424 F.3d 122
Chun GAO, Petitioner,v.Alberto R. GONZALES, Attorney General Respondent.*
Docket No. 03-40509.
United States Court of Appeals, Second Circuit.
Argued: May 16, 2005.
Decided: September 9, 2005.

COPYRIGHT MATERIAL OMITTED Aleksander Milch, (Michael Lehach, Christophe & Associates, P.C., on the brief), New York, N.Y., for Petitioner.
Nathan E. Wyatt, Assistant United States Attorney (Ronald J. Tenpas, United States Attorney for the Southern District of Illinois, on the brief), Fairview Heights, Ill., for Respondent.
Before: MINER and SACK, Circuit Judges, and SPATT, District Judge.**
MINER, Circuit Judge.

I. Introduction

1
Petitioner-appellant, Chun Gao, a native and citizen of the People's Republic of China, petitions this Court for a review of a September 10, 2003, order of the Board of Immigration Appeals ("BIA"), summarily affirming a decision of an Immigration Judge ("IJ") dated January 24, 2002. The decision of the IJ rejected petitioner's applications for asylum and withholding of removal under sections 208 and 241 of the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1158(a) and 1231(b)(3), as well as his application for relief under the United Nations Convention Against Torture ("CAT"), adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; see also 8 C.F.R. § 208.16. The Government urges denial of review for the reasons given by the IJ in denying Gao's applications.

2
Where the BIA expressly adopts the IJ's findings and reasoning, as it did here, we review the decision of the IJ as if it were that of the BIA. See Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). Our review, in any event, must "be confined to the reasoning of the IJ, and we will not search the record independently for a basis to affirm the BIA." Id.; see Yu Sheng Zhang v. United States Dep't of Justice, 362 F.3d 155, 158-59 (2d Cir.2004) (per curiam).

II. The Proceeding Before the IJ

3
The only witness to give oral testimony at the hearing conducted by the IJ was petitioner Gao, who was represented by counsel, as was the Government. In addition to the testimony, the evidence presented included: Gao's application for political asylum and withholding of removal, accompanied by a narrative statement attached to the application; a U.S. State Department Country Report on China;1 a medical certificate of the Changle City Public Health Association, pertaining to Gao's mother; a graduation certificate pertaining to the physician who treated Gao's mother; Gao's notarial birth certificate, household registration booklet, and graduation certificate; and a business license and tax certificate in the name of Gao's mother.

4
From his testimony and exhibits, the following story put forward by Gao emerged: In February of 1997, Gao and his mother opened a bookstore in Nungman, China, his hometown. Although he considered himself the owner and operator of the bookstore, the license and tax certificate for the business were in the name of his mother, Ai Hua Yang. He conducted the business in his mother's name because he was unmarried and "in ... local custom... unmarried children are considered children." Gao lived with his mother in an apartment above the bookstore when the business was opened.

5
In 1998, Gao began working in Fuzhou, at the Fuda Elevator Company, while taking classes there three nights a week at the university. In Fuzhou, he occupied an apartment formerly belonging to his grandmother. Gao returned to his hometown, as time permitted, to assist his mother in the operation of the bookstore.

6
In June of 1999, Gao began selling books, magazines, and other materials pertaining to the Falun Gong movement.

7
Falun Gong (or Wheel of the Law, also known as Falun Dafa), blends aspects of Taoism, Buddhism and the meditation techniques of qigong (a traditional martial art) with the teachings of Li Hongzhi, who left the country in 1998. The [Chinese] [g]overnment estimates that there may be as many as 2.1 million adherents of Falun Gong; Falun Gong followers estimate that there are as many as 100 million adherents worldwide. Some experts estimate that the true number of Falun Gong adherents lies in the tens of millions. Despite the mystical nature of some of Li's teachings, Falun Gong does not consider itself a religion and has no clergy or formal places of worship.

8
Country Report § 2.c.

9
Gao was not an adherent of Falun Gong, nor was he very knowledgeable about its practices. In his testimony, he described Falun Gong as "that book concerning to, to your physical health." Gao sold the books only because they "[we]re the best sellers and [he and his mother could] make money" selling them. He obtained the books from a former high school classmate, Chen Fang Di, who also owned a bookstore.

10
In July of 1999, the practice of Falun Gong was outlawed by the Chinese government. Because of media reports that the practitioners of Falun Gong and the sellers of its literature were subject to arrest, Gao decided in September of 1999 to stop selling such literature. He and his mother moved the Falun Gong books and materials out of the store and into a warehouse at the rear of the store. Nevertheless, several policemen came to the bookstore in October of 1999. Gao was working in Fuzhou at the time, but his mother was at home. When Gao returned home that evening, he found his mother lying in bed with bruises and cuts on the left side of her face and on her left arm. Her kneecaps also were injured.

11
Gao's mother told him that she had sustained her injuries during a scuffle with the police, in the course of which she fell down the stairs in front of the store. She related that the police had pushed all the bookshelves onto the ground and had confiscated the Falun Gong books in the warehouse as well as the business license. She reported that the physical altercation with the police had erupted when she resisted the taking of the license.

12
Heeding his mother's advice that he leave at once, Gao returned immediately to his apartment in Fuzhou. Before he left, however, he tried to contact his friend, Chen Fang Di, who had supplied Gao with the Falun Gong literature. Gao spoke by telephone with Chen's grandmother, who informed him that the police had arrested Chen, confiscated his Falun Gong inventory, and closed his bookstore.

13
Gao stayed in his apartment in Fuzhou for only one night. The next day he traveled to Nanping, where his maternal aunt resided. He stayed with his aunt for three days and enlisted her help to take his mother for treatment to a medical doctor. The doctor later furnished a certificate attesting to his treatment of Gao's mother; translated, it states as follows: "Patient Ai Hua Yang was seriously injured and her knee(s) injured due to a fall in October 1999. In addition, her coronary heart disease has been deteriorating." After Gao left the home of his maternal aunt, he went to the home of his paternal uncle in Fuzhou. Gao alternated his residence between the two homes, and occasionally worked in Nanping repairing water heaters.

14
In October or November of 1999, Gao received a telephone call from a friend who was a fellow student at the university. This friend told him that the police had visited a dean of the university in an effort to discover Gao's whereabouts. Gao also remained in contact with his mother, who informed him that the police had visited her on a number of occasions as well. The police sought to arrest Gao in order to find out who had supplied him with Falun Gong literature and who had purchased it from the store.

