                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                   FILED
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 07-14852                  September 26, 2008
                        Non-Argument Calendar            THOMAS K. KAHN
                      ________________________                 CLERK

                  D. C. Docket No. 05-00290-CR-W-N

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

EDDIE ANDREW GORDON,

                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     _________________________

                         (September 26, 2008)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
      Eddie Andrew Gordon appeals his conviction for possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g).

                                       Facts

      The testimony at trial established the following facts: On November 22,

2004, Officer Lance Gambrel went to the Coliseum Inn in Montgomery, Alabama,

in response to a 911 call from Lynn Jordan wanting assistance in recovering

missing property. When Gambrel arrived at the Coliseum Inn, Jordan told

Gambrel that her son, a crack cocaine addict, had broken into her home and taken

her property, including a stereo. She stated that she believed her missing property

was in Room 103 of the Coliseum Inn, a room her son frequented.

      As Gambrel approached Room 103, the door was ajar and he could see

Appellant Gordon lying on the bed watching television. Gambrel saw a CD case

next to Gordon with what appeared to be drugs and drug paraphernalia on top.

Gambrel knocked and Gordon came to the door. Gambrel asked Gordon if this

was his room, to which Gordon responded that it was and that he had been staying

there for some time. When Gambrel asked Gordon to step out of the room,

Gordon complied but appeared nervous and was shaking. Gambrel asked if he

could search the room and Gordon agreed. A back-up officer remained outside

with Gordon while Gambrel performed his search.

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       Once in the room, Gambrel seized the drug evidence which was in plain

view. He found drug residue on the CD along with a razor blade and a marijuana

“blunt” on the bed where Gordon had been lying. Additionally, Gambrel found a

crack pipe and crack cocaine on or near the dresser. There was a towel next to the

items on the bed. In the process of seizing the drug evidence, Gambrel moved the

towel and found a firearm lying underneath the towel. Gambrel placed Gordon

under arrest.1

       Robert Green, a member of the Alcohol, Tobacco, Firearms, and Explosives

task force, testified that he attempted to speak with Gordon after his arrest and

release as part of the investigation of the firearm charge. Green went to the

Coliseum Inn to speak with Gordon, but because Gordon was not there, Green left

a business card in the door of Room 103. Sometime thereafter, Gordon called

Green and, in the course of that conversation, Gordon stated that he had obtained

the gun from his mother’s house about three weeks before the arrest and had been

planning to deliver the gun to his brother. Green told Gordon that he needed to

speak to Gordon in person regarding the firearm. Gordon responded that he was

       1
          Prior to trial, Gordon filed a motion to suppress the evidence of the gun. At the hearing,
which was held before a magistrate judge, Gordon disputed Gambrel’s claim that the door was ajar
and that the consent to search was general. Gordon claimed that Gambrel had asked only for consent
to search for the stereo. The magistrate judge, however, found Gambrel to be more credible and
denied the motion to suppress. Gordon did not object to the magistrate judge’s report and
recommendation.

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out of town at the moment and would contact Green when he returned.

      Gordon testified in his own defense. He admitted his prior felony

convictions for sodomy, breaking and entering a vehicle, robbery, and drug

possession. He denied, however, that the gun was his or that he had known of the

gun’s existence. His roommate, Tavian Jackson, also testified for Gordon.

Jackson stated that the gun was his, that he kept it in the night stand, and that

Gordon did not know about the gun.

      Gordon objected to Green’s testimony about the statements Gordon had

made to Green during their telephone conversation. Gordon argued that admitting

his statement was a violation of his Fifth Amendment right because Green had not

given Miranda2 warnings before speaking with him on the telephone. The court

overruled the objection, finding that Gordon was no longer in custody at the time

the statements were made and was speaking to Green voluntarily.

      The jury found Gordon guilty. Gordon then filed a post-conviction motion

for a new trial and, alternatively, a motion for judgment of acquittal asserting that

the evidence was insufficient to establish his prior convictions or that he

knowingly possessed the gun. He also reiterated his objection to Green’s

testimony and his objection to the denial of his motion to suppress the gun

      2
          Miranda v. Arizona, 384 U.S. 436 (1966).

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evidence. The court denied the motions.3

      Following the sentencing, Gordon’s counsel moved to withdraw, stating

only that Gordon had expressed the desire to be represented by different counsel

on appeal. This court denied the motion, and this appeal followed.

