                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3472
                                   ___________

United States of America,            *
                                     *
             Appellee,               *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the
Earnest Jesse Richardson, also       * District of Minnesota.
known as Ernest Jesse Richardson,    *
also known as Torrence C. Epps,      * [PUBLISHED]
                                     *
             Appellant.              *
                                     *
                                ___________

                             Submitted: June 23, 2005
                                Filed: November 4, 2005
                                 ___________

Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       Earnest Jesse Richardson was convicted following a jury trial on two counts:
being a felon in possession of a firearm and being a drug user or addict in possession
of a firearm. He was sentenced to 103 months’ imprisonment on each count, to be
served concurrently. On appeal, Richardson (1) challenges the district court’s1


      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
decision not to suppress evidence and statements; (2) claims his counsel was
ineffective; and (3) claims that his sentence improperly imposed penalties on
multiplicitous counts, pursuant to an unconstitutional guidelines scheme.2 We affirm.

                                 BACKGROUND

       On September 18, 2002, at approximately 10:00 a.m., two Minneapolis Police
officers, Corporal Francisco Javier Porras and Officer Laura Hanks, were patrolling
a neighborhood in North Minneapolis. As the officers drove down Hillside Avenue
in their marked squad car, they saw a group of three men, including Richardson,
gathered on the corner a block away. When the men saw the squad car, they split up,
each walking in a different direction. The officers followed Richardson, who
repeatedly looked back at the squad car as he walked up Illion Avenue. He entered
the enclosed porch of a residence and knocked on the door. The officers stopped
their car across the street from the house, and Officer Hanks partially exited the
passenger side of the squad car and called to Richardson over the vehicle. At the
time, she was separated from Richardson by the car, street, and sidewalk. Corporal
Porras remained in the vehicle.

       Officer Hanks asked Richardson if he knew who lived in the house, and
Richardson responded that he had not done anything wrong. He then left the porch.
Corporal Porras, who was still sitting in the squad car, shouted to Richardson and
asked whether he knew the people that lived in the house. Richardson did not
respond. Officer Hanks asked Richardson if they could talk to him. Richardson
repeated that he had not done anything wrong and then sprinted between the houses
into the alley.



      2
       Richardson does not challenge the sufficiency of the evidence on either count.


                                        -2-
      Officer Hanks chased Richardson on foot while Corporal Porras followed in
the squad car. Porras saw Richardson jump over a chain link fence. While
attempting to intercept Richardson, Porras crashed the squad car, which Richardson
bolted around. A probation officer in the area, Joseph Longueville, saw Richardson
running toward him and moved to intercept him. At this point, Richardson
surrendered to the officers, and was placed in the back of the crashed squad car.

       Officer Hanks and another officer searched for contraband on the Illion Avenue
porch Richardson had entered earlier, as well as in the yard of the residence, but did
not find anything. Corporal Porras then searched the area near the yard of 1561
Hillside Avenue, a nearby residence, and found a wallet containing crack cocaine and
Richardson’s identification, as well as a firearm near the rear steps of the house.

       With Richardson in the back of the squad car, the officers drove back to where
the items had been recovered to verify the addresses involved in Richardson’s attempt
to flee. While parked in front of 1561 Hillside Avenue, Richardson allegedly said
without prompting that he was responsible for the drugs but not the gun. He had not
received a Miranda3 warning at the time. The next day, Richardson met with Sergeant
Granroos, who advised Richardson of his Miranda rights. Richardson waived his
rights and repeated the statements he had made the previous day, indicating that he
was responsible for the drugs but not the gun.

      Charges were filed against Richardson in state court. Richardson claimed that
he had been illegally seized prior to his flight from the police, and moved to have the
subsequently discovered evidence and statements suppressed. Ronnaye Riggins, the
resident of the house whose porch Richardson entered, testified that he was a friend
of Richardson’s and that Richardson was a frequent guest at the house. On
February 4, 2003, the state district court concluded that Richardson was illegally


      3
       Miranda v. Arizona, 384 U.S. 436 (1968).

                                         -3-
seized during his pre-flight encounter with the police, and granted the defendant’s
motion to suppress.

         On March 11, 2003, a federal grand jury returned a two-count indictment
charging the defendant with being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1), and being a drug user or addict in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(3). Richardson again moved to suppress the evidence
and statements because he claimed his pre-flight encounter with the police was an
illegal seizure. He also argued that the federal court was bound by the state court’s
determination that he was illegally seized. The magistrate judge rejected these
arguments and recommended denying the motions to suppress; the Report and
Recommendation was adopted in its entirety by the district court. Two weeks later,
Richardson failed to appear for a mandatory drug test, a condition of his pretrial
release. He also failed to appear for his trial on July 21, 2003, and a warrant was
issued for his arrest. On December 10, 2003, Richardson was apprehended after
making a wrong turn down a one-way street in front of a police officer. When he was
searched, officers found crack cocaine and a crack pipe.