15
After Gao left China on June 10, 2000, he remained in contact with his mother, who advised that the police continued to seek him out through her. In response to a question at the hearing as to why the police did not target his mother individually, Gao testified that his mother had a serious heart problem, that she might have had a heart attack if placed in custody, and that the local police officers in her village were aware of that possibility and acted accordingly.

III. The Decision of the Immigration Judge.

16
In a somewhat disjointed oral decision, the IJ reached the following conclusions with respect to Gao's application for asylum: "[I]t must be vehemently emphasized that [Gao] did not sell Falun Gong books because he is a Falun Gong sympathizer or supporter. He sold Falun Gong books because it was profitable. [Gao], therefore, is not meritorious of political asylum." The IJ recognized that "the testimony [of an applicant] for asylum sometimes is the only evidence available and can suffice if it's believable, consistent, and sufficiently detailed in light of country conditions to provide a plausible account for the fear." The IJ went on, however, to state that "[i]n this particular case, [she had] problems with [Gao's] credibility" and did "not find that his testimony [was] sufficiently credible and plausible to stand alone in support of his claims."

17
In support of her finding of a lack of credibility and plausibility, the IJ stated: "It makes absolutely ... no sense that [Gao's] mother has circumvented any problems with the police, and that the emphasis is on [Gao] even though he is not the licensed book seller or owner." The IJ also found that Gao's mother "presumably ha[d] never been interrogated" and had "had absolutely no problems with the [Chinese] government ... save for the one incident when the police came and ransacked the store." Rejecting Gao's explanation that the police took into consideration his mother's heart condition, the IJ stated that, if this supposition were true, it would "drastically undercut ... any testimony" regarding the "alleged campaign to eradicate all those ... connected with the Falun Gong movement."

18
Further commenting on the issue of credibility, the IJ stated as follows: "[Gao] insisted today in testimony that a famous, traditional doctor attended to his mother and ... issued a medical document to that effect; but there is no such medical document" in the Record. She concluded that "the medical documentation is not consistent with [Gao's] testimony at all and, therefore, creates a problem of credibility and plausibility."

19
Based on Gao's testimony that the police wanted to find out who sold the Falun Gong books to him and who purchased them from him, the IJ concluded that "the police [were] only looking to speak to [Gao]." A finding of past persecution or fear of future persecution, necessary to a grant of asylum, could not, according to the IJ, be predicated on the desire of police officers merely to speak with or question Gao. The IJ found it especially telling that Gao was neither the license holder nor the official store owner. The IJ concluded, on that basis, that Gao did not "fit[ ] into any particular social group" and that "there[ ][was] absolutely no nexus between [Gao] and ... any political opinion or any other such protected ground."

20
In light of these determinations, the IJ denied Gao's application for asylum as well as his application for withholding of removal. The IJ also denied Gao's application for relief under the CAT, finding that he "set forth absolutely no facts or circumstances to show that it is more likely than not that he would be tortured if forced to return to [China]."

IV. Analysis

21
A. Asylum, Withholding of Removal, and Relief Under the Convention Against Torture

22
Pursuant to § 208(b) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b), an applicant for asylum must establish that he or she is a refugee, unable or unwilling to return to his or her native country because of "persecution or a well-founded fear of persecution on account of" one or more of five enumerated grounds: "[R]ace, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir.2003). Once an individual proves either past persecution or a well-founded fear of future persecution, the Attorney General has discretion to grant asylum pursuant to 8 U.S.C. § 1158. See Xin-Chang Zhang v. Slattery, 55 F.3d 732, 737 (2d Cir.1995).

23
An alien has a well-founded fear when "a reasonable person in her circumstances would fear persecution if she were returned to her native country." Carcamo-Flores v. INS, 805 F.2d 60, 68 (2d Cir.1986). "Well-founded fear involves both a subjective and an objective component. The former may be based on the applicant's reaction to events that impinge on [her] personally; but to make it a well-founded fear, there must be other proof or objective facts that lend support to the applicant's subjective fear." Melendez v. United States Dep't of Justice, 926 F.2d 211, 215 (2d Cir.1991). "When an asylum applicant has demonstrated that she has been subjected to past persecution, there is a presumption that a well-founded fear of persecution exists." Melgar de Torres v. Reno, 191 F.3d 307, 311 (2d Cir.1999); see 8 C.F.R. § 208.13(b)(1); see also Melendez, 926 F.2d at 215. "Once demonstrated, the burden shifts to the Government to show, by a preponderance of the evidence, that country conditions have changed to such an extent that the petitioner no longer has a well-founded fear that she would be persecuted if she were to return to her native country." Melgar de Torres, 191 F.3d at 311; see 8 C.F.R. § 208.13(b)(1).

24
For withholding of removal, "the applicant must meet the requirements of asylum eligibility and establish that it is more likely than not that were he or she to be deported his or her life or freedom would be threatened on account of one of the five bases for asylum." Islami v. Gonzales, 412 F.3d 391, 395 (2d Cir. 2005); see 8 U.S.C. § 1231(b)(3)(A); Diallo v. INS, 232 F.3d 279, 284-85 (2d Cir.2000). Since this is a burden heavier than that imposed for eligibility for asylum, it follows that an applicant unable to demonstrate eligibility for asylum cannot demonstrate eligibility for withholding of removal. See Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999). However, if a showing for withholding of deportation is made, the Attorney General does not have the discretion afforded to him in an asylum case, and withholding must be granted. Id.

25
Article 3 of the CAT provides that "[n]o State Party shall expel [or] return... a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85; see Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir.2004). Torture has been defined "as the intentional infliction of pain or suffering that is perpetrated or sanctioned by a nation's authorities." Id.; see also 8 C.F.R. § 208.18(a)(1). To establish eligibility for protection under the CAT, an applicant must demonstrate that "`it is more likely than not that he or she would be tortured if removed to the proposed country of removal.'" Ramsameachire, 357 F.3d at 184 (quoting 8 C.F.R. § 206.16(C)(2)). The regulations provide the following:

26
In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to:

27
(i) Evidence of past torture inflicted upon the applicant;

28
(ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;

29
(iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and

30
(iv) Other relevant information regarding conditions in the country of removal.

31
8 C.F.R. § 208.16(c)(3).

32
Relief under the CAT requires the applicant to establish "that there is greater than a fifty percent chance (i.e. that it is `more likely than not') that he will be tortured upon return to his or her country of origin." Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 n. 20 (2d Cir.2003); 8 C.F.R. § 208.16(c)(2).

