                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                                July 28, 2005
                              No. 04-14381
                                                          THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                     D. C. Docket No. 04-00033-CR-RV

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JAMES LEE RUSH,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________

                               (July 28, 2005)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     James Lee Rush was convicted of one count of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1), and one count of possession

of a firearm while subject to a court-issued restraining order, in violation of 18

U.S.C. § 922(g)(8). The district court sentenced him to forty-two months

imprisonment. Rush appeals both his conviction and his sentence.

                                           I.

      Rush challenges his conviction on the ground that the district court erred by

admitting incriminating statements he had made to Craig Roegner, a Special Agent

for the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Rush argues that

the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86

S. Ct. 1602 (1966), because the waiver he gave was not made voluntarily,

knowingly, and intelligently. He further argues that the statements themselves

were not made voluntarily. He also asserts that his Sixth Amendment rights were

violated because he did not freely and voluntarily consent to being questioned

without an attorney.

      The district court found that Rush’s statements to Agent Roegner were made

knowingly and voluntarily, and that the statements were made in compliance with

all the requirements of the law. As a result, the district court permitted Roegner to

testify about those statements.

      “A district court’s ruling on a motion to suppress presents mixed questions



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of law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748–49 (11th Cir.

2002). This Court must “accept the district court’s factual findings as true unless

they are clearly erroneous, but the district court’s application of the law to the facts

is reviewed de novo.” Id. at 749 (quotation omitted).

       Under Miranda, before beginning a custodial interrogation, law enforcement

officers must warn the subject that he has the right to remain silent and the right to

have an attorney present during questioning. 384 U.S. at 444, 86 S. Ct. at 1612.

An individual can effectively waive his Miranda rights if the waiver is given

“voluntarily, knowingly and intelligently.” Id. “[I]f the totality of the

circumstances surrounding the interrogation reveal both an uncoerced choice and

the requisite level of comprehension, . . . a court [may] properly conclude that the

Miranda rights have been waived.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.

Ct. 1135, 1141 (1986).1

       Once the Miranda waiver determination has been made, we must determine

whether the statement itself was made voluntarily. See United States v. Jones, 32

F.3d 1512, 1516 (11th Cir. 1994). “The determination of whether a [statement] is



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         In this case, Rush’s waiver of counsel was in regard only to Agent Roegner’s
questioning. Furthermore, Rush does not assert that he requested counsel at any point during
questioning. As a result, whether Rush’s Sixth Amendment right to counsel was violated
depends on whether his Miranda waiver was validly obtained. See Patterson v. Illinois, 487 U.S.
285, 293, 108 S. Ct. 2389, 2395 (1988).

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voluntary depends on whether, under all of the surrounding circumstances, the

statement was the product of the accused’s ‘free and rational’ choice.” Id.

Conduct sufficient to render a statement involuntary “normally involves subjecting

the accused to an exhaustingly long interrogation, the application of physical force

or the threat to do so, or the making of a promise that induces a confession.” Id. at

1517 (quoting United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.

1988)).

      The circumstances surrounding Rush’s statements to Agent Roegner are as

follows. Rush was taken into custody after police officers found that he was

illegally in possession of a gun. According to Roegner’s testimony, once he

arrived at the police station to interview Rush, Rush began complaining of chest

pains. Rush was then immediately taken to a hospital. Roegner accompanied him

to the hospital. Rush was treated in a private room in the hospital’s emergency

room, where he was handcuffed to the hospital bed.

      After Rush was in the hospital for approximately two hours, Agent Roegner

was cleared by the doctor to speak to him. Roegner spoke with the doctor and

made sure that Rush was not under any kind of narcotic or pain medication.

Roegner specifically asked the doctor whether Rush was given any kind of

medication that might affect his ability to think or reason. According to Roegner,



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the doctor responded that the only thing Rush had been administered was an IV

drip (the record does not reflect what was in the drip). Roegner also asked the

doctor if Rush was suffering from a heart attack or some other similar condition, to

which the doctor responded that Rush was not. Roegner further testified that Rush

did not appear impaired by any drugs, nor was he complaining of chest pains as he

had been earlier at the police station.

