                                       No. 04-2483
                                 File Name: 05a0953n.06
                                 Filed: December 6, 2005

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                          )
                                                   )
   Plaintiff-Appellee,                             )
                                                   )   ON APPEAL FROM THE
       v.                                          )   UNITED STATES DISTRICT
                                                   )   COURT FOR THE EASTERN
TYRONE ORLONDE COX,                                )   DISTRICT OF MICHIGAN
                                                   )
   Defendant-Appellant.                            )



Before:         MARTIN, NELSON, and ROGERS, Circuit Judges.


       DAVID A. NELSON, Circuit Judge. This is an appeal from a judgment of conviction

and sentence in a federal criminal case. The defendant challenges (1) the denial of a motion

to suppress statements he made to a federal agent without having been advised of his

Miranda rights; (2) the denial of a motion to exclude evidence of prior convictions; and (3)

the sentence, which was imposed prior to the Supreme Court’s issuance of its decision in

United States v. Booker, 125 S. Ct. 738 (2005). We shall affirm the challenged judgment in

all respects.


                                             I
No. 04-2483
Page 2

       In November of 2003 Special Agent Mark Kloostra, of the Bureau of Alcohol,

Tobacco, and Firearms, obtained a warrant to search the residence of the defendant, Tyrone

Cox. To facilitate execution of the warrant Agent Kloostra arranged to speak with Mr. Cox

when the latter next reported to his probation officer. (Mr. Cox was on probation for a

Michigan conviction.) Kloostra told Cox about the warrant, handcuffed him “for the safety

of all the probation officers,” and asked for the keys to his house. Cox provided the keys,

which were in the possession of a friend who had accompanied him to the probation office.

Kloostra explained that Cox would have to remain at the probation office while the warrant

was executed and that Kloostra would return when the search was complete.

       Agent Kloostra returned to the probation office about an hour and 20 minutes later.

He removed the handcuffs from Mr. Cox, gave back the borrowed keys, and handed Cox a

copy of the search warrant and a list of what had been discovered. Kloostra told Cox that

two firearms and a quantity of cocaine had been found in the house, and he said that an arrest

warrant would be issued for Cox “at a later date.” Kloostra told Cox that he was free to go

if his probation officer did not need him any longer.

       Agent Kloostra then asked Mr. Cox how long he had lived in the house. Cox

answered that he had lived there eleven years, adding that he lived alone but that his young

son stayed with him sometimes. Mr. Cox then left the probation office.

       A federal grand jury indicted Mr. Cox on charges of possession of cocaine base and

possession of a firearm by one convicted of a felony.
No. 04-2483
Page 3

       Mr. Cox filed a motion in limine to suppress the statements made to Agent Kloostra

after the execution of the search warrant. The district court denied the motion on the ground

that Cox had not been in custody at the time the statements were made.

       Mr. Cox also moved to exclude evidence of prior convictions. The district court

granted the motion in part and denied it in part, ruling that a 1987 conviction for attempted

uttering and publishing of altered money orders (a conviction that had resulted in a term of

imprisonment ending some eleven years earlier) and a 2003 conviction for attempted carrying

of a concealed weapon would be admissible for impeachment purposes should the defendant

elect to testify.

       The evidence at trial showed that the police found a semi-automatic pistol in the

master bedroom of Cox’s house, a revolver in a hallway closet, and crack cocaine in a fish

food container in the living room. Mr. Cox took the stand and testified that several other

people had stayed at his house, including a brother who was addicted to crack cocaine. Cox

said he did not know there were guns and cocaine in the house.

       In an effort to impeach Cox’s credibility, the government then brought out the

convictions for attempted carrying of a concealed weapon and attempted uttering and

publishing. The district court promptly instructed the jury that these convictions “were

brought to [the jury’s] attention only in one way of helping [it] decide how believable his

testimony was.” The court emphasized that the convictions are “not evidence that [Cox] is

guilty of crimes that he is on trial for now.”
No. 04-2483
Page 4

       The jury found Mr. Cox guilty of both charges. At sentencing the district court

applied an obstruction-of-justice enhancement under § 3C1.1 of the United States Sentencing

Guidelines, the jury’s verdict having reflected a finding that Cox testified falsely. Without

the enhancement, the guideline sentence range would have been imprisonment for a term of

between 37 and 46 months. With the enhancement, the range was 46 to 57 months. The

court chose to impose a sentence of 48 months. The court also announced that it would

impose precisely the same sentence “in the event that the United States Supreme Court

determines that the sentencing guidelines are invalid or unconstitutional.”

