                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 13a0468n.06

                                           No. 12-3767

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                    FILED
UNITED STATES OF AMERICA,                              )                       May 09, 2013
                                                       )                  DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,                            )
                                                       )
v.                                                     )
                                                       )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR
DAVID L. THURMAN,                                      )    THE NORTHERN DISTRICT OF
                                                       )    OHIO
        Defendant-Appellant.                           )



Before: MARTIN, SUHRHEINRICH, and COLE, Circuit Judges.

        BOYCE F. MARTIN, Jr., Circuit Judge. David Thurman moved to suppress a gun that

police found in his locked glove box during a traffic stop. The district court denied the motion and

Thurman now appeals. Thurman further argues that the district court’s application of the Armed

Career Criminal Act at sentencing was manifestly unfair. For the reasons that follow, we AFFIRM

the district court.

                                                 I.

        At 3:30 a.m. on August 15, 2010, David Thurman was driving down the highway near

Fairlawn, Ohio, having just finished working as a bouncer at The Executive Den, an adult

entertainment club in Cleveland, Ohio. Police Officer Hendrickson from the Fairlawn Police

Department saw Thurman’s car speeding on the highway without either a functioning headlight or

an illuminated license plate and stopped the car. Hendrickson asked Thurman for his driver’s license
No. 12-3767
United States v. Thurman

and, when he returned to his police car with the license, he heard over the police radio about a

robbery that had taken place at a hotel nearby. The description of the robber was a “male wearing

black clothing, with a ski type mask, and sneakers, who had emptied the cash box of the hotel and

fled the scene.” Hendrickson responded to the broadcast saying that the person he had stopped

matched that description and several police vehicles arrived to support him.

          Hendrickson and another officer, Patrolman Honaker, then approached Thurman’s vehicle.

Honaker testified that he asked Thurman for consent to search his car and that Thurman gave

consent, got out of the car, and was frisked. The officers removed a wad of cash from his back

pocket and sat Thurman down, without handcuffing him, on the guardrail. At this point no guns

were drawn and there were about three police vehicles at the scene. Meanwhile, Honaker searched

the car and found two bags of marijuana in the center console of the SUV. When asked, Thurman

said that he had taken them from a patron at the bar and had been planning on turning them in to the

police.

          Honaker mentioned to Thurman that the glove box of the SUV was locked. According to

Honaker, he asked Thurman if he could look inside the glove box. Thurman did not respond

verbally, but he handed Honaker the keys. The officers’ guns were not drawn at the time, but

Thurman testified that there were about nine police cars on the scene. At this point, Thurman had

not been given any Miranda warnings. The officers agree both that Thurman was not free to leave

and that he was being held at least on investigative detention. When Honaker opened the glove box

he found a Taurus PT1911, .45 caliber pistol firearm.



                                               -2-
No. 12-3767
United States v. Thurman

       Thurman was charged by superseding indictment with two counts of being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). The first count arose

from the August 15 traffic stop and is the only count relevant here. Thurman moved to suppress the

firearm discovered during the search of his vehicle. The district court held an evidentiary hearing

on the motion to suppress, at which Thurman testified that the officers initially never asked to search

the car and further that the officers removed the keys from his pocket. The officers testified that

Thurman verbally consented to the first search and that he voluntarily handed over the keys when

asked about the glove box.

       The district court ultimately denied Thurman’s motion to suppress, determining that Thurman

consented to the initial search of the car and the subsequent search of the glove box when he handed

over his keys. The district court further concluded that whether there was a consensual search came

down to credibility and he “credit[ed] the testimony of the officers.”

       A jury convicted Thurman on Count One of the indictment. At sentencing, the district court

concluded that Thurman was an armed career criminal and applied the Armed Career Criminal Act,

which has a mandatory minimum of 180 months’ incarceration. The district court looked to the

maximum sentences at the time of Thurman’s past convictions and determined that these convictions

counted towards the three prior convictions needed to qualify as an armed career criminal. The

district court determined that Thurman’s adjusted offense level was 34 with a criminal history

category of V. This yielded an advisory guidelines range of 235 to 293 months. After considering

the 18 U.S.C. § 3553(a) factors, the district court sentenced Thurman to 180 months incarceration,

followed by five years of supervised release, and a $100 special assessment.

