                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT  OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                           FEB 12, 2009
                                                        THOMAS K. KAHN
                                   No. 07-15427              CLERK


                         D. C. Docket No. 06-00296-CR-ODE-1

UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

                                             versus

JEREMIAH TRAVIS, III,

                                                                        Defendant-Appellant.



                      Appeal from the United States District Court
                         for the Northern District of Georgia


                                    (February 12, 2009)

Before BIRCH and PRYOR, Circuit Judges, and STROM,* District Judge.

STROM, District Judge:



       *
           Honorable Lyle E. Strom, United States District Judge for the District of Nebraska,
sitting by designation.
      Jeremiah Travis, III appeals his 2,672 month1 sentence for one count of

armed bank robbery, 18 U.S.C. § 2113(a) and (d), eight counts of armed robbery,

18 U.S.C. § 1951, and nine counts of possession of a firearm in relation to a crime

of violence, 18 U.S.C. § 924(c)(1)(A)(ii). Travis argues that the district court

erred in admitting evidence obtained during a search of his residence consented to

by his roommate, in allowing a witness to testify regarding statements made by

others in violation of the Confrontation Clause, in admitting post-Miranda

statements after he had invoked his right to silence, in imposing an unreasonable

sentence, in applying the wrong Commerce Clause standard, and in

misinterpreting the sentencing statute, 18 U.S.C. § 924(c). Upon review of the

record we find no reversible error and affirm.

                                     I. BACKGROUND

      On May 3, 2006, a Wachovia Bank in Tucker, Georgia, was robbed. The

Federal Bureau of Investigation (FBI) released a surveillance photo of the bank

robber to the media with an appeal for anyone with information to contact them.

Eric Nelson Smith contacted the FBI to report that the bank robber looked like the

man that had robbed him four days earlier at a Subway Restaurant. Smith reported

that the Subway robber had taken his wallet and used his credit card to make a


      1
          222 years, eight months.

                                           2
Western Union wire transfer. FBI agents obtained the wire transfer information

from Western Union and discovered that the recipient of the funds was Andrea

Bagley. Agents then went to the address listed for Ms. Bagley, located in an

apartment complex called Complex 21. Two Complex 21 employees, while not

knowing Andrea Bagley, identified the robber as likely being Angela Jones’

boyfriend “Armani.” Agents also discovered that Angela Jones was evicted from

her apartment at Complex 21 on May 3, 2006, the same day as the bank robbery.

      Having obtained Jones’ work contact information from Complex 21, the

agents approached her at her place of employment on June 5, 2006, where she

waived her Miranda rights and agreed to be interviewed. Jones told the agents that

she had participated in the Wachovia Bank robbery with Jeremiah Travis, and also

admitted to participating in other robberies with him. At the agents’ prompting,

Jones placed a call to Travis to see if he would pick her up from work. However,

the record is unclear regarding whether Travis had already left at the time of

Jones’ call. Travis appeared at Jones’ place of employment, with Bagley’s toddler

son in the vehicle, where he was arrested without incident. Prior to Travis’ arrival,

Jones orally consented to the search of her apartment and vehicle, and signed

written consent forms later that day.




                                          3
      When he was arrested, Travis invoked his Miranda rights. However,

evidence was adduced at trial that while his fingerprints were being taken, and

without being prompted, Travis said, “You got me. You got me. I did it. I did it.”

(R10:493-94.) Later that evening, as FBI Special Agents Whiteman and Johnson

were escorting Travis into the Atlanta City Detention Center (“ACDC”), he stated

that “the agents who arrested him earlier that day were lucky, and under different

circumstances, things would have been much different.” (R10:560.) Whiteman

then asked Travis, “Do you mean if you had a gun, you would have shot it out

with us?” (Id.) When Travis responded, “No doubt,” Johnson asked him, “Even if

-- even with the child in the back of the car, you would have shot it out with us?”

(Id.) Travis answered, “Yes.” (Id.)

      The search of Jones’ apartment, where Travis and Bagley also lived,

commenced the same evening. The FBI found a loaded handgun, a shotgun, a dye

stained jacket and shoes, a wallet, and a blue Old Navy tee-shirt. Later, Jones’ car

was searched, revealing a black pin-striped baseball cap and dye stained

upholstery. These items were associated with several robberies.