       Mr. Cox filed a timely appeal.


                                             II


       Mr. Cox argues that his statements to Agent Kloostra should have been suppressed

because he was not given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966).

The Miranda warnings must be given prior to interrogation of a suspect who is in police

custody. See Thompson v. Keohane, 516 U.S. 99, 107 (1995). The question here is whether

Cox was in custody when Kloostra asked how long he had lived in his house. This is a

mixed question of fact and law subject to de novo review. See id. at 112-13; United States

v. Swanson, 341 F.3d 524, 528 (6th Cir. 2003).

       We are satisfied that Mr. Cox was not in custody at the time of the questioning. Agent

Kloostra had removed Mr. Cox’s handcuffs, returned his house keys, told Cox that an arrest
No. 04-2483
Page 5

warrant would be issued “later,” and told him that he was free to go as far as Kloostra was

concerned. These actions would have made it clear to any reasonable person, we believe,

that custody had, for the time being, come to an end. Cox could not reasonably have “felt

he was not at liberty to terminate the interrogation and leave.” Thompson, 516 U.S. at 112.

Indeed, Cox did “terminate the interrogation and leave” after responding to a single question

from Kloostra. Not only was there no formal arrest as of the critical juncture, there was no

“restraint on freedom of movement of the degree associated with a formal arrest.” Id.

(internal quotation marks omitted). We find no error in the admission of the statements.


                                             III


       Mr. Cox argues next that the government should not have been permitted to impeach

his credibility with the conviction for attempted uttering and publishing of altered money

orders and the conviction for attempted carrying of a concealed weapon. A district court’s

decision to admit evidence is reviewed for abuse of discretion. See United States v. Brown,

367 F.3d 549, 554 (6th Cir. 2004). “Under this standard, we take a maximal view of the

evidence’s probative effect and a minimal view of its unfairly prejudicial effect.” Id.

(internal quotation marks omitted).
No. 04-2483
Page 6

                                                A


       Under Rule 609(a), Fed. R. Evid., evidence that a defendant in a criminal case has

been convicted of a crime punishable by imprisonment in excess of one year “shall be

admitted if the court determines that the probative value of admitting this evidence outweighs

its prejudicial effect . . . .” A stricter standard applies if a period of more than ten years has

elapsed from the date of the conviction or from the date of the defendant’s release from

confinement for the conviction, whichever comes later. Once such a ten-year period has run,

evidence of the conviction is admissible only if “the court determines, in the interests of

justice, that the probative value of the conviction supported by specific facts and

circumstances substantially outweighs its prejudicial effect.” Rule 609(b), Fed. R. Evid.

       It is undisputed that Mr. Cox was released from confinement on his uttering-and-

publishing conviction approximately eleven years before the trial in the current case.

Admissibility of the conviction is therefore governed by the stricter standard.

       We do not think the district court abused its discretion in admitting evidence of the

conviction under the prescribed standard. Mr. Cox’s credibility was a central issue at trial,

the main question for the jury being whether Cox knew the firearms and cocaine were in his

possession. Because uttering and publishing is a crime “involving dishonesty,” United States

v. Virta, Nos. 92-2343/2443/2453/2454/2471, 1994 WL 18023, at **11 (6th Cir. Jan. 21,

1994), cert. denied, 511 U.S. 1060 (1994), the conviction was particularly probative of the

credibility issue. As for potential prejudice, it seems to us that the dissimilarity between
No. 04-2483
Page 7

uttering and publishing and the crimes for which Cox was on trial made it unlikely that the

jury would draw an improper “propensity” inference. Nor was it likely that evidence of the

uttering-and-publishing conviction would inflame the jury’s passions.

       Mr. Cox relies on United States v. Sims, 588 F.2d 1145 (6th Cir. 1978), where we said

that “evidence of convictions more than ten years old will be admitted very rarely and only

in exceptional circumstances.” Sims, 588 F.2d at 1150 (internal quotation marks omitted).

We do not read Sims as imposing a standard more stringent than that set out in Rule 609(b).

For the reasons we have indicated, we do not believe that the district court abused its

discretion in finding the Rule 609(b) standard met in the case at bar.


                                             B


       Because Mr. Cox’s concealed-weapon conviction is less than ten years old, evidence

of that conviction is admissible if its probative value outweighs (not “substantially

outweighs”) its prejudicial effect. See Rule 609(a), Fed. R. Evid.

