                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 09-5211


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MAURICIO MICHEL,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:07-cr-00111-IMK-JSK-1)


Submitted:   February 11, 2011                Decided:   May 27, 2011


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United States
Attorney, Shawn Angus Morgan, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Mauricio       Michel       appeals            from     his        convictions        and

resulting 240-month sentence for assaulting a Bureau of Prisons’

(BOP) employee using a dangerous weapon, maiming a BOP employee,

forcibly     resisting      BOP     employees              using     a     dangerous           weapon,

assaulting a West Virginia Corrections Officer inflicting bodily

injury,      and    forcibly      resisting            employees           of       West       Virginia

inflicting         bodily    injury,           in          violation            of        18    U.S.C.

§§ 111(a),(b),        114   (2006).            Counsel         has        filed       a    brief    in

accordance     with     Anders     v.     California,               386    U.S.       738      (1967),

stating that there are no meritorious issues for appeal, but

raising the issues of whether the district court properly denied

Michel’s      motions       to     suppress            a     shank        and        incriminating

statements     he    made    to    two     investigating              agents,         whether      the

district court erred in denying Michel’s discovery request for

the BOP Policies and Procedures on the Collection of Evidence in

Connection     with     Prison     Assaults,               whether       the     district        court

erred   in    requiring      him     to    wear            humane    leg        restraints,        and

whether his sentence is reasonable.                          Michel did not file a pro

se   supplemental      brief.        The       Government           filed       a    reply      brief.

Finding no error, we affirm.

             Mauricio       Michel       was       a       prisoner        at       United       States

Penitentiary Hazelton serving a 235-month sentence for a 2003



                                               2
conviction for being a felon in possession of a firearm. 1                           On

August 31, 2007, he was involved in an altercation with a BOP

corrections        officer,     Jeremy    Sparks.         The   state    corrections

officer charges stemmed from a March 19, 2009, incident at a

local jail in West Virginia where Michel was being held pending

charges     on     his   original     indictment.     After     a     three-day    jury

trial, Michel was found guilty on all seven counts.                       Michel was

deemed a career offender and was granted a downward variance

sentence of 240 months on each count, to be served concurrently.

              We    first   address      Michel’s   motions      to     suppress   the

shank recovered at the scene of the assault and incriminating

statements he made to investigating agents.                      We conclude that

the district court did not err in denying Michel’s motion to

suppress the shank.             This court reviews the factual findings

underlying the district court’s denial of a motion to suppress

for   clear      error    and   the    court’s    legal    conclusions      de    novo.

United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009), cert.

denied, 130 S. Ct. 1104 (2010).                  A factual finding is clearly

erroneous if this court “on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.”

United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008)

(internal quotation marks omitted).

      1
          This conviction was later vacated.



                                           3
             Michel       made    an   oral       motion    at    the        final    pretrial

conference on August 11, 2009, to suppress the shank retrieved

at    the   scene    of    the    assault.         He    argued       that    there    was    no

physical evidence of fingerprints or DNA evidence linking him to

the    object.       The    court      held       that    the    Government          would    be

required to show chain of custody, but that whether the object

was a shank used by Michel was a question reserved for the jury.

             The district court did not err in denying the motion.

“The factual determination of whether evidence is that which the

proponent claims is ultimately reserved for the jury.”                                  United

States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009) (citing

United States v. Branch, 970 F.2d 1368, 1370 (4th Cir. 1992)).

The district court assesses whether the proponent has offered a

proper foundation from which “the jury could reasonably find

that the evidence is authentic.”                   Vidacak, 553 F.3d at 349; see

also Branch, 970 F.2d at 1371.                    Here, the item was recovered at

the scene of the assault and was placed in an evidence locker.

Michel      was     able     to     present        evidence       that         neither       his

fingerprints        nor    Sparks’     DNA    was       found    on    the     shank.        The

question of whether the shank admitted was used by Michel during

the assault was a question reserved for the jury.                                Therefore,

the district court did not err in denying the motion.