      Travis was ultimately charged with one count of bank robbery in violation

of 18 U.S.C. § 2113, eight robberies in violation of the Hobbs Act, 18 U.S.C. §

1951, and using and carrying a firearm during and in relation to each of these nine

                                         4
robberies in violation of 18 U.S.C. § 942(c). The case was tried to a jury which

found Travis guilty on all counts. The district court later sentenced Travis to a

term of 188 months imprisonment to run concurrently on the nine robberies, a

sentence at the bottom of the applicable 188-235 month guideline range; a

consecutive term of 84 months on the first violation of 18 U.S.C. § 924(c); and a

consecutive term of 300 months for each of the succeeding eight violations of §

924(c) for a total sentence of 2,672 months imprisonment. Travis was also

sentenced to five years supervised release, a special assessment of $1,800, and

restitution.

                           II. STANDARDS OF REVIEW

       The interpretation of a statute is a question of law subject to de novo review.

United States v. Gray, 260 F.3d 1267, 1271 (11th Cir. 2001). This Court reviews

the sufficiency of the evidence de novo in the light most favorable to the

government and determines whether a rational jury could have concluded beyond

a reasonable doubt that the defendant was guilty of the crimes charged. United

States v. McCrimmon, 362 F.3d 725, 728 (11th Cir. 2004). The district court’s

denial of the defendant’s motions to suppress statements and evidence presents

mixed questions of law and facts. This Court reviews the district court’s factual

findings for clear error, while the district court’s application of the law to the facts

                                           5
is reviewed de novo. United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir.

2002). Evidentiary rulings are reviewed for a clear abuse of discretion. United

States v. Ross, 131 F.3d 970, 987 (11th Cir. 1997). Questions of constitutional

law are reviewed de novo. United States v. Underwood, 446 F.3d 1340, 1345

(11th Cir. 2006). The defendant’s Confrontation Clause claim, if a violation is

found, is also reviewed for harmless error. Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986).

      The Court normally reviews de novo questions of law such as the

interpretation of 18 U.S.C. § 924 or issues arising under the United States

Sentencing Guidelines. See, e.g., Gray, supra (Hobbs Act); United States v.

Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (sentencing guidelines).

However, when the issue is presented for the first time on appeal, this Court will

reverse only upon a showing of plain error. See United States v. Richardson, 166

F.3d 1360, 1361 (11th Cir. 1999) (interpreting 18 U.S.C. § 924); United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (interpreting guidelines). The

defendant’s sentence is subject to review for abuse of discretion in light of the

factors set forth in 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S. ___, 128

S. Ct. 586, 594 (2007). The review for reasonableness is deferential and “focuses

on whether the sentence imposed fails to achieve the purposes of sentencing

                                          6
enumerated in § 3553(a).” Id. The Supreme Court has held that an appellate court

may afford a “presumption of reasonableness” to a within-Guidelines sentence

consistent with both the Sixth Amendment and United States v. Booker, 543 U.S.

220 (2005). Nelson v. United States, 555 U.S. ___, No. 08-5657, slip op. at 2

(January 26, 2009) (per curiam) (citing Rita v. United States, 551 U.S. 338

(2007)).

                                 III. DISCUSSION

A. Georgia v. Randolph

      Travis argues that his Fourth Amendment rights were violated when agents

searched his home based on Jones’ consent. The Fourth Amendment protects

“[t]he right of the prople to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures . . .” U.S. Const. amend IV. “The

warrantless search of a home is ‘presumptively unreasonable.’” U.S. v. Tobin,

923 F.2d 1506, 1510 (11th Cir. 1991). However, an established exception to the

warrant requirement is a search that is conducted pursuant to consent.

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Where co-tenants are

present at the entrance, and one consents while the other objects, police may not

search. Georgia v. Randolph, 547 U.S. 103, 121 (2006). However, the Supreme

Court has drawn a fine line at the home’s threshold. “[I]f a potential defendant

                                           7
with self-interest in objecting is in fact at the door and objects, the co-tenant's

permission does not suffice for a reasonable search, whereas the potential objector,

nearby but not invited to take part in the threshold colloquy, loses out.” Id. Here,

neither Travis nor Jones was present at the threshold when the search began.

