                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ______________

                                  No. 97-2396WM
                                  _____________

Craig L. Patterson,                       *
                                          *
             Appellant,                   *
                                          *
      v.                                  *   On Appeal from the United
                                          *   States District Court
                                          *   for the Western District
United States of America,                 *   of Missouri.
                                          *
                                          *
             Appellee.                    *

                                   ___________

                             Submitted: November 18, 1997
                                 Filed: January 9, 1998
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and MAGILL, Circuit
      Judges.
                           ___________

RICHARD S. ARNOLD, Chief Judge.


       A jury convicted Craig L. Patterson of one count of possession with intent to
distribute cocaine base (“crack”) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)
(1994). The District Court1 sentenced him to 405 months’ imprisonment, the top of the
Guidelines range of 324 to 405 months. Patterson now appeals his conviction and
sentence on the ground of ineffective assistance of counsel. Patterson also argues that
the government failed to prove for sentencing purposes that he possessed “crack”
cocaine. We affirm.

                                           I.

       On September 11, 1996, the Kansas City, Missouri, Police Department’s Street
Narcotics Unit executed a search warrant on a Kansas City residence. When the police
officers arrived at the residence, Craig L. Patterson was sitting on the front porch.
Inside the house, in a bedroom in the basement, the officers found two lock-box safes.
The safes contained a total of three and one-half kilograms of cocaine base, or “crack.”
One of the safes contained $5,665 in bills. In the basement bedroom, the officers also
found two documents bearing the defendant’s name and two pistols.

       The police officers arrested Mr. Patterson and took him to police headquarters,
where he was interviewed by two detectives. Patterson told the detectives that he
could read and write, and, after reading aloud a Miranda rights waiver form, told them
that he understood it. Patterson then signed the form and began answering questions
about the cocaine seized at the house. Responding to questions, Patterson admitted
that the cocaine was his and that it had been in the house for about a week. He refused
to tell the police how much he paid for the cocaine or who sold it to him. When the
detectives asked Patterson if he sold cocaine, Patterson asked for an attorney, and the
interview concluded. At some point before the detectives ended the interview, one of
them told Patterson that the house might be seized by the police because the cocaine
was found in the basement. Patterson’s mother owned the house and lived there with


      1
       The Hon. Dean Whipple, United States District Judge for the Western District
of Missouri.

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him. It is not clear from the record whether information about possible forfeiture of the
house was discussed before or after Patterson told the police that he owned the cocaine,
or whether it occurred before or after Patterson requested an attorney.

      Patterson’s trial counsel did not move to suppress either the physical evidence
found in the house or Patterson’s statements made in the police interview. The jury
found Patterson guilty of possession of “crack” with intent to distribute. The District
Judge sentenced Patterson to 405 months, a sentence at the top of the Sentencing
Guidelines range, on the basis of a total offense level of 40 and a criminal history
category of II. Patterson now raises the issue of ineffective assistance of counsel on
appeal.2

                                            II.

       Patterson first argues that his lawyer at trial was ineffective because he failed to
move to suppress the physical evidence seized in the basement and Patterson’s
confession during the interview with the detectives. To establish a Sixth Amendment
violation for ineffective assistance of counsel, a defendant must prove that his lawyer’s
performance was constitutionally deficient, and he must prove prejudice, or the
reasonable probability that the outcome of the trial would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Mills v. Armontrout, 926 F.2d
773, 773-74 (8th Cir. 1991). The defendant has the burden of proving deficiency and
prejudice. English v. United States, 998 F.2d 609, 613 (8th Cir.), cert. denied, 510
U.S. 1001 (1993). Patterson argues three points. First, he argues that his attorney
should have moved to suppress evidence of incriminating statements Patterson made


      2
       An ineffective-assistance-of-counsel claim is typically not cognizable on direct
appeal. See United States v. Rhodenizer, 106 F.3d 222, 227 (8th Cir. 1997).
However, the government does not object to our considering the argument, and the
answer to it is clear on the record before us.

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to the police. Second, he maintains that his trial counsel was ineffective because he did
not move to suppress the physical evidence obtained by the police at Patterson’s
residence. Finally, Patterson claims that his attorney should have raised objections to
the presentence report. We reject Patterson’s arguments because, even if he could
establish that his attorney’s trial strategy was constitutionally deficient, he has not
shown that he has been prejudiced.