       At trial, Richardson stipulated that he was a felon, but did not stipulate as to
his status as a drug user or addict. The prosecution offered evidence that the
fingerprint of Richardson’s left ring finger was found on the gun recovered by
officers following Richardson’s flight. The jury convicted Richardson on both counts
of the indictment.

       At sentencing, Richardson argued, based on the recently issued Blakely4
opinion, that the guidelines were unconstitutional. The district court found that
Richardson had a criminal history category of V and that his total offense level was
24, resulting in a guidelines range of 92 to 115 months. The judge stated that his


      4
       United States v. Blakely, 542 U.S. 296 (2004).

                                         -4-
sentence would be unaltered if the guidelines were not mandatory. He then sentenced
Richardson to 103 months on each count, to be served concurrently, with three years
supervised release, and a mandatory special assessment of $100 for each count.

       Richardson appeals to this Court claiming that: (1) his initial encounter with
the police was an illegal seizure and that all evidence subsequently obtained should
have been suppressed; (2) his statements made in custody should also be suppressed;
(3) evidence regarding Richardson’s failure to meet the conditions of his release was
irrelevant and should not have been presented to the jury; (4) he was denied effective
assistance of counsel; (5) his drug use and status as a felon should have been merged
for sentencing purposes; and (6) the case should be remanded for resentencing in light
of Booker.

                                    ANALYSIS

I. Illegal Seizure

       The Fourth Amendment protects against unreasonable searches and seizures.
Not every encounter between a police officer and a citizen is an unreasonable seizure
under the Fourth Amendment. A seizure has occurred “[o]nly when the officer, by
means of physical force or show of authority, has in some way restrained the liberty
of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “[M]ere police questioning
does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434 (1991). “‘[L]aw
enforcement officers do not violate the Fourth Amendment by merely approaching
an individual on the street or in another public place, by asking him if he is willing
to answer some questions.’” Id. (quoting Florida v. Royer, 460 U.S. 491, 497
(1983)). The court determines whether an encounter constitutes a detention or seizure
by determining whether, taking into account all the circumstances of the encounter,
the police conduct would have communicated to a reasonable person that he was not



                                         -5-
free to “‘ignore the police presence and go about his business.’” Id. at 473 (quoting
Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).

       Applying these principles to Richardson’s initial encounter with the officers,
Richardson was not seized at that time. The officers’ squad car stopped on the
opposite side of the street. One officer stepped out of the vehicle and called to
Richardson from over the top of the squad car. Neither officer displayed a weapon,
threatened physical force, or told Richardson to stop. They asked whether
Richardson knew who lived in the house, and whether they could talk to him. These
circumstances simply do not amount to a seizure under our circuit’s precedent. The
officers’ attempt to apprehend Richardson during his flight also did not amount to a
seizure. California v. Hodari D., 499 U.S. 621, 629 (1991) (holding that a suspect
who fled a police car was not seized when the police gave chase or shouted to him to
stop, but only when the police actually captured and restrained him). Thus,
Richardson had not been seized by the time he lost possession of his identification
and contraband.

       Richardson further argues that his Fourth Amendment rights were violated by
the search that resulted in the discovery of the firearm and crack cocaine while he was
detained in the squad car. The district court held that Richardson had abandoned
those objects, and any expectation of privacy he maintained in the items was lost.
United States v. Chandler, 197 F.3d 1198, 1200 (8th Cir. 1999); see also United
States v. Davis, 103 F.3d 660, 671-72 (8th Cir. 1996) (recognizing that property may
be considered abandoned where it is discarded or disowned). We review that
decision for clear error, United States v. Segars, 31 F.3d 655, 658 (8th Cir. 1994), and
find none. Accordingly, we affirm the district court’s denial of Richardson’s motion
to suppress.




                                          -6-
II. Statements Made in Custody

       Richardson argues for the first time on appeal that his statements while in the
squad car should have been suppressed because he had not been advised of his
Miranda rights. Voluntary statements that are not the product of police questioning
or police action likely to produce an incriminating response are admissible. United
States v. McCoy, 200 F.3d 582, 584 (8th Cir. 2000). Whether specific conduct is
designed to produce an incriminating response is determined from the perspective of
the suspect, without regard for the actual intent of the police. We have held that a
factual description of the state of an investigation, without additional questioning or
coercion, is not an interrogation. See United States v. Allen, 247 F.3d 741, 765 (8th
Cir. 2001) (reversed on other grounds) (holding that informing a suspect that he had
been identified in a lineup was not in itself an interrogation).


