                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 05a0304n.06
                               Filed: April 19, 2005

                                                Case No. 03-5123

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                                      )
                                                                )
             Plaintiff-Appellee,                                )
                                                                )        ON APPEAL FROM THE
                    v.                                          )        UNITED STATES DISTRICT
                                                                )        COURT FOR THE WESTERN
 SHAUN TIMOTHY JONES,                                           )        DISTRICT OF TENNESSEE
                                                                )
             Defendant-Appellant.                               )
                                                                )
                                                                )
                                                                )
 _______________________________________                        )

BEFORE: BATCHELDER and GIBBONS, Circuit Judges; BEER*, District Judge.

         ALICE M. BATCHELDER, Circuit Judge. Defendant-appellant Shaun Timothy Jones

appeals his conviction and sentence on six counts of possession or receipt of child pornography in

violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). Jones entered a conditional plea of guilty to all

of these charges, reserving his right to appeal the district court’s denial of his motion to suppress

statements made to law enforcement agents on January 16, 2002, as well as “all tangible and

intangible evidence seized from his residential dormitory room” on that same date. The court

accepted his plea and sentenced him to 51 months imprisonment followed by three years of

supervised release. He claims on appeal that the agents had not administered Miranda warnings

before he made his initial statements to them; that those statements were involuntary and the product

         *
          The Honorable Peter Beer, United States District Judge for the Eastern District of Louisiana, sitting by
designation.
of unlawful custodial interrogation; and that the statements made and the consent to search signed

after those warnings were given were involuntary as well. After the briefs were filed in this appeal,

Jones filed a supplemental brief, challenging his sentence under the Supreme Court’s decision in

Blakely v. Washington, 124 S. Ct. 2531 (2004). The Supreme Court subsequently decided United

States v. Booker, 125 S. Ct. 738 (2005). For the reasons set forth below, we will AFFIRM the

judgment of the district court denying Jones’s motion to suppress. However, we conclude that the

sentencing order must be VACATED and the matter REMANDED for re-sentencing.

                                                  I.

       On January 16, 2002, FBI Special Agent Stephen Lies and Memphis Police Officer John

Scott Ledford went to the Methodist School of Nursing in Memphis, Tennessee, to execute an arrest

warrant for Jones, issued by a court in Dyersburg, Tennessee, on a charge of aggravated sexual

battery upon a child. Equipped with advice-of-rights and consent forms, as well as a laptop

computer and portable printer, the officers went to Jones’s dormitory room and knocked. They

opened the door after hearing Jones call “come in,” and they immediately noted that Jones was using

his computer for instant messaging on the internet. Suspicious that he might be engaged in

transmitting images of child pornography, the officers introduced themselves as law enforcement

officers, and told Jones that they wanted to talk to him about a complaint involving the transmission

of sexually explicit images. According to Lies, Jones immediately said “You’re going to find bad

pictures on my computer.” Lies explained that the officers were not interested in images involving

adults, and attempted to read Jones the advice-of-rights form, but Jones interrupted him and said,

“Well, no, you’re going to find bad pictures of children.” Lies then read aloud the printed advice-of-

rights form. He also asked Jones to read the form, and to sign it if he wanted to speak with the


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officers. Jones read the form and signed the “waiver of rights” at the bottom of the form that stated:

“I have read this statement of my rights and I understand what my rights are. At this time, I am

willing to answer questions without a lawyer present.”

        After signing the waiver of rights, Jones read and signed a consent-to-search form permitting

the officers to search his computer to confirm that there was child pornography on it. Ledford did

find child pornography on the computer, and Jones then provided a written statement to the officers,

which included Jones’s specific assertion that he wanted to cooperate completely with law

enforcement. Ledford typed the statement on the officers’ laptop and printed it on the portable

printer, and , in the presence of both officers, Jones reviewed it, agreed that it was factually accurate,

initialed the beginning and end of the statement, printed his name at the top, and signed it at the

bottom.

        The officers then questioned Jones about a story on the internet describing a sexual encounter

between Jones and a minor female. Jones gave a signed, type-written statement admitting that the

story was true, and confessing to his conduct with the minor. The officers then advised Jones that

the images on his computer were contraband and the computer would have to be seized. They

completed a property receipt, which he signed, and with his assistance they placed various items of

evidence into their vehicle.

        After his indictment on six counts of possession or receipt of child pornography in violation

of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B), Jones filed a motion to suppress the statements he had

made to Agent Lies and Officer Ledford, as well as the evidence the officers seized from his dorm

room. Jones claimed that his initial statements, given before the officers advised him of his rights,

were not voluntary but were instead given in response to questioning by Agent Lies, and that he had


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requested an attorney but one of the officers told him to “sign this [waiver of rights form] and we

will make sure we get you [an attorney].” Both Agent Lies and Officer Ledford denied that Jones

ever asked for, or indicated the need of, an attorney.

