                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                  JUNE 14 2007
                                 No. 06-16287                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                    D. C. Docket No. 05-00152-CR-SLB-RRA

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

JOSEPH DEWAYNE CARLTON,

                                                              Defendant-Appellant.

                           ________________________

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

                                  (June 14, 2007)

Before DUBINA, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

      Joseph Dewayne Carlton appeals his conviction and sentence for possession

of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). After a
thorough review of the record, we affirm for the reasons set forth below.

      I. Background

      According to the evidence at trial,1 Birmingham Police Officer Robert Self

responded to a call regarding a shooting at a brothel. When he arrived at the scene,

he met Carlton, who matched the description of the victim. Carlton cooperated

with Self’s request for identification, and after checking the information, Self

discovered an outstanding warrant for Carlton’s arrest. Self arrested Carlton,

placed him in the patrol car, and began writing the arrest report. Carlton expressed

concern about a dog he had left in his car a block away and identified his car for

the police. In order to protect Carlton’s property, and in accordance with police

procedure, Self informed Carlton that the car would be towed. Carlton gave Self

keys to the car and Self conducted an complete inventory of the car, during which

he found mail in Carlton’s name and a rifle engraved with the phrase “DRX, Inc.,”

which Carlton told Self was the name of his record label. Carlton also said the rifle

was a gift.

      At no time during the trial did Carlton object to the search of the car or the

seizure of the gun. Nor did he argue that his statement about the gun was

inadmissible. Carlton did not testify.



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          Carlton proceeded to trial pro se with the assistance of appointed stand-by counsel.

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      The jury convicted Carlton. The sentencing guidelines calculations

determined the sentencing range to be 33 to 41 months imprisonment. Carlton

requested that he be sentenced at the low end of the guidelines range.

      At sentencing, after considering the guidelines range and the sentencing

factors set forth in 18 U.S.C. § 3553(a), the court determined that a sentence of 41

months - the high end of the guidelines range - would provide just punishment,

protect society, deter behavior, and reflect the seriousness of the offense and the

characteristics of the defendant. The court also imposed a three-year term of

supervised release. With the assistance of counsel, Carlton now appeals,

challenging the court’s failure to sua sponte suppress evidence, and whether the

sentence imposed constituted cruel and unusual punishment.

      II. Discussion

               A. Suppression of Evidence

      Carlton argues that (1) the search of his car, which led to the discovery of

the rifle, was not a legal search incident to arrest, and (2) the statement that the gun

was his was inadmissible because he was not given Miranda2 warnings.

      Because Carlton did not challenge the admission of the evidence at trial, we

review for plain error. United States v. Schier, 438 F.3d 1104, 1106 n.1 (11th Cir.



      2
          Miranda v. Arizona, 384 U.S. 436, 458-71, 86 S.Ct. 1602, 1619-26, 16 L.Ed.2d 694 (1966).

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2005); United States v. Glen-Archila, 677 F.2d 809, 814 n. 14 (11th Cir. 1982)

(reviewing unpreserved claim of Miranda violation for plain error). “An appellate

court may not correct an error the defendant failed to raise in the district court

unless there is: ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’”

United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert. denied, 125

S.Ct. 2935 (2005) (citation omitted). “‘If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error, but only if (4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” Id. (citation omitted).

                     1. Search of the Car

       In general, in order to conduct a search, police must obtain consent or a

warrant. United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005), cert.

denied, 126 S.Ct. 2966 (2006). There are, however, several exceptions to this rule,

including inventory searches, which permit a thorough search of property lawfully

in police custody, as long as that search is consistent with the police care taking

function. Colorado v. Bertine, 479 U.S. 367, 374, 107 S.Ct. 738, 742, 93 L.Ed.2d

739 (1987); United States v. O’Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985). In

this context, “the legitimacy of the search . . . turns on its reasonableness in light of

the community care taking functions that allow inventory searches . . . . [T]he



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reasonableness of the inventory search depends on the particular facts and

circumstances.” United States v. Laing, 708 F.2d 1568, 1571 (11th Cir. 1983).

