                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4467



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


THOMAS MITCHELL STUCK,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Robert C. Chambers,
District Judge. (CR-04-190)


Submitted:   March 9, 2007                 Decided:   March 16, 2007


Before WILKINS, Chief Judge, and WIDENER and WILKINSON, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Matthew A. Victor, VICTOR, VICTOR & HELGOE, Charleston, West
Virginia, for Appellant.   Kasey Warner, United States Attorney,
Susan M. Arnold, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     This is an appeal from a judgment and sentence in a criminal

case.   Following a jury trial in the district court for the

Southern District of West Virginia, the defendant, Thomas M. Stuck

was convicted of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) and of possession

of stolen firearm transported in interstate commerce, in violation

of 18 U.S.C. § 922(j) and 924(a)(2).    Stuck was sentenced to a term

of imprisonment of 264 months, supervised release of 5 years and a

fine of $2,000.    Stuck timely appealed both the conviction and the

sentence.     We have jurisdiction under 28 U.S.C. § 1291.      For the

reasons below we affirm.



                                  I.

     Defendant was charged in a two-count indictment on September

21, 2004, with violations arising out of his multiple possessions

of stolen firearms.    On January 5, 2005, a superceding four count

indictment was returned against the defendant.     Counts 1 & 2 of the

superceding     indictment   charged   the   defendant   with   knowing

possession of firearms despite previous felony convictions in

violation of 18 U.S.C. § 922(g)(1) and 924(a)(2).        Counts 3 & 4

charged the defendant with knowing possession of a stolen firearm

that was transported in interstate commerce, in violation of 18




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U.S.C. § 922(j) and 924(a)(2).              The relevant events that gave rise

to the charges are as follows.

     On September 5, 2003, the private residence of Cpl. Michael

Greenhouse      of     the   South     Charleston         Police    Department     was

burglarized.         Stolen were a duty issued firearm (Smith & Wesson

model 4586), along with several Smith & Wesson magazines, a badge,

and other credentials.         The South Charleston Police and Bureau of

Alcohol Tobacco and Firearms eventually identified the defendant as

a person of interest in the theft.

     At around the same time, a series of burglaries occurred in

Kanawha   and    Putnam      counties.             West    Virginia    State     Police

identified the defendant as a suspect in these crimes.

     On October 9, 2003, the State Police went to the defendant’s

house   and   questioned      Stuck        regarding      the   Kanawha   and    Putnam

burglaries.      It is undisputed that the officers read Stuck his

Miranda rights, and that Stuck voluntarily waived these rights by

signing a Miranda waiver card.                   While the State Police officers

questioned Stuck, officers from the South Charleston Police and ATF

arrived to question him about the Greenhouse burglary.                     The South

Charleston officers arrived approximately two hours after the

initial   interrogation       by     the    State     Police    began.     The   South

Charleston officers confirmed with the State Police that Stuck had

been advised of his Miranda rights and then personally reminded

Stuck that he had waived his Miranda rights.                          Then the South


                                             3
Charleston officers proceeded to question the defendant about he

Greenhouse burglary.   At least part of the interrogation occurred

in the police cruiser.

     At no time did either police agency inform Stuck that he was

under arrest or not free to leave and end the conversation.    During

the conversation the defendant admitted to possessing the stolen

Greenhouse pistol and selling it to a third party.      The defendant

denied actually stealing the gun.     This confession (along with the

testimony of Mr. Stuck’s cousin, Henry Stuck) gave rise to counts

2 & 4 of the indictment.   Counts 1 and 3 related to the burglaries

in Kanawha and Putnam counties.       Stuck was convicted on counts 2

and 4 and acquitted on Counts 1 and 3.

     Following the conviction, the district court sentenced the

defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e),

to a term of imprisonment of 264 months.

     Stuck timely appealed both the conviction and the sentence.

     On appeal Stuck raises several points.     First, he argues that

the sentence enhancement under the Armed Career Criminal Act was

improper because his prior convictions were not proven to the

jury.1   Second, Stuck argues that the district court improperly

refused to dismiss the indictment by denying his request to review

grand jury information to assure himself that grand jurors were not


     1
      Stuck stipulated to the jury that he has been previously
convicted of felony offenses, but did not admit to any specific
type of offense.

                                  4
biased or predisposed against him.         Third, Stuck contends that the

district    court   erred   in   denying   his   motion    to    suppress   his

statement    to   the   South    Charleston    officers.        Fourth,   Stuck

challenges the district court’s denial of his motion to sever

counts 1 & 3 of the indictment from counts 2 & 4.               Finally, Stuck

argues that the 22 year sentence imposed by the district court is

“unreasonable, excessive and disproportionate.”

     We address each of the defendant's contentions in turn.



                                     II.

     We are of opinion that each of the defendant’s arguments is

without merit and accordingly, we affirm the judgment of the

district court in its entirety.



                                      A.

     Stuck’s first argument that his prior felony convictions

needed to be proved to a jury beyond a reasonable doubt prior to

being used for sentencing purposes is without merit.                The Court

stated explicitly in Booker that the fact of a prior conviction

need not be established by a jury.            United States v. Booker, 543

U.S. 220, 244 (2005) (“Any 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


                                      5
beyond a reasonable doubt.”)(emphasis added). The defendant argues

that Shepard v. United States, 544 U.S. 13 (2005), casts doubt on

the    prior   conviction    exception   first    articulated   in

Almendarez-Torres v. United States, 523 U.S. 224 (1998).        We

disagree.

