                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5023


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ANTOINE HILL,

                  Defendant – Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cr-00407-RLW-1)


Submitted:    July 6, 2009                  Decided:   August 13, 2009


Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Timothy V. Anderson, ANDERSON & ASSOCIATES, Virginia Beach,
Virginia, for Appellant.   Dana J. Boente, Acting United States
Attorney, Michael A. Jagels, Special Assistant United States
Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Antoine Hill appeals his jury conviction and 300-month

variant     sentence    for        possession      with   intent   to   distribute

heroin, in violation of 21 U.S.C. § 841 (2006), possession of a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c) (2006), and possession of ammunition by a

felon,    in    violation     of    18    U.S.C.    § 922(g)(1)    (2006).     Hill

asserts that: (i) the district court erred when it denied his

suppression motion by allegedly misapplying the public safety

exception       to   pre-Miranda 1         custodial      statements    and     then

incorrectly       admitted    his        post-Miranda     statements;   (ii)    the

district court erred when it refused to instruct the jury that

it could not conclude that Hill had “knowledge” of his drug

possession from negligence, carelessness, or his belief in an

inaccurate      proposition;        and    (iii)    ineffective    assistance    of

counsel conclusively appears on the record because trial counsel

failed to argue for an appropriate sentence and instead moved to

withdraw just prior to sentencing. 2               Finding no reversible error,

we affirm.


     1
         Miranda v. Arizona, 384 U.S. 436 (1966).
     2
       Hill has also moved to file a pro se supplemental brief
and to relieve his counsel and proceed pro se on appeal.
Because there is no constitutional right to self-representation
on appeal, see Martinez v. Court of Appeal, 528 U.S. 152, 161
(2000), and because we find that Hill did not move to proceed
(Continued)
                                            2
            We find that Hill’s pre-Miranda statement pertaining

to   a   weapon    located   in   his       residence    implicates       the    public

safety exception to Miranda under New York v. Quarles, 467 U.S.

649 (1984).        Police were aware that Hill did not reside in the

apartment alone, and had reason to suspect that weapons were

located    in     the   residence.      Moreover,        at    the    time   Hill   was

questioned, the residence had not yet been secured.                          Based on

these circumstances, we find that Hill’s pre-Miranda statement

regarding    the    existence     of    a    weapon     in    his    apartment    falls

within    the     Quarles    exception          to   Miranda    and    was   properly

admitted by the district court.




pro se at the earliest possible time, 4th Cir. R. 46(f), we deny
Hill’s motion to relieve counsel and to proceed pro se.
Moreover, although Hill explains that he wishes to proceed pro
se so he may move this Court for release pending appeal, because
we affirm Hill’s conviction and sentence, Hill’s motion for
release would be denied.      See 18 U.S.C.     § 3143(b) (2006)
(providing that a criminal defendant should be detained pending
appeal unless it appears, by clear and convincing evidence, that
the appeal raises a substantial question of law or fact that
requires reversal, an order for a new trial, a non-prison
sentence, or “a reduced sentence to a term of imprisonment less
than the total of the time already served plus the expected
duration of the appeal process”).      We grant Hill’s motion to
file a pro se supplemental brief, but after considering the
arguments raised therein, conclude that Hill’s ineffective
assistance of counsel claim is not cognizable on direct appeal.
See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.
2006) (ineffective assistance of counsel claims are generally
not cognizable on direct appeal unless the ineffectiveness
“conclusively appears” on the record).



                                            3
              We    nonetheless   find   that   the   transporting   officer’s

pre-Miranda inquiry into whether drugs were located in Hill’s

residence does not implicate the Quarles exception.                  In fact,

one of the officers admitted at the suppression hearing that

there “is no officer safety purpose in knowing whether or not

there [we]re drugs in the apartment.”                 This finding, however,

affords Hill no relief.           Because the district court correctly

admitted Hill’s post-Miranda statements 3 —which were essentially

identical      to   his   pre-Miranda    statements—we    conclude   that   the

jury “would not have found the [Government's] case significantly

less       persuasive”    if   the   pre-Miranda      statements     had    been

excluded.       See Schneble v. Florida, 405 U.S. 427, 432 (1972);

see also United States v. Abu Ali, 528 F.3d 210, 231 (4th Cir.