             Michel moved to suppress the incriminating statements

he made to Agents Watson and Antonelli following the incident at

                                              4
USP Hazelton.          He argued that the agents threatened him and did

not give him Miranda 2 warnings.                     A suppression hearing was held

before a magistrate judge.                     At the evidentiary hearing, both

agents testified that Agent Watson read Michel his rights from a

card       Watson    had    in    his    wallet      and   obtained          a    verbal    waiver

before       taking        Michel’s      statement         or     permitting         Michel    to

continue to speak.               Agent Watson testified that Michel was very

agitated       speaking          about   the      incident,        but       did    not     appear

injured.       After Watson read the rights to Michel, according to

Watson       and    Antonelli,        Michel     stated         that    he       understood    his

rights.       Both agents testified that no one threatened or coerced

Michel to make a statement.                      After making several statements,

Michel said that he did not wish to speak any longer, and the

questioning ceased.

               Michel       alleged       that       he    did     not       receive       Miranda

warnings until after he gave his statements and that the agents

told him that, if he did not talk, they would “bury him” and

“get him for everything.”                  Michel alleged that the agents told

him that, if he did talk, he would not be charged with a crime.

               The district court adopted the recommendation of the

magistrate          judge    and    denied       the      motion       to    suppress.         The

district court rejected Michel’s claims and found that each of

       2
           Miranda v. Arizona, 384 U.S. 436 (1966).



                                                 5
the    agents’    testimony     corroborated            the     other’s,      that    the

warnings   were    given,     and    that      Michel     was       not   involuntarily

coerced into giving the statements.                      Additionally, the court

found that Watson’s question “what’s up?” upon initially meeting

Michel was an icebreaker question and not meant to elicit an

incriminating     response,     in    part      because,        as    soon    as    Michel

replied,   Watson    stopped       any     discussion         and    read    Michel   his

Miranda rights.

           This court defers to the district court’s credibility

determinations, “for it is the role of the district court to

observe witnesses and weigh their credibility during a pre-trial

motion to suppress.”         United States v. Abu Ali, 528 F.3d 210,

232 (4th Cir. 2008) (internal quotation marks omitted).                            When a

motion to suppress has been denied by the district court, this

court construes the evidence in the light most favorable to the

Government.      United States v. Farrior, 535 F.3d 210, 217 (4th

Cir. 2008).

           We conclude that the district court did not err in

determining that Michel timely and fairly received his Miranda

rights, that Michel acknowledged that he understood them, and

that   Michel    continued    to     talk.        The    district         court    made   a

credibility      finding    that     the       agents’    statements         were     more

credible than Michel’s and that each agent had similar testimony

that corroborated the other’s testimony.                      The district court’s

                                           6
credibility findings should not be disturbed.                                         Construing the

evidence    in    the        light      most    favorable            to    the       Government,        the

court    did     not        err    in     denying         the       motion       to       suppress      the

statements.

               Michel        also       contends         the    district          court       erred      in

denying     his        request           for        discovery,            after           granting       the

Government’s motion for reconsideration, of the BOP’s policies

and   procedures            pertaining         to    the       collection            of    evidence      in

connection       with        prison       assaults.             The        Government         moved      to

reconsider the original order granting the motion and the court

conducted        an     in        camera       inspection            of        the        policies       and

procedures.           The     BOP       policies         and    procedures           are     not    public

documents.        The district court held that Michel failed to show

that the discovery was material to his defense.                                            An error of

law, such as the failure to mandate disclosure to the defense of

evidence    or        information         essential            to    the       conduct       of    a    fair

trial, is by definition an abuse of discretion.                                              See United

States     v.    Singh,           518    F.3d       236,       251    (4th       Cir.       2008)       (“By

definition, a district court abuses its discretion when it makes

an error of law.”).                Because Michel did not provide details with

respect     to        why     the       documents          would          be    material           to    the

preparation of his defense, we conclude that the district court

did not abuse its discretion.                       See id.



                                                     7
              Prior to trial, the Marshals Service requested that

Michel be placed in a device known as the humane leg restraint.

