                   UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                              No. 99-21183



                      UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                 VERSUS

MARCELLUS TEMEL ARTERBERRY, also known as Marceles Temel
Arterberrg, also know as Marcellus Teme Arterberry, also known as
Marcellus T. Arterberry; ARON DEREL HOOD, and LATREED GAYLAND
JACKSON, also known as Latred Gayland Jackson,

                                                  Defendants-Appellants.


           Appeals from the United States District Court
       for the Southern District of Texas, Houston Division
                             (H-99-CR-259-1)
                             April 20, 2001
Before GARWOOD, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*

      Marcellus   Temel   Arterberry,   Aron   Derel    Hood   and   Latreed

Gayland Jackson appeal their convictions and sentences for bank

robbery and brandishing a firearm during a crime of violence.             We

affirm.

                    FACTS AND PROCEDURAL HISTORY


  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                    1
       On May 26, 1999, a federal grand jury returned a four-count

indictment    charging       Arterberry,    Hood,     Jackson   and     a   fourth

individual, Rennald Dem’on LeBlanc, with two counts of robbing a

federally-insured bank, in violation of 18 U.S.C. § 2113(a) and (d)

and 18 U.S.C. § 2 and two counts of brandishing a firearm during a

crime of violence, in violation of 18 U.S.C. § 924(c) and 18 U.S.C.

§ 2.    The charges in Counts 1 and 2 pertained to the February 15,

1999, armed robbery of the Compass Bank in Houston, Texas (the

“Compass Bank robbery”); the charges in Counts 3 and 4 pertained to

the March 9, 1999, armed robbery of the First National Bank of

Rosenberg in Sugarland, Texas (the “Sugarland bank robbery”).                    The

robberies were similar in that the perpetrators of both robberies

were young black males wearing T-shirt sleeve masks who, in order

to facilitate their escape, made the robbery victims take their

clothes off.       Further, the robbers in both banks referred to the

tellers’ cash drawers as “tills” and questioned the employees

regarding video cameras and tapes.

       LeBlanc’s    motion     for   severance      was   granted     and   he    is

consequently not a party to this appeal. Appellants pleaded guilty

to Counts 3 and 4 (the Sugarland bank robbery) and waived a jury

trial on Counts 1 and 2 (the Compass Bank robbery).                 Following a

one-day bench trial, the court convicted Appellants on Counts 1 and

2. On appeal, Appellants challenge only their convictions on Count

1 and 2.

       The defendants were arrested by local police during the course

                                        2
of the Sugarland bank robbery. They each made custodial statements

to law enforcement officers that implicated them in the Compass

Bank robbery.   The Appellants’ primary contention, at trial and on

appeal, is that those confessions should be suppressed because they

were not voluntary.     The district court denied Appellants’ motion

to suppress, finding that the confessions were voluntary under the

totality of the circumstances and thus admissible.

                               DISCUSSION

A. Standard of Review

      The voluntariness of a confession presents a mixed question

of law and fact.   Miller v. Fenton, 474 U.S. 104, 112 (1985).           The

district court’s factual findings are reviewed for clear error,

United States v. Scurlock, 52 F.3d 531, 536 (5th Cir. 1995), and

will be upheld absent a “definite and firm conviction that a

mistake has been committed.”         Anderson v. City of Bessemer City,

470 U.S. 564, 573 (1985).      The ultimate question of voluntariness

is a legal one that is reviewed de novo.       Miller, 474 U.S. at 110;

Scurlock, 52 F.3d at 536.




B. Suppression of Defendants’ Statements

     The   Government    had   the    burden   of   establishing,   by    a

preponderance of the evidence, that each defendant was extended his




                                      3
Miranda1 warnings and knowledgeably and voluntarily waived them.

United States v. Ornelas-Rodriguez, 12 F.3d 1229, 1347 (5th Cir.

1994).     The standard for determining whether a confession is

voluntary is whether, taking into consideration the totality of the

circumstances, the statement is the product of the accused’s free

and rational choice.    Id.   If a person voluntarily, knowingly, and

intelligently waives his constitutional privilege, a statement is

not considered compelled within the meaning of the Fifth Amendment.

Id.

       1. Arterberry

       Arterberry, a 24-year-old male, was the first defendant to be

interviewed. The interview started at 5:00 p.m., approximately two

hours after his arrest and lasted about 90 minutes.     Two officers

in plain clothes, Detective Body and Sergeant Ruteshouser, were in

the room with Arterberry, who was not handcuffed or restrained.

Arterberry indicated that he had experience with law enforcement

and judicial systems; he had one prior conviction for which he

received probation and a second conviction for which he had served

a two-year sentence.    Body read Arterberry his Miranda rights and

advised him that he had “the right to terminate the interview at

any time.” Arterberry stated that he understood his rights, and he

agreed to waive them and speak to the officers.