       First Patterson challenges his trial counsel’s failure to move to suppress his
confession. The testimony at trial was that Patterson was questioned for a relatively
brief period of time, and that he read, understood, and signed a Miranda rights waiver
form before he admitted to owning the “crack.” Patterson argues that he was coerced,
and that a motion to suppress the confession would have been successful, because the
police told him that his mother’s house might be seized after cocaine was found in the
basement. However, these statements alone do not amount to coercion by the police.
Patterson has failed to show whether the detectives’ statements about his mother’s
house came before or after he admitted to owning the cocaine, a crucial fact in
determining whether the statements were coerced. Even if the police told Patterson his
mother’s house might be seized before he made incriminating statements, the
detective’s statements cannot be said to have rendered the confession involuntary.
Patterson was not physically harmed or threatened; he was merely informed (truthfully)
of potential legal consequences of the discovery of drugs in the house. These
statements, by themselves, are not coercive. See United States v. Makes Room, 49
F.3d 410, 415 (8th Cir. 1995); Jenner v. Smith, 982 F.2d 329, 333-34 (8th Cir.), cert.
denied, 510 U.S. 822 (1993). There is no claim that Patterson was told that his
mother’s house would be seized if he did not confess. Because a motion to suppress
his confession would not have been successful, his Sixth Amendment argument must
fail with regard to the confession.

      Related to the coercion argument is Patterson’s claim that the District Court
should have held a hearing to determine whether his statements to the police were

                                          -4-
voluntary, despite the fact that Patterson did not object to the confession before or
during the trial. We do not agree. A district court has no duty to hold a hearing on the
voluntariness of a confession when the defendant does not make a timely objection.
See United States v. Miller, 987 F.2d 1462, 1464 (10th Cir. 1993); United States v.
Wilson, 895 F.2d 168, 172-73 (4th Cir. 1990). Patterson cites one case, Lufkins v.
Solem, 716 F.2d 532 (8th Cir. 1983), cert. denied, 467 U.S. 1219 (1984), for the
proposition that the District Court should have held such a hearing sua sponte. In fact,
in Lufkins, the defendant filed written objections to testimony by a sheriff regarding the
defendant’s confession, and the defendant’s lawyer objected during trial to the sheriff’s
testimony. Id. at 535. There is no legal support for the idea that a district court must
hold a hearing on voluntariness without an objection by the defendant, and we therefore
reject the defendant’s argument.

       Patterson also challenges his attorney’s failure to move to suppress physical
evidence obtained as a result of the search of the home. However, Patterson fails to
provide any reason as to why such a motion would have been successful. It is
undisputed that the search was conducted pursuant to a warrant issued by a Jackson
County, Missouri, judge. Patterson does not attack the validity of the warrant or the
actions of the police in executing the warrant. Because Patterson has not demonstrated
a reasonable probability the outcome of the trial would have been different even if his
attorney had filed a motion to suppress the physical evidence, his argument must fail.

       Finally, Patterson argues that his attorney should have objected to the
presentence report. His base offense level was 38, because of the three and one-half
kilograms of “crack” cocaine found in the house. Patterson argues that his attorney
should have objected to this calculation because of the 100-to-1 ratio of “crack” to
powder cocaine. This Court has repeatedly held that the disparity between “crack” and
powder cocaine is not a basis for a downward departure under the Sentencing
Guidelines. See United States v. Lewis, 90 F.3d 302, 304-06 (8th Cir. 1996), cert.
denied, 117 S. Ct. 713 (1997); United States v. Maxwell, 25 F.3d 1389, 1400-01 (8th

                                           -5-
Cir.), cert. denied, 513 U.S. 1031 (1994). Because this motion would not have been
successful if Patterson’s attorney had made it before the District Court, we reject
Patterson’s argument that his trial counsel was inadequate for not making it.

                                          III.

       We also reject Patterson’s argument that the government failed to prove by a
preponderance of the evidence during the sentencing phase that Patterson was
responsible for the possession of “crack” cocaine. At trial, a forensic chemist testified
that he had performed tests on the substance obtained from Patterson’s home, and that
the substance was cocaine base, or “crack” as defined in the Sentencing Guidelines.
See U.S.S.G. § 2D1.1 (Note (D)). This evidence is sufficient to support the sentence
imposed by the District Court. See United States v. Wilson, 103 F.3d 1402, 1407 (8th
Cir. 1997).

                                          IV.

       For the reasons discussed above, the judgment and sentence of the District Court
are affirmed.

      It is so ordered.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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