                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4385



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


WILLIAM LINWOOD FOSTER,

                                               Defendant - Appellant.



                             No. 04-4550



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


WARREN WILLIAMS,

                                               Defendant - Appellant.



Appeals from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
03-462-JFM)


Argued:   December 2, 2005                 Decided:   January 19, 2006
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part,      and   remanded   in   part   by
unpublished per curiam opinion.


ARGUED: Martin Gregory Bahl, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellants. Harry Mason Gruber, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal
Public Defender, Denise C. Barrett, Assistant Federal Public
Defender, Baltimore, Maryland; Bradley A. Goldbloom, SIEGEL &
HYATT, L.L.C., Baltimore, Maryland, for Appellants.       Allen F.
Loucks, United States Attorney, Stephen M. Schenning, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM:

          The defendants, William Foster and Warren Williams, were

convicted by a jury of various drug-related charges.           Foster

appeals the district court’s denial of his motion to suppress his

unwarned statements, alleging that their admission violates his

Fifth and Fourteenth Amendment privilege against compelled self-

incrimination.   Foster and Williams both appeal their sentences on

the ground that they are unconstitutional under United States v.

Booker, 543 U.S 220, 125 S. Ct. 738 (2005).    We affirm the district

court’s denial of Foster’s motion to suppress on the ground that

Foster was not under interrogation or its functional equivalent at

the time that he made these statements.       Finding Sixth Amendment

error, we vacate Foster’s sentence and remand for resentencing. We

affirm Williams’s sentence.



                                I.

          On January 25, 2003, Sergeant John Ambrose and Lieutenant

Leslie Banks of the Baltimore Police Department observed defendants

Foster and Williams conduct an apparent drug sale.           A woman

approached the two men and handed Foster what appeared to be money;

in exchange, Williams retrieved a small object from the rear

passenger side of a car parked nearby and handed it to the woman.

As soon as the woman, who was walking, left the immediate vicinity

of the transaction, police officers stopped her and found in her


                                 3
possession a yellow ziplock bag containing roughly .2 grams of

cocaine base.          Shortly thereafter, officers stopped Foster and

Williams who had left in the car.             With the two men detained on the

sidewalk, Lieutenant Banks retrieved a plastic bag containing

roughly one gram of cocaine base from behind the fuel cap of the

car (on the rear passenger side) as well as $457 in small bills

from the front console. Foster and Williams were then arrested and

handcuffed.

             Before the suspects were advised of their Miranda rights,

Sergeant Ambrose said aloud, “I can’t believe with all the money

and drugs we found we didn’t find a handgun.”              J.A. 27.    According

to Sergeant Ambrose, Foster replied, “If you want a gun I will get

you a handgun.”         Id.    Ambrose then said that “it would take four

handguns with whatever you have here,” meaning the seized evidence.

Id.   Foster replied, “I can get you one right now.             I need to go in

my    car   and   go   right    around    the   corner   and   get   you   a   nine

millimeter.” Id.; J.A. 163.              This exchange occurred against the

backdrop of a well-known Baltimore Police Department policy that

may allow suspects to escape low-level drug charges if they turn

guns over to the police.          In any event, Ambrose searched the trunk

of the car and found a nine millimeter buried in the wheel well.

The car is jointly owned by Foster and his mother.

             On October 9, 2003, Foster and Williams were indicted on

several drug and firearms counts: conspiring to distribute cocaine


                                          4
base in violation of 21 U.S.C. § 846 (Count One); distributing

cocaine    base   in   violation   of   21   U.S.C.   §   841   (Count   Two);

possessing cocaine base with intent to distribute in violation of

21 U.S.C. § 841 (Count Three); possessing a firearm after a prior

felony conviction in violation of 18 U.S.C. § 922(g) (Count Six);

and possessing a firearm in furtherance of drug trafficking in

violation of 18 U.S.C. § 924(c) (Count Seven).              Foster was also

indicted on two additional counts, distributing cocaine base (Count

Four) and possessing cocaine base with intent to distribute (Count

Five), relating to a later alleged drug sale.

             Foster filed a pretrial motion to suppress his two

statements to Sergeant Ambrose.              In the pretrial evidentiary

hearing, Sergeant Ambrose at first denied discussing cooperation

with Foster, but later conceded the possibility when defense

counsel confronted him with a piece of paper bearing his name and

phone number in his own handwriting, which he had handed Foster at

the scene of the stop.       Sergeant Ambrose testified that he only

handed this paper to Foster after Foster had already volunteered

the statements and after he had already found the gun in Foster’s

trunk.    Crediting Sergeant Ambrose’s testimony, the district court

determined that Sergeant Ambrose had handed Foster the paper only

after “[h]e obviously had a defendant who wanted to talk to

him. . . .    He actually by that time had the gun itself.          So he had




                                        5
a potential real live informant, somebody who already expressed the

interest [in cooperating] on lesser evidence.”           J.A. 134.