      On appeal, Gordon argues error in (1) this court’s denial of his motion for

new counsel, (2) the district court’s denial of his motion to suppress the gun

evidence obtained during the search of the hotel room, (3) the district court’s

allowing Agent Green to testify as to the statement Gordon made regarding the

gun, and (4) the district court’s denial of Gordon’s motions for acquittal and

motion for new trial.

                                      Discussion

A. Motion for New Counsel

      Gordon argues that this court erred by denying his motion for new counsel

because the denial precludes him of the opportunity to raise an ineffective

assistance claim on appeal. Although he notes that such claims are usually raised

in collateral attacks, Gordon states that there is no right to counsel in collateral

proceedings; thus, by depriving him of new counsel to argue ineffective assistance

on this direct appeal, he contends the court effectively denies Gordon the
      3
       The judge also denied a motion for acquittal that Gordon filed at the close of the
Government’s case but upon which the judge reserved ruling.

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opportunity to raise the issue.

      We review constitutional claims de novo. Battle v. United States, 419 F.3d

1292, 1300 (11th Cir. 2005). Although the “root meaning” of the Sixth

Amendment affords an accused his choice of counsel, it is well established that

“the right to counsel of choice does not extend to defendants who require counsel

to be appointed for them.” United States v. Gonzalez-Lopez, 548 U.S. 140, 147-

152 (2006); see also Morris v. Slappy, 461 U.S. 1 (1983) (holding that while an

indigent criminal defendant has an absolute right to be represented by counsel, he

does not have a right to have a particular lawyer represent him).

      Here, Gordon’s counsel was appointed. Accordingly, Gordon does not have

a right to select his counsel for this stage of the litigation. See Gonzalez-Lopez,

548 U.S. at 152. Furthermore, Gordon has failed to establish how the denial of his

motion for new counsel violates his rights. As Gordon explains, he seeks new

counsel in order to raise ineffective assistance claims on appeal. This court has

repeatedly held that such claims are generally not appropriate on direct appeal

because the record is not sufficiently developed. See United States v. Gholston,

932 F.2d 904, 905 (11th Cir. 1991). Rather, claims of ineffective assistance of

counsel generally arise in post-conviction motions under 28 U.S.C. § 2255. The

fact that Gordon is not entitled to counsel in post-conviction motions does not

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result in a violation of his Sixth Amendment right on direct appeal. For these

reasons, we properly denied Gordon’s motion for new counsel on appeal.

B. Motion to Suppress

      Gordon next contends that the district court erred by failing to suppress the

gun evidence because Gambrel conducted a search that exceeded the scope of the

consent. In considering the district court’s denial of a motion to suppress, we

review factual determinations for clear error and review the application of law to

the facts de novo, construing all facts in the light most favorable to the

Government. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003).

Because Gordon failed to object to the magistrate judge’s recommendation, the

magistrate judge’s factual findings are “not subject to attack on appeal ‘except on

grounds of plain error or manifest injustice.’” United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988). “Credibility determinations are typically the province

of the fact finder because the fact finder personally observes the testimony and is

thus in a better position than a reviewing court to assess the credibility of

witnesses.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).

      The Fourth Amendment provides protection against unreasonable searches

and seizures. U.S. CONST., amend. IV. Searches and seizures conducted inside a

home without a warrant are presumptively unreasonable. United States v.

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McGough, 412 F.3d 1232, 1237 (11th Cir. 2005). Nevertheless, even in the

absence of probable cause or reasonable suspicion, law enforcement officers may

search an individual or his property without a warrant, so long as the individual

voluntarily consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218,

219-22 (1973).

      “A consensual search is confined to the terms of its authorization.” United

States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990). If a search exceeds the

scope of the consent, it is impermissible. Id. When an individual provides a

general consent to search, without expressly limiting the terms of his consent, the

search “is constrained by the bounds of reasonableness: what a police officer

could reasonably interpret the consent to encompass.” Id. To determine the

reasonableness of the search, we must consider what the parties knew to be the

object (or objects) of the search. Florida v. Jimeno, 500 U.S. 248, 251 (1991).

