UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4300

CURTIS JAMES LAY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-97-313-PJM)

Submitted: June 8, 1999

Decided: June 29, 1999

Before HAMILTON and KING, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James Wyda, Federal Public Defender, Beth M. Farber, Chief Assis-
tant Federal Public Defender, Baltimore, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Andrew C. White, Assis-
tant United States Attorney, Rod J. Rosenstein, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Curtis James Lay appeals the denial of two suppression motions
and his sentence arising from his conviction for violations of 18
U.S.C.A. § 922(g)(1) (West Supp. 1999), possession of ammunition
by a convicted felon, and 21 U.S.C. § 841(a)(1) (1994), possession
with intent to distribute cocaine base. We find no reversible error with
regard to the suppression rulings or the sentence and affirm.

In July, 1997, a warrant was issued for Lay's arrest for a 1994 mur-
der in the District of Columbia. On August 7, 1997, police officers
attempted to execute the warrant on Lay at his residence in Maryland.
After Lay opened the door in response to the officers' knocks, he was
ordered to lie on the floor and asked whether anyone else was in the
premises. When he failed to respond, the officers conducted a protec-
tive sweep of the entire one-bedroom apartment. As part of the sweep,
an officer opened a large locker in the bedroom and discovered crack
cocaine and a large number of baggies of the sort commonly used to
package drugs. Ammunition and a pistol cleaning kit were discovered
in plain view on the top shelf of the locker.

On August 12, Lay was brought to the office of a District of
Columbia homicide detective. After being given a Miranda1 warning
and being informed he was charged with first-degree murder, he
asked for a lawyer and the interview ended. As the detective was
leaving the room, he informed Lay that he also had"some problems
in Maryland," referring to the firearm, ammunition and narcotics
found during the search of his apartment. Lay responded that he did
not have problems in Maryland because "none of that stuff was in
plain view and you didn't have a search warrant." This statement was
introduced at Lay's federal trial.
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1 Miranda v. Arizona, 384 U.S. 436 (1966).

                    2
Prior to his trial on the federal firearms and drug charges, Lay
moved to suppress both the fruits of the search and the statement to
the detective. The motions were denied, and he was convicted follow-
ing a jury trial. In sentencing Lay, the district court increased his
criminal history from IV to VI on the ground that the higher category
better reflected the seriousness of his past criminal activities and the
likelihood of recidivism. This upward departure, in conjunction with
an offense level of 34, yielded a sentencing range of 262-327 months;
Lay received a 300-month prison sentence.

Lay asserts the court erred in denying his motion to suppress evi-
dence obtained during the warrantless search conducted upon his
arrest in his home. An exception to the requirement that a search war-
rant be obtained prior to the search of a person's home was articulated
in Maryland v. Buie, 494 U.S. 325, 334 (1990):

          We also hold that as an incident to the arrest the officers
          could, as a precautionary matter and without probable cause
          or reasonable suspicion, look in closets and other spaces
          immediately adjoining the place of arrest from which an
          attack could be immediately launched. Beyond that, how-
          ever, we hold that there must be articulable facts which,
          taken together with the rational inferences from those facts,
          would warrant a reasonably prudent officer in believing that
          the area to be swept harbors an individual posing a danger
          to those on the arrest scene.

Lay contends that the search of his home was legally deficient in three
ways. First, he alleges the search of the bedroom itself was improper
under Buie because the bedroom was neither"immediately adjoining"
the area just inside the front door where the arrest took place nor was
it otherwise situated such that "an attack could be immediately
launched" therefrom by a confederate. Second, he asserts there were
no articulable facts that would have warranted a reasonable belief that
the apartment harbored another individual, particularly because the
police surveillance of the apartment had not alerted them to another
occupant. And third, Lay contends there was no showing that the
locker could have harbored someone. Our rejection of the first con-
tention obviates the need to address the others.