              The district court ultimately denied Foster’s motion to

suppress on the ground that Ambrose’s statements did not constitute

interrogation or its functional equivalent under Miranda.               “[T]he

whole conversation, as the evidence shows it happened, . . . wasn’t

a discussion [about cooperation], oh, by the way, if you have a gun

let me know, I will take that to the State’s Attorney and we’ll see

what we can do.”     J.A. 142.    Ambrose’s statements were only “smart-

alec,”    “sarcastic,”     and   “facetious,”    not   genuine      offers   of

cooperation.       J.A.   142.     As   such,   they   did    not   constitute

interrogation of an unwarned suspect in custody.             Furthermore, the

court concluded that the note with the sergeant’s name and number

was     not   evidence    that   Sergeant   Ambrose     elicited     Foster’s

incriminating statements by promising to help him, since Sergeant

Ambrose handed Foster the paper only after finding the gun and as

“he [was] leaving to take [Foster] to the paddy wagon.”              J.A. 142.

The district court thus denied Foster’s motion to suppress.

              Foster and Williams were tried from March 15 to March 18,

2004.    The district court dismissed Count One of the indictment,

conspiracy to distribute cocaine base, after the jury submitted a

question on that count.          On March 18, 2004, the jury convicted

Foster on all remaining counts in the indictment except Count

Seven, possessing a firearm in furtherance of drug trafficking.


                                        6
The jury convicted Williams on Counts Two and Three and acquitted

him on Counts Six and Seven.

            The    district     court    sentenced         Foster   to     87    months’

imprisonment and Williams to 51 months’ imprisonment, applying the

then-mandatory sentencing guidelines. See 18 U.S.C. § 3551 et seq.

In calculating Foster’s base offense level, the district court

imposed a two-point enhancement based on a fact found by the court

alone, not by the jury:           that the gun that Foster possessed had

previously been stolen.            See U.S.S.G. § 2K2.1(b)(4).                    Foster

objected    to    this   enhancement     on    the    ground    that       its   factual

predicate,       the   gun    being    stolen,       was    based     on    unreliable

information. The court similarly enhanced Williams’s offense level

based on a fact not found by the jury:                      that the quantity of

cocaine base attributable to Williams was at least one gram but

less than two grams.           Williams, however, did not object to the

resulting    enhanced        offense   level,    stating       that    it    was    “the

appropriate level in this case.”              J.A. 727.

            Foster appeals the district court’s denial of his motion

to suppress his unwarned statements.                  Foster and Williams both

appeal their sentences.




                                         7
                                  II.

                                   A.

             Foster argues that the district court erred by admitting

his unwarned statements after determining that he was not under

interrogation (or its functional equivalent) at the time that he

made them.    Under Miranda v. Arizona, “the prosecution may not use

statements,    whether   exculpatory    or   inculpatory,   stemming   from

custodial interrogation of the defendant unless it demonstrates the

use of procedural safeguards effective to secure the privilege

against self-incrimination.”      384 U.S. 436, 444 (1966).            These

safeguards include the now-familiar Miranda warnings or their

equivalent.     See Rhode Island v. Innis, 446 U.S. 291, 297 (1980).

Because, Foster argues, he was under custodial interrogation at the

time but had received no Miranda warnings, his statements to

Sergeant Ambrose should be suppressed. When reviewing the district

court’s denial of a suppression motion, we view the evidence in the

light most favorable to the government, and we accept the court’s

factual findings unless they are clearly erroneous.            See United

States v. Hamlin, 319 F.3d 666, 671 (4th Cir. 2003).        We review the

district court’s legal determinations de novo.         See id.



                                   B.

