                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                 NOV 12, 2008
                                  No. 08-10935                 THOMAS K. KAHN
                              Non-Argument Calendar                CLERK
                            ________________________

                        D. C. Docket No. 07-00091-CR-T-N

UNITED STATES OF AMERICA,


                                                                    Plaintiff-Appellee,

                                       versus

WILLIAM LENORIES WRIGHT,

                                                              Defendant-Appellant.

                            ________________________

                     Appeal from the United States District Court
                         for the Middle District of Alabama
                           _________________________

                                (November 12, 2008)

Before BARKETT, HULL and FAY, Circuit Judges.

PER CURIAM:

      William Lenories Wright appeals his firearm and drug convictions. After

review, we affirm.
                                I. BACKGROUND

      Wright stopped his pickup truck on the median of a busy interstate highway.

Alabama State Trooper James Hendrix stopped to investigate and found that

Wright had a suspended license and appeared to have been drinking. After Wright

was placed in the patrol car, Hendrix searched Wright’s truck and found a firearm

and a bag containing crack cocaine and marijuana. Wright was a convicted felon.

      Wright was charged with possession of a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (Count 1); possession with intent to distribute

more than five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)

(Count 2); possession of marijuana, in violation of 21 U.S.C. § 844 (Count 3); and

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A)(i) (Count 4). Wright pled not guilty.

A.    Motion to Suppress

      Prior to trial, Wright moved to suppress: (1) the evidence from the search of

his truck; and (2) statements made to Trooper Hendrix after his arrest.

      At the suppression hearing, Trooper Hendrix testified about the search and

Wright’s arrest. Hendrix responded to a call from dispatch reporting a vehicle in

the median of Interstate 65. At the time, it was raining and there was heavy traffic.

Hendrix found Wright sitting behind the wheel of the pickup truck, which was



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stuck in the mud. The truck had minor damage and a passenger, Queenie Davis,

complained of a shoulder injury.

      Hendrix smelled alcohol on Wright’s breath and noticed that Wright’s

speech was slurred. Because of the rain, mud and heavy traffic, Hendrix could not

conduct a field sobriety test. However, he did conduct a preliminary breath test,

which showed that Wright’s blood-alcohol content was .11, over Alabama’s legal

limit. Hendrix learned that Wright’s driver’s license was suspended and that Davis

did not have a driver’s license.

      Because neither Wright nor Davis could drive the truck, Hendrix impounded

the vehicle and called for a wrecker. Hendrix placed Wright in his patrol car to

transport him to the station where he could conduct a field sobriety test under a

canopy. Hendrix explained that, although he knew Wright was under the influence

of alcohol, he did not arrest Wright for DUI at the scene because he had not yet

performed a field sobriety test.

      Hendrix returned to the truck to perform an inventory search before the

wrecker arrived. Hendrix asked Davis, who was covering herself with a jacket

and a blanket, to get out of the truck. As Davis exited the vehicle, Deputy Kevin

McNatt, who was assisting Hendrix, pulled away the jacket and blanket, revealing

a pistol lying in the middle of the bench seat.



                                           3
      Upon finding the pistol, Hendrix asked Wright if he had a permit to carry a

weapon. Wright responded that he did not. Hendrix then advised Wright of his

Miranda1 rights by reading from a card Hendrix carried in his police car. Wright

told Hendrix he understood his rights and agreed to answer questions. Wright told

Hendrix the drugs and firearm belonged to his brother Larry. Hendrix also advised

the passenger, Davis, of her rights, after which she told Hendrix that she had no

knowledge of the gun or drugs.

      At this point, Hendrix arrested Wright for possession of a firearm without a

permit. Hendrix then conducted a more extensive vehicle search and found a

Crown Royal bag containing what appeared to be crack cocaine and marijuana

behind the driver’s seat.

      Hendrix explained that the Alabama State Trooper regulations require

officers to remove from the roadway the vehicle of a person arrested or detained.

Prior to removing the vehicle, the officer must conduct an inventory search. The

officer must list all items of value found in the vehicle and have the wrecker driver

sign off on the list before removing the vehicle. The officer can search anything in

the vehicle, including a bag or box, unless it is locked.

      Following the hearing, a magistrate judge issued a report (“R&R”)



      1
          Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).