      At that point, Agent Roegner read Rush his Miranda rights from the

Pensacola Police Department’s standard waiver of rights form. Rush, a high

school graduate who had been involved in at least thirteen previous offenses, then

signed the waiver. With the waiver in hand, Roegner began questioning Rush.

The initial questioning went on for approximately fifteen minutes, at which time

they took a short break. The questioning then continued for another fifteen to

twenty minutes. The entire session lasted for approximately forty to forty-five

minutes. Though various medical tests were being performed on Rush while he

was being questioned, Roegner testified that Rush did not appear to be

experiencing any pain or discomfort during the interview.

      At no point did Rush ask Agent Roegner to stop questioning him. In fact,

according to Roegner, Rush said that he wanted to speak to Roegner. Furthermore,

Rush never asked to have an attorney present.



                                          5
      Given this testimony, the district court did not err in finding that Rush

voluntarily, knowingly, and intelligently waived his Miranda rights. Nor did the

district court err in finding that Rush’s statement to Agent Roegner was given

voluntarily. See Jones, 32 F.3d at 1517.

                                           II.

      Rush challenges his sentence on the grounds that it was imposed in violation

of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), because his

sentence was increased under a mandatory guidelines system based on facts that

were neither found by a jury nor admitted by him.

      Because Rush raised this argument before the district court, albeit in the

form of a challenge based on Blakely v. Washington, 542 U.S. ___, 124 S. Ct.

2531 (2004), our review is de novo. See United States v. Robles, 408 F.3d 1324,

2005 WL 1083487, *3 (11th Cir. May 10, 2005). Neither party disputes that the

district court committed a Booker constitutional error in sentencing Rush. As a

result, we will reverse the district court unless the government carries its burden of

demonstrating that the error was harmless. United States v. Paz, 405 F.3d 946, 948

(11th Cir. 2005).

      “To find harmless error, we must determine that the error did not affect the

substantial rights of the parties. A constitutional error, such as a Booker error,



                                           6
must be disregarded as not affecting substantial rights if the error is harmless

beyond a reasonable doubt. This standard is only met where it is clear beyond a

reasonable doubt that the error complained of did not contribute to the sentence

obtained.” Id. (quotations, marks, and citations omitted).

      Before announcing Rush’s sentence, the district court noted that the

guidelines range that Rush received for this offense, thirty-seven to forty-six

months, “is a relatively low guideline” range “for this serious offense.” The court

also recognized the uncertainty brought about by the Supreme Court’s decision in

Blakely and commented on the flexibility of the guidelines, even as they were

written at that time.

       Just after pronouncing Rush’s forty-two month sentence, the district court

made the following statement:

             This sentence is near the mid point of the guideline range and takes
      into account all of the various factors that are identified in the policy
      statements, as well as the guidelines themselves, and what I think reflects an
      appropriate punishment under the total circumstances.

             I find that the sentence meets the sentencing goals of punishment, as
      well as specific and general deterrence, all of which are sentencing goals.

             And in making my decision, I have considered all the factors set out
      by statute in Section 3553(a) of Title 18, United States Code, as well as the
      policy statements and guidelines from the Sentencing Commission.




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      Although the district court did give some indication that Rush’s sentence

was appropriate, we cannot say that it is “clear beyond a reasonable doubt” that the

district court would not have given Rush a lesser sentence had it been operating

under an advisory guidelines scheme. Merely expressing approval of sentence

produced by a mandatory guidelines system does not settle beyond a reasonable

doubt whether a district court would have given a defendant a lesser sentence

under an advisory regime. Cf. Robles, 403 F.3d at ___, 2005 WL 1083487, at *3

(finding a Booker constitutional error harmless beyond a reasonable doubt where

the district court judge expressly stated that it would impose the same sentence had

the guidelines been advisory rather than mandatory). As a result, the government

has not met its difficult burden of demonstrating that the Booker constitutional

error was harmless beyond a reasonable doubt.

                                         III.

      Based on the foregoing, Rush’s conviction is AFFIRMED. His sentence is

VACATED and the case is REMANDED for resentencing.




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