                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-4140
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                v.
KENNETH A. LEE,
                                             Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
                 for the Central District of Illinois.
            No. 02 CR 10096—Michael M. Mihm, Judge.
                         ____________
      ARGUED FEBRUARY 24, 2005—DECIDED JUNE 28, 2005
                         ____________



  Before FLAUM, Chief Judge, and MANION and EVANS, Circuit
Judges.
  MANION, Circuit Judge. Police executed a search warrant
on a residence in Peoria, Illinois on July 3, 2002, looking for
drugs and associated paraphernalia. In the residence, the
police found Kenneth Lee seated at a kitchen table, with
crack cocaine on and underneath the table. After delivering
Miranda warnings, the police interrogated Lee in the bath-
room and he admitted that the crack was his. On August 21,
2002, Lee was indicted in the United States District Court for
the Central District of Illinois for possession of more than
2                                                No. 03-4140

five grams of a mixture and substance containing cocaine
base (crack) with intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B). A jury convicted Lee on
August 7, 2003, and he was sentenced to 262 months’ im-
prisonment. Lee appeals, claiming that the police violated
his Miranda rights by interrogating him after he invoked his
right to counsel. Lee also challenges his sentence based on
United States v. Booker, 125 S.Ct. 738 (2005). We affirm Lee’s
conviction but order a limited remand to the district court
for sentencing determinations pursuant to United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005).


                              I
  The Peoria Police Department obtained a search warrant
for 1617 W. Lincoln Ave. in Peoria based on information
from a confidential informant, who made several drug buys
from Kenneth Lee at that residence. The police approached
the front door of the residence and knocked. When asked by
a voice inside who was at the door, a police officer re-
sponded “Toby” (the name of the drug-sniffing dog accom-
panying the officers). When the door opened slightly, the
police forced the door open completely, identified them-
selves as police, and stated that they had a search warrant.
  Proceeding into the apartment, the police found Lee
seated at a table in the kitchen. On the kitchen table, the
police saw crack cocaine packaged in plastic bags, as well as
a number of unpackaged rocks of crack cocaine. On the
floor beneath where Lee was sitting, there was more crack
cocaine. On top of a dryer within arm’s reach of where Lee
was sitting, the police found several additional plastic bags
containing crack cocaine. Lee’s state identification card was
also on the table, as was a razor blade. Not realizing that
Lee suffered from a neurological impairment that impeded
No. 03-4140                                                       3
                           1
his motor coordination, the police asked Lee to get on the
floor. Lee collapsed onto the floor.
  Officers Marion and Moore took Lee into a nearby bath-
room where they explained the search warrant to him.
Before the officers began questioning him, Lee blurted out,
“She didn’t know anything about it. Don’t take the kids.”
Including Lee, there were three adults and five children in
the residence at the time of the search. Lee apparently was
referring to his caretaker, Carol Faulkner, and the care-
taker’s children. Officer Marion then read Lee the Miranda
warnings and asked if Lee understood them, to which Lee
responded in the affirmative.
  Continuing, Officer Marion inquired regarding Lee’s
willingness to talk to them. Lee answered, “Can I have a
          2
lawyer?” At this point, Officer Marion told Lee that he
would not question him about the incident if a lawyer were
present. Officer Moore informed Lee that a lawyer would
tell him not to say anything. Further, Officer Moore said
that Lee could help himself by talking, and that if he wanted
to take responsibility, he should talk to Officer Marion. Lee
responded that he did want to help himself out and talk.
  After Lee made this statement, Officer Marion confirmed
that Lee wished to talk to the officers. Lee detailed that he
purchased a half of an ounce of crack prior to the search and
that he was in the process of preparing it for sale. Lee also
told the officers that he had been selling crack out of his
residence for approximately three months.