The device allows the wearer to move freely.                     It is worn on the

legs underneath clothing and is not noticeable.                        The district

court granted the Marshals Service’s request to place Michel in

humane leg restraints.        The district court reasoned that the leg

restraints     were   not   intrusive,         that     Michel   had    an    admitted

history of violence and “eruptions,” and that trying a case, as

he    was   proceeding      pro   se,     was       a    particularly        stressful

situation.

              This court reviews the district court’s decision to

place a defendant in restraints during trial for an abuse of

discretion.      United States v. Midgett, 488 F.3d 288, 298 (4th

Cir. 2007).       The district court must “balance the ‘accused's

right to the indicia of innocence before the jury’ against ‘the

competing rights of participants in the courtroom and society at

large.’”      Id. (quoting Billups v. Garrison, 718 F.3d 665, 668

(4th Cir. 1983).          It was not an abuse of discretion for the

court to agree to place Michel in the humane leg restraints.

The   court    properly     relied   on       the   judgment     of    the    Marshals

Service, considered Michel’s history of violence, and avoided




                                          8
prejudice to Michel by the restraints being concealed from the

jury. 3    Therefore, there the court did not err.

             Finally, counsel questioned whether Michel’s sentence

was reasonable.          A review of the record reveals no error in

sentencing.        When determining a sentence, the district court

must    calculate    the      appropriate       advisory   Sentencing       Guidelines

range and consider it in conjunction with the factors set forth

in 18 U.S.C. § 3553(a) (2006).                  Gall v. United States, 552 U.S.

38, 49-50 (2007); United States v. Lynn, 592 F.3d 572 (4th Cir.

2010).      Appellate review of a district court’s imposition of a

sentence,        “whether     inside,   just        outside,     or     significantly

outside the [g]uidelines range,” is for abuse of discretion.

Gall,      552    U.S.   at    41.      Sentences       within        the   applicable

Guidelines range may be presumed by the appellate court to be

reasonable.        United States v. Pauley, 511 F.3d 468, 473 (4th

Cir. 2007).

             At sentencing, the district court found that Michel

was a career offender under U.S. Sentencing Guidelines Manual

§ 4B1.1 (2008) because he had one previous felony conviction for

a crime of violence and one previous conviction for a controlled


       3
       Michel decided to show the jurors the leg restraint device
during his closing argument, but until that time there is no
evidence that the jurors were aware that Michel was wearing the
device.



                                            9
substance offense. 4           The offenses were grouped, and the combined

adjusted offense level was 34, the same as that for a career

offender.             Michel’s       criminal       history      category        was     VI.

Therefore, the applicable Guidelines range was 262-327 months.

Under USSG § 5G1.2(d), the sentences on all counts of conviction

are to be run consecutively, but only to the extent necessary to

produce a combined sentence equal to the total punishment.                              The

statutory         maximum     on   each    count       was   twenty    years.          After

considering the evidence, the district court granted a downward

variance sentence of 240 months total, the statutory maximum on

each count, to be served concurrently.                       The court was satisfied

that       240    months    was    reasonable     in    light   of    Michel’s     crime,

violent nature, and risk of recidivism.

                  The district court followed the necessary procedural

steps        in     sentencing       Michel,       appropriately           treating     the

Sentencing         Guidelines      as    advisory,      properly      calculating       and

considering the applicable Guidelines range, and weighing the

relevant § 3553(a) factors.                 The court gave detailed reasoning

for     its       sentence.        The    court’s      sentence      may    be   presumed

reasonable by this court.                Pauley, 511 F.3d at 473.            We conclude


       4
       The controlled substance offense was a 1993 conviction in
New Mexico state court for possession of marijuana with the
intent to distribute.     Michel requested a below Guidelines
sentence based in part on the age of the 1993 marijuana offense.



                                             10
that the district court did not abuse its discretion in imposing

the chosen sentence.

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Michel’s convictions and sentence.                   This

court requires that counsel inform Michel, in writing, of the

right to petition the Supreme Court of the United States for

further review.      If Michel requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation.      Counsel’s motion must state that a copy thereof

was served on Michel.        We dispense 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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