                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4432


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LEONTE MACK,

                Defendant – Appellant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:09-cr-00247-PJM-1)


Submitted:   July 11, 2011                  Decided:    August 11, 2011


Before KING and    DAVIS,    Circuit   Judges,   and   Hamilton,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, William D. Moomau, Adam K. Ake, Assistant United
States Attorneys, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Leonte Demetrius Mack appeals his 300-month sentence

following       his    conviction    of    two          counts    of     possession      of    a

firearm     by    a     convicted    felon,         in        violation    of    18     U.S.C.

§ 922(g)(1)       (2006)     (“Counts      One          and    Four”);     one    count       of

possession with intent to distribute cocaine base, in violation

of 21 U.S.C. § 841(a)(1) (2006) (“Count Two”); and one count of

possession of a firearm in furtherance of a drug trafficking

crime,     in    violation     of    18    U.S.C.             § 924(c)    (2006)      (“Count

Three”).        The convictions stemmed from an investigation of a

shooting.        On appeal, Mack claims that the district court erred

in denying his motions to suppress an eyewitness identification

and statements he made during custodial interrogation, and that

the district court imposed an unreasonable sentence.                             Finding no

reversible error, we affirm.

            Mack first challenges the district court’s admission

of an out-of-court eyewitness identification in a photo array

and the related in-court identification.                          We review de novo a

district    court’s       admission       of       an    eyewitness       identification.

United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007).

“Due process principles prohibit the admission at trial of an

out-of-court          identification      obtained            through     procedures      ‘so

impermissibly suggestive as to give rise to a very substantial

likelihood       of    irreparable     misidentification.’”                 Id.       (quoting

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Simmons v. United States, 390 U.S. 377, 384 (1968)).                    No due

process violation occurs if the “identification was sufficiently

reliable      to     preclude     the       substantial    likelihood          of

misidentification.”        United States v. Johnson, 114 F.3d 435, 442

(4th Cir. 1997).

           The defendant bears the initial burden of production

in    challenging         the   admissibility      of     an    out-of-court

identification.      See id. at 441.        First, the defendant must show

that the identification procedure was impermissibly suggestive.

Saunders, 501 F.3d at 389.         If the defendant is successful, the

Court must then consider any evidence adduced by the Government

as to “whether the identification was nevertheless reliable in

the context of all of the circumstances.”            Id. at 389-90.       If a

witness’s out-of-court photo identification is unreliable and,

therefore, inadmissible, any in-court identification lacking an

independent source is also inadmissible.             Simmons, 390 U.S. at

383-84; cf. Coleman v. Alabama, 399 U.S. 1 (1970); United States

v. Wade, 388 U.S. 218, 241 (1968).

           On appeal, we may uphold a district court’s denial of

a motion to suppress an out-of-court identification if we find

the   identification      reliable,   without    determining    whether       the

identification      procedure   was     unduly   suggestive.        Holdren    v.

Legursky, 16 F.3d 57, 61 (4th Cir. 1994).                 In assessing the

reliability    of    an    out-of-court     identification,    we     examine

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     (1) the witness’s opportunity to view the suspect at
     the time of the crime; (2) the witness’s degree of
     attention at the time; (3) the accuracy of the
     witness’s initial description of the suspect; (4) the
     witness’s   level   of    certainty  in   making   the
     identification; and (5) the length of time between the
     crime and the identification.

Saunders, 501 F.3d at 391.

            Even     assuming        that     the         photo     identification         was

impermissibly      suggestive        as     Mack       contends,     we     hold   that    the

district    court       did    not   err     in        permitting     the    testimony     as

reliable.       The eyewitness had a good opportunity to view the

shooter at      close     range      and    selected       Mack’s     picture       from   the

photo   array    with     confidence        less       than   seven    hours       after   the

shooting.     Mack argues that the eyewitness’s identification was

unreliable      because        the    witness’s           description        of     him    was

inadequate.        To    the    contrary,         we    conclude     that    the    district

court correctly determined that, though sparse, the eyewitness’s

description was accurate.             Accordingly, because the five factors

weigh in favor of reliability, we hold that the district court

did not err in admitting the identification testimony.

            Mack    next       claims      that    the     district       court    erred    in

admitting the statements he made during custodial interrogation.

We review the factual findings underlying a denial of a motion

to suppress for clear error and the legal conclusions de novo.

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

denied, 130 S. Ct. 1104 (2010).                         Statements obtained from a

                                             4
defendant during custodial interrogation are admissible only if

the Government shows that law enforcement officers adequately

informed the defendant of his rights under Miranda v. Arizona,

384 U.S. 436 (1966), and obtained a waiver of those rights.

United States v. Cardwell, 433 F.3d 378, 389 (4th Cir. 2005).                            A

waiver     is   only    valid     if     the      defendant         waives    his   rights

knowingly and voluntarily.              Id.       This Court assesses a Miranda

waiver     by   examining       the    totality         of    the     circumstances     to

determine (1) “whether the defendant ‘had full awareness of both

the nature of the right being abandoned and the consequences of

the decision to abandon it;’” and (2) “whether the defendant’s

statement was ‘the product of a free and deliberate choice [or

the   result    of]    intimidation          coercion,        or    deception.’”       Id.

