               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0027n.06

                                         No. 13-5558
                                                                                   FILED
                                                                              Jan 08, 2015
                         UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.                                                  ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
ANTHONY GOSSETT,                                    WESTERN       DISTRICT     OF
                                                    TENNESSEE
       Defendant-Appellant.




BEFORE:       SILER, CLAY, and GIBBONS, Circuit Judges.

       CLAY, Circuit Judge. Defendant, Anthony Gossett, appeals from the district court’s

order denying his motion to suppress and the below-guidelines sentence imposed after a jury

found him guilty of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). For the reasons set forth below, we AFFIRM the judgment of the district court.

                                      BACKGROUND

I.     Factual Background

       On February 26, 2011, four officers with the Memphis Police Department went to the

residence of Defendant’s mother, Viola Nelson, to follow up on a complaint that drugs were

being sold outside the home.     As the officers approached the house, they saw two men,

Defendant Anthony Gossett and Corey Pinson, smoking marijuana while seated in the trunk of a

car parked outside. The lid of the trunk was open, and the officers also observed a bag of
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marijuana placed in the trunk between the two men. The officers seized the bag of marijuana

from the truck and arrested Defendant and Mr. Pinson.

       After being arrested, Defendant told the officers that he lived at the residence with his

mother.   Once the officers explained that they were there because of a drug trafficking

complaint, they asked Defendant for consent to search the residence. Defendant said, “[Y]’all

can tear the place up for all I care, but you’ve got to check with my mom first.”

       Two of the officers went to the residence while the other two stayed with Defendant and

Mr. Pinson. After knocking on the door, the officers were invited in by Defendant’s mother, Ms.

Nelson. They spoke with her for about ten minutes during which they asked whether they could

search the residence and informed her that she had the right to refuse to give consent to the

search. Eventually, Ms. Nelson orally gave the officers consent to search the residence, and also

signed a written consent form agreeing to the same.

       Ms. Nelson then led the officers through the house and directed them to Defendant’s

bedroom. The bedroom door was shut but unlocked. In the bedroom, the officers found a loaded

revolver on the dresser as well as marijuana cigarettes. As the officers were walking out of the

house, Defendant, who was not talking to anyone, saw them with the gun and proclaimed,

“[T]hey went in my house and found my gun.” At that point, the officers had not yet read

Defendant his Miranda rights. Defendant’s mother later signed a separate rights waiver form

and stated that she knew nothing about the firearm.

II.    Procedural History

       Defendant was indicted by a federal grand jury with being a felon in possession of a

firearm. Before trial, Defendant’s counsel filed a motion to suppress both the evidence seized at

the house as well as Defendant’s proclamation that the gun was his. At the suppression hearing,



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Defendant’s mother admitted that she let the officers into the house and allowed them to search

her son’s bedroom. She claimed that she let them in because she learned from “watching TV”

that if she refused, they would come back later with dogs and “tear the house up.” Defendant’s

mother also claimed that she only signed one form, after the officers already found the gun;

however, upon seeing her signature on the consent to search form, she admitted signing two

separate forms.

       After the suppression hearing, the magistrate judge issued a report recommending that the

motion to suppress be denied. He found the officers’ testimony that Defendant’s mother signed

the consent form before they searched the house to be credible and that her consent to the search

was valid and voluntarily given. The district court adopted the findings and conclusions of the

magistrate judge and denied Defendant’s motion to suppress.

       The district court found that Defendant’s mother did not exhibit any signs of duress or

coercion and that she voluntarily brought the officers into her house. In addition, her belief that

the officers could come back to the house with a dog was “a belief that she gained from

television and not from the officers.” The court also ruled that Defendant’s statement about the

gun was a “spontaneous utterance” that was not made in response to custodial interrogation.

After the motion to suppress was denied, Defendant went to trial and was ultimately found guilty

by the jury.

       At sentencing, the Presentence Investigation Report (“PSR”) recommended an advisory

guideline range of 235 to 293 months. The government requested a sentence of 264 months. The

district court, considering the nature and seriousness of the offense, as well as Defendant’s

personal history, rejected the government’s recommendation and varied downward to the




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statutory minimum of 180 months. Defendant now appeals both the denial of his motion to

suppress and the length of the sentence imposed.

