                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                JUNE 14, 2006
                                No. 05-12440                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                       D. C. Docket No. 03-80141-CR-WJZ

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                      versus

ANTWAN LAVARUS LASTER,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                  (June 14, 2006)

Before TJOFLAT, ANDERSON and KRAVITCH, Circuit Judges.

PER CURIAM:

      Defendant-appellant Antwan Lavarus Laster appeals his conviction and

sentence for possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g) and
924(e). After a thorough review of the record, we affirm.

        I. Background

        Laster was indicted for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g) and 924(e). Before trial, the government notified

Laster that it intended to introduce statements he made to police after his arrest, in

which Laster identified the man who sold him the gun.1 Laster moved to suppress

the statements as obtained in violation of his Fifth and Sixth Amendment rights.

        According to the testimony at the evidentiary hearing, in May 2003, Laster

was arrested on gun charges and released. In January 2004, police learned Laster

was in Delray Beach and conducted surveillance in an area he frequented based on

two outstanding state warrants for failure to appear: one related to the gun charge

and the other in connection with driving with a suspended license. Laster also had

a pending federal warrant on the gun charge. Police located and arrested Laster, at

which time Officer Michael Moschette read Laster his Miranda 2 rights and talked

to him about other crimes. A few weeks later, police received eight to ten calls

from Laster’s girlfriend explaining that Laster wanted to speak with police to

        1
           References to the trial in this opinion refer to the third trial. The court granted a mistrial
in the first trial after one witness made improper statements. The second trial resulted in a hung
jury, and the court granted a second mistrial. The government had not sought to introduce Laster’s
statements in either of those trials. It was only after the second mistrial that the government issued
notice of its intent to introduce the statements.
        2
            Miranda v. Arizona, 384 U.S. 436, 458-71, 86 S.Ct. 1602, 1619-26, 16 L.Ed.2d 694 (1966).

                                                   2
provide information in exchange for leniency. Moschette and Officer Keating

went to the jail to speak with Laster, who was willing to cooperate. The officers

reminded Laster that they would not discuss his pending charges without his

attorney present. They did not, however, re-Mirandize Laster before the interview

because they were there at Laster’s request and did not intend to question him.

Laster told police about several other crimes with which the police were familiar.

Laster then told police he knew a man named Brown who sold guns. Laster gave

detailed information about Brown and his role as a street dealer. In order to verify

the information, the police asked Laster how he knew Brown was a dealer, at

which point Laster stated that he had gotten the gun in the instant offense from

Brown. The officers did not question Laster about the gun other than to verify

information. The entire interview lasted about forty-five minutes.

      The court denied the motion to suppress, finding, inter alia, that there was no

Sixth Amendment violation because the questions were not designed to elicit

incriminating responses and the police had informed Laster that they would not

discuss his pending case without counsel.

      At trial, the testimony established that when police went to arrest Laster on

an active warrant, Laster dropped a gun from his hand and ran until he was

subdued. There were no bullets in the gun or on Laster’s person at the time of his



                                            3
arrest. There were no useable prints on the gun, but blood DNA evidence indicated

both male and female DNA on the grip; the male DNA was consistent with

Laster’s. Laster had informed police that he purchased the gun from a man named

Brown.3

      In his own testimony, Laster admitted his prior convictions for drug offenses

and told the jury that he had pleaded guilty to all those other charges because he

had been guilty. He stated that he had no prior convictions for any violent crimes

and he hated guns because his brother was once hit by a stray bullet. He explained

that the night he was arrested, he had received a phone call from his ex-girlfriend,

Catherine Cummings. Cummings stated she was having difficulty with her abusive

current boyfriend, a man named Brown, who had beaten her that night and then

left. Cummings was upset, took a gun from Brown, and planned to shoot him.

Laster met her and took the gun from her to prevent her from doing anything. As

Laster and Cummings were talking, police arrived and Cummings walked away.

Laster panicked, dropped the gun, and started to walk away.