                    3
The basis of the court's suppression ruling was its finding that the
arrest occurred in "a small apartment where effectively every room
adjoins every other room." (J.A. 86). Lay's first argument has two
related components. First, as a matter of law, the bedroom did not
qualify as an "immediately adjoining room" because it did not have
a direct entrance into the room in which the arrest took place. Second,
the bedroom did not fit within Buie because, as a factual matter, it
was not situated such that an attack could have been"immediately
launched" into the living room. To the extent that the argument impli-
cates factual findings of the district court, we construe the evidence
"in the manner most favorable to the government," and we review the
factual findings upon which a ruling denying the suppression is based
for clear error. United States v. Han, 74 F.3d 537, 540 & n.1 (4th Cir.
1996).

The district court's ruling is amply supported by the evidence and
is in accord with principles enunciated in Buie . One of the arresting
officers testified that the distance from the front door through the liv-
ing room to the bedroom door was fifteen feet. A diagram introduced
at the suppression hearing showed that the bedroom did indeed share
a wall with the living room but that the door to the bedroom opened
into a hallway rather than directly into the living room. However, the
same diagram reveals that someone exiting the bedroom would imme-
diately have full view of the area of the arrest, as much or nearly as
much as if the bedroom opened directly into the living room. The
clear implication of the court's oral ruling is that the focus of Buie--
the possibility of sudden violence to police officers engaged in a dan-
gerous task in unfamiliar territory--militates against the interpretation
Lay proposes for the term "immediately adjoining area."

The contention that the search of the locker was illegal finds no
support in the record. An officer testified that each half of the inter-
nally partitioned locker was "definitely big enough for someone to
hide in." (J.A. 51). Inasmuch as the doors of the locker were closed
when the officer entered the bedroom, there can be no question but
that the locker comes within the ambit of Buie . We find no error in
the court's denial of the motion to suppress the fruits of the search of
the bedroom.

Lay also contends that the court erred in denying his motion to sup-
press a statement he made to a police officer in response to a com-

                     4
ment made by the officer after Lay invoked his right to counsel. In
denying Lay's motion to suppress the statement, the district court
stated that "there really was no interrogation going on" when the
statement was made, and the court characterized the officer's com-
ment as "someone was told why they were in custody, period." (J.A.
104). Lay argues that the officer's comment about Lay's "other prob-
lems in Maryland" constituted a violation of his right to remain silent.
This argument is meritless.

Lay was in custody and had invoked his right to counsel at the time
the statement was made, so he was entitled to the benefit of those pro-
cedural safeguards designed "to secure the privilege against self-
incrimination." Miranda, 384 U.S. at 444. Once Lay asked for a law-
yer, any responses to further interrogation were subject to suppression
at trial. The question is whether the officer's statement that Lay "had
some problems out in Maryland" is the "functional equivalent" of
interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300 (1980). In
other words, was the officer's statement of a type that he should have
known was "reasonably likely to elicit an incriminating response"? Id.
at 301. We agree with the district court that it was not.

Similar statements have been found not to constitute an interroga-
tion. See, e.g., Arizona v. Roberson, 486 U.S. 675, 687 (1988)
(explaining that even after a suspect has requested counsel, police
"are free to inform the suspect of the facts of[a] second investigation
as long as such communication does not constitute interrogation");
see also United States v. Payne, 954 F.2d 199, 202 (4th Cir. 1992)
("[T]he Innis definition of interrogation is not so broad as to capture
within Miranda's reach all declaratory statements by police officers
concerning the nature of the charges against the suspect and the evi-
dence relating to those charges."). Lay is unable to point to examples
to the contrary.

In the absence of an invariable rule, "substantial deference on the
question of what constitutes interrogation must be paid to the trial
courts, who can best evaluate the circumstances in which such state-
ments are made and detect their coercive aspects." Payne, 954 F. 2d
at 203. We find no error in the court's ruling that the officer's remark
did not violate Lay's right to remain silent.

