocaine.          Later, Stroman and Abraham

arranged to buy one-half kilogram of cocaine from Hubert Hampton

“Corey”    Williams   (Corey),   a   large-scale   cocaine    dealer   and

Williams’s brother.     On June 1, 2001, immediately prior to the

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transaction, Corey advised Stroman and Abraham that Williams would

deliver the cocaine.        Williams met Abraham and Stroman in the

parking lot of a South Carolina Waffle House and gave them one-half

kilogram of cocaine in exchange for $12,500.             In late June Abraham

and Stroman bought an additional kilogram of cocaine from Corey.

            The government subsequently sought and obtained an order

authorizing    the   interception    of   communications       occurring     over

Corey’s cell phone.       Corey disposed of the tapped phone on August

22, 2001.    On August 31 the government sought and obtained an order

for a wiretap on Corey’s replacement cell phone, but that phone was

also quickly abandoned. On September 5, 2001, both wiretaps ended.

On September 20, 2001, Abraham and Stroman again met with Corey to

buy   a   kilogram   of   cocaine.   After   a    few    months’   hiatus,    the

investigation resumed in March 2002.             The government obtained an

order for a wiretap on a third cell phone belonging to Corey.

            During each of the wiretaps agents intercepted calls

between Williams and Corey.          In May 2002 the agents overheard

conversations about Corey’s planned trip to Atlanta to meet with

Williams.     Corey was to exchange $59,000 for three kilograms of

cocaine.     Later, agents overheard that Corey had delivered the

money and was on his way back from Atlanta.             The agents intercepted

him near Columbia, South Carolina, and transported him to a nearby

FBI office where he was offered the opportunity to cooperate.




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Corey consulted counsel and agreed to cooperate.     His cooperation

included an agreement to record his conversations.

          Corey subsequently placed calls to Williams to inquire

about the three kilograms of cocaine that Williams was supposed to

deliver to him.   Williams later called Corey to tell him that he

had received the cocaine from their uncle, John Williams.      When

Williams delivered the cocaine to Corey, agents observed the

transaction.

          On June 24, 2002, Williams arrived in Columbia to pick up

a motorcycle that Corey had bought for him.       FBI Agent Michael

Stansbury and several other officers observed Williams in his

vehicle and stopped him.   Agent Stansbury handcuffed Williams, but

told him he was not under arrest.    The agents placed Williams in a

transport belt and took him to a nearby FBI office.    At the office

the agents again told him he was not under arrest.    They proceeded

to outline the evidence they had against him and offered him the

opportunity to cooperate.     At no point did the agents advise

Williams of his Miranda rights.      Williams agreed to cooperate.

Although Agent Stansbury told him not to say anything at that time,

Williams volunteered information about some of the things he could

and could not do to help with the investigation.      When Williams

said he could not get in touch with his uncle John, the leader of

the conspiracy, Agent Stansbury asked clarifying questions, such as

“‘Why can’t you do that. I don’t understand,’ . . . ‘How did you


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meet him then?’ . . . [or] ‘Why did you do that.’”                 J.A. 91-92.

Williams’s responses to these questions indicated his involvement

with his uncle and other members of the conspiracy.               When Williams

finished speaking, he was permitted to leave. He subsequently fled

to Mexico where he hid until May 2003, when he was arrested for

conspiracy    to    distribute      cocaine   and    crack    cocaine,   money

laundering, and other charges.

            Before his trial began Williams moved to suppress self-

incriminating statements made during his June 2002 detention.                He

claimed that the agents violated his Fifth Amendment rights by

engaging in custodial interrogation without giving him Miranda

warnings.     The district court denied the motion because it found

that Williams’s statements were not the result of interrogation by

the FBI.    The jury delivered a guilty verdict on all counts.

            The Presentence Report (PSR) recommended a sentence of

life in prison based on the amount of cocaine involved in the

conspiracy (in excess of 150 kilograms) and enhancements for

possession    of    a   dangerous   weapon,   role    in   the    offense,   and

obstruction of justice.          Williams successfully objected to the

obstruction    of   justice   enhancement.          The   court   rejected   his

objection, under Blakely v. Washington, 542 U.S. 296 (2004), that

his sentence was enhanced by facts not found by the jury.                    The

court sentenced Williams to life in prison, and he appeals.




