                       United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2798
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Robert Lee Phillips,                     *
                                         *    [PUBLISHED]
      Defendant - Appellant.             *
                                    ___________

                               Submitted: June 11, 2007
                                  Filed: October 29, 2007
                                   ___________

Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.
                              ___________

PER CURIAM.

      Robert Lee Phillips was arrested after a shooting at the Brown Sugar Club in
Altheimer, Arkansas. He made inculpatory statements during two police interviews
conducted many hours after the arrest. Phillips was charged with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Following an
evidentiary hearing, the district court1 denied Phillips’s motion to suppress the


      1
        The HONORABLE GEORGE HOWARD, JR., United States District Judge
for the Eastern District of Arkansas, now deceased, adopting the Proposed Findings
and Recommendations of the HONORABLE JERRY W. CAVANEAU, United States
Magistrate Judge for the Eastern District of Arkansas.
statements, rejecting the contention that his waiver of Miranda rights was not knowing
and intelligent because he was intoxicated from ecstasy and brandy consumed prior
to his arrest. Phillips appeals his conviction and 110-month sentence, challenging the
denial of his motion to suppress and the district court’s determination of his advisory
guidelines sentencing range. We affirm.

                              I. The Suppression Issue

       Officers dispatched to investigate the shooting were told to watch for a certain
car. They stopped that vehicle after a high-speed chase at 12:53 a.m. and arrested the
four occupants, including Phillips, who matched a description of the shooter. At 6:45
that morning, Investigator Gary Young awakened Phillips for an interview. Young
began the interview by having Phillips read and sign a Miranda waiver form. Phillips
then admitted that he went to the Brown Sugar Club with a handgun and fired the gun
into the air. He provided a description of the handgun. After Young reduced
Phillips’s statement to writing, Phillips read and initialed each page. At 2:35 p.m. the
following day, more than thirty-six hours after the arrests, Young conducted a second,
audio-taped interview after officers learned that Phillips had prior felony convictions
and found the handgun he described along a highway near where the shooting
occurred. Again, Young advised Phillips of his Miranda rights, and Phillips signed
a waiver form. Again, Phillips made incriminating statements.

        At the suppression hearing, the officers present during and after the arrests
testified that Phillips followed their directions, talked normally, denied knowing about
the shooting, and showed no signs of intoxication or drug impairment. Investigator
Young testified that Phillips appeared lucid and not intoxicated at each interview.
Phillips appeared to understand his rights when he signed the waiver forms and when
he initialed the written statement at the end of the first interview. Young noted that,
while Phillips made incriminating statements regarding the felon-in-possession
charge, he evidenced a “selective memory” whenever Young asked questions about

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the shooting. Phillips testified that he took four ecstasy pills and drank a large cup of
brandy in the hours before his arrest, that four ecstasy pills was an unusually large
dose for him, and that he had no recollection of events after he arrived at the Brown
Sugar Club, including the two interviews by Investigator Young many hours later.
Indeed, Phillips testified, the large dose of ecstacy caused him to sleep “about four
days” without eating or using the restroom. Based on this testimony, Phillips argued
to the district court and on appeal that he did not knowingly waive the rights protected
by Miranda warnings when he signed waiver forms at the start of the interviews. We
review the district court’s factual findings for clear error and its ultimate conclusion
that Phillips’s waiver was knowing and intelligent de novo. United States v.
Garlewicz, 493 F.3d 933, 935 (8th Cir. 2007). The court’s decisions as to witness
credibility “can almost never be clear error.” United States v. Contreras, 372 F.3d
974, 977 (8th Cir. 2004) (quotation omitted), cert. denied, 546 U.S. 902 (2005).

       A criminal suspect may waive the constitutional rights protected by Miranda
v. Arizona, 384 U.S. 436 (1966). But the waiver must be voluntary, knowing, and
intelligent, that is, it must be “the product of a free and deliberate choice rather than
intimidation, coercion, or deception,” and the suspect must have a “full awareness of
both the nature of the right being abandoned and the consequences of the decision to
abandon it.” United States v. Jones, 23 F.3d 1307, 1313 (8th Cir. 1994), quoting
Moran v. Burbine, 475 U.S. 412, 421 (1986). Here, as Phillips does not claim that he
was intimidated, coerced, or deceived, the question is whether he sufficiently
understood the nature and consequences of his waivers.