                                                4
recommending that the district court deny Wright’s motion to suppress. The R&R

found that the search of Wright’s truck was a valid inventory search because

Hendrix reasonably concluded that no one was available to take control of the

vehicle and, under those circumstances, regulations required Hendrix to impound

the vehicle and conduct an inventory search.

      The R&R concluded that once Wright admitted he did not have a permit for

the firearm, probable cause existed to arrest him. Thus, the second search

following his arrest, which uncovered the Crown Royal bag containing drugs, was

incident to Wright’s lawful arrest. The R&R also concluded that the brief time

between the initial search and the reading of the Miranda rights did not render

Wright’s post-Miranda statements inadmissible.

      Wright objected to the R&R. After de novo review, the district court

overruled Wright’s objections, adopted the R&R and denied Wright’s motion to

suppress.

B.    Trial

      At trial, Trooper Hendrix repeated his testimony about his encounter with

Wright on the interstate median, the search of Wright’s truck and Wright’s arrest.

Hendrix also provided additional details. For example, Hendrix stated that Wright

produced his driver’s license and registration as requested, and Hendrix checked



                                          5
the database and learned the license was suspended. Wright also told Hendrix he

had been drinking earlier in Birmingham. During the search of the truck, Hendrix

found a Hi-Point nine-millimeter pistol sitting in the middle of the bench seat

under a blanket. Hendrix testified the pistol would have been within Wright’s

reach if he was sitting behind the steering wheel.

      The Crown Royal bag contained a green leafy substance and several small

plastic bags. One of the plastic bags contained a “cookie of crack cocaine,” while

the others contained only crumbs. Hendrix explained that drug dealers chip

smaller pieces off of a “cookie” to sell and that a cookie of crack cocaine is

consistent with possession for distribution, not personal use.

      Hendrix testified that he read Wright his Miranda rights from a card he kept

in his pocket. Hendrix explained that he used this card regularly to ensure he read

the rights consistently, that he read all the rights listed on the card and that Wright

indicated after each that he understood. After arresting Wright for possession of a

firearm without a permit, Hendrix conducted a criminal history check and learned

Wright was a felon.

      On cross-examination, Hendrix explained that Davis was not charged with

firearm possession because Davis told Hendrix she had no knowledge of the gun

and there was no evidence the gun belong to her. Wright, on the other hand, knew



                                            6
of the gun because he stated that it belonged to his brother. Hendrix stated that the

gun “was closer to where Mr. Wright was sitting, in my opinion . . . .” When

defense counsel reminded Hendrix that he testified at the suppression hearing that

he could not determine to whom the gun was closer, Hendrix replied that his

suppression hearing testimony was “[a]n error on [his] part.” Hendrix explained

that he charged Wright with possession of the drugs because of the proximity of

the drugs to where Wright was sitting and Wright’s statement that the drugs

belonged to his brother, which indicated Wright knew the drugs were in the truck.

      Deputy McNatt, who assisted Hendrix at Wright’s arrest, also testified.

According to McNatt, Davis was asked to exit the truck and, as she got out,

McNatt pulled away the blanket that was over her legs, exposing the firearm on the

bench seat. The firearm was closer to the driver’s side. McNatt also found the

Crown Royal bag that contained three or four bags of a rock substance and some

marijuana. The Crown Royal bag was behind the driver’s side of the seat and

within arm’s reach of the driver, but was not personally accessible to the passenger

unless she exited the truck.

      McNatt opined that the typical amount of cocaine possessed for personal use

is “one or two small rocks” and that personal use drugs usually are not kept in

separate packages. McNatt heard Hendrix read Wright his constitutional rights,



                                          7
although he could not recall whether Hendrix read them from a card or a sheet of

paper and did not hear Wright’s response.

      The government also called: (1) Theron Jackson of the Bureau of Alcohol,

Tobacco, Firearms and Explosives, who testified that the pistol found in Wright’s

truck was manufactured in Ohio, and (2) Michael Hitchcock of the Alabama

Department of Forensic Science, who testified that one of the plastic bags inside

the Crown Royal bag contained 11.79 grams of crack cocaine and another

contained 9 grams of marijuana.

      After the government rested, Wright called Queenie Davis. Davis testified,

inter alia, that she had only worked “off an on” because of drug use and that crack

cocaine was her drug of choice. Davis explained that she discovered the drugs and

the firearm in the pockets of the jacket she used to cover herself the night Wright

was arrested. Although Davis stated that she got the jacket from her son’s house,

she denied that her son used drugs. Davis also denied the drugs were “packaged.”