2008) (recognizing that an error “will be deemed harmless if a

       3
        Hill’s assertions to the contrary, the mere fact that
Hill’s    post-Miranda  statements   confirmed   his   pre-Miranda
admissions does not, in and of itself, render the post-Miranda
statements involuntary and inadmissible.    See Oregon v. Elstad,
470 U.S. 298, 314 (1985) (holding that “absent deliberately
coercive or improper tactics in obtaining the initial statement,
the mere fact that a suspect has made an unwarned admission does
not warrant a presumption of compulsion” as to any subsequent,
post-warning statement); United States v. Mashburn, 406 F.3d
303, 307-10 (4th Cir. 2005) (holding that a few pre-warning
questions will not render post-warning responses involuntary and
inadmissible if: (i) there was no evidence that an officer’s
failure    to   convey  Miranda   warnings   was   deliberate   or
intentional; and (ii) there was no evidence that the post-
warning statement was involuntarily made).        Accordingly, we
conclude that the district court did not err in allowing Hill’s
post-Miranda statements to be presented to the jury.



                                         4
reviewing     court   is    able      to    say,      with    fair    assurance,   after

pondering     all   that       happened      without       stripping    the    erroneous

action from the whole, that the judgment was not substantially

swayed by the error”) (internal citations and quotation marks

omitted), cert. denied, 129 S. Ct. 1312 (2009).                          Thus, because

the jury would have received the same evidence even if Hill’s

pre-Miranda statements were suppressed by the district court,

any   error    by   the    district        court      to   admit   Hill’s   pre-Miranda

statement was harmless beyond a reasonable doubt.

              We also conclude that the district court did not abuse

its discretion when it denied Hill’s proposed jury instruction.

              A district court’s refusal to provide an
              instruction   requested  by    a  defendant
              constitutes reversible error only if the
              instruction: (1) was correct; (2) was not
              substantially covered by the court’s charge
              to the jury; and (3) dealt with some point
              in the trial so important[] that failure to
              give the requested instruction seriously
              impaired the defendant’s ability to conduct
              his defense.

United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal

quotation marks and citation omitted).                        Although the Government

does not dispute that Hill’s proposed jury instruction was a

correct   statement       of    the   law,       we    find    that   Hill’s   requested

instruction was substantially covered by the district court’s

remaining jury instructions.




                                             5
               Hill     last     asserts      that         his    counsel     was       ineffective

because       he   failed       to    file    a     sentencing          memorandum         with    the

district court, failed to argue for a variant sentence at his

sentencing hearing, and instead moved to withdraw as counsel a

day     prior      to     Hill’s       sentencing            hearing.              Although       Hill

recognizes that this issue may be better left for review on a

habeas    corpus        motion,       Hill    suggests           that   if    the       Court   finds

merit    to    his      other    arguments,           “a    remand      for       sentencing      with

prepared counsel” would be appropriate.

               Even assuming, without deciding, that it was error for

Hill’s trial counsel to move to withdraw from representation

just    prior      to     his    sentencing           and    to    fail      to     argue    for    an

appropriate sentence on his behalf, it does not conclusively

appear on the record that but for counsel’s purported errors,

Hill’s    sentence        would       have    been      different.            In     fact,      Hill’s

counsel concedes that “[i]t is impossible to know what factors

could    have      or     should      have    been          presented        to    the    Court     at

sentencing         that    may       have    persuaded           the    Court      to    depart     by

variance from the recommend[ed] sentencing guidelines.”

               Moreover, although the Government asked the district

court to sentence Hill within his 360-month to life Guidelines

range, the district court varied from the Guidelines range and

imposed a 300-month sentence.                     Because it is not apparent that

the    district         court    would       have      varied       further        based     on    any

                                                  6
argument counsel may have made, we find that Hill’s ineffective

assistance      claim     based    on       counsel’s    failure      does     not

conclusively appear on the record and, thus, is not cognizable

on direct appeal.         See Strickland v. Washington, 466 U.S. 668,

694 (1984); United States v. Baldovinos, 434 F.3d 233, 239 (4th

Cir. 2006).

             Based   on   the    foregoing,     we   deny    Hill’s   motion   to

relieve   his   counsel    and    to   proceed   pro    se   on   appeal,    grant

Hill’s motion to file a pro se supplemental brief, deny Hill’s

motions for bail or release pending appeal as moot, and affirm

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

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                       AFFIRMED




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