                                                 -3-
No. 12-3767
United States v. Thurman

       Thurman appeals the district court’s denial of his motion to suppress and the district court’s

application of the Armed Career Criminal Act. Both parties agree that there was probable cause for

the initial stop of Thurman’s car and, for the purposes of this appeal, Thurman agrees to credit the

officer testimony that Thurman silently handed the keys to Honaker.

                                                 II.

       Thurman claims there was no valid consent to search his glove box and puts forth two

arguments: first, consent was not valid because he had not received Miranda warnings when the

police officers asked to search; and second, he did not verbally consent to the search of the car.

       When reviewing a district court’s denial of a motion to suppress we review “findings of fact

for clear error, and legal conclusions de novo.” United States v. Ivy, 165 F.3d 397, 401 (6th Cir.

1998). Whether a consent to search is voluntary is a question of fact. United States v. Collins, 683

F.3d 697, 701–02 (6th Cir. 2012) (citing United States v. Crowder, 62 F.3d 782, 787 (6th Cir. 1995))

(quotations omitted). A district court’s voluntariness findings “will not be reversed unless clearly

erroneous.” United States v. Jones, 846 F.2d 358, 360 (6th Cir. 1988).

       Thurman argues that he was “‘seized’ for the purposes of Miranda, and the failure to provide

Miranda warnings prior to the alleged consent causes the consent to be involuntary.” The argument,

without more, fails, because the “fact of custody alone has never been enough in itself to demonstrate

a . . . consent to search.” United States v. Watson, 423 U.S. 411, 424 (1976); United States v. Salvo,

133 F.3d 943, 953–54 (6th Cir. 1998) (noting that even if the defendant was under custodial

interrogation and should have received Miranda warnings, “that by itself would not be enough to



                                                -4-
No. 12-3767
United States v. Thurman

vitiate an otherwise valid consent to search”). Instead we must look to the circumstances

surrounding the traffic stop and search.

        We determine whether consent was voluntary by looking at the totality of the circumstances.

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). The government has the burden of proving

that a consent to search was voluntary. United States v. Erwin, 155 F.3d 818, 823 (6th Cir. 1998).

The Court should consider “the age, intelligence, and education of the individual, whether the

individual understands the right to refuse to consent; . . . the length and nature of detention; and the

use of coercive or punishing conduct by the police.” United States v. Worley, 193 F.3d 380, 386 (6th

Cir. 1999) (citation omitted).

        While knowledge of the right to refuse to consent to a search is relevant, “police do not have

to inform an individual of his right to refuse to consent to a search.” Collins, 683 F.3d at 702 (citing

United States v. Beauchamp, 659 F.3d 560, 572 (6th Cir. 2011)). Whether there was a “lengthy

detention and interrogation,” and whether officers had weapons drawn may be evidence of duress

or coercion. Worley, 193 F.3d at 386 (holding consent was voluntary because the detention was not

lengthy, the officers wore plain clothes and had no weapons visible). Furthermore, this Court and

the Tenth Circuit have “held that non-verbal actions, considered with other factors, can constitute

voluntary consent to searches . . . .” United States v. Taylor, 142 F.3d 438 (6th Cir. 1998) (holding

there was voluntary consent when the defendant got out of the car and silently opened the trunk in

response to a request to search the trunk) (unpublished); United States v. Williams, 754 F.2d 672,

675 (6th Cir. 1985) (holding defendant’s response of “no problem” combined with his attempt to

unlock a suitcase’s combination lock constituted voluntary consent); United States v. Anderson, 983

                                                 -5-
No. 12-3767
United States v. Thurman

F.2d 1069 (6th Cir. 1993) (holding that the “defendant’s action of opening a piece of luggage in view

of the agents and then providing [an agent] with the combination to the second suitcase” indicated

nonverbal consent) (unpublished); see also United States v. Benitez, 899 F.2d 995, 998 (10th Cir.