Jones had consented orally and in writing while at her place of employment, and

Travis was in custody when the agents arrived to conduct the search. Travis

argues that the agents should have provided him with an opportunity to object to

the search. However, nothing in Randolph suggests that the police must offer such

an opportunity. To the contrary, the Randolph Court stated that “we think it would

needlessly limit the capacity of the police to respond to ostensibly legitimate

opportunities in the field if we were to hold that reasonableness required the police

to take affirmative steps to find a potentially objecting co-tenant before acting on

the permission they had already received.” Id. at 122.

      Travis’ argument is based on the Court’s exception to its justification for the

formalism of drawing a line at the search target’s door. The Randolph Court

recognized that requiring the potentially objecting co-tenant be physically present

would undermine its core holding if police could simply arrest and remove the

potentially objecting party from the threshold.




                                           8
              This is the line we draw, and we think the formalism is
              justified. So long as there is no evidence that the police
              have removed the potentially objecting tenant from the
              entrance for the sake of avoiding a possible objection,
              there is practical value in the simple clarity of
              complementary rules, one recognizing the co-tenant's
              permission when there is no fellow occupant on hand,
              the other according dispositive weight to the fellow
              occupant's contrary indication when he expresses it.

Id. at 121-22 (emphasis added). Travis points to the agents’ request that Jones call

him and ask that he pick her up and suggests that this is evidence of such a

removal. However, at oral argument Travis’ counsel allowed that there was no

evidence that the agents removed him for the sake of avoiding a possible

objection.2 A review of the record confirms this. It is therefore irrelevant whether

Travis left his residence before or after Jones called. For Randolph’s possible

exception to apply, there must be some evidence of police intent to avoid objection

as well as of removal of the potentially objecting party from the entrance. Travis’

Randolph argument fails.

B. Confrontation Clause

       The Sixth Amendment provides, in part, that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against



       2
         “There is no smoking gun here. [The agents] did not say that they moved him away
from the house in order to avoid him asking consent.”

                                              9
him.” U.S. Const. amend VI. “Where testimonial evidence is at issue, . . . the

Sixth Amendment demands . . . unavailability and a prior opportunity for cross-

examination.” Crawford v. Washington, 541 U.S. 36, 68 (2004). Statements are

testimonial “when the circumstances objectively indicate that there is no . . .

ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.”

Davis v. Washington, 547 U.S. 813, 822 (2006). Thus, “‘[s]tatements taken by

police officers in the course of interrogations are definitively testimonial’ and . . .

fall within the protection afforded by the Confrontation Clause. This includes not

only ‘technical legal’ interrogations but also ‘witness statements given to an

investigating police officer.’” U.S. v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir.

2006) (internal citations omitted).

      In this case, the district court allowed Agent Whiteman to testify about what

the two Complex 21 employees told him during his investigation. At Complex 21,

Whiteman showed a surveillance photograph from the Wachovia Bank robbery to

the two employees he interviewed. The first employee “stated that she recognized

the robber to be Angela Jones’ boyfriend, but she only knew him by the name of

Armani.” (R10:542.) The second employee said “that she was 85 percent sure

that the individual depicted in that photograph was Angela Jones’ boyfriend. She

                                           10
only knew him as well as [sic] the name of Armani.” (R10:548.) There was no

ongoing emergency at the time these statements were taken. Indeed, the obvious

purpose of Whiteman’s interrogation -- as it should be -- was to prove past events

relevant to a criminal prosecution. Thus, the statements were testimonial.

Moreover, the government did not assert that the Complex 21 employees were

unavailable as witnesses, and it is undisputed that they were never cross-

examined.

      The Confrontation Clause “does not bar the use of testimonial statements

for purposes other than establishing the truth of the matter asserted.” Crawford,

541 U.S. at 59 n.9. The government argues that Whiteman’s recitation of the

Complex 21 employees’ statements “was offered to show the investigative steps

that the FBI took to identify and locate the persons who committed the armed

robbery of Wachovia Bank.” However, the government’s interpretation, if

adopted, would eviscerate Crawford. Indeed, it is difficult to conceive of a

circumstance where a testimonial statement could not be recast as merely showing

the steps the police took during their investigations. We therefore reject the

government’s argument and hold that the district court erred in allowing

Whiteman to testify about what the Complex 21 witnesses said. The error,

however, was harmless.