1
  Lee suffers from Charcot-Marie Tooth syndrome, a neurologi-
cal impairment affecting his extremities.
2
  While the parties’ briefs on the motion to suppress in the lower
court offered slightly different formulations of Lee’s question, the
district court found that Lee formulated the question as above.
4                                                 No. 03-4140

  Before the district court, Lee, representing himself, moved
to suppress the confession, arguing that the police violated
his Miranda rights when they continued talking to him after
he asked about the lawyer. The court made a factual finding
that Lee asked, “Can I have a lawyer?” The court analyzed
this statement under United States v. Wesela, 223 F.3d 656
(7th Cir. 2000), and decided, in light of that case, that Lee
failed to make a clear and unambiguous invocation of his
Miranda rights. Accordingly, the court denied Lee’s motion
to suppress.
  After a trial, a jury convicted Lee. At sentencing, the court
found that Lee had a total offense level of thirty-four based
on a career criminal provision in the Sentencing Guidelines.
The court found that Lee’s relevant conduct also would
result in a total offense level of thirty-four. This level, when
combined with Lee’s criminal history, produced a Guideline
range of 262 to 327 months’ imprisonment. The district court
sentenced Lee to 262 months. Lee appeals.


                              II
  Before this court, Lee mounts two separate challenges.
First, he argues that the district court improperly denied his
motion to suppress. Specifically, Lee asserts that his ques-
tion to the police officers was a clear invocation of his right
to counsel and that his subsequent confession must be
suppressed. Lee also argues that his sentence is improper
because the Guidelines were considered mandatory at
sentencing.


                              A
  “When reviewing appeals from denials of motions to
suppress, we review legal questions de novo and factual
No. 03-4140                                                    5

findings for clear error.” United States v. Fields, 371 F.3d 910,
914 (7th Cir. 2004). The court’s central factual determination
in the hearing on the motion to suppress—that Lee asked
the officers “Can I have a lawyer?”—is unchallenged by
either party before this court, and we accept it for purposes
of our review.
  Lee contends that this statement was sufficient, as a
matter of law, to invoke his Miranda rights and the pro-
tections outlined by that case and its progeny. As even the
casual television and movie viewer realizes, the police must
inform an accused of various rights before beginning an
interrogation. See Miranda v. Arizona, 384 U.S. 436, 444
(1966). Miranda stands for the proposition that an accused
subject to custodial interrogation must be informed of the
right to consult with an attorney and to have that counsel
present during questioning. See Miranda, 384 U.S. at 471-72;
see also Davis v. United States, 512 U.S. 452, 457 (1994). If an
accused invokes this right, he “is not subject to further
interrogation until counsel has been made available to him,
unless the accused himself initiates further communication.”
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see also
Miranda, 384 U.S. at 474.
   Since the police must stop questioning if an accused
asserts his Miranda right to counsel, the crucial question in
the present case becomes whether Lee clearly invoked this
Miranda right. “To avoid difficulties of proof and to provide
guidance to officers conducting interrogations, this is an
objective inquiry.” Davis, 512 U.S. at 458-59; see also Lord v.
Duckworth 29 F.3d 1216, 1220 (7th Cir. 1994). If an accused
makes a reference to an attorney that is ambiguous “in that
a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right
to counsel, our [the Supreme Court’s] precedents do not
require the cessation of questioning.” Davis, 512 U.S. at 459.
6                                                 No. 03-4140

The police are under no obligation to clarify an ambiguous
statement by the accused. See United States v. Muhammad,
120 F.3d 688, 698 (7th Cir. 1997). Rather, the accused must
make a clear and unambiguous assertion of his right to
counsel to stop questioning, although there is no exact
formula or magic words for an accused to invoke his right.
See Davis, 512 U.S. at 459. If an accused confesses, but the
police have violated the principles of Miranda, that state-
ment cannot be used against the accused at trial. See Ed-
wards, 451 U.S. at 485.
  Here, the district court relied on the ruling of this court in
United States v. Wesela, 223 F.3d 656, 661-62 (7th Cir. 2000),
when it determined that Lee had not clearly asserted his
rights. In that case, Wesela presented a challenge to
two separate confessions based on Miranda. Police arrested
Wesela after his wife reported that he had a gun, had
threatened her, and had killed the family cat. See id. at 659.
After the arrest, Wesela was read a Miranda warning, and he
responded, “Could I get a lawyer?” See id. at 661. The police
detective at that time explained that he could not call a
lawyer for Wesela, to which Wesela answered: “I can’t call
one either. All right here’s what happened.” See id. We held
that the police officer’s statement was similar in content to
another police statement, “where the police told the defen-
dant that he had a right to a lawyer, but that they had no
way of giving him one,” which the Supreme Court upheld
as proper. See id. at 662 (citing Duckworth v. Eagan, 492 U.S.
195, 201 (1989)). Several days later, Wesela also volunteered
incriminating information to a special agent who trans-
ported Wesela to the federal courthouse for his initial
appearance, even though the special agent repeatedly asked
Wesela not to talk about the facts of the case. See Wesela, 223
F.3d at 661-62. Again, this was found to be proper because
Wesela had initiated the conversation. See id. at 662.
No. 03-4140                                                   7

