                      United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT



                               No. 97-1057


United States of America,             *
                                      *
                   Appellee,          *
                                      * Appeal       from     the    United
States
    v.                                * District Court for the
                                      * Eastern     District   of
Missouri.
John Edward Johnson,                  *
                                      *
                  Appellant.          *


                      Submitted: June 4, 1997


Filed:     July 15, 1997


Before MURPHY and HEANEY, Circuit Judges,                 and ROSENBAUM1,
District Judge.


HEANEY, Circuit Judge.

    John Edward Johnson conditionally pleaded guilty to
robbery and use of a firearm in relation to a crime of
violence. Johnson reserved his right to challenge the
district court’s denial of his motion to suppress his in-


      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
custody confession. He also appeals the sentence imposed
by the district court. We affirm Johnson’s convictions,




                           2
but reverse the seventy-two month      departure from the
guideline sentence for the armed      robbery because the
district court failed to provide      Johnson with proper
notice of its intention to consider   the departure.

                 I.   Motion to Suppress

    Johnson was charged in a three-count indictment for
the June 1995 armed robbery of the Purple Cow Restaurant
in Little Rock, Arkansas. On August 30, 1996, Johnson
moved to suppress an in-custody statement he gave to the
Little Rock police officers, in which he confessed to the
robbery. He argued that the confession was the fruit of
an illegal arrest, that he was coerced into making the
statement, and that he was deprived of his Sixth
Amendment right to counsel. The district court denied
the motion. Johnson then pleaded guilty to the first two
counts of the indictment, robbery affecting interstate
commerce in violation of 18 U.S.C. § 1951 and the use of
a firearm in relation to a crime of violence in violation
of 18 U.S.C. § 924(c).     The government dismissed the
third count of the indictment, which charged Johnson with
the possession of an unregistered weapon, a sawed-off
shotgun, in violation of 26 U.S.C. § 5861(d). Johnson’s
plea was conditioned on his right to appeal the district
court’s denial of his motion to suppress.

    On appeal,    Johnson continues to assert that the
district court should have suppressed his confession
because his arrest was illegal. Johnson argues that the
police department violated several state rules in
obtaining both an order for his appearance to give blood,



                            3
hair, and saliva samples and a subsequent warrant for his
arrest.2   We




      2
        Specifically, he contends that the police department failed to comply with Rules
6.1 and 6.2 of the Arkansas Rules of Criminal Procedure because the order for his
appearance was not signed by a judge and did not state the date and time for his
appearance. He also argues that the warrant for the arrest for his failure to appear was
flawed in several respects: The affidavit in support of the warrant was not notarized
and was signed only by the clerk of court, not a judge, and the arresting officer did not
have a copy of the warrant at the time of the arrest. Moreover, Johnson contends that
given the invalidity of the underlying order to appear, the warrant for his arrest for
violation of that order cannot stand.
                                           4
agree with the district court that in this case we need
not determine the legality of Johnson’s arrest to rule on
the admissibility of his confession. The district court
expressed doubt as to the validity of the order, but
found that the officers acted in good faith in applying
for the warrant and in arresting Johnson. (Motions Hr’g
Tr. at 210-11, 221 (citing Arizona v. Evans, 115 S.Ct.
1185 (1995) (Leon, good faith exception applies to an
arrest warrant); United States v. Teitloff, 55 F.3d 391,
393 (8th Cir. 1991).)    Moreover, the court recognized
that even if the arrest were illegal, the custodial
statement is admissible if it was voluntary and lacked
any causal connection to the illegal detention. (Id. at
222 (citing Brown v. Illinois, 422 U.S. 590, 603-04
(1975).)

    In rendering its decision on the suppression
question, the district court made several important
credibility assessments and findings of fact. The court
discredited much of Johnson’s testimony and determined
that the police officers did not pressure or coerce
Johnson into confessing. It accepted the testimony of
the arresting officer that once Johnson requested an
attorney, the officers stopped all discussion with him,
offered to let him make a call to an attorney, and, when
Johnson stated that he had no one to call, arranged for
a public defender to represent him. The district court
also determined that, although Johnson mentioned to the
public defender that his family wanted to retain private
counsel for him, he confessed to the public defender and
did not specifically reject her representation. Further,
neither police officer was aware of Johnson’s parents’
wishes that their son be represented by private counsel.