                                         11
       Confrontation Clause errors are subject to harmless error analysis.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

              The correct inquiry is whether, assuming that the
              damaging potential of the cross-examination were fully
              realized, a reviewing court might nonetheless say that the
              error was harmless beyond a reasonable doubt. Whether
              such an error is harmless in a particular case depends
              upon a host of factors, all readily accessible to reviewing
              courts. These factors include the importance of the
              witness’ testimony in the prosecution’s case, whether the
              testimony was cumulative, the presence or absence of
              evidence corroborating or contradicting the testimony of
              the witness on material points, the extent of
              cross-examination otherwise permitted, and, of course,
              the overall strength of the prosecution’s case.

Id. In this case, if the testimony of the Complex 21 employees as relayed by

Whiteman had been thoroughly impeached and discredited, the result of the

proceeding would not have been different. Although the testimony Whiteman

gave referred to the identification of Travis as the robber,3 this testimony was not

important to the prosecution’s case. The testimony was cumulative, since both

Jones and Bagley identified Travis as the robber. Jones and Bagley also

corroborated all the material points of the testimony, and no witness testified in

contradiction. Cross examination was permitted and had with respect to every


       3
          The government would have us find that an identification of the Wachovia Bank robber
as “Armani” and as Jones’ roommate does not amount to an identification of Travis. We find no
merit in this argument.

                                              12
other witness at trial. Moreover, the physical evidence of Travis’ guilt was

massive: Firearms and clothing associated with the robberies -- some stained with

dye -- were found in Travis’ residence; the upholstery in Jones’ car was stained

with dye; and Travis’ fingerprint was found at the bank. “[B]efore a federal

constitutional error can be held harmless, the court must be able to declare a belief

that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S.

18, 24 (1967). In light of the evidence adduced at trial, the district court’s error in

allowing Whiteman to testify about what the Complex 21 employees told him was

harmless beyond a reasonable doubt.

C. Miranda v. Arizona

      The district court did not err in admitting evidence of Travis’ statements at

the ACDC. Travis argues that the agents violated Miranda v. Arizona, 384 U.S.

436 (1966), when they asked him if he would have shot it out with the police. We

have held that once the right to silence is invoked, police must “scrupulously

honor” it and are forbidden from further interrogation. See, e.g., Jacobs v.

Singletary, 952 F.2d 1282, 1292 (11th Cir. 1992). The government argues that

these questions by the agents were not interrogation within the meaning of

Miranda and its progeny. However, it is unnecessary for us to reach the question

because Travis waived his Miranda rights.

                                          13
       Where, as here, a “conversation is not ‘wholly one-sided,’ but instead

involves interrogation by the police, the suspect’s statements are admissible only if

the suspect both initiated the dialogue and waived his previously-asserted right to

silence.” Christopher v. State of Fla., 824 F.2d 836, 844 (11th Cir. 1987). Law

enforcement officers may ask routine booking questions, even when a defendant

has invoked his right to remain silent. United States v. Sweeting, 933 F.2d 962,

965 (11th Cir. 1991). Travis argues that the agents initiated the dialogue when

they asked if he had been to ACDC before, while the government argues that

Travis initiated the conversation when he said the earlier agents had been lucky.

When an inquiry is “so routine . . . that [it] cannot be fairly said to represent a

desire . . . to open up a more generalized discussion relating directly or indirectly

to the investigation . . . [the inquiry] will not generally ‘initiate’ a conversation . . .

.” Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983). Here, the agents’ first

question -- whether or not Travis had been to the ACDC before -- falls within that

category. “‘Initiation’ means to ‘begin’ or ‘set-going’; in the interrogation

context, it means that the suspect ‘started,’ not simply ‘continued,’ the

interrogation.” Christopher, 824 F.2d at 845. It was Travis, not the FBI agents,

who started the discussion about the arresting agents’ luckiness. Travis was well

aware of his rights at the time he made the statements, having already invoked

                                            14
them. Moreover, there is no evidence that the agents made any threats or promises

to him. Finally, evidence admitted in violation of Miranda is subject to harmless

error analysis. United States v. Street, 472 F.3d 1298, 1314-15 (11th Cir. 2006).

