                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 04-1807
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Robert George Head, Jr.,               *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: November 19, 2004
                                Filed: May 13, 2005
                                 ___________

Before WOLLMAN and HEANEY, Circuit Judges, and HOLMES,1 District Judge.
                         ___________

WOLLMAN, Circuit Judge.

       Robert George Head, Jr., appeals from his conviction and sentence on two
counts of aggravated assault, violations of 18 U.S.C. §§ 2, 113(a)(3), 1151, and
1153(a), and one count of brandishing a firearm during a crime of violence, a
violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii). We affirm.




      1
       The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
                                          I.
       Early on the morning of January 19, 2002, Head was smoking crack cocaine
at the home of his then-girlfriend, Patricia Mountain. Also present and smoking
crack cocaine were Kevin Boland, Alejandro Garcia, and Alana Brown, Head’s
daughter. At some point, Head and Brown departed. Sometime thereafter, Garcia
and Mountain departed in Garcia’s car. Head and Brown met up with Jeffrey Dolson
and Arlen Rice, and the four of them, riding in Head’s truck, encountered Garcia’s
car. Head began following Garcia around the reservation and at one point rammed
Garcia’s car with his truck and told Garcia that he was going to kill him. Head and
the others in his truck then returned to Mountain’s residence, where Head kicked in
the door. He approached Boland and held a pistol to his head, demanding money and
drugs. Head, Dolson, and Brown then assaulted Boland and departed. Garcia
eventually returned to Mountain’s residence and discovered the injured Boland.
Shortly thereafter, Head and others returned, and Garcia and Boland fled on foot.
Head chased and caught Garcia and then assaulted him. The assault ended when a
police officer arrived on the scene.

       Head was arrested on tribal charges by the Red Lake Tribal Police Department
later that morning. He was questioned by F.B.I. Special Agent John Egelhof at the
Red Lake Tribal Jail. Agent Egelhof stated that he wanted to talk with Head about
what had occurred earlier that morning. After informing Head that he had not been
charged with a federal offense and that he was only incarcerated under tribal charges,
Agent Egelhof again stated that he wanted to talk with Head about what had
happened that morning. Head responded that he did not know why he was in custody,
that he had “only been involved in capturing and holding a drug dealer, Alex Garcia,
for the police” and that Garcia had tried to kidnap his daughter. April 2, 2002, Tr. at
4. The district court denied Head’s pre-trial motion to suppress this statement.

       Head pled guilty to one count of aggravated assault but subsequently withdrew
his plea following our decision in United States v. Robert George Head, Jr., 340 F.3d

                                         -2-
628 (8th Cir. 2003). Head then moved to exclude any evidence that referred to the
fact that he had previously pled guilty to one of the counts of the indictment. The
district court2 refused to rule on the admissibility of such evidence until after Head
testified. Head did not object to this decision and ultimately elected not to testify.

       At trial, the prosecution called Alana Brown, who testified about what she
remembered from the events that led to the charges against Head. The defense called
Head’s wife, Mary, who testified outside of the presence of the jury that Brown had
told her that Brown did not remember what had happened. The prosecution objected
that Mary Head’s testimony was hearsay. The district court excluded the testimony
after concluding that it had no probative value.

       Following Head’s conviction, the district court sentenced him to concurrent
120-month terms for each of the aggravated assaults and a mandatory consecutive
term of 84 months for brandishing a firearm during a crime of violence. The sentence
reflected a two-level increase for leadership in the commission of a crime and a two-
level increase for obstruction of justice.

      Head challenges the district court’s denial of his motions to exclude the
statements he made to Agent Egelhof and the evidence relating to the previously
entered guilty plea. He also asserts that the district court improperly disallowed Mary
Head’s rebuttal testimony. Finally, he challenges the district court’s sentencing
enhancements based on facts not found by a jury beyond a reasonable doubt.3




      2
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
      3
      We deny Head’s November 1, 2004, pro se supplemental motion, which raises
myriad other challenges.