       The magistrate judge credited the officers’ testimony—reinforced by the signed waiver-of-

rights and consent-to-search forms, as well as the signed admissions—over defendant’s belated

allegation that he had requested an attorney, and recommended that the district court find that “(1)

defendant volunteered the first statement, and thus Miranda warnings were not required; (2)

defendant was fully advised of his rights under Miranda, and fully understood those rights; (3)

defendant voluntarily and consciously waived those rights and agreed to give statements to the

officers; (4) defendant never requested, or suggested the need for, an attorney; (5) defendant

voluntarily gave the statements in question.” The district court adopted the magistrate judge’s

Report and Recommendation, and denied Jones’s motion to suppress.

                                                 II.

       Jones argues on appeal that the district court erred in denying his motion to suppress.

Specifically, Jones contends that his initial statements, made before the officers advised him of his

“Miranda rights,” see Miranda v. Arizona, 384 U.S. 436 (1966), are the inadmissible product of an

unlawful custodial interrogation. Jones also argues that his later statements and consent to search,

given after he was advised of his rights, “followed on the heels of the unlawful interrogation” and

are therefore also inadmissable. Jones is wrong on both counts.

       In reviewing a district court’s suppression determinations, we review findings of fact for

clear error, and legal conclusions de novo. United States v. Lawrence, 308 F.3d 623, 626-27 (6th

Cir. 2002). Only two facts are in dispute here: whether Jones’s statements that the officers would


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find images of child pornography on his computer were spontaneous or were made in response to

Agent Lies’s questioning; and whether, after being advised of his rights, Jones asked for a lawyer.

The magistrate judge heard the testimony of Jones and of both officers, and credited the testimony

of the officers, concluding that the government had disproved the discrepancies in Jones’s story by

a preponderance of the evidence. See Nix v. Williams, 467 U.S. 431, 444 n.5 (1984) (quoting United

States v. Matlock, 415 U.S. 164, 178 n.14 (1974) (“[T]he controlling burden of proof at suppression

hearings should impose no greater burden than proof by a preponderance of the evidence.”)

(emphasis added)). The district court did not err in adopting those findings of fact.

       Neither did the district court err in its conclusions that the statements made by Jones prior

to his being advised of his rights were voluntary and were not the result of an unlawful interrogation.

Jones was not in custody at the time he made the statements that “You’re going to find bad pictures

on my computer” and “Well, no, you’re going to find bad pictures of children,” and no Miranda

warnings were required. Thompson v. Keohane, 516 U.S. 99, 102 (1995) (“Miranda warnings are

due only when a suspect interrogated by the police is ‘in custody.’”); Stansbury v. California, 511

U.S. 318, 322 (1994) (stating that an officer’s obligation to administer Miranda warnings attaches

“only where there has been such a restriction on a person’s freedom as to render him ‘in custody’”)

(internal quotation omitted).

       The Supreme Court has defined “custodial interrogation” as “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his freedom

of action in any significant way.” Thompson, 516 U.S. at 107 (quoting Miranda, 384 U.S. at 444).

Two inquiries are relevant for this determination: “first, what were the circumstances surrounding

the interrogation; and second, given those circumstances, would a reasonable person have felt he []


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was not at liberty to terminate the interrogation . . . .” Id. at 112. The circumstances surrounding

Jones’s statements do not suggest that a reasonable person would have felt he could not “terminate

the interrogation.” The officers entered Jones’s dormitory room on Jones’s invitation; they

introduced themselves as law enforcement officers and told Jones what they wanted to talk with him

about; they did not place Jones under arrest or otherwise restrict his freedom of action in any

significant way; when Jones responded with an incriminating statement, they immediately attempted

to advise him of his rights but Jones interrupted them and volunteered the statement that the “bad

pictures” were of children. The officers imposed neither a “‘formal arrest or restraint on freedom

of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121,

1125 (1983). The totality of the circumstances indicates that Jones was not in custody when he

made these statements.

       Furthermore, even if Jones was in custody at the time he gave these statements, and he had

not previously been advised of his Miranda rights, his statements are nonetheless admissible because

they were volunteered. “‘Interrogation’ . . . must reflect a measure of compulsion above and beyond

that inherent in custody itself.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Statements given

freely and voluntarily are admissible whether or not a defendant has been informed of his rights.

See Miranda, 384 U.S. at 478 (“Volunteered statements of any kind are not barred by the Fifth

Amendment and their admissibility is not affected by our holding today.”). The record supports the

district court’s conclusion that the officers were not interrogating Jones when he made those

statements, and that they even attempted to Mirandize him at the outset of the conversation, only to

be interrupted by his freely given admission. This is not the kind of “compulsory self-incrimination”

that Miranda’s safeguards were designed to protect against. See Michigan v. Tucker, 417 U.S. 433,


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444 (1974) (stating that Miranda’s “procedural safeguards [are] measures to insure that the right

against compulsory self-incrimination [is] protected.”); see also Chavez v. Martinez, 538 U.S. 760,

772 (2003) (“We have likewise established the Miranda exclusionary rule as a prophylactic measure

to prevent . . . the admission into evidence in criminal cases of confessions obtained through

coercive custodial questioning.”) (emphasis added); New York v. Quarles, 467 U.S. 649, 686 (1984)

(Marshall, J., dissenting) (“All the Fifth Amendment forbids is the introduction of coerced

statements at trial.”) (emphasis added). The rule that Jones would have us follow would give any

suspect the ability to immunize himself entirely by making incriminating statements before the

officers could fully advise him of his rights. Neither precedent nor the Constitution require such a

rule.