Davis said the drugs were in one big, clear bag; were in “one big piece,” rather

than many small pieces; and did not include marijuana. Davis admitted she put the

bag behind the seat when police arrived at the scene.

      Davis initially could not recall when she discovered the firearm, but stated

that it was before the police arrived. Later Davis stated that she found the firearm



                                          8
right before the truck ran off the road. Davis explained that “it was so shaky, and

[the firearm] kind of like almost came out. So I just slid it out of my pocket and

put it under the blanket.” Davis admitted she did not volunteer to police that the

gun had been in her jacket and explained that officers did not ask her about the

gun. The district court denied Wright’s motion for a judgment of acquittal.

C.     Jury Instructions

       After closing arguments, the district court read the jury instructions. With

respect to Court Four, charging possession of a firearm in furtherance of a drug

trafficking crime, the district court stated:

       Now, to carry or possess a firearm means that the defendant either had
       a firearm on or around his person or transported, conveyed, or
       controlled a firearm in such a way that it was available for immediate
       use if the defendant so desired during the commission of the drug
       trafficking offense. To carry a firearm in relation to an offense means
       that there must be a connection between the defendant, the firearm,
       and the drug trafficking offense so that the presence of the firearm
       was not accidental or coincidental but facilitated the crime by serving
       some important function or purpose of the criminal activity. To
       possess a firearm in furtherance of an offense means something lower
       than mere presence of a firearm. It must be shown that the firearm
       helped, furthered, promoted, or advanced the offense in some way.

(Emphasis added). The jury found Wright guilty on all counts. The district court

imposed a 156-month sentence. Wright filed this appeal.

                                   II. DISCUSSION

       Several of Wright’s claims clearly lack merit, and thus we address them

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briefly. First, Hendrix’s testimony established that Wright’s vehicle was

impounded and the inventory search was conducted pursuant to Alabama State

Trooper regulations. Therefore, the firearm and drugs were found during a valid

inventory search and were admissible.

       Second, there was sufficient evidence to support the jury’s finding that

Wright knowingly possessed the firearm and drugs. The government presented

ample evidence from which a jury could have reasonably concluded that Wright

was aware of the drugs and the firearm and constructively possessed them. Wright

relies solely on Davis’s testimony that she found the drugs and firearm in her

jacket. However, the jury could have, and obviously did, disbelieve Davis’s

testimony, and we will not disturb that finding. Wright’s remaining two claims

merit more discussion.

A.     Waiver of Miranda Rights

       After placing Wright under arrest and advising him of his Miranda rights,

Hendrix asked Wright about the firearm and the drugs. Wright stated that they

belonged to his brother. On appeal, Wright argues that the district court erred in

not suppressing his post-Miranda statement that the firearm and drugs were his

brother’s.2


       2
        On appeal, Wright does not argue that his pre-Miranda statement that he did not have a
permit to carry a weapon should have been suppressed.

                                              10
       Wright argues, for the first time on appeal, that the government failed to

prove he was properly advised of his Miranda rights because there is no evidence

of what rights were listed on the card from which Hendrix read.3

       Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), “evidence

obtained as a result of a custodial interrogation is inadmissible unless the defendant

had first been warned of his rights and knowingly waived those rights.” United

States v. Parr, 716 F.2d 796, 817 (11th Cir. 1983). The government must prove by

a preponderance of the evidence that the defendant waived his rights knowingly

and voluntarily. United States v. Glover, 431 F.3d 744, 748 (11th Cir. 2005).

       To meet its burden, the government may not rely on “presumptions or

inferences that when police officers read to an accused from a card they are reading

Miranda warnings or that what is read, without revelation of its contents, meets

constitutional standards.” Moll v. United States, 413 F.2d 1233, 1238 (5th Cir.

1969). However, the government does not rely merely on “a presumption” if the

defendant admits a warning was given and the arresting officer testifies that he

read from a card containing “the standard Miranda warnings.” See United States v.


       3
        Because Wright did not raise this argument in the district court, we review for plain
error. See United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Under the plain error
standard, “[a]n appellate court may not correct an error the defendant failed to raise in the district
court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights . . . [and
then] only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.