       Although carrying a concealed weapon is not a crime involving dishonesty per se, the

concealed-weapon conviction was probative of Mr. Cox’s credibility. Cf. United States v.

Moore, 917 F.2d 215, 235 (6th Cir. 1990) (holding that an armed-robbery conviction “went

to credibility, and had impeachment value”), cert. denied, 499 U.S. 963 (1991). There was

a risk that the jury would draw an improper “propensity” inference from the prior conviction,
No. 04-2483
Page 8

particularly if the jury assumed that the weapon Cox attempted to carry was a firearm, but

that risk was mitigated by an immediate limiting instruction.

          In Moore, where the government used evidence of a prior armed-robbery conviction

to impeach a defendant charged with armed robbery, we held that a limiting instruction

sufficiently avoided the potential prejudice:

          “Although the crimes were similar, the trial court was quick to limit any
          prejudicial effect by an immediate admonishment to the jury to consider the
          evidence only as to witness credibility. This cautionary admonishment to the
          jury, we believe, provided an adequate safeguard against any potential
          prejudice possibly engendered by the admission of the prior conviction.” Id.

In light of Moore, we cannot say that the district court abused its discretion in determining

that the probative value of the concealed-weapon conviction outweighed its prejudicial

effect.


                                                IV


          Finally, Mr. Cox argues both that the obstruction-of-justice sentence enhancement

violated his Sixth Amendment right to a jury trial and that the district court erred to his

prejudice in viewing the sentencing guidelines as mandatory. Both arguments are grounded

on the line of cases culminated by United States v. Booker, 125 S. Ct. 738 (2005).

          Under Booker and its precursors, “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts established

by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury
No. 04-2483
Page 9

beyond a reasonable doubt.” Booker, 125 S. Ct. at 756; see Blakely v. Washington, 542 U.S.

296, 124 S. Ct. 2531, 2537 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). If the

guideline system under which the district court enhanced Mr. Cox’s sentence were

mandatory, therefore, the fact or facts supporting the enhancement would have had to have

been submitted to and found by the jury.

       As we now know, of course, the guidelines are not mandatory. Booker, which was

decided about two months after Mr. Cox’s sentencing, altered the federal sentencing scheme

in such a way that the guidelines must be treated as merely advisory. See Booker, 125 S. Ct.

at 767. The district court understandably failed to anticipate that specific development. The

court did anticipate, however, the possibility that the guidelines would be invalidated

altogether. “[I]n the interest of judicial economy,” therefore, and in accordance with interim

guidance provided by United States v. Koch, No. 02-6278, 2004 WL 1870438 (6th Cir. Aug.

13, 2004) (en banc), vacated, 125 S.Ct. 1944 (2005), the court announced that it would

impose “the same identical sentence” should that eventuality come to pass.

       But for this alternative sentence, the court’s selection of a 48-month term under

guidelines that the court understood to be mandatory would necessitate a remand for

resentencing. See United States v. Christopher, 415 F.3d 590, 593 (6th Cir. 2005). On

remand the court would be required to take the advice provided by the guidelines into

account, but the court would be free to impose a sentence outside the guideline range under

the court’s own weighing of the sentencing factors enumerated in 18 U.S.C. § 3553(a).
No. 04-2483
Page 10

       As matters now stand, the district court has told us rather emphatically what it would

do if there were no guidelines at all; the court would impose a sentence of 48 months. The

court did not specifically refer to the statutory factors in this connection, but we do not

believe that an incantation of § 3553(a) factors was required. The sentencing transcript

shows that the court carefully reviewed the defendant’s personal history, probed his

motivations and attitudes, reviewed his record of past criminal convictions, and came up with

an individualized sentence the substance of which is unassailable under the statute.

(Although the mere fact that a district court has provided for an alternate identical sentence

does not mean that affirmance of a defendant’s sentence is automatic, Mr. Cox is not

contending here that the alternate sentence is unreasonable; the district court’s analysis

satisfies us that it is not.) We take at face value the court’s statement as to what it would do

in the absence of any guidelines at all, and the fact that the guidelines must still be consulted,

even though they are not mandatory, leaves no room for meaningful doubt in this case as to

what the result of a post-Booker resentencing would be. On the record before us, we are

satisfied that the district court’s alternative sentence renders any sentencing error harmless.

See Christopher, 415 F.3d at 593-94.

       AFFIRMED.