B. Legal Conclusions

33
The principal reason2 given by the IJ for denial of asylum and withholding of removal is found in the IJ's "vehement[] emphasi[s] that [Gao] did not sell Falun Gong books because he [was] a Falun Gong sympathizer or supporter" but, rather, "because it was profitable." The IJ thus focused on the thoughts, actions, and motives of Gao. But the question in this case is not whether Gao was or is a practitioner of Falun Gong, but whether authorities would have perceived him as such or as a supporter of the movement because of his activities. If authorities would persecute him as an adherent or as a supporter of Falun Gong, then such persecution would be "on account of" an enumerated ground.

34
Although we have not had the occasion to rule definitively on the matter, "there is wide endorsement of the concept of persecution on account of imputed political opinion." Amanfi v. Ashcroft, 328 F.3d 719, 728-29 (3d Cir.2003) (extending concept to "persecution on account of imputed status as a homosexual"). With respect to the perception of Falun Gong itself, the Ninth Circuit has noted "that the government's crackdown on Falun Gong practitioners is motivated by a perceived anti-government political opinion." Hongke Zhang v. Ashcroft, 388 F.3d 713, 720 (9th Cir.2004) (emphasis added). Here, the IJ failed to explore the question of whether this same political opinion was imputed to Gao by the Chinese authorities because he sold Falun Gong literature.

35
In agreement with the First Circuit, we accept the proposition "that an imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground of political persecution within the meaning of the [Immigration and Nationality] Act." Alvarez-Flores v. INS, 909 F.2d 1, 4 (1st Cir.1990). Decisions of our sister circuits accept the same proposition. In Al-Harbi v. INS, the Ninth Circuit held that "a petitioner may establish a well-founded fear of persecution on account of a political opinion imputed to him by his persecutors, whether or not he actually holds that opinion." Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001); see also Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir.2001); Morales v. INS, 208 F.3d 323, 331 (1st Cir.2000); Mya Lwin v. INS, 144 F.3d 505, 509 (7th Cir.1998); cf. Cruz-Diaz v. INS, 86 F.3d 330, 332 (4th Cir. 1996).

36
The IJ certainly was on notice that Gao was advancing the theory of imputed political opinion. In his asylum application, Gao wrote: "The government ... believes that I am a supporter of the Falun Gong Movement." At his hearing, Gao testified: "They wanted to arrest me to find out where I obtained the books, and whom did I sell those books to." In emphasizing that Gao was not a Falun Gong adherent and that he sold Falun Gong books only for profit, however, the IJ failed to explore adequately the views held by the alleged persecutors with respect to Gao's support for the movement. Such perceived support, based on Gao's activities, would constitute an imputed political opinion sufficient to satisfy the requirement that any persecution be "on account of" an enumerated ground.

37
The IJ simply failed to come to grips with the proposition that Gao is eligible for asylum or withholding of removal if the authorities persecuted him or would persecute him in the future, or if it is more likely than not that they would threaten his life or freedom, on the basis of their belief—however mistaken—that he was a member or supporter of the Falun Gong movement. The mere fact that Gao sold the books only for profit cannot control the disposition of these claims. The failure of the IJ to analyze the issue of imputed political opinion requires us to remand the case to the BIA for that purpose.

38
There is no dispute that those who are considered practitioners of Falun Gong are subject to persecution in China. According to the Country Report:

39
According to credible estimates, as many as 5,000 Falun Gong practitioners have been sentenced without trial to up to [three] years of reeducation through labor. Human rights organizations estimate that as many as 300 practitioners have been sentenced to prison terms of up to [eighteen] years for their involvement in Falun Gong. According to the Falun Gong, hundreds of its practitioners have been confined in mental hospitals.

40
Police often used excessive force when detaining peaceful protestors, including some who were elderly or who were accompanied by small children. During the year, there were numerous credible reports of abuse of Falun Gong practitioners by the police and other security personnel, including police involvement in beatings, detention under extremely harsh conditions, and torture ....

41
Country Report § 2.c. Those who print and distribute Falun Gong literature also have been subjected to persecution:

42
[S]everal persons accused of printing and distributing Falun Gong literature were arrested in Chaoyan, Liaoning Province. According to Amnesty International, two sisters, Li Xiaobing and Li Xaiomei, who owned a bookstore[,] were sentenced on January 28 to [seven] and [six] years in prison, respectively. They reportedly had been arrested in July 1999, just prior to the ban on Falun Gong, were held incommunicado without charge for [three] months, and were tried in secret.

43
Id. In granting withholding of removal, a sister circuit found that it was "more likely than not that [the petitioner] would be arrested, imprisoned, and abused based on his practice of Falun Gong, and his distribution of Falun Gong materials to family and friends in China." Hongke Zhang, 388 F.3d at 719 (emphasis added).

44
The IJ failed to analyze whether the evidence supported Gao's theory of imputed political opinion, and must do so on remand. See Amanfi, 328 F.3d at 730. The burden remains on Gao to "show that his persecutors actually imputed a political opinion to him." Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.1997). Imputed political opinions have been found in various contexts and, once found, "this imputed view becomes the applicant's political opinion as required under the [Immigration and Nationality] Act." Id.

45
In the absence of any evidence whatsoever in the record to show that Gao is likely to be tortured if he were returned to China, however, the determination of the IJ to deny relief under the CAT was fully supported. See Mu-Xing Wang, 320 F.3d at 134.

C. Factual Findings

46
The factual findings of the IJ, which are scattered throughout the oral opinion, must be reconsidered and reevaluated on remand because some of those findings lack the support of substantial evidence in the Record, see Jin Shui Qiu, 329 F.3d at 154-55, and some are predicated upon an inaccurate perception of the Record, see Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004). For example, the IJ rejected Gao's testimony that a doctor had provided a medical document attesting to the injuries sustained during his mother's altercation with the police; the IJ concluded simply: "[T]here is no such medical document." But such a document does indeed exist and was introduced as an exhibit at the hearing before the IJ.

47
The IJ found that Gao's mother "presumably has never been interrogated." But there is no basis in the Record for such a presumption, especially since the IJ apparently accepted the occurrence of the "one incident when the police came and ransacked the store." Moreover, according to the testimony, there were also a number of occasions when the police revisited Gao's mother after the incident. The only inference that reasonably can be drawn from these facts is that the visits made by the authorities were not social in nature.