                                         DISCUSSION

I.     Motion to Suppress

       A.      Standard of Review

       We review a district court’s decision on a suppression motion for clear error as to factual

findings and de novo as to conclusions of law. United States v. Richardson, 385 F.3d 625, 629

(6th Cir. 2004). If the district court denies the motion to suppress, “we must view the evidence

in the light most favorable to the government.” United States v. Smith, 549 F.3d 355, 359 (6th

Cir. 2008) (internal quotation marks omitted). This Court may uphold the denial of a motion to

suppress on any ground supported by the record. United States v. Higgins, 557 F.3d 381, 389

(6th Cir. 2009).

       Factual findings or credibility determinations by the district court are clearly erroneous

only if “the reviewing court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573

(1985) (internal quotation marks omitted). “Whether consent to a search is voluntarily given is a

question of fact.” United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998). Therefore, a

“district court’s finding of voluntary consent will be reversed only if clearly erroneous.” Id.

(citation omitted).

       B.      Analysis

               1.     Consent to search

       The Fourth Amendment protects the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.



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It is well-settled that an individual may waive her Fourth Amendment rights by consenting to a

search. Davis v. United States, 328 U.S. 582, 593–94 (1946). Consent to a search “may be in

the form of words, gesture, or conduct.” United States v. Young, 318 F. App’x 407, 409 (6th Cir.

2009) (quoting United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976)). In whatever form,

consent has effect only if it is given freely and voluntarily. Bumper v. North Carolina, 391 U.S.

543, 548 (1968).      Whether consent was free and voluntary so as to waive the warrant

requirement of the Fourth Amendment is “a question of fact to be determined from the totality of

all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

        The district court found that Defendant’s mother did not exhibit any signs of duress or

coercion and that she voluntarily brought the officers into her house. The district court thus

concluded that the government’s search of Defendant’s living space was justified based on the

valid and voluntary consent of his mother.

        Defendant argues that although he lived at the residence and it was owned by his mother,

he nonetheless had a privacy interest in his bedroom that was “separate . . . from his mother’s

privacy interest in the entire house.” It is axiomatic that consent to search must come from

someone authorized to give it. United States v. Purcell, 526 F.3d 953, 962 (6th Cir. 2008)

(citation omitted). “[A] third-party can consent to a search of jointly occupied property, as long

as the third-party has ‘common authority’ over the premises.” United States v. Moore, 917 F.2d

215, 223 (6th Cir. 1990) (search of defendant’s bedroom was lawful due to consent given by

girlfriend).

        In this case, Defendant’s mother, as a co-tenant, had common authority over the entire

residence.     See Pratt v. United States, 214 F. App’x 532, 534–36 (6th Cir. 2007) (family

members typically have authority over the entire family residence) (citing United States v.



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Clutter, 914 F.2d 775, 777 (6th Cir. 1990)). In addition, Defendant essentially conceded that his

mother had authority over the entire residence when he told the officers they could “tear the

place up for all I care, but you’ve got to check with my mom first.”

       Moreover, even if Defendant’s mother did not have actual authority to give consent to

search of Defendant’s bedroom, both Defendant and his mother acted as though she did. A

“warrantless entry is valid when based upon the consent of a third party whom the police, at the

time of the entry, reasonably believe to possess common authority over the premises, but who in

fact does not.” United States v. Hall, 979 F.2d 77, 79 (6th Cir. 1992) (quoting Illinois v.

Rodriquez, 497 U.S. 177, 179 (1990)). “[T]he reasonableness of the government’s decision to

search is assessed by the objective standard of whether the facts available at the moment would

warrant a person of reasonable caution in the belief that the consenting party had authority over

the premises.” Id. (internal quotation marks omitted).