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                                          II.

              In his first challenge to his conviction, Williams argues

that   the     district    court     should      have   suppressed       the   self-

incriminating        statements    made    during   the    June   2002    detention

because they were procured by a violation of his Fourth Amendment

rights.      Williams did not present this argument to the district

court, so we review for plain error.              United States v. Olano, 507

U.S. 725, 731-32 (1993).

              An officer may stop and briefly detain a person for

investigative        purposes     when    the    officer    has   a    “reasonable

suspicion” of criminal activity.                United States v. Hensley, 469

U.S.   221,    229    (1985).      Further      detention   is    permitted     when

supported by probable cause.             See New York v. Harris, 495 U.S. 14,

18-19 (1990).        The agents in this case had accumulated sufficient

evidence of Williams’s involvement in the drug conspiracy to have

probable cause for suspecting his involvement in a drug crime.

Agents had overheard calls between Corey and Williams discussing

drug transactions, and an undercover agent had previously bought

drugs from Williams in a controlled transaction.                      Although the

agents opted not to arrest him, Williams’s detention was supported

by probable cause and was not overly lengthy.               Thus, his detention

did not violate the Fourth Amendment, and his statements need not

be suppressed as products of an unlawful seizure.




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                                          III.

           Williams also argues that his incriminating statements

should have been suppressed because the agents failed to advise him

of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), before

engaging     in   custodial       interrogation.           We     review       the    legal

conclusions       underlying        the     district        court’s         suppression

determination de novo and its factual findings for clear error.

United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).

           A person subjected to custodial interrogation is entitled

to the procedural safeguards prescribed by Miranda as protection

against    compulsory       self-incrimination.                 384     U.S.     at    444.

Statements    made     by   a   defendant      who   has    not       received       Miranda

warnings are inadmissible in the prosecution’s case in chief.                           Id.

In the absence of a formal arrest, a suspect is “in custody” for

Miranda purposes if his freedom of action is curtailed to a degree

similar to a formal arrest.          United States v. Leshuk, 65 F.3d 1105,

1108 (4th Cir. 1995).           The district court’s finding that Williams

was in custody was not clearly erroneous.                   Although Williams was

told he was not under arrest, he was also not free to leave.                            The

agents handcuffed him, placed him in a transport belt, took him to

FBI headquarters, and detained him for one to two hours.                              These

facts   support    a   conclusion     that       Williams    was       in   custody     for

purposes of Miranda.




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            The district court also correctly found that Williams

never received Miranda warnings while he was in custody. The

government does not make any claim to the contrary.                        Thus, the

central    issue   is    whether   Williams          was   interrogated    while    in

custody.     Interrogation occurs when police engage in “express

questioning” or use words or actions that they “should know are

reasonably likely to elicit an incriminating response.”                         Rhode

Island v. Innis, 446 U.S. 291, 301-02 (1980).                         When Williams

arrived at FBI headquarters, the agents played several tapes of

conversations between him and Corey. The agents also told Williams

that,   although    he    was   not   currently        under    arrest,    he   would

eventually   be    indicted.       They       then    offered   him    a   chance   to

cooperate.    Williams agreed and began to explain how he could and

could not help with the investigation of the conspiracy.                        Agent

Stansbury told Williams not to say anything, but, contrary to his

own instruction, he encouraged Williams to elaborate on certain

points by asking questions.            When Williams said he could not

telephone his uncle, John Williams, the man authorities regarded as

the leader of the conspiracy, Agent Stansbury asked why he could

not do that and prodded Williams to explain how he was able to

arrange meetings with John Williams.                  Williams explained that a

woman who was John Williams’s wife or girlfriend would contact

Williams and tell him where to meet John Williams.                    Williams also

said that John Williams’s sister knew how to get in touch with John


                                          8
Williams.      Williams’s responses to Agent Stansbury’s questions

linked him to John Williams and showed his knowledge of how

communications in the conspiracy operated.          Agent Stansbury should

have   known   that   any   response    to   his   questions   would   likely

implicate Williams in the drug conspiracy.            His questioning thus

constituted    custodial    interrogation     without   Miranda   warnings.