   The government’s reliance on Wesela, however, is mis-
placed because, in that case, this court did not expressly
address whether Wesela’s statement, “Could I get a law-
yer?”, was ambiguous. Rather, this court focused on the
issue of whether Wesela had reinitiated the conversation in
such a way that the police could continue questioning. See
id. This treatment suggests that Wesela had, in fact, properly
requested counsel and that the police could only interrogate
if he voluntarily renewed the discussion. If that is the case,
given that there is no real difference between Wesela’s
statement (“Could I get a lawyer?”) and Lee’s statement in
this case (“Can I have a lawyer?”), it would likewise appear
that Lee invoked his rights.
  This conclusion, however, is only implicit in Wesela,
because, as noted above, Wesela did not expressly address
the initial question concerning whether the defendant had
invoked his right to an attorney. We look to other cases for
guidance, therefore. The government references several
cases with convoluted and ambiguous references to lawyers
that failed to qualify as a clear call for counsel. See Lord, 29
F.3d at 1220-21 (defendant’s statement “I can’t afford a
lawyer but is there any way I can get one?” not an unambig-
uous request for a lawyer); United States v. Walker, 272 F.3d
407, 413-14 (7th Cir. 2001) (defendant’s statement that “he
wasn’t sure whether he should talk to [the agent] because he
was afraid it would piss his lawyer off” not an unambigu-
ous request); United States v. Buckley, 4 F.3d 552, 558-59 (7th
Cir. 1993) (defendant’s statement “I don’t know if I need an
attorney” not an unambiguous request). Each of the state-
ments “lacked the clear implication of a present desire to
consult with counsel.” Lord, 29 F.3d at 1221. That was also
the case in Davis, where the Supreme Court decided that
“maybe I should talk to a lawyer” merely indicated a
potential desire to consult with legal counsel, not a clear
8                                               No. 03-4140

request for counsel. Davis, 512 U.S. at 462. “Unless the
suspect actually requests an attorney, questioning may
continue.” Id.
   In the Lord decision, however, this court mentioned
several requests for counsel that it considered unequivocal:
“I think I should call my lawyer”; “I have to get me a good
lawyer, man. Can I make a phone call?”; “Can I talk to a
lawyer? At this point, I think maybe you’re looking at me as
a suspect, and I should talk to a lawyer. Are you looking at
me as a suspect?” See Lord, 29 F.3d at 1221 (quoting cases
from Eleventh and Ninth Circuits regarding unambiguous
invocation of right to counsel). Lee’s statement—“Can I
have a lawyer?”—was similar to these statements recog-
nized by this court as proper invocations of the right to an
attorney. Therefore, unless the police obtained further clar-
ification from Lee that this was actually an unequivocal
request for an attorney, they should have halted the inter-
rogation.
   Before proceeding with the analysis, we remind police
officers of the instruction the Supreme Court offered in
Davis: “[w]hen a suspect makes an ambiguous or equivocal
statement it will often be good police practice for the in-
terviewing officers to clarify whether or not he actually
wants an attorney.” 512 U.S. at 461. By affirmatively estab-
lishing whether a suspect invoked counsel, police (and
reviewing courts) can know precisely where they stand. We
highly encourage police to follow the advice offered by the
Supreme Court and take the time to clarify such issues at
the time of interrogation rather than in after-the-fact
arguments before the courts.
  In this case, the subsequent conduct of the police is a
matter of some concern, though, ultimately, we do not
ground our decision on this basis. After Lee’s invocation
No. 03-4140                                                    9

