                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-10250                ELEVENTH CIRCUIT
                                                              OCTOBER 7, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                 D. C. Docket No. 07-00480-CR-2-SLB-HGD

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JACQUES TERRELL HAYES,

                                                          Defendant-Appellant.


                         ________________________

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

                              (October 7, 2009)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     A two-count indictment charged Jacques Terrell Hayes with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),1 on August 16, 2007

(Count 1), and November 17, 2007 (Count 2). Following his arraignment, Hayes

moved the district court to sever the counts for trial. The court referred the motion

to a magistrate judge, and the magistate judge entered an order denying it. Hayes

did not appeal the order to the district court, so the case went to trial on both

counts. At trial, after the prosecutor called Birmingham Police Officer Timothy

Thorin to the stand, Hayes requested a sidebar and to object to testimony he

anticipated Thorin would give regarding statements Hayes made to Thorin after he

detained Hayes so that he could search the car in which Hayes had been riding for

drugs and a handgun. Hayes claimed that the statements were inadmissible

because he made them prior to being informed of his Miranda rights.2 The court

sustained his objection to the first statement but not the second statement, since

Hayes had made that statement, “Man, they told me I should have got a pistol

permit,” spontaneously – after Officer Thorin told him that he was being charged

with a firearms violation – and voluntarily.

       The jury convicted Hayes on both counts, and the court sentenced him to

concurrent prison terms of 115 months. Hayes now appeals his convictions on two


       1
         Hayes had been convicted in Alabama of two felonies: manslaughter, in January 1999,
and attempted murder, in February 2005.
       2
           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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grounds. We take them up in order.

                                           I.

      Hayes argues that the district court erred in trying Counts 1 and 2 together;

the joint trial of the counts caused him to suffer undue prejudice, as the evidence

associated with Count 1 would not have been admissible under Federal Rule of

Evidence 404(b) at a separate trial of Count 2, and vice versa. We reject his

argument for two reasons. First, his failure to appeal the magistrate judge’s order

denying his motion to sever the counts operated as a “waiver of [his] right to

review.” See Fed. R. Crim. P. 59(a). Second, putting aside the Rule 59(a) bar,

Hayes has not shown that the district court committed plain error in not intervening

sua sponte to sever the counts. Hayes’s failure to appeal [to the district court] the

magistrate judge’s severance order tacitly informed the district court that Hayes

was consenting to the trial of the counts together, so we could hardly fault the court

for not intervening and severing the counts.

                                          II.

      The district court sustained Hayes’s objection to the first statement Hayes

made to Officer Thorin on the ground that Hayes was in custody at the time he

made the statement – and the second one as well – and had not been informed of

his Miranda rights. The absence of a Miranda warning did not bar the



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admissibility of Hayes’s second statement, however, if the statement was

“voluntary,” Rhode Island v. Innis, 446 U.S. 291, 299, 100 S.Ct. 1682, 1689, 64

L.Ed.2d 297 (1980), and Thorin’s telling Hayes that he would be charged with a

firearms violation was not likely to elicit an incriminating response. Id. at 301, 100

S.Ct. at 1689-90. The record supports the district court’s finding that Hayes made

the second statement voluntarily. It also supports the conclusion that Thorin’s

statement informing Hayes of the charge was not of the type that was reasonably

calculated to elicit an incriminating response.

      Hayes argues that his response was tainted by Thorin’s conduct in eliciting

the first statement. He did not present this argument to the district court; hence, to

accept the argument, we must find that the court committed plain error in admitting

the response into evidence. We find no error, much less plain error.

      For the foregoing reasons, Hayes’s convictions are

      AFFIRMED.




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