      Richardson’s interaction with the officers in the squad car was not the
functional equivalent of an interrogation because the officers were discussing the
evidence between themselves and did not elicit any information from Richardson.
Nor were the officers applying any indirect emotional pressure on Richardson to talk.
The words and actions of the police officers were not the type of actions the police
“should know are reasonably likely to elicit an incriminating response” from
Richardson. Rhode Island v. Innis, 446 U.S. 291, 301 (1980).


III. Evidence of Post-Arrest Drug Use and Flight


       At trial, the prosecution entered evidence that Richardson fled the police when
they attempted to apprehend him while he was on pretrial release. Richardson claims
that his evasive behavior, not giving his real name to officers and then fleeing, was
not relevant to the firearm charge before the jury, and that the evidence was


                                         -7-
prejudicial. The district court allowed the testimony as relevant to Richardson’s
consciousness of guilt.


       This evidence was probative on an essential element of the charges against
Richardson: that he was an addict or user of controlled substances. Richardson did
not stipulate to this fact, and the prosecution was therefore required to present
evidence of Richardson’s drug use. The evidence offered consisted of Richardson’s
failure to attend scheduled drug tests, his flight from the police, and the small amount
of cocaine found on his person when he was apprehended. The court found that the
flight and his failure to appear for mandatory drug tests showed a consciousness that
his drug use would be discovered if he were tested. Because this evidence is directly
relevant to an element of the crime charged, the district court did not abuse its
discretion by admitting it at trial.


IV. Ineffective Assistance of Counsel


       Richardson had four different defense attorneys during his trial, and claims that
they were collectively ineffective. Richardson points to numerous errors at the
suppression hearings and at trial. These claims are typically not heard on direct
appeal, and should be addressed in a § 2255 motion brought pursuant to 28 U.S.C. §
2255. United States v. Logan, 333 F.3d 876, 878 (8th Cir. 2003). Richardson does
not claim that any exception applies that would warrant considering his claim on
direct appeal.




                                          -8-
V. Sentencing Based on Drug Use and Felon Status


       Richardson next argues that the counts of conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and being a drug user
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3), arose out of the same
act of firearm possession and, therefore, should have been merged at sentencing into
a single offense. Richardson was sentenced concurrently, but was assigned a $100
special assessment for each count.


       We review de novo the district court’s finding that Counts One and Two are
separate offenses. United States v. Walker, 380 F.3d 391, 393 (8th Cir. 2004). In
United States v. Peterson, 867 F.2d 1110, 1115 (8th Cir. 1989), abrogated on other
grounds by Horton v. California, 496 U.S. 128 (1990), we held that separate
convictions under § 922(g)(1) and § 922(g)(3) arising out of a single act of firearm
possession were not multiplicitous. See Walker, 380 F.3d at 394. Guided, as we are,
by the decision of an earlier panel, see United States v. Peltier, 276 F.3d 1003, 1006
(8th Cir. 2002), we must affirm the imposition of separate sentences for each count
of conviction.


VI. Booker


       Richardson was sentenced after Blakely, and he challenged the constitutionality
of the guidelines at his sentencing hearing. The district court rejected his challenge,
but stated that the sentence would be the same, 103 months, if the guidelines were
found to be unconstitutional. While it was error to sentence under the mandatory
guidelines regime, the government has shown that the error was harmless because the
court stated it would have imposed the same sentence under an advisory scheme. See
United States v. Thompson, 403 F.3d 533, 536 (8th Cir. 2005).

                                          -9-
                                  CONCLUSION


      For the reasons cited above, we affirm.


MELLOY and HEANEY, Circuit Judges, Concurring.


        We concur in the majority’s opinion because we agree that United States v.
Peterson, 867 F.2d 1110 (8th Cir. 1989), directly controls on the facts of the present
case. We write separately to note our disagreement with Peterson. We do not believe
a defendant should be subjected to multiple convictions and multiple punishments
under § 922(g) for a single act of possession that involves a firearm and ammunition.
Id. at 1115. We also do not believe a defendant such as Mr. Richardson, who satisfies
more than one defendant characteristic subsection of § 922(g), should be subjected
to multiple convictions for the possession of a single firearm. Id. Unless and until
our en banc court overrules Peterson, however, we are bound to uphold multiple
convictions and multiple punishments in cases such as these.


