     Case: 09-10090     Document: 00511045974          Page: 1    Date Filed: 03/09/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            March 9, 2010
                                     No. 09-10090
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

LEVANDER CARLTON MCLEAN; RITA MURPHY MCLEAN,

                                                   Defendants-Appellants


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:08-CR-6-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Defendants-Appellants Rita Murphy McLean and Levander Carlton
McLean appeal their convictions, following a jury trial, for one count of
conspiracy to use identification documents unlawfully, in violation of 18 U.S.C.
§§ 371, 1028(a)(7), 1028(b)(1)(D). Mr. McLean contends that the district court
erred in denying his motion to suppress statements made during an alleged
“custodial” interview with IRS agents because the agents failed to inform him
of his rights under Miranda v. Arizona, 384 U.S. 436, 479 (1966). Mrs. McLean
contends that her within-guidelines sentence is unreasonable based on her


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-10090

family circumstances.     “We have long pitched the standard of review for a
motion to suppress based on live testimony at a suppression hearing at a high
level.” United States v. Randall, 887 F.2d 1262, 1265 (5th Cir. 1989). “In
reviewing the denial of the defendant’s motion to suppress, we review the
district court’s factual findings, including its credibility choices, for clear error,
and its legal conclusions de novo.” United States v. Solis, 299 F.3d 420, 435 (5th
Cir. 2002). “A factual finding is not clearly erroneous as long as it is plausible
in light of the record as a whole.” United States v. Jacquinot, 258 F.3d 423, 427
(5th Cir. 2001). Suppression hearing evidence must be “viewed in the light most
favorable to the prevailing party.” Id.
      A person subject to interrogation by government agents must be
Mirandized “only where there has been such a restriction on a person’s freedom
as to render him in custody.” Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
A person not formally arrested is deemed to be in custody “when a reasonable
person in the suspect’s position would have understood the situation to
constitute a restraint on freedom of movement of the degree which the law
associates with formal arrest.” United States v. Courtney, 463 F.3d 333, 337 (5th
Cir. 2006) (internal quotation marks and citation omitted).
      Mr. McLean claims that statements he made during an interview with IRS
agents should be suppressed because he was in “custody” at the time. At Mr.
McLean’s suppression hearing, an IRS Special Agent testified that he and other
agents who had been conducting surveillance of Mr. McLean located Mr. McLean
in his car at a stop sign and asked him if he would agree to answer questions at
an IRS building located nearby. Mr. McLean agreed and followed the agents to
the IRS building in his own car. The agent testified that Mr. McLean was not
arrested, handcuffed, frisked, searched, or removed from his car. Further, the
agents were driving unmarked cars and were not in uniform.



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                                No. 09-10090

      The court heard testimony that after arriving at the IRS building, Mr.
McLean was read his noncustodial rights and was not handcuffed, arrested, or
searched. The court heard further testimony that Mr. McLean was never told
that he could not leave and that he was specifically told that if he wanted an
attorney, the interview would end and he could leave.             The court heard
testimony that all agents in the room with Mr. McLean were seated, were not
surrounding him, and were not blocking the exit door. Finally, the court heard
testimony that Mr. McLean voluntarily answered questions, did not ask for an
attorney, and never asked to leave. At the end of the interview, Mr. McLean left
in his own car. We hold that, under these circumstances, the district court did
not err in denying the motion to suppress. See Courtney, 463 F.3d at 337. We
therefore affirm Mr. McLean’s conviction and his sentence.
      Mrs.   McLean     contends   that       her   within-guidelines   sentence     is
unreasonable because of her family circumstances, specifically, that there is no
one else to care for her minor children. In reviewing a sentence, we “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.”   Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
When the district court imposes a sentence within a properly calculated
guidelines range and gives proper weight to the Guidelines and to the § 3553(a)
factors, we give “great deference to that sentence and will infer that the judge
has considered all the factors for a fair sentence set forth in the Guidelines in
light of the sentencing considerations set out in § 3553(a).” United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.) (internal quotation marks and
citation omitted), cert. denied, 129 S. Ct. 328 (2008). “A discretionary sentence
imposed within a properly calculated guidelines range is presumptively
reasonable.” Campos-Maldonado, 531 F.3d at 338.



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                                No. 09-10090

      As a general rule, we review the substantive reasonableness of a sentence
for abuse of discretion. Gall, 552 U.S. at 51. If, however, a defendant fails to
object to a sentencing error contemporaneously, we review for plain error only.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). In United States v.
Peltier, 505 F.3d 389, 391-94 (5th Cir. 2007), we held that a defendant’s failure
to object to the reasonableness of his sentence triggers plain error review. In
light of Peltier, it is unclear whether Mrs. McLean’s failure to object that her
sentence was unreasonable relegates to plain error review the issues that she
raised at her sentencing hearing in support of a below-guidelines sentence. This
question need not be resolved here, however, because Mrs. McLean’s sentence
should be affirmed under either standard.
      Mrs. McLean’s contention that no other person is available to care for her
children is belied by the record; and, regardless, Mrs. McLean has not overcome
the presumption that her within-guidelines sentence is reasonable. Campos-
Maldonado, 531 F.3d at 338. We hold that Mrs. McLean’s sentence is not
unreasonable and that the district court did not err by not sentencing Mrs.
McLean to a below-guidelines sentence. The rulings of the district court as to
both Defendants-Appellants are, in all respects,
AFFIRMED.




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