                                         -3-
                                         II.
      We first address the district court’s denial of Head’s motion to suppress the
statement made to Agent Egelhof. We examine factual findings for clear error and
conclusions of law de novo. United States v Mendoza-Gonzalez, 363 F.3d 788, 795
(8th Cir. 2004).

        The requirements of Miranda are triggered only when a defendant is both in
custody and being interrogated. United States v. Boyd, 180 F.3d 967, 976 (8th Cir.
1999). Interrogation includes not only express questioning by law enforcement
officers, but also words or actions that officers should know are reasonably likely to
elicit an incriminating response from a suspect. Mendoza-Gonzalez, 363 F.3d at 795
(citing Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)). A statement made by a
suspect that is voluntary and not in response to interrogation is admissible with or
without the giving of Miranda warnings. Boyd, 180 F.3d at 977.

       The circumstances here are not unlike those in Mendoza-Gonzalez, 363 F.3d
788. In that case, a suspect who had been placed in handcuffs but was not under
arrest asked an officer if he could make a phone call. When the officer inquired why
the suspect wanted to make the call, the suspect replied: “I am going to jail.” Id. at
792. In upholding the district court’s denial of the suspect’s motion to suppress that
statement, we held that the officer could not reasonably have expected the suspect to
make an incriminating statement in response to his question. Id. at 795. Similarly,
Agent Egelhof had no reason to know that informing Head that he wanted “to talk to
him about what had occurred that morning” would elicit an incriminating response.
Accordingly, although Head was in custody, Agent Egelhof’s statement to him did
not constitute an interrogation. In any event, even if we were to conclude that the
denial of the suppression motion was improper, the error is harmless in light of the
overwhelming evidence of Head’s guilt. See United States v. Moore, 872 F.2d 251,
252 (8th Cir. 1989).



                                         -4-
                                         III.
       We next consider the district court’s deferral of Head’s motion to exclude
evidence pertaining to his prior guilty plea. In United States v. Luce, the Supreme
Court held that a defendant must testify in order to raise and preserve for review a
claim of improper impeachment with a prior conviction. 469 U.S. 38, 43 (1984).
When the defendant does not testify, a reviewing court “has no way of knowing
whether the government would have sought to impeach with the prior conviction.”
Id. at 42. Without the defendant’s testimony, “it would be a matter of conjecture
whether the District Court would have allowed the Government to attack [the
defendant’s] credibility at trial by means of a prior conviction.” Id. The Luce
rationale applies with equal force to a claim of improper impeachment with a
previous guilty plea, particularly where, as here, the district court deferred its ruling
on Head’s motion. Having elected not to testify, Head may not now contend that he
was prejudiced by the district court’s deferral of the ruling.

                                           IV.
        Head contests the district court’s exclusion of Mary Head’s testimony. We
review the district court’s determination of the admissibility of evidence for abuse of
discretion. United States v. Roulette, 75 F.3d 418, 423 (8th Cir. 1996). Although
under certain circumstances a party may introduce extrinsic evidence of a witness’s
prior inconsistent statement, Fed. R. Evid. 613(b), relevant evidence may be excluded
if its probative value is “substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403.

      Alana Brown testified on direct examination that she drank beer and smoked
crack on the day in question. On cross-examination, Brown admitted that she had
consumed between six and eight cans of beer. When asked on cross-examination
whether she was “pretty intoxicated,” Brown responded: “Not really, I wouldn’t
consider myself intoxicated. I drank, like, maybe six, seven beers, but I still knew

                                          -5-
what was going on.” March 17, 2004, Tr. at 81. She also stated that “even if I was
[intoxicated], I still remember what all happened.” Id. at 83. At other points in her
testimony, however, Brown stated that she could not remember certain details about
the evening.