      In United States v. Walker, 380 F.3d 391, 394 (8th Cir. 2004) , a panel of our
court applied Peterson to hold that a convicted felon’s possession of a firearm and
ammunition for that firearm comprised two separate offenses. In so holding, we
noted a conflict between Peterson and two earlier Eighth Circuit cases, United States
v. Powers, 572 F.2d 146 (8th Cir. 1978), and United States v. Kinsley, 518 F.2d 665
(8th Cir. 1975). In those earlier cases, panels of our court held that the simultaneous
possession or receipt of multiple firearms could only result in a single conviction and
punishment. Powers, 572 F.2d at 150-52; Kinsley, 518 F.2d at 670. In Walker, we
concluded that we were bound to apply Peterson because Peterson was directly on
point and the earlier cases had been decided under different firearms statutes.
Walker, 380 F.3d at 395.

                                         -10-
       We noted in Walker that all other circuits had addressed the issue and reached
the opposite result. Id. at 393. The conflict between Peterson and the earlier Eighth
Circuit cases and the conflict between Peterson and the opinions from the other
circuits arose largely because the court in Peterson had applied the “same elements”
test from Blockburger v. United States, 284 U.S. 299, 304 (1932), to find that §
922(g) permitted multiple convictions. The other circuits, like the panels in Powers
and Kinsley had applied the “unit of prosecution” test from Bell v. United States, 349
U.S. 81, 81 (1955), to conclude that Congress intended the “allowable unit of
prosecution” to be an incident of possession regardless of whether a defendant
satisfied more than one § 922(g) classification, possessed more than one firearm, or
possessed a firearm and ammunition. We believe that the position adopted by the
other circuits is correct and should be the law in our circuit. See, e.g., United States
v. Munoz-Romo, 989 F.2d 757, 759 (5th Cir. 1993) (“We are satisfied that Congress
intended to describe only a single crime that could be committed by seven types of
offenders. Thus, the Blockburger rule is not controlling.”).


       Although the government today argues that multiple convictions are permitted
for a single act of possession, it has taken the opposite position before other courts,
including the Supreme Court. In United States v. Munoz-Romo, 947 F.2d 170, 176
(5th Cir. 1991), the Fifth Circuit held that convictions under § 922(g)(1) (felon in
possession) and § 922(g)(5) (illegal alien in possession) based on a single instance
of possession were not multiplicitous. When the defendant in that case petitioned the
Supreme Court to grant certiorari, the Solicitor General confessed error and asked the
Supreme Court to remand to the Fifth Circuit to vacate one of the two convictions.
The Supreme Court granted certiorari, vacated the Fifth Circuit’s judgment and
remanded for further consideration.


     On remand, the Fifth Circuit quoted from the Solicitor General’s brief to the
Supreme Court. Munoz-Romo, 989 F.2d at 759. Before the Supreme Court, the

                                         -11-
Solicitor General argued that the structure and language of the statute demonstrated
“Congress’s clear intent not to impose cumulative punishments when the same
incident violates two subdivisions of subsection (g).” Id. (quoting the government’s
brief to the Supreme Court).5 The Fifth Circuit adopted the position urged by the
defendant and the government and directed the district court to vacate one of the
convictions. Id. The government’s position and the result achieved in the Fifth
Circuit are completely at odds with the government’s position in the present case.


        Suffice it to say, we are concerned by the government’s inconsistent approach
in its interpretation of § 922(g). While it is fundamental that a party may advance
arguments in the alternative, we do not believe that, as a general matter, it is
appropriate for the government to advance diametrically opposed theories as to the
interpretation of a single criminal statute. This is especially true in the present
context, where the government’s change of position effectively caused the Supreme
Court to forgo the opportunity to review a circuit split on an issue of constitutional
significance. Nevertheless, because our court has not addressed this issue en banc,
we are bound by Peterson and we concur.
                        ______________________________


      5
        The Solicitor General’s position was essentially the same as that of the
Eleventh Circuit in United States v. Winchester, 916 F.2d 601 (11th Cir. 1990). In
that case, the Eleventh Circuit noted that if a court were to permit multiple
convictions for a single act of possession under § 922, “a convicted felon who is also
a fugitive from justice, a drug addict, a ‘mental defective,’ and an illegal alien could
be sentenced to five consecutive terms of imprisonment for the same incident, namely
the possession of a firearm.” Id. at 607. In the Eighth Circuit, because
Peterson would also permit separate convictions based upon the possession of
ammunition, a single incident of possession that involved a loaded weapon or a
defendant in possession of a firearm with a single bullet in his or her pocket, could
result in ten or more punishments for the same incident. We do not believe Congress
intended such a result.

                                         -12-