                     5
As for Lay's sentencing claim, the probation officer calculated a
criminal history category IV.2 In granting the Government's motion
for an upward departure, the court relied on three offenses that were
not reflected in the calculation of Lay's criminal history. These
included a murder that was connected to the kidnapping for which
Lay was convicted, as well as two other arrests, both of which
involved possession of narcotics and one of which also involved pos-
session of a firearm. The district court departed from the criminal his-
tory category IV to category VI on the ground that category IV did
not reflect the seriousness of Lay's past criminal conduct and the like-
lihood of recidivism. See USSG § 4A1.3. Lay contends that resen-
tencing is required because the court's explanation of its reasons for
departing were insufficiently detailed and, more particularly, that the
court failed to specifically consider why the next higher criminal his-
tory category (V) was insufficient to remedy the perceived inadequa-
cies of category IV.3

In United States v. Rusher, 966 F.2d 868, 883 (4th Cir. 1992), we
vacated the sentence because the sentencing court failed to provide
"specific reasons for departing." In an attempt to ensure meaningful
review of future departures under USSG § 4A1.3, we adopted a pro-
cedure by which the district court must "refer first to the next higher
category and . . . move on to a still higher category only upon a find-
ing that the next higher category fails adequately to reflect the seri-
ousness of the defendant's record." Id. at 884. Contrary to Lay's
contention, however, the mere failure to specifically mention an inter-
vening category does not automatically require a remand.
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2 The criminal history category IV was based on 9 criminal history
points: 3 for a 1991 conviction for conspiracy to kidnap (USSG
§ 4A1.1(a)); 3 for a conviction for failure to appear while on pretrial
release (USSG § 4A1.1(a)); 2 because the instant offense was committed
while Lay was on supervised release (USSG § 4A1.1(d)); and 1 because
the instant offense was committed less than two years following Lay's
release from custody on the failure-to-appear conviction (USSG
§ 4A1.1(e)).
3 Lay does not assert that the evidence was insufficient to prove the
Government's allegations regarding these offenses or that the extent of
the departure was an abuse of discretion.

                    6
The level by level approach articulated in Rusher was later modi-
fied to permit direct departures to a career offender sentence if the
court found that the defendant's criminal conduct was serious enough
to warrant career offender treatment and the defendant's record
included convictions that would otherwise be counted as predicate
crimes under USSG § 4B1.1 but for their "constitutional invalidity."
See United States v. Cash, 983 F.2d 558, 563 (4th Cir. 1992). In this
situation, a "level by level consideration" is unnecessary. See id. at 562.4
We conclude a specific level by level analysis is similarly unneces-
sary in this case.

We know precisely what conduct the district court considered in its
departure decision--a drug-related murder, two instances of posses-
sion of distribution-quantity narcotics, and one instance of illegal pos-
session of a firearm, none of which were accounted for in the criminal
history calculation. A conviction on just one of the drug offenses or
on the firearm offense would likely have brought the pre-departure
calculation to 12 criminal history points5 (the top of category V), and
the murder would have clearly sufficed as the basis for departing to
the next category. The court also explained its basis for finding a like-
lihood of recidivism when it noted that Lay was only twenty-four
years old at the time of sentencing, had been involved with the crimi-
nal justice system "rather continuously" since his youth, and had con-
tinued to commit crimes even while on supervised release for earlier
crimes. (J.A. 217). In this case, the specificity of the district court's
explanation of its basis for departing permits meaningful review of
the extent of the departure; it is not necessary for"the district court
to ritualistically discuss each criminal history category it rejects."
United States v. Lambert, 984 F.2d 658, 664 (5th Cir. 1993). We
therefore find no error.

Accordingly, we affirm Lay's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED
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4 The Government does not contend that the court departed pursuant to
the de facto career offender method recognized in Cash.

5 See USSG § 4A1.1(a).

                     7