       Mary Head testified outside the presence of the jury that Brown had told her
that she had consumed twelve rather than eight cans of beer and that “she couldn’t
really remember . . . a lot of the things that the investigators were telling her about the
other people’s statements [regarding the events of the night in question].” March 18,
2004, Tr. at 140-41. The only disparities in Brown’s testimony that Mary Head’s
testimony suggested were the number of beers that Brown had consumed and the
extent to which Brown was able to remember the events that transpired that night.

      The district court concluded that Mary Head’s testimony had no probative
value and that Brown “was clear and candid on the witness stand that she doesn’t
have a very good memory of it, parts of it.” Id. at 141. To the extent that Mary
Head’s testimony would have had any probative value, we conclude that it would
have been largely cumulative of Brown’s own testimony and thus would not have
substantially impacted the jury’s verdict. Accordingly, any error in excluding it was
harmless.

                                           V.
      Head’s reply brief challenges two sentencing enhancements based on facts not
found by a jury beyond a reasonable doubt: a two-level increase for leadership in the
commission of a crime, and a two-level increase for obstruction of justice. We
address these challenges in light of United States v. Booker, 125 S. Ct. 738 (2005),
and United States v. Pirani, No. 03-2871 (8th Cir. April 29, 2005) (en banc). Because
Head did not raise constitutional challenges to the enhancements at sentencing, we
review for plain error. Pirani, slip op. at 6.



                                           -6-
       In order to resolve Head’s challenges to his sentence, we conduct plain error
review under the four-part test of United States v. Olano, 507 U.S. 725 (1993).
Pursuant to that test, before we can correct an error not raised at trial, “there must be
(1) error, (2) that is plain, and (3) that affects substantial rights. Johnson v. United
States, 520 U.S. 461, 466-67 (1997). If all three conditions are met, we may remedy
the error only if it “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id.

       The district court’s enhancements for leadership and for obstruction of justice
were erroneous in light of Booker. In these circumstances, the first two Olano factors
are satisfied. See Pirani, slip op. at 8. Whether the error affected Head’s substantial
rights is another matter. To satisfy this factor, “the defendant must show a
‘reasonable probability,’ based on the appellate record as a whole, that but for the
error he would have received a more favorable sentence.” Id. at 11.

       Absent the enhancements, Head would have faced a base offense level of 23
and a sentencing range of 84-105 months for his convictions on the two counts of
aggravated assault.4 The four-level adjustment to a base offense level of 27 resulted
in a range of 120-150 months. The district court sentenced Head to 120 months.
Although the district court sentenced Head to the low end of the sentencing range,
nothing in the record suggests a reasonable probability that Head would have
received a more favorable sentence had the district court been operating within a
range of 84-105 months. Cf. Pirani, slip op. at 12 (“[S]entencing at the bottom of the
range is the norm for many judges, so it is insufficient, without more, to demonstrate
a reasonable probability that the court would have imposed a lesser sentence absent
the Booker error.”). In fact, the district court contemplated sentencing Head to

      4
       As indicated above, Head’s sentence also included a mandatory consecutive
term of 84 months stemming from his conviction for brandishing a firearm during a
crime of violence. The sentencing enhancements have no effect on this portion of
Head’s sentence.
                                          -7-
consecutive 120-month terms for the aggravated assault convictions, but ultimately
concluded that concurrent sentences were appropriate given Head’s age.5 We
conclude that, given these circumstances, Head has not demonstrated prejudicial plain
error under Olano.
       The judgment and sentence are affirmed.
                        ______________________________




      5
        The district court commented to Head at sentencing that “[a]lthough there’s
much of your conduct both before the charges in this case and since which is
aggravating and could be the basis for a consecutive time imposed more than this or
at a different point in the guidelines, I find that under the circumstances, given your
age, 204 months [120 months for the aggravated assault convictions and 84 months
for the conviction for brandishing a firearm] is a very long sentence and is sufficient
to comply with society’s need for punishment as it relates to this offense and
particularly the conduct you’ve engaged in since the time of your arrest.” Sen. Tr. at
22.
                                         -8-