As discussed above, the evidence of guilt adduced at Travis’ trial was massive.

Even if there had been a Miranda violation here, and we hold that there was not,

excluding this statement would not have changed the result in this case. Because

there was no Miranda violation and because any theoretical error was harmless

beyond a reasonable doubt, this argument lacks merit.

D. Reasonableness of sentencing

      Travis argues that his sentence is procedurally unreasonable because the

district court erred in failing to calculate the sentencing guidelines range on the

record. Here, the district court implicitly adopted the guidelines range detailed in

the presentence investigation report at sentencing, and Travis failed to object to

the district court’s failure to do so explicitly, although he was provided with an

opportunity to do so. Although the district court also did not specifically mention

any of the § 3553(a) factors, it did overrule defense counsel’s objections to the

guideline enhancements, and permitted defense counsel to argue for leniency

based on Travis’ mental illness and the government to request a guideline sentence

based on the nature and circumstances of the offense. Some indication in the

                                          15
record that the court adequately and properly considered the applicable advisory

guideline range and the § 3553(a) factors is all that is required. See Gall v. United

States, 552 U.S. ___, 128 S.Ct. 586, 597 (2007); United States v. Scott, 426 F.3d

1324, 1329 (11th Cir. 2005) (“[N]othing in Booker or elsewhere requires the

district court to state on the record that it has explicitly considered each of the §

3553(a) factors or to discuss each of the § 3553(a) factors.”). We therefore

conclude that Travis’ sentence was procedurally reasonable.

      Having determined that Travis’ sentence is procedurally reasonable, we next

review for substantive reasonableness in light of the 18 U.S.C. § 3553(a) factors.

See United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006). Although

appellate courts may apply a presumption of reasonableness to sentences within

the applicable sentencing guideline, see Rita v. United States, 551 U.S. ___, 127

S.Ct. 2456, 2462-63 (2007), this circuit does not make such a presumption.

United States v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007). Here,

regardless of whether review for reasonableness focuses only on the 188 month

portion of Travis’ sentence or also considers the portion of his total sentence

managed by the guidelines in relation to the statutorily-mandated components, the

district court did not abuse its discretion by imposing a sentence at the bottom of

the applicable guideline range. Although the district court did not so expressly

                                           16
state, the record shows that it agreed with the government that a guideline

sentence was warranted to address the nature and circumstances of the offense and

the seriousness of the offense, considering the district court’s comment that a

guideline sentence was necessary to ensure that Travis remained incarcerated in

the event the mandatory minimums were someday decreased. See 18 U.S.C. §

3553(a)(1), (2). The district court also recommended that Travis receive mental

health care while incarcerated, thereby taking into account the need to provide him

with medical care or other correctional treatment in the most effective manner.

See id. at (a)(2)(D). Accordingly, Travis’ guideline sentence was substantively

reasonable.

E. Remaining issues

      Mr. Travis also argues that the Hobbs Act can only be constitutional if the

government shows a substantial, rather than a minimal, effect on interstate

commerce. It is well settled in this circuit that a minimal effect on commerce is

sufficient. See, e.g., United States v. Gray, 260 F.3d 1267, 1272 (2001). A

review of the record reveals sufficient evidence to support the jury’s finding of a

minimal effect on commerce with respect to each of the robbery counts.

      Similarly, Travis argues that the phrase “second or subsequent conviction

under this subsection” in 18 U.S.C. 924(c)(1)(A)(ii), (C)(i), applies only if the

                                          17
second or subsequent violation occurs after a prior Section 924(c) conviction and

sentence. As counsel notes, this argument was rejected by the Supreme Court of

the United States in Deal v. United States, 508 U.S. 129, 137 (1993), and by this

circuit in United States v. Rawlings, 821 F.2d 1543, 1547 (11th Cir. 1987). We

decline to revisit the issue today.

                                 IV. CONCLUSION

      Upon review of the record and finding no reversible error, we affirm.

AFFIRMED.




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