(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).

            During the interrogation, Mack told the interviewing

officer     that      Jesus     told        him    to    stop        talking    and    the

interrogation      ceased.        Mack       contends        that    this    circumstance

suggests that he did not have full awareness of the rights he

was abandoning.        We hold that the district court did not err in

rejecting this contention. The district court properly credited

the   officers’    testimony          and    weighed     the       presence    of   Mack’s

initials    and    signature      on        the   waiver      form     in    finding   the

evidence insufficient to show that Mack lacked the capacity to

understand the waiver.           Mack did not present any other evidence

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of his alleged incompetency in the district court, and he does

not claim that his waiver was coerced.                  Accordingly, we conclude

that       the   district    court    did   not   err    in   finding     that   Mack

knowingly and voluntarily waived his Miranda rights. *

                 Finally, Mack contends that the district court imposed

an   unreasonable         sentence.     Because     Mack      did   not   request   a

specific sentence other than the one ultimately imposed, his

claim is reviewed for plain error.                See United States v. Lynn,

592 F.3d 572, 578-79 (4th Cir. 2010).               We begin by reviewing the

sentence for significant procedural error, including such errors

as     “failing      to     calculate   (or     improperly      calculating)     the

Guidelines range, treating the Guidelines as mandatory, failing

to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen sentence including an explanation for any deviation from

the Guidelines.”          Gall v. United States, 552 U.S. 38, 51 (2007).

       *
       Mack also argues, without support, that the statements
should have been suppressed because the interrogating officer
failed to adequately document them. We hold that documentation
of the interrogation is relevant only to the officer’s
credibility,   not   the  voluntariness   of   Mack’s statements.
Further,   because   the   officer   prepared   notes immediately
following the interrogation and Mack did not present any
evidence showing that the officer’s testimony was incredible,
the district court did not clearly err in admitting the
statements.   See United States v. Murray, 65 F.3d 1161, 1169
(4th   Cir.    1995)   (noting    that   we   review  credibility
determinations at hearings on pre-trial motions to suppress for
clear error, according deference to the district court).



                                            6
“When rendering a sentence, the district court ‘must make an

individualized       assessment          based         on     the     facts        presented.’”

United   States      v.     Carter,     564   F.3d          325,    328     (4th    Cir.    2009)

(quoting Gall, 552 U.S. at 50).                   Accordingly, a sentencing court

must   apply   the     relevant        § 3553(a)        factors        to    the     particular

facts presented and must “state in open court” the particular

reasons that support its chosen sentence, showing that it has a

reasoned basis for its decision and has considered the parties’

arguments.        Id.           A     sentencing        court        need     not,    however,

“robotically tick through” otherwise irrelevant subsections of

§ 3553(a).     See United States v. Johnson, 445 F.3d 339, 345 (4th

Cir. 2006).

             If there are no procedural errors, we then consider

the    substantive        reasonableness          of    the        sentence,       taking   into

account the totality of the circumstances.                                 United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                                 “If the district

court decides to impose a sentence outside the Guidelines range,

it must ensure that its justification supports the degree of the

variance.”     United States v. Evans, 526 F.3d 155, 161 (4th Cir.

2008).       While     we       may   presume      that       a     sentence       within    the

Guidelines     range       is    reasonable,       we        may     not    presume     that   a

sentence outside the Guidelines range is unreasonable.                                      Gall,

552 U.S. at 51.



                                              7
               Mack claims that his sentence was unreasonable because

the district court failed to adequately analyze the § 3553(a)

factors in support of its above-Guidelines sentence.                         The record

belies    Mack’s          contention,       however,     as   the     district    court

explicitly discussed several of the § 3553(a) factors and their

application to Mack.              Mack argues that his 300-month sentence

runs contrary to the court’s rejection of the career offender

Guidelines.          In fact, Mack’s sentence remains sixty months below

the low end of the applicable career offender Guidelines range.

The     court        also    stated     that       it   believed      the    Guidelines

insufficient         to     reflect   the    seriousness      of    the     offense   and

adequately protect the public.                 In light of the court’s careful

discussion of its reasons for the upward variance, the district

court did not abuse its discretion in sentencing Mack to an

above-Guidelines sentence.

               For    the    foregoing      reasons,     we   affirm      the   district

court’s judgment.             We dispense with oral argument because the

facts    and    legal       contentions      are    adequately      presented    in   the

materials before this court and argument would not aid in the

decisional process.



                                                                                AFFIRMED




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