                                                  11
Klein, 592 F.2d 909, 914 (5th Cir. 1979).

      We cannot say the admission of Wright’s post-arrest statements was plain

error. Hendrix testified not only that he read from a card, but that the card

contained the Miranda warnings, that he used this card routinely to advise people

of their rights to ensure he stated the rights consistently and that he read all the

rights listed on the card. McNatt substantiated this testimony by testifying that he

heard Hendrix read Wright the Miranda warnings.

      We note that Wright does not claim Hendrix did not read him his rights. He

merely challenges the government’s proof by asserting that the contents of the card

should have been read into the record. However, because Wright never raised this

issue in his motion to suppress or his objection to the R&R, neither the district

court nor the government had reason to believe that the precise contents of the

rights card would be at issue and should be placed in the record.

      Wright also argues for the first time that the government failed to show he

had the capacity to waive his Miranda rights because he was intoxicated at the

time. An accused effectively waives his Miranda rights if he: (1) voluntarily

relinquishes them as the product of a free and deliberate choice, rather than through

intimidation, coercion or deception; and (2) makes his decision with a full

awareness of both the nature of the rights being abandoned and the consequences



                                           12
of the decision to abandon them. United States v. Barbour, 70 F.3d 580, 585 (11th

Cir. 1995). A waiver is effective where the totality of the circumstances reveal

both an uncoerced choice and the requisite level of comprehension. Id.4

      Here, although Wright’s breath smelled of alcohol and his speech sometimes

was slurred, Wright was able to comply with Hendrix’s instructions to produce his

license and registration and to understand and coherently respond to Hendrix’s

questions. Wright told Hendrix he understood his Miranda rights. Under these

circumstances, the district court did not commit plain error in admitting Wright’s

post-arrest statements.

B.    Jury Instruction

      Wright argues that the district court improperly instructed the jury on the

meaning of possession of a firearm in furtherance of a drug trafficking crime when

the court stated that “to possess a firearm in furtherance of an offense means

something lower than mere presence of a firearm.”

      Ordinarily, we review de novo the legal correctness of a jury instruction;

however, when, as here, the defendant did not object to the jury instruction in the

district court, we review only for plain error. United States v. Prather, 205 F.3d

1265, 1270 (11th Cir. 2000). To reverse under a plain error standard of review, the



      4
          Wright does not claim that his choice was coerced.

                                                13
challenged instruction must be a plainly incorrect statement of the law and must

have been “‘probably responsible for an incorrect verdict, leading to substantial

injustice.’” Id. at 1271 (quoting Montgomery v. Naga, 168 F.3d 1282, 1294 (11th

Cir. 1999)). Furthermore, in reviewing a jury instruction, we must determine

whether the district court’s charge, “considered as a whole, sufficiently instructed

the jury so that the jurors understood the issues involved and were not misled.”

United States v. Shores, 966 F.2d 1383, 1386 (11th Cir. 1992) (quotation marks

omitted).

      The parties agree that the district court misspoke when it stated that

possession in furtherance of a trafficking offense meant something “lower than”

mere presence of the firearm and that the law requires something more than mere

presence. See United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002)

(concluding that mere presence of a firearm is insufficient to show possession “in

furtherance” of a drug trafficking crime). However, we conclude that the district

court’s mistake did not affect Wright’s substantial rights. When the charge is

viewed as a whole, it is clear that any misunderstanding created by the district

court’s use of the word “lower” rather than “higher” was remedied by the district

court’s full definition of possession in furtherance of a drug trafficking crime.

      Immediately preceding its misstatement, the district court stated that the jury



                                          14
must find a “connection between the defendant, the firearm, and the drug

trafficking offense so that the presence of the firearm was not accidental or

coincidental but facilitated the crime.” This statement indicates that mere presence

is insufficient. Furthermore, immediately after its misstatement, the district court

stated that the government must show “that the firearm helped, furthered,

promoted, or advanced the offense in some way.” This statement clearly instructs

the jury that it cannot find Wright guilty of the offense unless the firearm

contributed to the offense in one of the four listed ways, any of which would be

sufficient to establish more than mere presence. Viewing the district court’s

instruction as a whole, we cannot say the district court’s one-word misstatement

misled the jury or probably led to an incorrect verdict.

                                III. CONCLUSION

       For all these reasons, we affirm Wright’s convictions and sentences.

However, we note that the district court’s judgment erroneously cites 21 U.S.C.

§ 844(a)(1) instead of 21 U.S.C. § 841(a)(1) as the statute violated in Count 2.

Therefore, we remand to the district court for the limited purpose of correcting this

clerical error.

       AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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