                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4047


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

WINSTON SYLVESTER OLIVER, II,

                Defendant - Appellant.



                             No. 12-4052


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

WARREN HAROLD BROWN,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, District
Judge. (3:11-cr-00063-JRS-2; 3:11-cr-00063-JRS-1)


Argued:   February 1, 2013                 Decided:   March 8, 2013


Before WILKINSON and FLOYD, Circuit Judges, and Joseph R.
GOODWIN, United States District Judge for the Southern District
of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.


ARGUED: Christopher J. Collins, Richmond, Virginia; Mark Bodner,
Fairfax, Virginia, for Appellants. Erik Sean Siebert, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Neil H. MacBride, Alexandria, Virginia, Roderick C.
Young, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Winston Sylvester Oliver, II and Warren Harold Brown were

tried jointly and convicted in the Eastern District of Virginia

for one count of conspiracy to commit robbery under 18 U.S.C. §

1951(a) (2006), one count of attempt to commit robbery under 18

U.S.C. §§ 2, 1951(a), and two counts of using or carrying a

firearm    in    furtherance     of    a    crime    of   violence,     18   U.S.C.    §

924(c).    On appeal, Oliver argues that the district court abused

its discretion in denying his motion to sever his trial from

Brown’s, Brown argues that the district court erred in denying

his   motion     to    suppress,      and   both     appellants   argue      that   the

district court erred in denying their joint motion to dismiss

one of the two § 924(c) charges.                   We have jurisdiction pursuant

to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.                     As explained below,

we reject the appellants’ challenges and affirm.


                                            I.

      First, Oliver argues that the district court abused its

discretion      in     denying   his       motion    to   sever   his    trial      from

Brown’s.


                                            A.

      We review a district court’s ruling on a motion to sever

for   abuse     of    discretion,     and    its    factual   findings       for   clear

error.     United States v. Hornsby, 666 F.3d 296, 308 (4th Cir.

                                             3
2012);    United    States    v.    Shores,      33    F.3d      438,    442    (4th    Cir.

1994).     It is well-settled in this circuit that “[g]enerally,

individuals indicted together should be tried together.”                           United

States v. Khan, 461 F.3d 477, 490-91 (4th Cir. 2006) (quoting

United States v. Strickland, 245 F.3d 368, 384 (4th Cir. 2001)).

A defendant must “show that he was prejudiced by the denial of a

severance motion in order to establish that the district court

abused its broad discretion in that regard.”                         United States v.

Lighty, 616 F.3d 321, 348 (4th Cir. 2010).

        “[S]everance is required to preserve [a] defendant’s Sixth

Amendment right to confront his accusers” when a non-testifying

codefendant’s       statement       “clearly         implicates”        the     defendant.

United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999).

However, only statements that facially incriminate the defendant

violate     the     Confrontation       Clause          and      require        severance;

statements that incriminate the defendant only when linked with

other     evidence     introduced       at       trial     do      not     violate      the

Confrontation      Clause     and   therefore         do   not    require       severance.

Richardson    v.     Marsh,   481    U.S.       200,    208-11     (1987);       see    also

Akinkoye, 185 F.3d at 198; Lighty, 616 F.3d at 376-77.                            We have

upheld    statements    that       replaced      a    defendant’s        name    with    the

terms “client” or “driver” because the use of those terms did

not facially incriminate the defendant, even if the statement

implicated    the     defendant      when       combined      with      other    evidence

                                            4
introduced at trial.          See United States v. Vogt, 910 F.2d 1184,

1191-92 (4th Cir. 1990); United States v. Glisson, 460 F. App’x

259, 263 (4th Cir. 2012).           We have also upheld statements that

were “[w]ritten in the third person and in grammatically correct

phrases”      and   which   “referred        generally    and   without   facial

incrimination to some number of individuals who could, or could

not, be the other defendants.”               United States v. Min, 704 F.3d

314, 321 & n.5 (4th Cir. 2013).



                                        B.

      In this case, Brown’s statement was redacted by replacing

Oliver’s name with the term “the driver.”                For instance, part of

the statement read:

      The driver planned the armed robbery and had directed
      Brown regarding what to do.     When asked for further
      clarification, Brown stated the driver planned the
      entire armed robbery . . . Brown stated that the
      driver provided the handgun used to commit the armed
      robbery. Brown stated the last time he had seen this
      handgun, he had left it on the back seat of the
      driver’s vehicle.    Brown stated that the driver did
      not tell him, Brown, who the handgun belonged to and
      Brown did not ask any questions about the gun.

J.A. 384.      First, it is clear that the statement was written in

the   third    person   and    in   grammatically        correct   phrases;   the

replacement of Oliver’s name with “the driver” did not result in

any obvious indication of deletion.               See Min, 704 F.3d at 321.

Moreover, both of Oliver’s arguments are based on the fact that


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the prosecution admitted other evidence identifying Oliver as

the driver.      The redacted statement, standing alone, did not

facially incriminate Oliver.           Under the standards set forth by

the Supreme Court and our prior decisions, Brown’s statement as

redacted did not violate the Confrontation Clause.                   Accordingly,

we conclude that the district court did not abuse its discretion

in denying Oliver’s motion to sever.


                                       II.

     Second,     Brown   argues      that    the    district   court      erred   in

denying   his   motion       to   suppress    his     statements     to   Detective

Ellett and Special Agent Umphlet.


                                        A.