48
The IJ, however, concluded from Gao's testimony that the police were looking for Gao merely to "speak to him." While Gao was aware that the police wanted to find out from him the names of those from whom he had gotten the Falun Gong books and of those to whom he had sold the books, he also assumed that the authorities believed he was a Falun Gong supporter and therefore were seeking him out for other reasons as well. Indeed, it appears that the police visited on several occasions in an effort to find him.

49
Although the IJ did not find Gao's testimony totally incredible, she did state: "I do have problems with [Gao's] credibility, and I do not find that his testimony is sufficiently credible and plausible to stand alone in support of his claims." In the case of an adverse credibility finding, we ask

50
if the IJ has provided specific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding. In short, our review is meant to insure that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.

51
Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004) (citations and internal quotation marks omitted).

52
Here, we conclude that the issue of Gao's credibility must be reviewed on remand as part of the hereby ordered reconsideration of the factual findings made by the IJ. In rejecting the "credibility and plausibility" of Gao's testimony, the IJ concluded, as noted above, that "[i]t makes absolutely ... no sense that [Gao's] mother has circumvented any problems with the police, and that the emphasis is on [Gao] even though he [was] not the licensed book seller or owner." It certainly cannot be said, however, that Gao's mother has had no problems with the authorities; and there is substantial evidence that the police were looking for Gao despite the fact that he was not the "licensed" owner of the bookstore.

53
The IJ also found Gao's credibility lacking in "his explanation ... that the police and local authorities did not bother his mother because they knew she had a heart condition." But in view of the testimony accepted by the IJ, it cannot be said that the authorities did not "bother" Gao's mother, and, indeed, Gao never so testified. He did testify that, presumably because of her heart condition, the police did not arrest his mother. According to the Country Report, prisoners in Chinese prisons often encounter serious problems in obtaining timely and adequate medical care.

54
Assuming the truth of Gao's "explanation" (as the IJ improperly characterized his testimony) would, according to the IJ, "drastically undercut the value of any testimony surrounding th[e] alleged campaign to eradicate all those that [sic] are in any form or fashion connected with the Falun Gong movement." Even disregarding the IJ's flawed logic, it must be noted that Gao has not alleged, and the Record does not indicate, a plan to "eradicate" all those connected with Falun Gong. The Record does, however, clearly indicate a concerted effort on the part of the Chinese government to persecute such individuals.

55
The foregoing observations relating to misstatements of certain facts and misapprehensions of the Record on the part of the IJ should be considered on remand along with the issue of imputed political opinion.

V. Conclusion

56
In accordance with the foregoing, we deny Gao's petition for review insofar as it pertains to his claim under the CAT. We grant the petition to the extent that we remand to the BIA, for further proceedings consistent herewith, Gao's petition for review insofar as it pertains to his claims for Asylum and Withholding of Removal.

Notes:

*
 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Alberto R. Gonzales is automatically substituted for former Attorney General John Ashcroft as the respondent in this case

**
 The Honorable Arthur D. Spatt, Senior Judge, United States District Court for the Eastern District of New York, sitting by designation

1
 U.S. Dep't of State,Country Report on Human Rights Practices, 2000, China (incl. Hong Kong & Macau) (Feb.2001) [hereinafter "Country Report"].

2
 For the reasons stated in Part IV.C below, we conclude that the IJ's credibility determination is not supported by the Record, even under the "particular deference" we accord such findingsSee Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004). The IJ's stated "problems" with Gao's credibility are therefore not dispositive of his case.


Filed 11/19/14 P. v. Freeman CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                         H039179
                                                                   (Santa Cruz County
         Plaintiff and Respondent,                                  Super. Ct. No. F17295)

         v.

JAY PAUL FREEMAN,

         Defendant and Appellant.

         In this appeal, Jay Paul Freeman (appellant) seeks correction of his presentence
custody credits. For reasons that follow, we agree that appellant is entitled to more
custody credits than he was awarded.
                                         Facts and Proceedings Below
         By way of an information filed on March 25, 2009, appellant was charged with
two counts of obtaining money, labor or property by false pretenses (Pen. Code, § 532,
subd. (a), counts one and two),1 two counts of theft from an elder or dependent adult
(§ 368, subd. (d), counts three and four), one count of selling unregistered securities
(Corp. Code, §§ 25110, 25540, subd. (a), count five), four counts of making false
statements or omissions (id., §§ 25401, 25540, subd. (b), counts six-nine), and one count
of sale of a security by willful and fraudulent use of a device, scheme, or artifice to
defraud (id., § 25541, count 10). The information contained the following allegations: as
to counts six, seven, and nine, the value of the property in question exceeded $65,000

1
         All unspecified section references are to the Penal Code.
(§ 12022.6, subd. (a)(1)), and as to counts three, five and 10, the value of the property in
question exceeded $200,000 (§ 12022.6, subd. (b)). The information contained a
white-collar-crime enhancement allegation (§ 186.11) and an allegation that appellant
committed theft of over $100,000 within the meaning of section 1203.045. All crimes
were alleged to have been committed before 2009.
       Subsequently, counts three and four were dismissed pursuant to section 995.
Thereafter, pursuant to a plea agreement, appellant pleaded no contest to counts six
through nine and the remaining counts were to be dismissed. On March 7, 2011,
appellant failed to appear for sentencing and a bench warrant issued. Ultimately,
appellant appeared in court and was remanded to the custody of the Santa Cruz County
Sheriff. On November 30, 2012, the court sentenced appellant to a total term of eight
years. The court awarded appellant 593 actual days of custody credit and 296 days of
conduct credits.
       Here, it is important to note that appellant does not quibble with the actual days of
credit he was awarded—593 days. Rather, he contends that the trial court erred in
calculating his presentence conduct credits.
       Given that the statute under which a defendant is awarded conduct credits has
changed many times over the years since appellant committed his crimes, we set forth in
detail those changes.
Section 4019 Credits
       A criminal defendant is entitled to accrue both actual presentence custody credits
under section 2900.5 and conduct credits under section 4019 for the period of
incarceration prior to sentencing. Conduct credits may be earned under section 4019 by
performing additional labor and by an inmate’s good behavior. (§ 4019, subd. (b) & (c).)
       In both instances, section 4019 credits are collectively referred to as conduct
credits. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The court is charged with
awarding these credits at sentencing. (§ 2900.5, subd. (d).)
                                               2
       Before January 25, 2010, conduct credits under section 4019 could be accrued at
the rate of two days for every four days of actual time served in presentence custody.
(Stats. 1982, ch. 1234, § 7, p. 4554 [former § 4019, subd. (f)].) Effective January 25,
2010, the Legislature amended section 4019 in an extraordinary session to address the
state’s ongoing fiscal crisis. Among other things, Senate Bill No. 3X 18 amended
section 4019 such that defendants could accrue custody credits at the rate of two days for
every two days actually served, twice the rate as before except for those defendants
required to register as a sex offender, those committed for a serious felony (as defined in
§ 1192.7), or those who had a prior conviction for a violent or serious felony.
(Stats. 2009–2010, 3d Ex.Sess., ch. 28, §§ 50, 62 [former § 4019, subds. (b), (c), & (f)]
(hereafter the January 25, 2010 amendment).)
       Effective September 28, 2010, section 4019 was amended again to restore the
presentence conduct credit calculation that had been in effect prior to the January 25,
2010 amendment. By its express terms, the newly created section 4019, subdivision (g),
declared the September 28, 2010 amendments applicable only to inmates confined for a
crime committed on or after that date. (Stats. 2010, ch. 426, § 2 (hereafter the September
28, 2010 amendment).)
       Thereafter, the Legislature again amended section 4019, reinstituting
“one-for-one” conduct credits and making this change applicable to crimes committed on
or after October 1, 2011, the operative date of the amendments. (§ 4019, subds. (b), (c),
& (h) (hereafter the October 1, 2011 amendment).)2 Currently, section 4019,
subdivision (h), states: “The changes to this section enacted by the act that added this
subdivision shall apply prospectively and shall apply to prisoners who are confined to a