             The parties agree that Foster was in custody when he made

his statements to Sergeant Ambrose, since he was under formal


                                   8
arrest at the time.         See Stansbury v. California, 511 U.S. 318, 322

(1994) (defining custody for Miranda purposes).                     They also agree

that Foster had not been advised of his Miranda rights.                         What the

parties dispute is whether Foster was under interrogation at the

time.         According    to   Rhode   Island      v.     Innis,    a     suspect     is

interrogated by the law enforcement officers when “subjected to

either express questioning or its functional equivalent.” 466 U.S.

at 300-01.         This “functional equivalent” language is meant to

capture “interrogation environments” in which the suspect’s will is

subjugated to that of his examiner, undermining the privilege

against self-incrimination. Id. at 299. A suspect is subjected to

the “functional equivalent” of interrogation when the police use

“words or actions . . . (other than those normally attendant to

arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect,”

meaning any response that the prosecution may seek to introduce at

trial.    Id. at 301 & n.5.          The Supreme Court cautioned, however,

that    the    police     “surely    cannot    be   held    accountable         for   the

unforeseeable results of their words or actions.”                    Id. at 301-02.

The focus of this inquiry is primarily on the suspect’s perceptions

and not on the police officers’ intentions.                 Id. at 301.

               In Innis police officers arrested the defendant for

robbery with a sawed-off shotgun but found him unarmed.                      While in

transit       to   the    police    station,    the      officers    had    a    “brief


                                          9
conversation” with each other about the missing shotgun, which

everyone in the car (including the defendant) heard.               Innis, 446

U.S. at 294, 303.      Referring to a nearby school for handicapped

children, one officer said to another, “[I]t would be too bad if

[a] little [handicapped] . . . girl . . . pick[s] up the gun, maybe

kill[s] herself.”      Id. at 295.       The defendant at this point

interrupted the conversation and offered to show the officers where

the gun was located.      Id.   The Court ruled that the officers’

conversation among themselves did not constitute interrogation for

Miranda purposes because the entire conversation consisted of “no

more than a few offhand remarks” and was not “a lengthy harangue in

the presence of the suspect.”      Id. at 303.   The officers’ comments,

moreover, were not “particularly ‘evocative.’” Id. Further, there

was no evidence that the officers were “aware that the [defendant]

was   particularly   susceptible    to   an   appeal   to    his   conscience

concerning the safety of handicapped children.”             Id. at 302.   For

these reasons, the Court concluded that the officers should not

have known that their conversation was reasonably likely to elicit

an incriminating response from the defendant, and therefore did not

subject the defendant to the functional equivalent of interrogation

under Miranda.   Id.




                                    10
                                  C.

            The issue in this case is whether Sergeant Ambrose should

have known that his two comments were reasonably likely to elicit

an incriminating response from Foster.       Because this inquiry is

necessarily    contextual,   focusing   primarily   on   the   suspect’s

perceptions, we owe trial courts “substantial deference on the

question of what constitutes interrogation,” since trial courts

“can best evaluate the circumstances in which such statements are

made and detect their coercive aspects.”      United States v. Payne,

954 F.2d 199, 203 (4th Cir. 1992).

            We examine Sergeant Ambrose’s statements separately: the

first said aloud in Foster’s presence (“I can’t believe with all

the money and drugs we found we didn’t find a handgun”); and the

second said directly to Foster (“It would take four handguns with

whatever you have here,” meaning the seized evidence).         J.A. 27.

While the second statement presents a closer question than the

first, we ultimately conclude that neither statement constitutes

interrogation for Miranda purposes.



                                  1.

            The first statement is easily analyzed under Innis.

Because it was only an isolated, offhand remark and not a “lengthy

harangue in the presence of the suspect,” Innis suggests that this

statement     does not constitute interrogation or its functional


                                  11
equivalent.    Innis, 446 U.S. at 303.         The only complicating factor

is whether Foster was “peculiarly susceptible” to statements of

this kind, as discussed briefly in Innis.          Id. at 302.    There is at

least   some   evidence   in    the   record   that   the   Baltimore    Police

Department has a well-known policy of allowing suspects to escape

low-level drug charges if they turn over guns to the police.               Even

assuming that Foster was aware of this policy, however, it alone

does not transform Sergeant Ambrose’s off-the-cuff comment into the

functional equivalent of direct questioning.                The statement was

only a glib characterization of the seized evidence; Sergeant

Ambrose was expressing his surprise that he found no gun alongside

the drugs and money.           As we explained in Payne, “[T]he Innis

definition of interrogation is not so broad as to capture within

Miranda’s reach all declaratory statements by police officers

concerning the nature of the charges against the suspect and the

evidence relating to those charges” -- or by extension the lack of

evidence against the suspect (for example, the absence of guns).

Payne, 954 F.2d at 202.

           In Payne we held that an officer’s statement to the

defendant, “They [the FBI] found a gun at your house,” did not

constitute interrogation or its functional equivalent because the

statement “was not one that sought or required a response.” Payne,

954 F.2d at 201, 203 (internal quotation marks omitted).                Because

it was merely a declaratory statement of the charges or evidence


                                       12
against the defendant, the officer should not have known that it

was “‘reasonably likely to elicit an incriminating response.’” Id.