      Laster stated that he was not guilty of the instant offense because he was

trying to do something right. Laster wanted to see Brown punished and was

hoping that, by lying to police about buying the gun from Brown, police would



      3
          The parties stipulated that Laster had a prior felony conviction.

                                                 4
help him convict Brown. He explained that he did not tell police about Cummings

because he did not want her to get into trouble. Laster admitted that he knew he

was not allowed to possess a gun because of his criminal history, and he further

admitted that he possessed the gun that night. Laster denied making up the story

after he learned of the DNA results. He testified that he did not call the police or

Cummings’s family to intervene. And he stated that Brown was not in imminent

danger because Laster did not know where Brown was when Cummings gave

Laster the gun.

      Laster requested that the jury be instructed on the defense of necessity or

justification because he possessed the gun to prevent danger to others. The

government objected to the instruction, and the court found that the instruction was

not appropriate and denied it. Laster was convicted.

      The probation officer prepared a presentence investigation report (“PSI”),

assigning a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A) (2004), with

a two-level enhancement under § 3C1.1 for obstruction of justice based on Laster’s

false testimony at trial. With no other adjustments or reductions, the total offense

level was 22. Calculating Laster’s criminal history points, the probation officer

listed prior convictions for grand theft, possession of cocaine and marijuana, sale

of cocaine, and driving without a license, which resulted in a criminal history



                                           5
category VI. These offenses occurred when Laster was between sixteen and

twenty-one years old. The probation officer noted numerous other criminal

conduct beginning when Laster was fifteen, but which was not scored in his

criminal history calculations. With a total offense level of 22 and a criminal

history category VI, the resulting advisory guidelines range was 84 to 105 months

imprisonment.

       Laster objected, among other things, to the enhancement for obstruction of

justice, and he asserted that a downward departure was appropriate because his

criminal history category over-represented his past.4

       At sentencing, the court overruled the objections and adopted the PSI. After

considering the advisory guidelines and the sentencing factors of 18 U.S.C.

§ 3553(a), the court sentenced Laster to 96 months imprisonment and 3 years

supervised release.

       II. The Appeal

       Laster raises three issues on appeal: (1) the denial of the motion to suppress,

(2) the jury instructions, and (3) his sentence.

               A. Motion to Suppress



       4
           Laster also objected to the failure to recommend a reduction for acceptance of
responsibility. He does not challenge the denial of this reduction on appeal, and, therefore, he has
abandoned it. United States v. Smith, 416 F.3d 1350, 1354 (11th Cir. 2005).

                                                 6
         Laster argues that the district court erred by denying his motion to suppress

because the use of his post-arrest statement is prohibited by Massiah v. United

States, 377 U.S. 201 (1964). He notes that he was in custody at the time of the

interview and that counsel was not present.

         In reviewing a district court’s decision on a motion to suppress, we review

factual findings for clear error and the application of the law to those facts de novo.

United States v. Acosta, 363 F.3d 1141, 1144 (11th Cir. 2004); United States v.

Chanthasouxat, 342 F.3d 1271, 1275 (11th Cir. 2003); United States v. Tovar-

Rico, 61 F.3d 1529, 1534 (11th Cir. 1995). The facts are construed in favor of the

party that prevailed below. United States v. Perkins, 348 F.3d 965, 969 (11th Cir.

2003).

         As an initial matter, Laster raises only a Sixth Amendment issue on appeal.

Therefore, he has abandoned the Fifth Amendment claim. United States v. Smith,

416 F.3d 1350, 1354 (11th Cir. 2005).

         As the Supreme Court has explained, the Sixth Amendment5 prohibits the

admission of statements deliberately elicited by the government from the defendant

after adversary criminal proceedings have begun, unless the defendant’s counsel is


         5
           The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. The
right is offense specific. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115
L.Ed.2d 158 (1991); United States v. Gonzalez-Lauzan, 437 F.3d 1128, 1140 (11th Cir. 2006).