       Just as in Hall, the officers here “acted with the understanding and belief” that

Defendant’s mother “had the authority to consent to the police entrance and search” of

Defendant’s bedroom. 979 F.2d at 79–80. Defendant’s mother testified that she “just carried [the

officers] right on back” to her son’s bedroom. Since Defendant told the officers that consent to

search any part of the house depended on his mother, he cannot now complain that they relied on

his mother’s consent to search his bedroom. Cf. Georgia v. Randolph, 547 U.S. 103, 121 (2006)

(holding that a present and objecting co-tenant can trump a third party co-tenant’s authority to

consent).

       The record shows that Defendant’s mother invited the officers into the house, promptly

gave verbal and written consent to search, and led the officers to Defendant’s bedroom. She did

not object when the officers began their search. There was absolutely no indication of any sort



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of mental or physical impediment, or influence of medication, that would impair her ability to

consent to a search. In addition, the district court found that Defendant’s mother did not

objectively appear to be under duress.

       There was also no evidence presented that Defendant’s mother was coerced to consent. A

“defendant must show more than a subjective belief of coercion, but also some objectively

improper action on the part of the police.” United States v. Crowder, 62 F.3d 782, 787 (6th Cir.

1995). Specifically, “the defendant must establish that: ‘(1) the police activity was objectively

coercive; (2) the coercion in question was sufficient to overbear defendant’s will; and

(3) defendant’s will was in fact, overborne as a result of the coercive police activity.’” United

States v. LeBlanc, 45 F. App’x 393, 397 (6th Cir. 2002) (quoting United States v. Rigsby, 943

F.2d 631, 635 (6th Cir. 1991)). There was no evidence presented at the hearing that the officers

had their guns drawn or threatened Ms. Nelson in any way. The entire process of encountering

the officers and granting consent to search the bedroom lasted approximately ten minutes. Even

though the officers were not required to do so, they told Defendant’s mother that she had the

right to refuse consent.

       In conclusion, Defendant’s mother demonstrated that she had authority to consent to a

search of the entire residence. She took the officers directly to her son’s bedroom, identified it as

such, and did not object as the officers went in and searched the room. There was no indication

Ms. Nelson was mentally or physically impaired, as well as no indication of duress or coercion

by the officers. Furthermore, Defendant gave his mother authority over the residence via his

statement to the officers. As a result, the district court’s finding that the mother’s consent to

search Defendant’s bedroom was valid and voluntarily given is not clearly erroneous.




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               2.     Statement made following discovery of the gun

       Defendant argues that his statement about the gun following its discovery by the police

should have been suppressed either (1) because it was fruit of the poisonous tree, or (2) because

it was given in response to interrogation or the functional equivalent of such questioning. His

first argument fails because, since there was no illegal search, there could be no “poisonous tree”

from which the statement could have derived. His second argument fails because, as the district

court found, Defendant was not being interrogated when he spontaneously said the gun was his.

       It is well-settled that statements volunteered by a defendant while in custody are not

implicated by Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda itself, the Supreme Court

held that “[v]olunteered statements of any kind are not barred by the Fifth Amendment and their

admissibility is not affected by our holding today.” Id. at 478. “[T]he special procedural

safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but

rather where a suspect in custody is subjected to interrogation.” Rhode Island v. Innis, 446 U.S.

291, 300 (1980); see also United States v. Montano, 613 F.2d 147, 149 (6th Cir. 1980).

       In United States v. Murphy, the defendant made statements while in custody in a police

car without being questioned by any officers. 107 F.3d 1199, 1204–05 (6th Cir. 1997). Even

though the defendant had not been provided Miranda warnings, this Court held that the

statements were admissible because they were voluntarily made in the absence of any

questioning. Id.

       The case at hand presents a similar situation. Defendant saw the officers leave his house

carrying his gun and simply blurted out that the gun was his. The district court found that

Defendant presented no evidence at the hearing that would contradict the officers’ testimony on




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this point. Viewing the record in its entirety, in the light most favorable to the government, we

conclude that it supports the district court’s findings.

II.    Sentencing Determination

       A.      Standard of Review

       We review a district court’s sentencing determination for reasonableness under a

deferential abuse of discretion standard. United States v. Bolds, 511 F.3d 568, 578 (6th Cir.

2007). This reasonableness review involves two steps: (1) procedural and (2) substantive. Id.