Williams’s statements should have been suppressed.

            We conclude that the district court erred in denying

Williams’s motion to suppress.         This error, however, was harmless

in light of the substantial evidence against Williams that is

unconnected to the statements.         A federal constitutional error may

be declared harmless if it was harmless beyond a reasonable doubt.

Chapman v. California, 386 U.S. 18, 24 (1967).                 We must ask

“whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.”                  Id.

(quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963).               In this

case, an average jury “would not have found the [government’s] case

significantly less persuasive had the [disputed testimony] been

excluded.”     See Schneble v. Florida, 405 U.S. 427, 432 (1972).

Williams had personally engaged in drug transactions with an

undercover FBI agent, and the wiretaps on Corey’s phone picked up

many calls between Williams and Corey concerning drug transactions.

In at least one of these calls, Williams revealed his connection to

John Williams by telling Corey that he had received a three-


                                       9
kilogram shipment of cocaine from John and would deliver it to

Corey. Agents confirmed the delivery by physical observation. The

incriminating statements, which provided further evidence of a link

to John Williams and another co-conspirator, were thus unnecessary

to the conviction.



                                IV.

          Williams contests the admissibility of the recordings of

his calls with Corey.    He argues that the recordings cannot be

authenticated without the testimony of Agent Stansbury, whose

ability to identify his voice derives from a violation of his Fifth

Amendment rights. A district court’s admission of audio recordings

is reviewed for abuse of discretion.   United States v. Wilson, 115

F.3d 1185, 1188 (4th Cir. 1997).

          A voice in an audio recording may be identified by

opinion evidence “based upon hearing the voice at any time under

circumstances connecting it with the alleged speaker.”     Fed. R.

Evid. 901(b)(5).   This includes knowledge of a voice that derives

from statements made without Miranda warnings. The Fifth Amendment

does not protect the sound of a person’s voice because such

physical characteristics are not testimonial in nature.     United

States v. Dionisio, 410 U.S. 1, 7 (1973).   Agent Stansbury’s prior

exposure to Williams’s voice during the meeting when no Miranda

warnings were given could thus serve as a valid foundation for his


                                10
identification of Williams’s voice in the recordings. The district

court did not abuse its discretion by admitting into evidence

properly authenticated recordings.



                                     V.

           Williams’s final argument concerns whether the sentence

imposed by the district court violated Booker.               A court commits

Sixth Amendment error when, under a pre-Booker mandatory guidelines

regime, it engages in judicial factfinding resulting in a sentence

that exceeds the maximum guideline sentence authorized by the jury

verdict.   United States v. Robinson, 460 F.3d 550, 558 (4th Cir.

2006).     Such   an   error   is   presumed   to   affect    a   defendant’s

substantial rights unless the government demonstrates that the

court would have imposed the same sentence in the error’s absence.

Id.

           The government concedes that the district court committed

Booker error by enhancing Williams’s sentence based upon facts not

found by the jury and by applying the sentencing guidelines in a

mandatory fashion.       This warrants remand for resentencing in

accordance with the advisory nature of the guidelines.             On remand,

the district court must calculate the guideline range (making all

appropriate factual findings) and impose a reasonable sentence

after considering other relevant factors in the guidelines and in




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18 U.S.C. § 3553(a).      United States v. Hughes, 401 F.3d 540, 546

(4th Cir. 2005).



                                    VI.

           In sum, we affirm Williams’s conviction because the

failure to suppress his self-incriminating statements was harmless

and the audio recordings were properly admitted. We must, however,

vacate Williams’s sentence and remand for resentencing due to the

district     court’s   treatment   of    the   sentencing   guidelines   as

mandatory.

                                                        AFFIRMED IN PART,
                                                         VACATED IN PART,
                                                             AND REMANDED




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