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The district court also found that both the officers and
the public defender went through the waiver form with
Johnson before he made his statement.      Finally, the
public defender advised Johnson not to speak with the
police, but he signed the waiver and gave the statement
against her express advice.




                           6
    Applying the legal framework set out in Brown v.
Illinois, 422 U.S. 590 (1975), to this set of facts, the
district court decided that Johnson’s confession was an act
of free will and not the product of an illegal arrest.
Specifically, it determined that even though little time
passed between the arrest and the confession, the remaining
three Brown factors weighed in favor of the government:
Johnson was given his Miranda warnings; he was provided with
a lawyer who counseled against giving the statement and who
could have raised the illegality of the arrest with him; and,
even if there was misconduct on the part of the officers, it
was not flagrant, but rather performed with a good faith,
reasonable belief that they had probable cause for his
arrest. (Motions Hr’g Tr. at 223-24 (citing Brown, 422 U.S.
at 603-04).)
    We review the district court’s denial of a defendant’s
motion to suppress for clear error. Teitloff, 55 F.3d at
392. The district court’s decision must be affirmed “unless
it is not supported by substantial evidence on the record; it
reflects an erroneous view of the applicable law; or upon
review of the entire record, [we are] left with the definite
and firm conviction that a mistake has been made.”        Id.
(quoting United States v. Layne, 973 F.2d 1417, 1420 (8th
Cir. 1992)).    In light of the district court’s factual
determinations, it did not err in concluding that, under
Brown, Johnson’s confession was sufficiently attenuated from
any illegality in his arrest. There is no evidence that the
police officers engaged in willful misconduct. The officers
reviewed Johnson’s rights with him, had him sign a waiver
form, and provided him with an attorney who urged him not to
cooperate.   Given these findings, we agree that Johnson’s
confession was voluntary.



                              7
    Johnson also claims that he was denied his Sixth
Amendment right to counsel because the police officers did
not permit his family to retain private counsel for him.3




       3
         Initially, state charges of aggravated robbery, rape, and theft of property were
 brought against Johnson in Pulaski County. On February 16, 1996, the state court
 suppressed Johnson’s confession, holding that once Johnson states that he wants a
 private attorney, the officers had an obligation to accommodate him in getting another
 attorney. The state court did not cite any authority for its holding, however, nor are we
 bound by its decision.
                                            8
Johnson’s father testified at the motions hearing that he
attempted to contact the officers through a desk clerk to
let them know of the family’s intentions to hire an
attorney.    Had the officers known of the family’s
preference or if the family had simply sent private
counsel directly to their son, he certainly should have
been permitted representation by his choice of counsel.
Here, however, there is no evidence that the officers
were ever notified of the family’s request. Nor did the
family actually contact private counsel for their son.
The district court credited the officers’ testimony that
they told Johnson he could make a phone call and provided
him with a phone book, but that Johnson told them he had
no one to call. Further, Johnson did not object when the
officers offered to provide him with a public defender
and, as the district court specifically found, Johnson
accepted   the   public  defender’s   representation   by
privately confessing to her. As the Supreme Court has
stated:

    [W]hile the right to select and be represented
    by one’s preferred attorney is comprehended by
    the Sixth Amendment, the essential aim of the
    Amendment is to guarantee an effective advocate
    for each criminal defendant rather than to
    ensure that a defendant will inexorably be
    represented by the lawyer whom he prefers.


Wheat v. United States, 486 U.S. 153, 159 (1988). We can
think of no more effective representation in these
circumstances than what the public defender offered to
Johnson: She advised him not to make the statement. In
hindsight, Johnson no doubt wishes that he had followed



                            9
her advice, but we agree with the district court that
Johnson’s Sixth Amendment rights were not violated.