       Arterberry confessed promptly to the Sugarland bank robbery,


  1
      Miranda v. Arizona, 384 U.S. 436 (1966).

                                   4
explaining that he and his accomplices made the employees take

their clothes off to prevent them from chasing after the robbers

during their getaway. Ruteshouser then questioned Arterberry about

the Compass Bank robbery, noting the similarities between the two

robberies and showing Arterberry the surveillance photographs taken

during the Compass Bank robbery.          Arterberry initially denied any

involvement in the earlier robbery.         The officers employed several

tactics to induce Arterberry to confess.        They told him that he was

the first of the accomplices to be interviewed, and that this was

his only opportunity to come clean; they asked him if his daughter

would be able to pick him out of the surveillance photographs; they

told him that he was subject to prosecution in both state and

federal court; they stated that they would advise the probation

officer   about   his   cooperation   and    that   any   such   cooperation

“[m]akes a big difference in both systems.”               Ruteshouser told

Arterberry that it would be “very beneficial” for him to tell them

what he knew about that robbery “[b]esides what we know, and you

know that we know.”     Ruteshouser once again described the “unique”

similarities between the two robberies. Arterberry then confessed,

stating “I’m already caught. . . . I might as well tell you the

whole deal.” After Arterberry confessed, he asked the officers how

his confession might be used in determining his sentence.                 In

response to that specific question, the officers told Arterberry

that cooperating could result in a deduction of points used to

figure the length of his sentence.

                                      5
     Arterberry     posits    two    aspects       of    the    interrogation         that

rendered his confession involuntary.               First, he characterizes two

statements by the officers as gross misrepresentations: that a

confession    to   the    earlier    bank       robbery    would    “make[]       a    big

difference” in the length of his prison sentence and would be “very

beneficial” to him.         Arterberry argues that the only potential

sentencing benefit that he was eligible to receive as a consequence

of a confession was an acceptance of responsibility adjustment

under U.S.S.G.     §     3E1.1,    which       would    have    reduced    his    prison

sentence by “only a few years.”            Given his total prison sentence of

552 months, Arterberry argues that a few years did not make a “big

difference.” Second, he contends that the officers created a false

sense of urgency about the need for Arterberry to confess stating

that the interview was his only opportunity to cooperate.                              The

district court rejected this view of the interview, concluding that

the officers conveyed to Arterberry that this was his only



opportunity to tell the truth from the outset and to tell the same

story consistently.

     Having    reviewed      the    record,       including       the     video       taped

interview,    we    conclude       that,        given     the    totality        of    the

circumstances, the officers employed no improper coercion and made

no improper promise of leniency to Arterberry.

     2. Jackson



                                           6
     Body and Ruteshouser interviewed Jackson, an 18-year-old male,

beginning   at   9:06    p.m.   the   same   night,   for   approximately   45

minutes.    Jackson had completed the tenth grade, but has some

mental limitations.       He is functionally illiterate, able only to

recognize a few words and to sign his name.           Jackson also had prior

experience in the criminal justice system.            After being advised of

and waiving his Miranda rights, Jackson agreed to speak to the

officers. At the outset, Jackson confessed to participating in the

Sugarland bank robbery that day.              During the course of this

confession, Ruteshouser explained that, if the case ended up in

federal court, “the jail time you get depends on a point system.”

He further explained that different crimes get different points,

and that the length of the sentence also depends on the person’s

criminal record.        Cooperation, he said, “can take points away,”

adding that the probation officer would contact the interviewing

officers to assess Jackson’s cooperation.

     Turning again to the details of the Sugarland bank robbery,

Body asked, “Who told the . . . ladies to take their clothes off?”

Jackson replied “that’s what we do in every robbery, I guess,” but

then denied involvement in any other robberies.             Ruteshouser next

showed him a “picture from one of the surveillance cameras” and

asked him if he could identify the individual in it.                 Jackson

identified himself in the photograph.            Ruteshouser explained to

Jackson that the photograph was taken during the Compass Bank



                                       7
robbery and Jackson replied that he remembered doing it, but not

“how we done it.” Ruteshouser reminded Jackson “about the downward

points for cooperating.”         Thereafter, Jackson provided further

incriminating details concerning his involvement in the Compass

Bank robbery.

     On appeal, Jackson contends that the officers’ statements

concerning the “point system” and the opportunity to receive a

lower sentence by cooperating amounted to an unconstitutional

inducement to confess.