      Here, Self arrested Carlton on an outstanding warrant unrelated to the events

leading up to the arrest and unconnected to the evidence found in the car. Carlton

expressed concern for his dog and his car, and he identified his car for police.

Carlton also gave the keys to police. At that point, Self informed Carlton that he

would have the car towed. In doing so, Self acted in conformance with the police

department procedures. As such, the officer’s actions were reasonable and the

inventory search was proper. See United States v. Roberson, 897 F.2d 1092, 1096

(11th Cir. 1990) (upholding inventory search conducted pursuant to standard

police procedures).

                      2. Statement

      Miranda requires that a person taken into custody must be advised of his

right to remain silent and his right to counsel prior to any interrogation. Miranda,

384 U.S. at 444. “Miranda safeguards come into play whenever a person in

custody is subjected to either express questioning or its functional equivalent.”

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297

(1980). “Functional equivalent” is defined as “any words or actions on the part of

the police (other than those normally attendant to arrest and custody) that the



                                          5
police should know are reasonably likely to elicit an incriminating response from

the suspect.” Id. When there is no police questioning, “[v]oluntary and

spontaneous comments . . . are admissible evidence.” Cannady v. Dugger, 931

F.2d 752, 754 (11th Cir. 1991).

      As the Supreme Court has explained,

      [c]onfessions remain a proper element in law enforcement. Any
      statement given freely and voluntarily without any compelling
      influences is, of course, admissible in evidence. . . .Volunteered
      statements of any kind are not barred by the Fifth Amendment.

Miranda, 384 U.S. at 478; see also Innis, 446 U.S. at 300.

      Here, there is no dispute that Carlton was in custody as he had been placed

under arrest. There is no evidence, however, that Carlton was subject to an

interrogation or that his statement that the gun was a gift was not voluntary and

spontaneous. See Cannady, 931 F.2d at 754. Self questioned Carlton with routine

biographical questions for booking purposes, which does not equate to an

interrogation. United States v. Glen-Archila, 677 F.2d 809, 815-16 (11th Cir.

1982). Moreover, nothing in the evidence established that the circumstances were

coercive; rather, Carlton was cooperative with police and directed police to his car.

See United States v. Jones, 32 F.3d 1512, 1516 (11th Cir. 1994) (describing

coercive conduct). Accordingly, we conclude that the statements were voluntary

and spontaneous.

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             B. Sentence

      Carlton next argues that the sentence imposed was disproportionate to the

offense and reduced any hope of rehabilitation. He further asserts that he should

not be subject to supervised release following imprisonment because the constant

supervision would increase his stress and would only add to the harsh punishment

already imposed.

      Because Carlton did not challenge his sentence on this ground before the

district court, we review for plain error. United States v. Moriarty, 429 F.3d 1012,

1018-19 (11th Cir. 2005).

      In reviewing a sentence to determine if it is in violation of the Eighth

Amendment, this court “must make a threshold determination that the sentence

imposed is grossly disproportionate to the offense committed.” Moriarty, 429 F.3d

at 1024. “In general, a sentence imposed within the limits imposed by statute is

neither excessive nor cruel and unusual under the Eighth Amendment.” Id.

(internal quotations omitted).

      Here, the sentence imposed fell within the guidelines range and the sentence

permitted by statute. See 18 U.S.C. § 922(g)(1). Carlton had a lengthy criminal

history, and the court expressly found that the sentence was necessary to deter

future behavior, protect society, and punish the defendant. Carlton has not shown



                                          7
that the sentence was grossly disproportionate to the offense.

      Moreover, there is no merit to his claim that he should not face supervised

release. The term of release is within the time frame permitted by statute and is

reasonable in light of Carlton’s criminal history. See, e.g., Moriarty, 429 F.3d at

1024-1025; United States v. Murillo-Guzman, 845 F.2d 314, 315 (11th Cir. 1988).

      III. Conclusion

      For the foregoing reasons, Carlton cannot show plain error in his conviction

and sentence, and we AFFIRM.




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