(quoting Innis, 446 U.S at 302).

           As in Payne, Sergeant Ambrose’s first statement is a mere

description of the evidence (or lack thereof) against Foster.           It

did not indicate to Foster that cooperation would benefit him in

any way.   Cf. United States v. Montana, 958 F.2d 516, 518-19 (2d

Cir. 1992) (finding that agent’s unsolicited statement to suspect

that any cooperation would be brought to federal prosecutor’s

attention constituted interrogation); United States v. Johnson, 812

F.2d 1329, 1331 (11th Cir. 1990) (noting that police offers to help

defendants may constitute interrogation, for example suggesting,

“[We] will be good if [you] the accused will be good” or “Why don’t

you be good and tell us about it?”).       Even when viewed against the

backdrop   of   the   Baltimore   Police   Department   policy,   Sergeant

Ambrose’s offhand remark cannot fairly be seen as expressing or

even insinuating that he would help Foster bargain down his drug

charges if only Foster cooperated.

           For these reasons, we conclude that Sergeant Ambrose

should not have known that his first statement was reasonably

likely to elicit an incriminating response from Foster.           We thus

affirm the district court’s denial of Foster’s motion to suppress

his first response, “If you want a gun I will get you a handgun.”

J.A. 27.


                                    13
                                     2.

            Sergeant     Ambrose’s   second    statement       requires   more

extensive analysis.      This statement comes closer to interrogation

than the first because it suggests more openly that Foster could

benefit by cooperating, in particular by turning over several guns.

Police statements that expressly state or even insinuate that

cooperation      would    benefit    the     defendant     may     constitute

interrogation under Miranda.         See Montana, 958 F.2d at 518-19;

Johnson, 812 F.2d at 1331.

            In this analysis, we are bound by the court’s factual

findings unless they are clearly erroneous, as noted above.                See

Hamlin, 319 F.3d at 671.        The district court made the following

factual findings that are highly relevant to our examination here:

that Sergeant Ambrose’s second remark was “facetious,” “smart-

alec,” and “sarcastic” only (that is, “it will take a lot more than

one gun”), not a genuine offer of cooperation; and that Sergeant

Ambrose gave Foster the piece of paper bearing his name and number

only   after    Foster   had   already    volunteered    the    incriminating

statements, at which point Sergeant Ambrose “[knew] that he may

have a potential cooperator . . . and [so he gave Foster] his name

as he [was] leaving to take [Foster] away in the paddy wagon.”

J.A. 142.      In sum, the district court concluded that “the whole

conversation, as the evidence shows it happened, . . . wasn’t a

discussion, oh, by the way, if you have a gun let me know, I will


                                     14
take that to the State’s Attorney and we’ll see what we can do.”

Id.   Upon reviewing the record, we do not regard these findings as

clearly erroneous and therefore accept them as true.            See, e.g.,

J.A. 55-58 (evidence supporting court’s findings).

           In light of these factual findings, Sergeant Ambrose’s

second statement was not objectively likely to elicit Foster’s

incriminating response.      Sergeant Ambrose was merely expressing

sarcasm and incredulity because of the degree of trouble Foster was

already in on account of the drugs; Ambrose had no apparent

intention of helping Foster avoid or reduce the impending drug

charges. Focusing primarily on the suspect’s perceptions, as Innis

instructs us to do, Foster could not reasonably have interpreted

Sergeant Ambrose’s second statement as a genuine offer to bargain

down the charges in exchange for guns, even assuming that Foster

knew about the police department policy of sometimes dropping

charges for guns.    See Innis, 446 U.S. at 301.           As the district

court   found,   Sergeant   Ambrose’s   tone   was   too    sarcastic   and

incredulous to interpret it as a genuine offer.

           We therefore conclude that Sergeant Ambrose’s second

statement objectively invited no cooperation from Foster.          Indeed,

it invited no reply at all.       It was a gibe only, an evidently

“smart-alec” and “facetious” statement.        J.A. 142.      As such, it

“was not [a statement] that sought or required a response.” Payne,

954 F.2d at 203 (internal quotation marks omitted).            Nothing in


                                  15
this record allows us to disregard the district court’s factual

findings about Sergeant Ambrose’s tone and thereby reverse its

legal conclusion, especially given the “substantial deference” we

owe trial courts on what constitutes interrogation.                Payne, 954

F.2d at 203. Accordingly, we conclude that Sergeant Ambrose should

not have known that his second statement was reasonably likely to

elicit an incriminating response.           On this ground, we affirm the

district court’s denial of Foster’s motion to suppress his second

response,    “I can get you one right now.          I need to go in my car

and go right around the corner and get you a nine millimeter.”