2
       Although commonly referred to as “one-for-one” credits, this is not technically
correct. The current version of section 4019 allows eligible defendants to earn two days
of conduct credit for every two days of actual local custody. A defendant who serves an
odd number of days in presentence custody would earn an equal amount of conduct credit
less one day.
                                             3
county jail, city jail, industrial farm, or road camp for a crime committed on or after
October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be
calculated at the rate required by the prior law.”
          With this background in mind we set forth the periods of time when appellant was
in custody, which are taken from an addendum to the probation officer’s presentence
report.
365 days         02/27/2009-02/26/2010       Presentence                        SCCJ
    52 days      02/26/2012-04/17/2012       Fresh Misdemeanor Charges          Colorado
224 days         04/19/2012-11/27/2012       Presentence/BW return              SCCJ
641 days         Actual time in custody.
          At the sentencing hearing held on November 30, 2012, the trial court considered
the first period of local incarceration before appellant posted bail and stated that was 365
actual days. As for the second period of local incarceration, although the court noted that
appellant had arrived from Colorado on April 19, 2012, the court stated that it had been
informed that his transportation began on April 17. Accordingly, the court credited
appellant with 228 actual days of credit up to and including the day of the sentencing
hearing. As to the period of time that appellant was in custody in Colorado, the court
noted that appellant could not receive credit for that time. The court reasoned that those
credits would be applied in the Colorado case.3 The court reasoned the actual days in
custody to be 593; as noted, appellant agrees with this calculation.
          As to presentence conduct credits, the court stated that because appellant’s crimes
occurred before October 1, 2011, appellant should get conduct credits at 50 percent
(i.e., two days for every four days in custody) and awarded him 296 days for a total of
889 days of presentence custody credits.

3
          Appellant does not contend that the court erred in this regard.
                                                4
       Defense counsel expressed his concern that the court’s calculation may not have
been accurate based on all the changes in the law; he requested a new court date to
address the issue after he had conducted some research. The court declined the request
but stated that if counsel thought the court made an error, then he could calendar a court
date to address the issue. The record does not show that an additional court date was
requested and we cannot find a motion challenging the presentence credits in the record.
                                         Discussion
       In general, section 1237.1 provides: “No appeal shall be taken by the defendant
from a judgment of conviction on the ground of an error in the calculation of presentence
custody credits, unless the defendant first presents the claim in the trial court at the time
of sentencing, or if the error is not discovered until after sentencing, the defendant first
makes a motion for correction of the record in the trial court.”
       However, appellant is not precluded by section 1237.1 from raising the issue of
credits on appeal even though he did not raise the issue in the trial court and is presenting
only this single issue on appeal. This is because section 1237.1 “does not preclude a
defendant from raising, as the sole issue on an appeal, a claim his or her presentence
custody credits were calculated pursuant to the wrong version of the applicable statute.”
(People v. Delgado (2012) 210 Cal.App.4th 761, 763 (Delgado).)4 That is the nature of
appellant’s claim here.

4
       The Delgado court explained: “In our view, an error in ‘doing the math,’ or . . . an
apparent oversight in an award of credits, constitutes the type of minor sentencing error at
which section 1237.1 was clearly aimed. A determination of which version of a statute
applies—especially when, as here, that determination involves application of
constitutional principles—does not.” (Delgado, supra, 210 Cal.App.4th. at p. 766.)
Furthermore, a trial court’s failure to award the correct amount of presentence custody
credit due to legal error is a jurisdictional defect that renders the sentence an unauthorized
sentence. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) “A sentence that fails to
award legally mandated custody credit is unauthorized and may be corrected whenever
discovered. [Citation.]” (Ibid.)
                                               5
       Appellant contends that the trial court erred in failing to calculate his good
conduct credits after January 25, 2010, at the correct rate for the time he spent in custody
up to and including the day he was sentenced. Respondent agrees, but only in part.
Respondent concedes that the time appellant spent in custody from January 25, 2010, up
to and including February 26, 2010, should have been calculated under the January 25,
2010, amendment to section 4019. Since this period of custody totaled 33 days,
respondent concedes that appellant should have been awarded 32 days of conduct credits.
We agree.
       In People v. Brown (2012) 54 Cal.4th 314 (Brown), the California Supreme Court
reviewed the application of the January 25, 2010 amendment to section 4019 and
concluded that the amendment applied prospectively only and that prisoners could earn
credits at different rates if their prison terms overlapped the effective dates of section
4019. (Brown, supra, at pp. 322-323.) Accordingly, under the January 25, 2010
amendment appellant is entitled to 32 days of conduct credits— i.e., two days of
presentence credit for every two days of actual custody (33 divided by 2 = 16 multiplied
by 2 = 32).5 Since the court awarded appellant only 16 days for this period of custody, he
is entitled to an extra 16 days of presentence custody credit.
       As to the period of time that he spent in custody from April 17, 2012 to
November 30, 2012, appellant contends that this period of custody must also be
calculated using the January 25, 2010 amendment to section 4019.
       Appellant asserts that since the September 28, 2010 amendment to section 4019
applies to crimes committed after the effective date of the amendment, it cannot be used
to calculate his presentence conduct credits because he committed his crimes before that
date. Appellant states, “[c]learly then, the first two versions [of section 4019] the 1982
statute and the amendment effective January 25, 2010, apply to [his] time in custody.”