      Even if we had the power to ignore Almendarez-Torres and

subsequent pronouncements in Booker, we still would disagree with

Stuck’s position. The Shepard case that Stuck cites stands for the

proposition that in reviewing past convictions for the purposes of

present-day sentencing, the district court is allowed only to look

“to statutory elements, charging documents, and jury instructions

to determine” the nature of the prior offense.     544 U.S. at 16.

Shepard did not hold, as Stuck suggests, that the very fact of

prior convictions must be tried to a jury.    In the present case,

the district court did not consider anything but proper sources,

including charging documents, to determine the applicability of the

Armed Career Criminal Act, and Stuck does not allege that it did

so.   Accordingly, we affirm on this point.



                                B.

      We are also unpersuaded by Stuck’s argument that the district

court should have dismissed the indictment for it improperly denied

his motion to obtain information about grand jury proceedings.

Stuck argues that it is possible that grand jurors were biased


                                 6
against him because victims of his prior crimes may have been on

the jury.   Stuck, however, fails to allege that any specific juror

was tainted.   Instead he speculates that there is a possibility

that one of the jurors might have been tainted.   This is not enough

to breach the grand jury’s secrecy.   The “indispensable secrecy of

grand jury proceedings, must not be broken except where there is a

compelling necessity.    There are instances when that need will

outweigh the countervailing policy.     But they must be shown with

particularity.”   United States v. Procter & Gamble Co., 356 U.S.

677, 682 (1958)(internal citations and quotations omitted, emphasis

added). As Stuck fails to particularly plead any circumstance that

would justify breaking the secrecy, his appeal on this issue

necessarily fails.2



                                 C.

     Stuck next argues that his confession to the South Charleston

officers should have been suppressed.    The argument lacks merit.

     To begin with, Stuck does not even allege that at the time he

made his confession he was in custody.     This failure is fatal to



     2
      It should not go unsaid that if we were to adopt Stuck’s
argument, a criminal defendant would have a license to rummage
through the grand jury’s records. In fact, under Stuck’s argument,
the longer the defendant’s record, the more rights the defendant
would have as the odds of having a victim of the prior crime on the
grand jury would increase. We decline to adopt that rule and hold
to the notion that all defendants should be subject to the same set
of standards.

                                 7
the argument. “Miranda warnings need only be administered when the

defendant is in custody.”        United States v. Uzenski, 434 F.3d 690,

704 (4th Cir. 2006).

       To be sure, Stuck argues that the district court already held

that the interrogation was custodial and that the government

concedes the point. However, Stuck simply misconstrues the record.

During the oral argument on the motion to suppress in the district

court, the court posed the question “what if I agree that as a

practical matter he [the defendant] was in custody when he got into

the police car?”      J.A. 98.      That is a far cry from holding that the

defendant was actually in custody. Nor does the government concede

that Stuck was in custody.          Gov. Br. at 18.

       In any event, we conclude that the defendant was properly

advised of his Miranda rights by the State Police officers.                       The

mere   fact    that   some   time    had       elapsed   from   the   beginning   of

questioning by the State Police until the questioning by the South

Charleston Police does not vitiate the original Miranda warnings

and waivers.      See United States v. Frankson, 83 F.3d 79, 83 (4th

Cir. 1996) (“The mere passage of time, however, does not compromise

a Miranda warning.”). Defendant would have us hold that every time

the police wish to question a suspect about an additional crime

they must read him his Miranda warnings anew and obtain a new

consent.      We decline the invitation.           Defendant was well aware of

his rights and knowingly and voluntarily waived them after being


                                           8
properly advised of his Miranda rights. Also, the South Charleston

Police satisfied themselves, by advising the defendant personally,

that his Miranda rights had already been explained to him.



                                    D.

     Next, Stuck argues that the district court erred in failing to

sever the trial on counts 1 & 3 from counts 2 & 4 of the

indictment.

     Federal Rule of Criminal Procedure 8(a) allows joinder of the

offenses when the offenses charged “are of the same or similar

character.”   Fed. R. Crim. P. 8(a).        Counts 1 & 3 of the indictment

stemmed from the burglaries in the Kanawha and Putnam counties,

while counts 2 & 4 stemmed from the Greenhouse burglary.               Both

counts   alleged   that   the   defendant    possessed   firearms   despite

previous felony convictions and that he possessed stolen firearms

that were transported in interstate commerce.            We thus conclude

that the offenses charged are of the same or similar character.

     Nor does the defendant allege (beyond bare recitation of the

word “prejudice”) that he qualified for a relief from joinder under

Rule 14(a) of the Federal Rules of Criminal Procedure.              We have

held that “the burden is on the defendant in his appeal following

denial of a motion to sever to show that joinder was so manifestly

prejudicial that it outweighed the dominate concern with judicial

economy and compelled exercise of the court's discretion to sever.”


                                     9
United States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995).                     Stuck

failed to carry the burden.             The fact that the jury acquitted him

on two counts is evidence of careful consideration by the jury as

it decided the conviction on the remaining two counts separately

from the first two.



                                          E.

       “[A]    sentence       imposed    within   the     properly    calculated

Guidelines range . . . is presumptively reasonable.”                  Green, 436

F.3d   at     457.      The   defendant    made   no    effort   to   rebut   this

presumption.         Accordingly, we conclude that the district court did

not abuse its discretion in sentencing the defendant to a term of

imprisonment of 264 months.

       The judgment of the district court is accordingly

                                                                       AFFIRMED.




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