     The district court noted that Jackson has “some degree of

mental impairment,” and delayed ruling on Jackson’s motion to

suppress pending the completion of a competency examination. Based

on the results of that examination and a review of the video tape

of the interview, the district court determined that Jackson had

sufficient intelligence to understand the officers’ questions and

effectuate a valid waiver of his rights.         The district court also

found that Jackson’s own actions during the interview demonstrated

that he “was able to attempt to cover-up actions that he recognized

as wrong.”    For these reasons, the district court rejected as not

persuasive the argument that Jackson lacked the mental capacity to

voluntarily make the statement in question and found that the

government has met its burden on that point.           We agree.

     Having     reviewed   the   record,   including     the   video    taped

interview,    we   conclude      that,   given   the    totality   of    the

circumstances, the officers offered no unconstitutional inducement

                                     8
to obtain Jackson’s confessions.

      3. Hood

      Hood,   a   24-year-old     male,       was   the      last   of    the   suspects

interviewed, beginning at 10:02 p.m. on the same night and lasting

approximately     40   minutes.      Like       his    co-defendants,           Hood   had

experience with the state criminal justice system, including three

prior convictions.      After he was advised of and waived his Miranda

rights and agreed to speak to the officers, he too confessed

promptly to the Sugarland bank robbery.

      Later in the interview, Ruteshouser asked Hood some questions

about the Compass Bank robbery.               Hood denied any involvement in

other robberies.       The officers told Hood that he was the last one

to be interviewed and stated “we already know exactly what happened

the first time,” referring to the Compass Bank robbery. After Hood

stated that he understood “plea bargain[s] and all that,” Body told

him that, if this case went to federal court, “we’re talking about

getting points reduced, your overall points for sentencing reduced

for   fully     cooperating   with    us.”            They    also       explained     the

similarities between the two robberies to Hood, telling Hood that

his co-defendants had been shown the surveillance photographs of

the Compass Bank robbery and had “told us which ones were which.”

Hood replied, “They did?        Can I see them?”

      Ruteshouser then showed Hood four picture, one of each person

in the robbery.        After reviewing the photos, and in response to


                                          9
Ruteshouser’s request, Hood handed the photograph of himself back

to Ruteshouser, then went on to provide further details of the

Compass Bank robbery.

     The district court denied Hood’s motion to suppress, noting

that Hood’s arguments were very similar to those of Arterberry. In

particular, the court found that the officers’ description of the

federal point system did not constitute coercion or amount to an

improper   promise   of   benefit   in   the   overall   context   of   the

interview, including the disclosure of the evidence that Hood had

participated in the earlier robbery.




     On appeal, Hood contends that the nature of the questioning

and the promises made therein, without counsel, make his statements

involuntary and inadmissible under the Fourth, Fifth, and Sixth

Amendments to the Constitution.      Hood also contends that his right

to prompt arraignment under Rule 5(a) of the Federal Rules of

Criminal Procedure and 18 U.S.C. § 3501 were violated.             Having

reviewed the record, including the video taped interview, we

conclude that, given the totality of the circumstances, Hood’s

statement was voluntary and not the result of improper inducements.

     Hood further argues that the seven hour delay between his 3:00

p.m. arrest and the beginning of the interview, during which time

he had not yet been arraigned, violates the requirement that he be



                                    10
promptly taken before a magistrate. See § 3501(c). Delay in taking

a defendant before a magistrate is only one factor to be considered

in determining voluntariness of a defendant’s statement, and to

render consent involuntary or to require suppression of evidence,

the delay must have been unnecessary.       United States v. Killian,

639 F.2d 206 (5th Cir. 1981).     The two officers assigned to this

investigation personally interviewed and processed four suspects

between the 3:00 p.m. arrest at the robbery site and the conclusion

of Hood’s interview at approximately 10:40 p.m.       We conclude that

the officers acted reasonably, that they did not violate any of



Hood’s   constitutional   or   statutory   rights   and   that   Hood’s

confession was voluntary and admissible.

C. Second or subsequent conviction

     Jackson contends that the district court misconstrued 18

U.S.C. § 924(c)(1)(C) when it sentenced him on Count 4 of the

indictment under the enhanced sentencing provisions as a “second or

subsequent” conviction for use of a firearm in a drug offense or

crime of violence when his only other conviction for violation of

924(c) was in Count 2 of the same indictment.         Jackson contends

that § 924(c) should be construed to require a conviction for the

earlier offense prior to the commission of the present offense in

order to apply the enhanced penalty provision of § 924(c).         The

Government argues, and Jackson concedes, that his position is


                                  11
foreclosed by the Supreme Court’s decision in Deal v. United

States, 508 U.S. 129 (1993).    We agree.    We therefore find no merit

in Jackson’s challenge to the enhanced sentence imposed for Count

4.

                               CONCLUSION

     Based   on   the   foregoing,   we   affirm   the   convictions   and

sentences of all Appellants.

     AFFIRMED.




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