        The district court also found that Jones (1) voluntarily and consciously waived his rights and

agreed to give statements to the officers; (2) never requested an attorney; and (3) gave free and

voluntary consent for the officers to search his computer and dorm room. Jones has failed to dispute

the first two issues on appeal, but has attempted to bootstrap the third issue to his other arguments

by postulating that his consent to search “followed on the heels of the unlawful interrogation.”

Because we find that there was no “unlawful interrogation,” this claim also fails.

                                                 III.

        Jones also submitted a supplemental brief challenging the constitutionality of his sentencing

under the Sentencing Guidelines in light of the decision in Blakely v. Washington, 124 S.Ct. 2531

(2004). Before an opinion was handed down by this court in Jones’s case, the Supreme Court

decided United States v. Booker, 125 S. Ct. 738 (2005), in which it was held that the mandatory

federal sentencing guidelines violated the Sixth Amendment by requiring judges to enhance the


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sentences of defendants based on facts not found by a jury or admitted by the defendant. To remedy

this problem, the Court excised from the Sentencing Act the provisions making the guidelines

mandatory. Id. at 764. Booker then instructed reviewing courts to apply its Sixth Amendment

holding and its remedial interpretation of the Sentencing Act to all cases on direct review. Id. at

769. Booker further mandated that reviewing courts apply ordinary prudential doctrines, such as

plain error review, to determine if re-sentencing is warranted. Id.

        Jones has not suffered a Sixth Amendment violation because no judge-found facts were used

to enhance his sentence. The indictment contains the facts to which Jones now objects, and by

pleading guilty, Jones admitted those facts. Nevertheless, he was sentenced under the mandatory

guidelines system that no longer exists post-Booker. Because Jones did not object to this treatment

in the district court, we conduct plain error review to determine if he must be re-sentenced. Under

that test, there must be (1) error, (2) that is plain, (3) and that affects substantial rights. United States

v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005). If these three conditions are met, an appellate court

may then exercise its discretion to notice the forfeited error if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id.

        Jones’s sentence under the mandatory guidelines system that Booker extinguished constitutes

error that is plain. Id. at 525-26. Under this circuit’s precedent in Barnett, we must also presume

that this error affected Jones’s substantial rights–i.e., that it prejudiced him by causing him to receive

a higher sentence–because to require Jones to prove he was prejudiced, as is typically the case under

plain error review, would place “too exacting a burden” on him.1 Id. at 528. Since the government


        1
          Speaking only for myself, I note my disagreement with Barnett’s unwarranted departure from traditional
plain error review. The Supreme Court has never presumed prejudice in plain error review nor did it suggest that we
do so in Booker, see Booker, 125 S. Ct. at 769, and contrary to Barnett’s implication, the Supreme Court has never
sanctioned placing the burden of proving prejudice on the government rather than the defendant. See United States

                                                        8
has not rebutted the presumption of prejudice by demonstrating that Jones would not receive a lower

sentence on remand, we must find that the error affected his substantial rights. Finally, Barnett

dictates that allowing a sentence imposed under the mandatory guidelines system to stand would be

“fundamentally unfair” and thus seriously affect the fairness, integrity, and public reputation of the

judicial proceedings. Id. at 530. Therefore, Jones’s case must be remanded for re-sentencing.

                                                          IV.

         For the foregoing reasons, we AFFIRM the district court’s denial of Jones’s motion to

suppress, and we VACATE the district court’s sentencing order and REMAND the case to the

district court for re-sentencing.




v. Olano, 507 U.S. 725, 735 (1993) (refusing to address whether some errors “should be presumed prejudicial if the
defendant cannot make a specific showing of prejudice”). In fact, in Jones v. United States, the Supreme Court
explicitly refused to remove the burden of proving prejudice from the defendant in a death penalty case involving
allegedly improper jury instructions. 527 U.S. 373, 394-95 (1999) (“Where the effect of an alleged error is so
uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial rights.”).
Since the Jones Court did not think it improper to require a capital defendant to show prejudice that could only
manifest itself in secret jury deliberations, I cannot see where we divine the authority to flip the prejudice burden in
non-capital cases where the defendant at least has the benefit of a sentencing transcript as evidence of the judge’s
sentencing intent. Nevertheless, as Barnett is now binding precedent in this circuit, I am bound to follow its
mandate unless and until a contrary rule is developed by this court en banc or by the Supreme Court.

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       JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur in all of Judge

Batchelder’s opinion except footnote 1, which I decline to join.




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