5
       There is no entitlement to credit on the one odd day.
                                              6
Appellant does not explain why the period of time he spent in custody in 2012 should be
calculated pursuant to the January 25, 2010 amendment to section 4019.
       Thus, the issue as framed is this: Is appellant entitled to have his presentence
conduct credits calculated under the January 25, 2010 amendment to section 4019 for the
time he spent in custody in 2012? For reasons that follow, we conclude that he is.
       In Brown, supra, 54 Cal.4th 314, the defendant committed his crimes and was
sentenced prior to the January 25, 2010 amendment to section 4019, so he was awarded
presentence conduct credits under the two-for-four formula. (Brown, supra, at p. 318.)
On appeal, the defendant argued that he was entitled to the more favorable two-for-two
formula, on equal protection and other grounds. (Ibid.) The California Supreme Court
rejected these arguments. First, the court found that the Legislature did not intend the
January 25, 2010 amendment to apply retroactively, since the amendment’s effect was to
“increase the existing incentives for good conduct by offering well behaved prisoners the
prospect of even earlier release from custody.” (Id. at p. 322, fn. omitted.) Similarly, the
court found that defendants who served presentence custody before and after the
amendment’s effective date were not similarly situated, pointing out that “the important
correctional purposes of a statute authorizing incentives for good behavior [citation] are
not served by rewarding prisoners who served time before the incentives took effect and
thus could not have modified their behavior in response.” (Id. at pp. 328-329.)
       Of particular relevance to this case, the Brown court made two observations. First,
the court noted that “[t]o apply [the January 25, 2010 amendment to] section 4019
prospectively necessarily means that prisoners whose custody overlapped the statute’s
operative date (Jan. 25, 2010) earned credit at two different rates.” (Brown, supra, 54
Cal.4th at p. 322.) Second, the Brown court held that the January 25, 2010 amendment to
section 4019 did not lessen the penalty for a particular crime, but “addresse[d] future
conduct in a custodial setting by providing increased incentives for good behavior.”
(Brown, supra, at p. 325.)
                                              7
       Despite Brown, respondent contends that the trial court correctly applied the less
favorable pre-January 25, 2010 version of section 4019 to the presentence custody that
appellant served between April 17, 2012 and November 30, 2012.6 In essence,
respondent’s position is that appellant is not entitled to the benefits of the January 25,
2010 amendment to section 4019 because appellant’s crimes were committed several
years earlier.
       Respondent’s argument is foreclosed by Brown. As pointed out above, Brown
directly addressed the situation where a defendant served presentence custody both
before and after January 25, 2010, finding that such defendants will “[earn] credit at two
different rates.” (Brown, supra, 54 Cal.4th at p. 322.) In addition, Brown explains that
the date of the offense is not relevant for purposes of determining whether to apply the
January 25, 2010 amendment to section 4019, since it did not lessen the penalty for
particular crime, but “addresse[d] future conduct in a custodial setting by providing
increased incentives for good behavior.” (Brown, supra, at p. 325.)
       Furthermore, the September 28, 2010 and October 1, 2011 amendments to
sections 4019 did not completely terminate the conduct credit formulas provided by prior
versions of those statutes. In fact, section 4019 expressly contemplates that some
prisoners will have their conduct credits calculated under “the prior law.” (§ 4019,
subd. (h); see People v. Ellis (2012) 207 Cal.App.4th 1546, 1553; People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 52.)
       In sum, since appellant was in local custody for 228 days in 2012, after the
January 25, 2010 amendment to section 4019, his conduct credits for that time period
6
        As noted, the September 28, 2010 version of section 4019 cannot be applied to
appellant’s presentence conduct credits because it applied only to crimes committed after
September 28, 2010. Similarly, although the October 1, 2011 amendment to section 4019
became effective before appellant was in local custody for the second time (in 2012),
appellant was not eligible to earn presentence conduct credits under that version of the
statute because his crimes were committed prior to October 1, 2011. (See § 4019,
subd. (h).)
                                              8
should have been calculated at a two-for-two rate. That is, he is entitled to 228 days of
conduct credits for that period of time. (See Payton v. Superior Court (2011) 202
Cal.App.4th 1187, 1192 [defendant whose crime was committed in 2008 but served time
in May of 2011 should have received two-for-two credits under January 25, 2010 version
of section 4019].)
                                         Disposition
       The judgment is modified to award appellant custody credits as follows:
From February 27, 2009 until January 24, 2010—332 actual days of custody credit plus
166 days of conduct credit for a total of 498 days of credit.
       From January 25, 2010 until February 26, 2010—33 actual days of custody credit
plus 32 days of conduct credit for a total of 65 days of credit.
       From April 17, 2012 until November 20, 2012—228 actual days of custody plus
228 days of conduct credit for a total of 456 days credit.
       The superior court is ordered to amend the abstract of judgment accordingly. As
so modified the judgment is affirmed.

                                              9
                                  _________________________________
                                  ELIA, J.

WE CONCUR:

_______________________________
RUSHING, P. J.

_______________________________
MÁRQUEZ, J.


867 N.E.2d 287 (2007)
GIL
v.
STATE.
No. 20A03-0611-CR-525.
Court of Appeals of Indiana.
May 22, 2007.
SHARPNACK, J.
Unpublished memorandum decision. Affirmed.
SULLIVAN, J. Concurs.
CRONE, J. Concurs.


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 17, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-20299
                        Conference Calendar

UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN GUARDADO-ORTEGA, also known as Jorge Guardado-Ortega,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:03-CR-438-ALL
                      --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Juan Guardado-Ortega (“Guardado”) appeals the sentence

imposed following his guilty-plea convictions for use of a non-

immigrant visa obtained by fraud and for illegal reentry

following deportation subsequent to a conviction for an

aggravated felony.   Guardado argues that the district court erred

by finding that his California felony convictions for possession

of cocaine and possession of a controlled substance were

aggravated felonies for purposes of U.S.S.G. § 2L1.2(b)(1)(C) and

     *
        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.
                           No. 04-20299
                                -2-

8 U.S.C. § 1101(a)(43)(B), because his offenses were punishable

only as misdemeanors under federal law.

