               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0743n.06
                                                                                       FILED
                                         No. 10-6458
                                                                                  Nov 01, 2011
                         UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )    ON APPEAL FROM THE UNITED
                                               )    STATES DISTRICT COURT FOR THE
DAVID E. BROWN                                 )    EASTERN DISTRICT OF TENNESSEE
                                               )
       Defendant-Appellant.                    )


       Before: SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge*


       SUTTON, Circuit Judge. David Brown appeals his conviction and sentence for being a felon

in possession of a firearm. We affirm.


                                               I.


       When a Glock .40 caliber pistol and a silver necklace disappeared from his home, Jason

Helms suspected David Brown was the culprit. Detective Robert Harbison located Brown and

brought him to the station for questioning. Harbison read Brown his Miranda rights and, after

securing a written waiver, asked him about the robbery. Brown confessed he had taken the gun and

traded it for methamphetamine. He promised to try to get the gun back, but he would not disclose

who had it.

       *
       The Honorable Robert Jonker, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 10-6458
United States v. Brown

       Two months later, a federal grand jury indicted Brown for being a felon in possession of a

firearm. After taking Brown back into custody, Detective Carl Maskew again read Brown his

Miranda rights, and Brown again waived his rights in writing. After denying that he knew anything

about the robbery, Brown told Maskew a different story: Brown claimed that two other individuals

took the gun from Helms’ house and gave it to him. He then traded the gun to his cousin for

methamphetamine. Brown again promised to help retrieve the gun.


       Before trial, Brown moved to suppress both statements. Finding no evidence that the police

“engaged in any sort of threatening or coercive behavior” or that Brown did not understand his

rights, the district court denied the motion. The jury convicted Brown, but the district court granted

his post-verdict motion for acquittal, holding that the only pieces of evidence linking him to the

crime were his uncorroborated confessions, which could not sustain the conviction by themselves.

The United States appealed and we reversed, holding that “sufficient independent evidence

establishe[d] the trustworthiness of Brown’s statements.” United States v. Brown, 617 F.3d 857, 859

(6th Cir. 2010).


       On remand, the district court concluded that Brown’s three prior state convictions for

aggravated burglary made him an armed career criminal, subjecting him to a mandatory minimum

sentence of 180 months. 18 U.S.C. § 924(e). Even though Brown’s advisory guidelines range was

210 to 262 months, the district court imposed the mandatory minimum—180 months.




                                                -2-
No. 10-6458
United States v. Brown

                                                  II.


        Corroboration. With respect to his conviction, Brown seeks to relitigate whether sufficient

evidence corroborated his confessions, but that ship has sailed. In the first appeal, we held that other

evidence adequately corroborated Brown’s confessions, 617 F.3d at 863–64, and if Brown thought

our decision “overlooked or misapprehended” any questions “of law or fact,” he could have filed a

petition for rehearing. Fed. R. App. P. 40(a). He did not. Nor has Brown identified any change in

controlling authority. That decision binds us here.


        Suppression of Statements. Brown made two statements to police in which he confessed that,

one way or another, he had possessed the gun that was stolen from Helms’ house. Brown made these

statements two months apart, and the officers each time read the Miranda warnings to him and

secured a written waiver, which “generally produce[s] a virtual ticket of admissibility.” Missouri

v. Seibert, 542 U.S. 600, 609 (2004). Brown nevertheless argues that the district court should have

suppressed these statements because his cognitive infirmities and the possibility that he was under

the influence of drugs mean that he did not knowingly and intelligently waive his Miranda rights.


        The district court found “nothing in the record whatsoever” suggesting that Brown “did not

understand his legal rights” or “the gravity of his waiver of those rights,” R. 46 at 12, and Brown has

not identified any evidence demonstrating clear error. The only evidence of cognitive impairments

that Brown mentions is a psychological evaluation that the Bureau of Prisons performed to assess

his competency to stand trial. Although the evaluation states that Brown has some “relatively mild


                                                 -3-
No. 10-6458
United States v. Brown

intellectual limitations,” it found no “significant impairment in his ability to comprehend basic

information provided to him or to make reasoned decisions based on this information.” Competency

Evaluation at 8. The evaluation concluded that Brown was competent to stand trial. The district

court found, quite correctly, that the competency evaluation supported rather than undermined the

conclusion that Brown knowingly and intelligently waived his Miranda rights. “[T]here is nothing

cognitively complex about” the Miranda warnings; this is not Heisenberg’s Uncertainty Principle

after all but the straightforward “advice that one has a right to remain silent and not to talk to the

police.” Jackson v. McKee, 525 F.3d 430, 436 (6th Cir. 2008). Brown’s mild cognitive limitations

do not defeat the waivers.