J.A. 27, 163.



                                     III.

            We turn now to the defendants’ challenges to their

sentences. Foster and Williams both argue that their sentences are

unconstitutional under United States v. Booker, 543 U.S. 220, 125

S.Ct. 738 (2005).      Because neither defendant raised this issue

below, we review their sentences for plain error.                  See United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

            Under   Booker    sentence      enhancements   imposed   under   a

mandatory sentencing regime violate the Sixth Amendment if they are

based on facts found by the court alone, not by the jury or by the

defendant’s admission. Booker, 125 S.Ct. at 756. If a defendant’s

actual   sentence   exceeds    the   maximum     authorized   by   the   facts


                                      16
admitted by the defendant or proven to the jury beyond a reasonable

doubt, it constitutes plain and prejudicial Sixth Amendment error.

See Hughes, 401 F.3d at 547-49, 555-56.        As such, it warrants

remand and resentencing according to Booker’s remedial scheme. Id.

at 555-56; Booker, 125 S.Ct. at 764-68.     Applying this framework,

we conclude that Foster’s sentence constitutes plain Booker error

but that Williams’s sentence does not.



                                 A.

            In sentencing Foster, the district court relied on a fact

found by the court alone, not by the jury:      that the gun Foster

possessed had previously been stolen.    See U.S.S.G. § 2K2.1(b)(4).

This fact enhanced Foster’s base offense level by two points, from

20 to 22.   The resulting guidelines range, given Foster’s criminal

history category of V, was 77 to 96 months; the range authorized by

the jury verdict alone was 63 to 78 months. U.S.S.G. Ch. 5, Pt. A.

Foster was ultimately sentenced to 87 months.       Because Foster’s

sentence exceeded the maximum authorized by the jury verdict alone,

it constitutes plain and prejudicial Sixth Amendment error and

warrants resentencing.    See Hughes, 401 F.3d at 555-56.

            On remand the district court should first calculate the

appropriate sentencing range under the guidelines and then consider

this range, along with other factors enumerated in 18 U.S.C.

§ 3553(a), when imposing a sentence.    See Hughes, 401 F.3d at 546.


                                  17
The sentence must be “within the statutorily prescribed range and

. . . reasonable.”    Id. at 547.   If the sentence falls outside the

guidelines   range,   the   court   should   explain   its   reasons     for

departure as required under 18 U.S.C. § 3553(c)(2).            See id. at

546.



                                    B.

          In sentencing Williams, the district court relied on a

fact contained in his presentence report that was not contained in

the indictment: that Williams’s offense involved at least one gram

but less than two grams of cocaine base.        The indictment did not

charge any specific drug weight, and the jury made no findings

regarding drug weight.       The court-found drug weight enhanced

Williams’s base offense level by six points, from 12 to 18.        A base

offense level of 18, when combined with Williams’s criminal history

category of V, yields a range of 51 to 63 months; a base offense

level of 12 (for an unspecified quantity of cocaine base, that is,

less than .25 grams) yields a range of 27 to 33 months.          U.S.S.G.

§§ 2D1.1(c)(11), (14); U.S.S.G. Ch. 5, Pt. A.                Williams was

ultimately sentenced to 51 months.

          At sentencing, Williams admitted to the drug weight that

the court used to enhance his base offense level by stating that

“18 is the appropriate offense level in this case.”          J.A. 727.    He

had no objection to “the way Probation added [Williams’s] offense


                                    18
level.”   J.A. 727.   Williams thereby converted a court-found fact

into one that he admitted.

           In light of this admission, Williams’s sentence was not

enhanced based on a fact found by the court alone; it did not

exceed the maximum authorized by facts admitted by the defendant or

established by the jury verdict.       Accordingly, we conclude that

Williams’s sentence was not Sixth Amendment error under Booker.

Booker, 125 S.Ct. at 756; see also United States v. Evans, 416 F.3d

298, 300-01 (4th Cir. 2005).   We thus affirm Williams’s sentence.



                                 IV.

          We affirm the district court’s denial of Foster’s motion

to suppress his unwarned statements.     We vacate Foster’s sentence

and remand for resentencing, but affirm Williams’s sentence.



                                                   AFFIRMED IN PART,
                                                    VACATED IN PART,
                                                AND REMANDED IN PART




                                 19