     In   reviewing      a    motion    to    suppress,      “[w]e    review      the

district court’s legal determinations de novo and its factual

determinations for clear error.”               United States v. Kelly, 592

F.3d 586, 589 (4th Cir. 2010).               When a district court denies a

motion to suppress, “we construe the evidence in the light most

favorable to the government.”           Id.     We also “particularly defer

to a district court’s credibility determinations, for it is the

role of the district court to observe witnesses and weigh their

credibility     during   a    pre-trial      motion    to   suppress.”       United

States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal

quotation marks omitted).

                                        6
     Once an officer has given a suspect Miranda warnings, “[i]f

the individual indicates in any manner, at any time prior to or

during    questioning,      that   he     wishes    to   remain     silent,    the

interrogation must cease.”              Miranda v. Arizona, 384 U.S. 436,

473-74 (1966).         The Supreme Court has made it abundantly clear

that if a suspect has invoked his right to remain silent and has

requested an attorney, he may not be “subject[ed] to further

interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further

communication,     exchanges,      or    conversations      with    the   police.”

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).


                                         B.

     Viewing the evidence in the light most favorable to the

Government, we conclude that the district court did not err in

denying Brown’s motion to suppress his incriminating statements.

Both Detective Ellett and Special Agent Umphlet followed proper

procedures in obtaining Miranda waivers from Brown. None of the

actions    taken   by    either    Detective       Ellett   or     Special    Agent

Umphlet prior to obtaining the waivers can reasonably be deemed

functional equivalents of interrogation.                 See United States v.

Blake,    571   F.3d    331,   340-41     (4th   Cir.    2009)     (finding   that

providing a statement of charges to custodial suspect who had




                                          7
previously     invoked     his     right      to     counsel      is     not     functional

equivalent of interrogation).

       Finally,   the     Supreme        Court’s         decision        in     Montejo        v.

Louisiana disposes of Brown’s Sixth Amendment argument.                                    556

U.S.    778,   786-87     (2009)       (holding      a    defendant’s           knowing    and

intelligent     waiver    of   his      Miranda      rights       also     operates       as    a

knowing and intelligent waiver of his Sixth Amendment right to

counsel).      Accordingly, we conclude that the district court did

not err in denying Brown’s motion to suppress his incriminating

statements.


                                          III.

       Finally,   both    Oliver       and    Brown      argue      that      the    district

court erred in denying their joint motion to dismiss one of the

two § 924(c) charges.


                                             A.

       We review Double Jeopardy determinations de novo.                                United

States v. Goodine, 400 F.3d 202, 206 (4th Cir. 2005).                                      The

Double     Jeopardy     Clause     protects          a    defendant           against     “the

imposition of cumulative punishments for the same offense in a

single     criminal     trial”     and       “being      subjected         to    successive

prosecutions for the same offense.”                       Id. (internal quotation

marks    and   emphasis    omitted).              Charging    a     single       offense       in

multiple    counts    exposes      a    defendant        to   the    risk       of   multiple

                                             8
punishments          for        the     same        offense,      and     is     therefore

unconstitutional.           Id. at 207.

     18 U.S.C. § 924(c) punishes the use or carry of a firearm

during and in relation to a crime of violence.                          “A defendant who

has ‘used’ or ‘carried’ a firearm on several separate occasions

during the course of a single continuing offense . . . has

committed several section 924(c)(1) offenses.”                          United States v.

Camps,    32        F.3d    102,      107   (4th      Cir.     1994).      Additionally,

“convictions         for    separate        crimes      of     violence   can        lead   to

multiple sentences under § 924(c).”                     United States v. Khan, 461

F.3d 477, 493 (4th Cir. 2006).                      Consecutive § 924(c) sentences

violate       the    Double      Jeopardy      Clause    only     if    “the    underlying

crimes are . . . identical under the [Blockburger v. United

States, 284 U.S. 299 (1932)] analysis.”                      Id. at 494.


                                               B.

     Here, it is clear that the Double Jeopardy Clause does not

bar multiple charges under § 924(c).                         First, Oliver and Brown

were charged with two separate crimes of violence: conspiracy to

commit robbery and attempt to commit robbery.                           Conspiracy is a

separate crime from the underlying crime.                        See United States v.

Ayala, 601 F.3d 256, 267 (4th Cir. 2010) (“[A] conspiracy is

itself    a    crime       of   violence       when    its   objectives        are    violent

crimes.”) (internal quotation marks omitted).


                                                9
      Second, Brown used the handgun three times in relation to

the attempted robbery and in furtherance of the conspiracy. He

(1) brandished the handgun at Conrad; (2) brandished and fired

the handgun at Miss; and (3) fired the handgun at and shot

Edmond.

      Finally, with respect to Oliver, we have held that “[t]he

[Pinkerton v. United States, 328 U.S. 640 (1946)] doctrine makes

a   person   liable   for   substantive   offenses   committed   by   a   co-

conspirator when their commission is reasonably foreseeable and

in furtherance of the conspiracy.”         United States v. Ashley, 606

F.3d 135, 142-43 (4th Cir. 2010).          Use of the handgun by Brown

was clearly in furtherance of the conspiracy to commit robbery,

and was clearly foreseeable to Oliver in this case.

      Accordingly, we conclude that the district court did not

err in denying Oliver and Brown’s joint motion to dismiss one of

the two § 924(c) charges against them.


                                    IV.

      For the reasons explained above, we affirm the judgment of

the district court.

                                                                  AFFIRMED




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