of his right to counsel, the police did not continue to in-
terrogate him per se, which would be an obvious Miranda
violation. However, the two police officers, who were in a
bathroom with Lee at the time, immediately tried to per-
suade Lee to give up his asserted right to counsel. The
police indicated that they would not talk to him (and
ostensibly cut any deal) in the presence of a lawyer. The
police dangled leniency in front of Lee, stating that if he
wanted to help himself he would talk to them and not ask
for the lawyer. The difficulty in this case lies in the uncer-
tainty about whether these tactics crossed over into the type
of coercion forbidden by Miranda. The police responded to
Lee’s invocation of rights not by further interrogation, but
by explaining the potential effects of his decision. It is not
clear whether these comments, apparently designed to
persuade, run afoul of Miranda.
  While we are concerned by the practices employed by the
police in this case, we do not need to decide whether they
are prohibited by Miranda and its progeny, as any error
from the introduction of the confession was harmless. See,
e.g., United States v. Abdulla, 294 F.3d 830, 837 (7th Cir. 2002)
(applying harmless error standard to Miranda violation);
Correll v. Thompson, 63 F.3d 1279, 1291 (4th Cir. 1995) (apply-
ing harmless error standard to Miranda/Edwards violation);
Fed. R. Crim. P. 52(a) (“[a]ny error, defect, irregularity or
variance which does not affect substantial rights shall be
disregarded.”). To be harmless, an error must have no affect
on the outcome of the trial. See Abdulla, 294 F.3d at 837
(“because he would have been convicted absent the admis-
sion of his statements, we affirm.”). Here, even excluding
Lee’s confession, overwhelming evidence supported the
jury verdict beyond a reasonable doubt.
  The police had been monitoring Lee’s apartment, and a
confidential informant had purchased drugs from Lee.
10                                              No. 03-4140

When police entered Lee’s apartment, they found Lee at a
kitchen table surrounded by crack cocaine and drug para-
phernalia. In particular, the police recovered loose rocks of
crack cocaine on and underneath the table, as well as crack
cocaine on a nearby dryer. The police discovered plastic
bags, a razor blade, and crack cocaine that had already been
packaged for sale. Moreover, the police found Lee’s identifi-
cation card on the table with the crack cocaine.
  While this evidence would likely be sufficient by itself
to support a conviction, Lee’s initial response to the search
further supported the outcome at trial. Before questioning
began, Lee volunteered to the officers, “She didn’t know
anything about it. Don’t take the kids.” The obvious infer-
ence from this statement was that Lee feared that his care-
taker would lose her children because of her involvement
with Lee and his drugs. This statement has the effect of
eliminating the caretaker as a possible owner of the drugs,
and further implicates Lee as the responsible party. To-
gether, the drug evidence literally surrounding Lee and his
pre-interrogation statement supported the outcome in the
district court beyond a reasonable doubt.


                             B
  Lee also challenges his sentence based on Booker, asserting
that the mandatory nature of the guidelines made his
sentence improper. As Lee did not assert this challenge at
sentencing, we review for plain error. See Paladino, 401 F.3d
at 481. While there was no Sixth Amendment violation here,
Lee is correct in asserting that one is not necessary. See
United States v. Castillo, Nos. 02-3584 & 02-4344, 2005 WL
1023029, at *15 (7th Cir. May 3, 2005) (quoting United States
v. White, No. 03-2875, 2005 WL 1023032, at *7 (7th Cir. May
3, 2005) (“ ‘[M]ere mandatory application of the Guide-
No. 03-4140                                                  11

lines—the district court’s belief that it was required to
impose a Guidelines sentence’ . . . constitutes Booker er-
ror.”)). Given that the district court treated the guidelines as
mandatory, the defendant is entitled to a limited Paladino
remand to determine whether the district court, treating the
guidelines as advisory, would reimpose the same sentence.


                              III
  While the methods that the Peoria police employed to
convince Lee to waive his Miranda rights are a concern, the
admission of the confession itself was harmless error. Lee
was found surrounded by drugs and made incriminating
statements before the interrogation ever started. We will
therefore not disturb the conviction. However, we issue a
limited remand to the district court on sentencing issues, in
accordance with the dictates of Paladino.

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




                     USCA-02-C-0072—6-28-05