1990) (holding consent was voluntary where defendant opened the trunk of his car after a request

to search).

       We do not believe the district court committed clear error when it determined that Thurman

had voluntarily consented to the search of his glove box. There is no evidence of overt duress or

coercion: Thurman was sitting on the guardrail without handcuffs when Honaker asked for consent,

Honaker and Hendrickson did not have their guns drawn, the officers spoke to Thurman in a

conversational tone, and Thurman seemed calm and cooperative. When Honaker asked Thurman

if he could search the glove box, Thurman reached into his pocket and handed his keys to the

officers. Considering the totality of the circumstances, including Thurman’s prior verbal consent

to search the car, Thurman’s handing over of the keys constituted a voluntary consent to search the

glove box.

                                                III.

       Thurman argues that the district court erred in applying the Armed Career Criminal Act at

sentencing and that such application was manifestly unfair. We review a district court’s sentencing

decisions de novo, but the standard of review is clear error “where the inquiry turns upon whether

the defendant’s prior convictions are distinct criminal episodes that should be counted separately

under statutory provisions.” United States v. Martin, 526 F.3d 926, 938 (6th Cir. 2008) (citing

United States v. Powell, 404 F.3d 678, 682 (2d Cir. 2005)).

                                                -6-
No. 12-3767
United States v. Thurman

       If convicted of being a felon-in-possession of a firearm, a defendant will generally receive

a sentence of up to ten years’ incarceration. 18 U.S.C. § 922(g). But the sentence may be enhanced

to a mandatory minimum of fifteen years if the defendant is found to qualify as an armed career

criminal under the Armed Career Criminal Act. 18 U.S.C. § 924(e)(1). To apply the Act, a

defendant who is convicted under 18 U.S.C. § 922(g) must have had three previous convictions “for

a violent felony or a serious drug offense” that were “committed on occasions different from one

another.” Id. A “serious drug offense” is one which carries a “maximum term of imprisonment of

ten years or more.” 18 U.S.C. § 924(e)(2)(A).

       Thurman had two convictions that counted as violent felonies for purposes of the Act. In

addition, Thurman was convicted of two separate drug trafficking offenses in 1990 and 1991. At

the time he was sentenced for those drug offenses, the maximum sentences were ten years.

However, in 1996, Ohio reduced the maximum sentence that could be imposed from ten years to

between five and eight years. Until recently, this Circuit had held that, for the purposes of applying

the Armed Career Criminal Act, it would consider the current sentencing maximum for a defendant’s

past felonies and drug offenses. United States v. Morton, 17 F.3d 911, 915 (6th Cir. 1994).

However, as Thurman himself acknowledges, McNeill v. United States overruled this precedent in

2011. McNeill v. United States, 131 S. Ct. 2218, 2222 (2011). In McNeill the Supreme Court held

that “a federal sentencing court must determine whether ‘an offense under State law’ is a ‘serious

drug offense’ by consulting the ‘maximum term of imprisonment’ applicable to a defendant’s

previous drug offense at the time of the defendant’s state conviction for that offense.” Id. at 2224.



                                                -7-
No. 12-3767
United States v. Thurman

Thurman’s argument is merely that “the harsh effect of the McNeill decision should not apply to his

case, given the timing and unique circumstances and litigation involved in his case.” We hold that

McNeill controls here. The district court relied on McNeill in determining that the Armed Career

Criminal Act applied. At the time that Thurman was convicted of the two drug trafficking offenses,

in 1990 and 1991, the maximum sentence was ten years. O.R.C. § 2925.03. The district court did

not err when it applied the Armed Career Criminal Act to Thurman’s sentence.

                                               IV.

       We affirm the district court’s judgment.




                                               -8-