       As to drug use, Brown speculates that his status as an addict and his fidgeting during one of

the interviews suggest that he might have been under the influence of methamphetamine when he

made the statements. But Detectives Harbison and Maskew testified that Brown did not appear to

be under the influence of drugs when they interviewed him. Brown’s speculation—and that is all

it is in the absence of any evidence on this score—does not show clear error in the district court’s

determination that he knowingly and intelligently waived his Miranda rights.


       Brown also argues that his cognitive impairments and possible drug use rendered his waiver,

and the confessions themselves, involuntary. But some kind of “coercive police activity” is required

to establish that a waiver of Miranda rights, or a confession for that matter, was involuntary.

Colorado v. Connelly, 479 U.S. 157, 167, 169–70 (1986). The district court did not find, and Brown

has not identified, any coercive or threatening behavior by the officers who took his statements.

                                                -4-
No. 10-6458
United States v. Brown

Brown contends only that he suffered “from a condition or deficiency that impaired his cognitive or

volitional capacity,” but that “is never, by itself, sufficient to warrant the conclusion that his

confession was involuntary for purposes of due process.” United States v. Newman, 889 F.2d 88,

94 (6th Cir. 1989). “[S]ome element of police coercion” remains “necessary.” Id. In the absence

of police coercion, we have affirmed the admission of confessions made by defendants who were

actually (as opposed to possibly) under the influence of drugs, see, e.g., United States v. Dunn, 269

F. App’x 567, 572–73 (6th Cir. 2008); United States v. Chapman, 112 F. App’x 469, 474 (6th Cir.

2004), as well as confessions made by defendants who suffered from mental retardation, see, e.g.,

United States v. Macklin, 900 F.2d 948, 951–52 (6th Cir. 1990). The district court did not err in

admitting Brown’s statements.


       Armed Career Criminal Act. The district court correctly determined that Brown qualified

as an armed career criminal. As relevant here, ACCA imposes a mandatory minimum sentence of

180 months on anyone who is convicted of being a felon in possession of a firearm and has three

previous convictions for “violent felon[ies],” which the Act defines to include “burglary.” 18 U.S.C.

§ 924(e). “[B]urglary,” as used in § 924(e), encompasses “any crime, regardless of its exact

definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining

in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575,

599 (1990). Brown has three prior convictions for aggravated burglary in Tennessee. PSR ¶¶

26–28. The charging documents for these offenses—which a court may examine in determining

whether the convictions constitute “burglary” under § 924(e), Shepard v. United States, 544 U.S. 13,


                                                -5-
No. 10-6458
United States v. Brown

26 (2005)—show that all three satisfy the Taylor elements. In each case Brown pled guilty to an

indictment charging him with “unlawfully enter[ing] the habitation” of another “with intent to

commit theft.” R. 89-1 at 2; R. 89-2 at 2. Because Brown “necessarily admitted” that he satisfied

the Taylor elements for all three crimes by pleading guilty to the indictments, the district court

correctly applied ACCA’s mandatory minimum to him. Shepard, 544 U.S. at 16.


       Constitutionality of ACCA in this setting. Brown argues that ACCA’s mandatory minimum

as applied to him violates his Fifth Amendment right to due process and equal protection and his

Eighth Amendment right to be spared cruel and unusual punishment. We have seen this movie

before, and each time it ends badly for the defendant. See, e.g., United States v. Moore, 643 F.3d

451, 456 (6th Cir. 2011); United States v. Jones, 52 F. App’x 244, 247 (6th Cir. 2002); United States

v. Warren, 973 F.2d 1304, 1311 (6th Cir. 1992). All for good reason: “Congress has the power to

define criminal punishments without giving the courts any sentencing discretion,” Chapman v.

United States, 500 U.S. 453, 467 (1991), and mandatory prison sentences are not cruel and unusual,

Harmelin v. Michigan, 501 U.S. 957, 995–96 (1991). In the teeth of these precedents Brown has not

identified, nor have we found, any decision from any court invalidating the application of ACCA’s

mandatory minimum to an individual on constitutional grounds. Brown gives no good reason for

making this case the first.


                                                III.


       For these reasons, we affirm.


                                                -6-