                                                 7
present or the defendant waives his right to counsel. Massiah v. United States, 377

U.S. 201, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964); United States v. Gunn, 369

F.3d 1229, 1237 (11th Cir. 2004). Thus, “the clear rule of Massiah is that once

adversary proceedings have commenced against an individual, he has a right to

legal representation when the government interrogates him.” Brewer v. Williams,

430 U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977).

       Notably, the standard for a Sixth Amendment violation differs from the

standard applicable to Fifth Amendment custodial interrogations, and what

constitutes an interrogation differs depending on the right asserted. See Fellers v.

United States, 540 U.S. 519, 524, 124 S.Ct. 1019, 1023, 157 L.Ed.2d 1016 (2004).

The standard under the Sixth Amendment focuses the analysis on whether the

police deliberately elicited incriminating statements.6 Id. Moreover, elicitation is

more than mere listening. Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616,

2630, 91 L.Ed.2d 364 (1986).

       Here, the police did not deliberately elicit incriminating information.

Although Laster was in custody, Laster initiated the conversation, and he knew he

was speaking with police when he made the statements. Edwards v. Arizona, 451



       6
          In contrast, the Fifth Amendment forbids the use of statements taken from a defendant who
is in custody and subject to an interrogation, or its functional equivalent. Rhode Island v. Innis, 446
U.S. 291, 299-301 n.4, 124 S.Ct. 1682, 1689 n.4, 64 L.Ed.2d 297 (1980).

                                                  8
U.S. 477, 484-85, 101 S.Ct. 1880, 1180, 68 L.Ed.2d 378 (1981) (concluding that

police may speak with a defendant who is represented by counsel if the defendant

initiates further communication or conversations with the police.); Cf. United

States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 2186-87, 65 L.Ed.2d 115,

(1980) (holding that violation occurred when government used paid informant to

pose as cell mate and obtain information from defendant after indictment when the

defendant was unaware that cell mate was informant). Here, Laster’s statements

were not prompted by the police, given at the police’s request, or exploited by the

police. United States v. Gaddy, 894 F.2d 1307, 1313 (11th Cir. 1990); see also

United States v. Gonzalez, 183 F.3d 1315, 1323-24 (11th Cir. 1999), overruled on

other grounds, United States v. Diaz, 248 F.3d 1065, 1107 n.59 (11th Cir. 2001).

      Laster concedes that the conversation would have been constitutionally

acceptable as long as police did not question him about the pending charges. He

claims, however, that the police questioned him directly about the firearms, which

led to the incriminating statement. Contrary to his allegations, the testimony at the

evidentiary hearing established that the police only asked about guns after Laster

stated that he could obtain guns from Brown. These questions were designed to

verify the information and were not specific to Laster’s pending case. It was only

in response to this follow-up question that Laster stated he got the gun from



                                          9
Brown. Therefore, the police did not elicit the incriminating statement and there

was no Sixth Amendment violation.

             B. Jury Instructions

      Laster next argues that he was entitled to a jury instruction on necessity

because he took the gun to prevent Cummings from harming Brown.

      We review a district court’s refusal to give a requested jury instruction for

abuse of discretion. United States v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005).

Reversal is warranted only if “(1) the requested instruction was substantively

correct, (2) the court’s charge to the jury did not cover the gist of the instruction,

and (3) the failure to give the instruction substantially impaired the defendant’s

ability to present an effective defense.” Id. (citation omitted). Whether a

defendant has put forth a sufficient proffer to warrant the instruction is subject to

de novo review. United States v. Dicks, 338 F.3d 1256, 1257 (11th Cir. 2003).

      A necessity defense is available in a § 922(g) charge only in extraordinary

circumstances. United States v. Deleveaux, 205 F.3d 1292, 1298 (11th Cir. 2000).

To establish the defense, Laster must show

      (1) that the defendant was under unlawful and present, imminent, and
      impending threat of death or serious bodily injury; (2) that the
      defendant did not negligently or recklessly place himself in a situation
      where he would be forced to engage in criminal conduct; (3) that the
      defendant had no reasonable legal alternative to violating the law; and
      (4) that there was a direct causal relationship between the criminal

                                           10
        action and the avoidance of the threatened harm.