     Guardado’s argument is foreclosed by this court’s opinion in

United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.

1997).   Accordingly, Guardado’s sentence is AFFIRMED.


Lee v I-Sheng Li (2015 NY Slip Op 05163)

Lee v I-Sheng Li

2015 NY Slip Op 05163

Decided on June 17, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 17, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
HECTOR D. LASALLE, JJ.

2013-08297
 (Index No. 700985/13)

[*1]John Lee, et al., appellants,
vI-Sheng Li, etc., et al., respondents, et al., defendants.

Alliance Law PLLC, New York, N.Y. (Wei Ji of counsel), for appellants.

DECISION & ORDER
In an action, inter alia, to recover damages for fraud, conversion, and breach of fiduciary duty, the plaintiffs appeal from an order of the Supreme Court, Queens County (Brathwaite Nelson, J.), dated August 21, 2013, which, in effect, dismissed their motion, inter alia, to consolidate this action with a summary proceeding entitled I-Sheng Li v Lee, pending in the Civil Court, Queens County, under Index No. 80325/12.
ORDERED that the order is affirmed, without costs or disbursements.
After commencing this action, inter alia, to recover damages for fraud, conversion, and breach of fiduciary duty, the plaintiffs moved, among other things, to consolidate the action with a summary proceeding entitled I-Sheng Li v Lee, pending in the Civil Court, Queens County, under Index No. 80325/12. The Supreme Court, in effect, dismissed the motion on the ground that the motion papers did not include sufficient proof of service on three of the defendants. The plaintiffs appeal.
The failure to provide proper service of a motion deprives the court of jurisdiction to entertain the motion (see Crown Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d 964, 965; Daulat v Helms Bros., Inc., 32 AD3d 410, 411). The record before this Court does not demonstrate that the plaintiffs properly served all of the defendants with their motion. The plaintiffs' contention that some of the defendants were properly served using the New York State Courts' electronic filing system, raised for the first time on appeal, is not properly before this Court (see Petrozza v Franzen, 109 AD3d 650). Accordingly, the Supreme Court properly, in effect, dismissed the plaintiffs' motion on the ground that the motion papers did not include sufficient proof of service on three of the defendants (see Wells Fargo Bank, N.A. v Reid, 122 AD3d 832).
In light of our determination, we need not reach the plaintiffs' remaining contentions.
DILLON, J.P., LEVENTHAL, AUSTIN and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


                                PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                               No. 12-5039

UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

FAISAL HASHIME,

                  Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:12-cr-00329-LMB-1)

Argued:   September 20, 2013                 Decided:   October 29, 2013

Before WILKINSON, KING, and WYNN, Circuit Judges.

Reversed and remanded by published opinion.     Judge Wilkinson
wrote the opinion, in which Judge King and Judge Wynn joined.
Judge King wrote a separate concurring opinion.

ARGUED: Jonathan Shapiro, Peter D. Greenspun, GREENSPUN SHAPIRO
PC, Fairfax, Virginia, for Appellant.    Maureen Catherine Cain,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.   ON BRIEF:   Mikhail N. Lopez, GREENSPUN SHAPIRO PC,
Fairfax, Virginia, for Appellant.      Alexander T. H. Nguyen,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:

       The day after his twentieth birthday, Faisal Hashime was

convicted of multiple counts related to child pornography and

later   sentenced         to    fifteen      years       in   prison.           Hashime   made

numerous self-incriminating statements while being interrogated

by law-enforcement agents during a search of his home.                               Because

the agents did not read Hashime his Miranda rights until well

into what was plainly an extended custodial interrogation, we

reverse Hashime’s conviction and remand for further proceedings

consistent with this decision.

                                                 I.

                                                 A.

       In    November      2010,         while    monitoring       a    website     used    to

exchange      child        pornography,           a     law-enforcement          agent     with

Immigration         and        Customs       Enforcement’s             Homeland     Security

Investigations unit (HSI) discovered a naked picture of a minor

boy with the caption “Email me, t.campbell2011@gmail.com.”                                  In

July        2011,         the        agent        sent        an        email      to       the

t.campbell2011@gmail.com                 address,        asking        to   trade        child-

pornography images.                 The agent eventually received twenty-four

explicit      pictures         of    a    naked       boy.    By       tracing    the     email

account’s associated IP address, HSI concluded that the account

was being used by someone in the Hashime family home.

                                                  2
       Based     on    this       information,         law    enforcement      obtained     and

executed       search    warrants         on    both    the    t.campbell2011@gmail.com

email account and Hashime’s house.                      Shortly after 9:00 AM on May

18,    2012,    a     team    of     15-30     state    and    federal     law-enforcement

agents    equipped       with       a    battering      ram    descended       on    Hashime’s

home.      Hashime,          at    the   time     a    19-year-old       community-college

student, lived with his parents in suburban northern Virginia.

The agents banged on the entrance, yelling “Open the door.”

       After being let in by Hashime’s aunt, the officers streamed

into    the    house     with       their      guns    drawn.      An     officer     entered

Hashime’s bedroom and pointed a gun at him.                            Hashime was in bed,

naked and asleep, having gone to bed at 5 AM that morning.                                  The

officer ordered Hashime to “Get up. . . .                         Get out of bed,” and

instructed Hashime to show his hands.                            After Hashime put on

boxer    shorts,       the        officer      held    Hashime    by    the    arm,    issuing

orders to him, and marched him out to the front lawn, where

officers       were     corralling          the   other       members     of   his    family.

Despite the chilly weather, the Hashime family members were kept

outside, several of them dressed only in their nightclothes.

       When     law    enforcement          eventually        allowed    Hashime      and   his

family back into their house, they were kept in the living room

while the officers completed their sweep of the home.                                 Hashime

was not allowed to go to the bathroom until the officers had

“clear[ed] it out.”                Hashime was given his clothes but was not

                                                  3
provided      with     shoes    or    socks.         Hashime’s       mother,       who    was

recovering from recent brain surgery, and about whose health

Hashime was concerned, asked to lie down for health reasons but

was   not    allowed     to.         The    Hashime       family     members      were    not

permitted to be alone and were instructed that they had to be

accompanied       by   officers       at    all     times.         The    law-enforcement

agents proceeded to interrogate each of them individually.