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                    II.   Sentencing

    On December 18, 1996, the district court sentenced
Johnson to a total of 233 months imprisonment.         In
determining Johnson’s sentence for the armed robbery, the
district court gave him a two-level enhancement for
causing bodily injury that required medical attention
because the court found that he had repeatedly raped the
female robbery victim. See U.S.S.G. § 2B3.1(b)(3)(A).
The sentence for armed robbery also included a two-level
reduction for acceptance of responsibility. See U.S.S.G.
§ 3E1.1(a).    Johnson had no previous criminal record,
making his guideline sentence for the armed robbery
forty-one months. The district court sentenced Johnson
to an additional 120 months to run consecutively for his
use of a sawed-off shotgun in relation to a crime of
violence under 18 U.S.C. § 924(c)(1). Further, based on
the victim’s testimony as to the rape, the court granted
a seventy-two month upward departure because the court
found that Johnson’s conduct was unusually heinous,
cruel, brutal, or degrading to the victim under section
5K2.8 and that the victim suffered serious psychological
injury under section 5K2.3.

    Johnson challenges his sentence on several grounds.
First, he contends that there was insufficient evidence
of the rape to support the two-level enhancement.      We
disagree.   At the sentencing hearing, the rape victim
testified that Johnson ordered her and a male employee at
gunpoint to undress and lie down.     He then repeatedly
attempted to penetrate the female victim and forced her
to perform oral sex on him. Johnson held a shotgun in
his hand at all times and he threatened to kill both of

                           11
the victims if they called the police.      The defense
argued that the rape victim’s testimony was inconsistent
with the physical evidence, which revealed no semen or
hair at the scene or on the victim’s person.     Johnson
also points out that the victim’s medical reports
indicated no sign of physical trauma or other distress.
The district court credited the rape victim’s testimony,
which was consistent with the medical records to the
extent that she testified that Johnson did not cause any
physical injury, but rather physical discomfort and
emotional trauma.     In light of the rape victim’s
testimony and




                           12
the district court’s credibility determination, we do not
believe that it was clearly erroneous for the district
court to have determined that the government established
the rape by a preponderance of evidence.       See United
States v. Johnson, 962 F.2d 1308, 1313 (8th Cir. 1992)
(sentencing factors require only proof by a preponderance
of the evidence); United States v. Betz, 82 F.3d 205, 210
(8th Cir. 1996) (factual basis for enhancements reviewed
for clear error).

    Johnson also challenges the sufficiency of the
evidence for the upward departure. He argues that the
departure, even if supported by the evidence, relies on
the same factors used to support the two-level
enhancement. Without addressing Johnson’s claim, we must
reverse the court’s decision to depart because Johnson
never received proper notice that it was going to
consider the departure.   As the Supreme Court held in
Burns v. United States, 501 U.S. 129, 138 (1991):

    [B]efore a district court can depart upward on a
    ground not identified as a ground for upward
    departure either in the presentence report or in
    a prehearing submission by the Government, Rule
    32 [of the Federal Rules of Criminal Procedure]
    requires that the district court give the
    parties    reasonable   notice    that   it   is
    contemplating such a ruling.


Id. In this case, the presentence report detailed the
facts of the alleged rape and the impact that it had on
the victim.   It recommended the two-level enhancement
under section 2B3.1, but explicitly stated that there
were no factors to warrant departure.    The government


                           13
concedes that prior to the sentencing hearing, Johnson
was not given any notice of the possibility of an upward
departure. In fact, the possibility was not even brought
up at the hearing until just before the court pronounced
the sentence.4 As we




      4
        The government contends that Johnson did not object to the lack of notice at the
sentencing hearing and that therefore we must review for plain error. The defendant,
however, objected to the upward departure generally. We believe this objection
sufficiently called the error to the court’s attention and preserved the issue for appeal.
(See Sentencing Hr’g Tr. at 68.)
                                           14
recognized under similar circumstances in United States
v. LeCompte, 99 F.3d 274, 280 (8th Cir. 1996), the
defendant is entitled to notice prior to the sentencing
hearing of fact-intensive inquiries such as whether the
victim suffered extreme psychological injury or whether
the conduct was particularly heinous. Johnson was given
no notice whatsoever.

                          III.

    Accordingly, we affirm Johnson’s convictions, vacate
the seventy-two month sentencing departure, and remand to
the district court for resentencing consistent with this
opinion.

    A true copy.

        Attest.

             CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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