In performing this two-step review, “[t]he district court’s interpretation of the advisory

Guidelines is reviewed de novo, and its findings of fact are reviewed for clear error.” United

States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009).

       This Court evaluates the procedural reasonableness of a sentence to “ensure that the

district court did not commit significant procedural error, such as: ‘failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51

(2007)). When reviewing a sentence for procedural reasonableness, “we must ensure that the

district court correctly calculate[d] the applicable Guidelines range” because it is “the starting

point and initial benchmark of its sentencing analysis.”        Bolds, 511 F.3d at 579 (internal

quotation marks omitted).

       We also assess the substantive reasonableness of the sentence.               A sentence is

substantively reasonable if it is “sufficient, but not greater than necessary” to achieve the

sentencing goals identified by Congress. 18 U.S.C. § 3553(a); see also United States v. Herrera-

Zuniga, 571 F.3d 568, 588 (6th Cir. 2009). A sentence will be found substantively unreasonable



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if “the district court selects the sentence arbitrarily, bases the sentence on impermissible factors,

fails to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any

pertinent factor.” United States v. Corp, 668 F.3d 379, 386 (6th Cir. 2012) (internal quotation

marks omitted).

       B.      Analysis

       Defendant was sentenced to 180 months of confinement—the statutory minimum

pursuant to 18 U.S.C. § 924(e). The sentence is fifty-five months below the low-end of the

advisory guideline range recommended in the PSR. Neither Defendant nor the government

objected to the calculation in the PSR, but Defendant did ask the district court for a downward

departure, which was denied.

       Defendant claims his sentence is “excessive based n [sic] the circumstances.” He does not

make clear whether he believes his sentence is procedurally unreasonable, substantively

unreasonable, or both. Indeed, he cites to nothing in the record and advances no concrete

argument at all as to why his sentence is excessive.

       We are of the opinion that the sentence imposed by the district court was procedurally

reasonable. Neither party asserts that the district court improperly calculated the guidelines range

and there is nothing in the record suggesting as much. Additionally, the district court

acknowledged that the guidelines were not mandatory and that the court could vary from the

calculated range. Before imposing the sentence, the court outlined the facts of the case and the

facts of Defendant’s personal and criminal history. None of the facts the court discussed were

clearly erroneous. From the sentencing transcript, it is evident that the district court took

“everything into account,” including the 3553(a) factors when it determined the sentence. And

finally, the court went to great lengths to explain the basis for the sentence imposed, which was a



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significant downward variance from the guidelines range. In sum, the district court did

everything that was procedurally required before sentencing Defendant.

        Similarly, we conclude that Defendant’s sentence was also substantively reasonable.

Defendant received a sentence that was the statutory minimum—the lowest sentence the district

court could impose. See United States v. Briggs, 431 F. App’x 389, 397 (6th Cir. 2011). The

district court explicitly stated that it found the 180-month sentence to be “sufficient but not

greater than necessary” to achieve the goals of § 3553(a). Furthermore, there is nothing in the

record to suggest that the district court “select[ed] a sentence arbitrarily, base[d] the sentence on

impermissible factors, fail[ed] to consider relevant sentencing factors, or [gave] an unreasonable

amount of weight to any pertinent factor.” United States v. Webb, 616 F.3d 605, 610 (6th Cir.

2010) (internal quotation marks omitted).

        Defendant’s mere allegation that the sentence imposed is greater than necessary to

achieve the goals of punishment outlined in § 3553(a) is insufficient to rebut the presumption of

reasonableness given to within-guidelines sentences—a presumption that is even stronger when

“the variance results in a sentence even more favorable to the challenging Defendant than a

within-Guidelines sentence.” United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008); see also

United States v. Dexta, 470 F.3d 612, 616 (6th Cir. 2006). Since Defendant cannot show any

violation of law or abuse of discretion, he cannot establish that the statutorily-prescribed

minimum sentence was unreasonable.

                                         CONCLUSION

        For the foregoing reasons, we AFFIRM both the district court’s denial of Defendant’s

motion to suppress and the statutorily minimum sentence it imposed after Defendant was found

guilty in a trial by jury.



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