       To determine whether Phillips was “sober and in control of his faculties” at the
time of his inculpatory statements, the district court had to weigh the credibility of
Phillips, Investigator Young, and the police officers present during and after Phillips’s
arrest. See Contreras, 372 F.3d at 977. The court found that Phillips’s testimony at
the suppression hearing that he was drug impaired and therefore could not remember
waiving his Miranda rights at interviews conducted six and thirty-eight hours after his

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arrest was simply incredible. The court found that this testimony was implausible
because thirty-eight hours “was surely adequate time for any impairment to dissipate,”
and because the testimony contradicted prior statements in which Phillips was able to
recall what happened on the night in question. Instead, the court believed the
testimony of the officers who arrested and interviewed Phillips that he was lucid and
cooperative and did not appear to be so intoxicated that he was unaware of his rights
and the consequences of waiving those rights. These findings are not clearly
erroneous. See United States v. Turner, 157 F.3d 552, 555-56 (8th Cir. 1998). The
motion to suppress was properly denied.

                                II. Sentencing Issues

       Adopting the recommendations of the Presentence Investigation Report, the
district court determined an advisory guidelines sentencing range of 110 to 120
months in prison and sentenced Phillips to 110 months, the bottom of that range. On
appeal, Phillips raises two sentencing issues. First, he argues that the district court
committed impermissible double counting when it used his two prior violent felony
convictions to increase both his base offense level under U.S.S.G. § 2K2.1(a)(2) and
his criminal history points under U.S.S.G. § 4A1.1(a). We disagree. “Double
counting is permissible if the Sentencing Commission intended that result and each
section concerns conceptually separate notions relating to sentencing.” United States
v. Rohwedder, 243 F.3d 423, 427 (8th Cir. 2001). The Guidelines in effect when
Phillips committed this offense expressly provided that “[p]rior felony conviction(s)
resulting in an increased base offense level under [§ 2K2.1(a)(2)] are also counted for
purposes of determining criminal history points pursuant to Chapter Four, Part A
(Criminal History).” U.S.S.G. § 2K2.1, comment. (n.15) (Nov. 2003), now U.S.S.G.
§ 2K2.1, comment. (n.10). These base offense level and criminal history provisions
address conceptually separate sentencing notions. One addresses the gravity of the
particular offense. The other addresses the need to deter future criminal activity by



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this defendant. See United States v. Wyckoff, 918 F.2d 925, 927 (11th Cir. 1990).
Thus, the district court did not engage in impermissible double counting.

       Second, Phillips argues that the district court violated the Sixth Amendment as
construed in United States v. Booker, 543 U.S. 220 (2005), and in Apprendi v. New
Jersey, 530 U.S. 466 (2000), by imposing a four-level enhancement for use of a
firearm in connection with another felony offense without submitting that issue to the
jury. See U.S.S.G. § 2K2.1(b)(5) (Nov. 2003), now U.S.S.G. § 2K2.1(b)(6). This
contention is without merit. Because the sentencing guidelines are advisory under
Booker, enhancements to the advisory guidelines range may be based upon facts
found by the sentencing court by a preponderance of the evidence. See, e.g., United
States v. Pirani, 406 F.3d 543, 551 & n.4 (8th Cir.) (en banc), cert. denied, 546 U.S.
909 (2005). When the proposed enhancement is based upon an offense for which
there was no prior conviction, as in this case, “the government must prove at
sentencing (by a preponderance of the evidence) that the defendant committed it.”
United States v. Raglin, No. 06-3432, slip op. at 3 (8th Cir. Sept. 4, 2007). Here,
Phillips does not challenge the district court’s finding that he committed the prior
offense in question. Accordingly, the enhancement was proper.

      The judgment of the district court is affirmed.
                            ____________________




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