      Here, the district court properly denied the motion to suppress. Gordon’s

consent was general in nature. Gambrel testified that he did not tell Gordon that

he was looking for anything specific. Gordon disputed this testimony, but the

magistrate judge found that Gambrel was more credible. Importantly, Gordon did

not file objections to the magistrate judge’s recommendation; therefore, in order to

successfully challenge this factual finding, Gordon must show that the magistrate

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judge’s determination constitutes plain error. This Gordon has failed to do. Thus,

we conclude that Gambrel’s search of the room, including moving the towel on the

bed in the vicinity of the drugs, was allowable as within the reasonable scope of

the general consent to search.

C. Incriminating Statement

      Gordon argues that the court erred by allowing Green to testify regarding

the statement Gordon made during their telephone conversation because Green did

not give any Miranda warnings before taking the statement.

      Evidentiary rulings are reviewed for an abuse of discretion. United States v.

Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006). To the extent that the district

court’s determination involves questions of law, however, we review those

questions of law de novo. United States v. Noriega, 117 F.3d 1206, 1211 (11th

Cir. 1997).

      Gordon’s claim fails because the requirements of Miranda only apply to

custodial interrogations. United States v. Acosta, 363 F.3d 1141, 1148 (11th Cir.

2004). The record establishes that Gordon was not in custody at the time he made

the statements at issue. Indeed, Gordon and Green were not even in the same town

at the time of their telephone conversation; therefore, Green was not required to


                                         9
give a Miranda warning prior to taking a statement from Gordon.

D. Prior Felony Convictions

      Gordon also claims that the court should have granted his motions for

judgment of acquittal because the Government failed to prove the necessary

elements of the offense.

      The denial of a motion for judgment of acquittal is reviewed de novo.

United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). “When the

motion raises a challenge to the sufficiency of the evidence, we review the

sufficiency of the evidence de novo, drawing all reasonable inferences in the

government’s favor.” Id.

      To establish a 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.

Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000). Gordon does not dispute the

third element; however, he asserts that the Government failed to establish that he

had prior convictions and that he knowingly possessed the firearm.

      Gordon’s arguments fail. First, at trial Gordon testified in his own defense


                                         10
and admitted that he was a convicted felon and had committed the three offenses

listed in the indictment. This admission is sufficient to satisfy the Government’s

burden regarding the first element of this offense.

      Second, the evidence sufficiently supports the jury’s determination that

Gordon knowingly possessed the firearm found in Room 103. To establish

“knowing possession,” the Government must prove actual or constructive

possession through direct or circumstantial evidence. United States v. Greer, 440

F.3d 1267, 1271 (11th Cir. 2006). “Constructive possession exists when the

defendant exercises ownership, dominion, or control over the item or has the

power and intent to exercise dominion or control.” Id. In reviewing witness

testimony, the jury makes any credibility choices, and we will assume that it made

them in the way that supports the verdict. United States v. Thompson, 473 F.3d

1137, 1142 (11th Cir. 2006).

      Here, Gordon testified that he did not know the firearm was in the room or

on the bed. In support of this version of events, Gordon’s roommate Jackson

testified that he was the owner of the gun, that he had hidden the gun in the

nightstand, and that he had not told Gordon that the gun was there. In direct

conflict with this testimony, however, Officer Gambrel testified that he found the

gun on the bed under a towel. Assuming that Gambrel’s testimony was credible,

                                         11
as the jury obviously found, the gun was on the bed within Gordon’s reach, not in

the nightstand where it was allegedly left by Jackson. Based on this evidence, the

jury was justified in concluding that Gordon had control over the firearm. “A

statement by a defendant, if disbelieved by the jury, may be considered as

substantive evidence of the defendant’s guilt.” United States v. Brown, 53 F.3d

312, 314 (11th Cir. 1995). In addition, Green testified that in his telephone

conversation with Gordon, Gordon admitted his possession of the firearm. Thus,

the evidence was sufficient to establish beyond a reasonable doubt that Gordon

was in possession of the firearm.

      The Government presented sufficient evidence on all three elements of the

offense to support the jury’s guilty verdict. Accordingly, we AFFIRM.




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