Id. at 1297. Laster bears the burden of proving the elements of this defense. Id. at

1299.

        As the government concedes, Laster’s requested instruction was an accurate

statement of the law. Nevertheless, the jury instruction was not appropriate

because Laster failed to establish the elements of the defense. First, according to

Laster’s own testimony, there was no present, imminent, and impending threat of

death or serious bodily injury. Laster admitted that he did not know where Brown

was at the time he took the gun from Cummings. Moreover, there were no bullets

in the gun, and, thus, there was no immediate emergency as required to maintain

the defense. United States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000).

        Second, there were reasonable alternatives available to avoid the harm, such

as contacting the police or a member of Cummings’s family, which Laster did not

employ. Therefore, Laster’s testimony did not establish the defense, and the

district court did not abuse its discretion by refusing the jury instruction.

              C. Sentencing

        Finally, Laster asserts that his sentence was unreasonable because his

criminal history category VI equated with the “worst of the worst” offenders and

did not satisfy the guidelines’ intent. He also challenges the imposition of an

                                           11
enhancement for obstruction of justice.

      After Booker,7 we review a sentence for reasonableness, but must still

consider and correctly apply the guidelines in determining a defendant’s sentence.

United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). The standards of

review previously used by this court remain applicable post-Booker. Id. A district

court’s factual findings regarding a defendant’s credibility in determining whether

U.S.S.G. § 3C1.1 applies is reviewed for clear error. United States v. Ndiaye, 434

F.3d 1270, 1303 (11th Cir. 2006); United States v. Williams, 340 F.3d 1231, 1240-

41 (11th Cir. 2003). Nothing in Booker prevents the district court from making

factual findings by a preponderance of the evidence standard as long as the court

applies the guidelines in an advisory fashion. United States v. Chau, 426 F.3d

1318, 1323-24 (11th Cir. 2005).

      To the extent that Laster challenges the denial of a downward departure, this

court lacks jurisdiction to review that claim. United States v. Winingear, 422 F.3d

1241, 1245-46 (11th Cir. 2005). As nothing in the record suggests that the court

believed it lacked authority to depart, we cannot review the departure issue.

      After a review of the record, we conclude that the district court properly

imposed the obstruction-of-justice enhancement. Under § 3C1.1, a defendant’s



      7
          543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

                                               12
offense level is enhanced by two levels if he obstructed justice in connection with

the instant offense. U.S.S.G. § 3C1.1. Perjury is an example of conduct to which

this enhancement applies. U.S.S.G. § 3C.1.1 comment. (n.4(b), (f)); Williams, 340

F.3d at 1240-41. For this enhancement to apply on a finding of perjury, the four

elements of perjury must be present: “(1) the testimony must be under oath or

affirmation; (2) the testimony must be false; (3) the testimony must be material;

and (4) the testimony must be given with the willful intent to provide false

testimony and not as a result of a mistake, confusion, or faulty memory.” United

States v. Singh, 291 F.3d 756, 763-64 (11th Cir. 2002).

      Considering Laster’s testimony, and the testimony of the other witnesses at

trial, the court concluded that Laster’s testimony was false and was not the result of

mistake or confusion. The court noted that Laster had not told anyone that he was

trying to protect Cummings until after his second mistrial and after the DNA test

came back consistent with his DNA. Thus, the court’s factual finding is supported

by a preponderance of the evidence.

      Finally, with respect to the reasonableness of the sentence, Laster bears the

burden of showing his sentence was unreasonable, a burden he has not met. United

States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The district court stated that

it had considered the advisory guidelines range and the sentencing factors of



                                          13
§ 3553(a) including the need for punishment and deterrence. Laster had a lengthy

criminal history, and the court imposed sentence in the middle of the guidelines

range. Laster has offered nothing to show that this was unreasonable.

      III. Conclusion

      For the foregoing reasons, we AFFIRM Laster’s conviction and sentence.




                                         14