      Hashime was escorted by two officers to the basement for

interrogation.          The    basement       was    finished,       but    the    officers

chose to interrogate Hashime in a room that was being used as a

storage area.          Hashime’s family was not allowed to see Hashime

until the three-hour interrogation was over.                             Hashime’s mother

asked the officers three times for an attorney for Hashime, but

was told that he was being questioned and that she could not see

him   or    otherwise     interrupt         the    interrogation.           According      to

Hashime’s mother, the officers told her that Hashime was under

arrest.

      The    officers     secretly         recorded      the   interrogation.            When

Hashime      asked     them     if    they        were    recording        it,    the    lead

interrogator, who was not carrying the recording device, told

Hashime, “I can tell you I don’t have a recorder on . . . .”

During      the   interrogation,           Hashime       admitted    to     having      child

pornography       on   his     computer      and    told     the    officers      in    great

detail about how he had obtained the photographs.                            Hashime also

                                              4
gave the officers the password to his computer and told them

where    the   child-pornography        images        were   located    on   his   hard

drive.

     At    the    beginning      of    the       interview,    the     officers    told

Hashime that he did not have to answer their questions and could

leave at any time.          However, at one point in the interrogation,

one of the officers told Hashime, “I need to know, and I need

you to be completely honest with me here even if you’re afraid,

I don’t care if you say I don’t want to answer that or I’m

afraid to answer it, but I need to know the truth.”                      JA 585.       In

addition,      when   one   of   the   interrogators          left   Hashime      to   go

upstairs, he told Hashime, “[L]ike I said at the beginning, the

search warrant we got to kind of keep an eye on you . . . .                             I

can’t leave you here with nobody here.”                 JA 617-18.

     The officers did not read Hashime his Miranda rights until

over two hours into the interrogation.

                                                 B.

        Hashime was arrested three days after the interrogation.

In July 2012 he was indicted on seven counts of production,

distribution, receipt, and possession of child pornography in

violation of 18 U.S.C. §§ 2251 and 2252.

        Prior to trial, Hashime moved to suppress the statements he

made to the law-enforcement agents during the interrogation on

the grounds that he was in custody at the time and did not

                                             5
receive the required Miranda warning at the beginning of the

interrogation.         The        district       court     rejected    this    motion,

emphasizing        Hashime’s         demeanor        and      tone      during      his

interrogation,      his    general      familiarity          with     law-enforcement

practices, and his apparent lack of concern with any imminent

arrest.     The court relied in particular on the recording of the

interrogation, stating that “were it not for the tape, I think

you’d [Hashime] win your case.”                    JA 125-26.        The court noted

that “the voice of the defendant . . . expressed no kind of

hesitation, no nervousness” and that the evidence of Hashime’s

“forthcoming-ness” was “powerful.”                 JA 126.     The court concluded

that Hashime “was free to leave and . . . believed himself to be

free to leave.”      JA 129.

     Hashime pled guilty to the receipt and possession charges,

the former of which carried a mandatory minimum of five years in

prison and a maximum sentence of twenty years.                        The government

nevertheless chose to also prosecute Hashime on the production

and distribution charges.

     At the bench trial, multiple minors testified about their

contacts    with    Hashime.          Together       with    Hashime’s    statements

during    the   interrogation,        this       evidence   established       Hashime’s

pattern of behavior: he would pose as an attractive teenage girl

named Tracy and make contact with boys on websites used for

anonymous       chatting     or     through       direct     email     communication.

                                             6
Hashime would offer –- in many cases successfully -- to trade

nude   pictures   of   Tracy    for     nude    pictures        of   the   boys.     On

occasion, he redistributed the pictures he obtained.                        The court

found Hashime guilty of the production and distribution counts.

       Prior to sentencing, Hashime moved to strike the mandatory-

minimum    sentences   applicable       to     him   on   the    ground    that    they

violated the Eighth Amendment.                The district court denied the

motion,    finding     proportionality          review      unavailable       for    a

sentence less than life imprisonment without the possibility of

parole.

       At sentencing, the district court rejected the government’s

request for a thirty-year sentence as “way more than would be

appropriate.”     JA 451.      The district court emphasized Hashime’s

youth and immaturity, and instead sentenced him to a fifteen-

year   sentence   --   the    mandatory-minimum           fifteen-year      sentences

for the production charges, and a combination of mandatory and

non-mandatory five-year sentences on the other charges, all to

run    concurrently    --    followed    by     twenty     years      of   supervised

release.

                                        II.

       Hashime first argues that his conviction should be reversed

because law-enforcement agents failed to read him his Miranda

rights at the beginning of the interrogation.                        “We review the

                                         7
factual findings underlying a motion to suppress for clear error

and the district court's legal determinations de novo.                                When a

suppression      motion     has     been    denied,      this    Court         reviews     the

evidence in the light most favorable to the government.”                               United

States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012) (citations

omitted).

                                            A.

       The Fifth Amendment provides that “No person . . . shall be

compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V.                As a prophylactic safeguard for this

constitutional       guarantee,       the    Supreme     Court      has    required         law

enforcement to inform individuals who are in custody of their

Fifth Amendment rights prior to interrogation.                            See Miranda v.

Arizona, 384 U.S. 436, 444 (1966); United States v. Parker, 262

F.3d   415,   419    (4th     Cir.    2001).       Without      a    Miranda       warning,

evidence      obtained        from     the       interrogation            is      generally

inadmissible.       See id.; see also United States v. Hargrove, 625

F.3d 170, 177 (4th Cir. 2010).

       When deciding whether a defendant not under formal arrest

was in custody -- and thus if the Miranda requirements apply --

a court asks whether, “under the totality of the circumstances,

‘a   suspect’s      freedom    of     action     [was]    curtailed         to    a    degree

associated     with    formal        arrest.’”     Parker,          262    F.3d       at   419

(quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)).                                   This

                                             8
inquiry is an objective one, and asks whether “‘a reasonable man

in the suspect’s position would have understood his situation’

to be one of custody.”             United States v. Colonna, 511 F.3d 431,

435 (4th Cir. 2007) (quoting Berkemer, 468 U.S. at 422).                                In

other words, the court considers whether “a reasonable person

[would] have felt he or she was not at liberty to terminate the

interrogation and leave.”                United States v. Jamison, 509 F.3d

623,   628     (4th   Cir.       2007)    (alteration     in     original)       (quoting

Thompson       v.   Keohane,       516    U.S.    99,     112    (1995))     (internal

quotation marks omitted).

       Facts relevant to the custodial inquiry include, but are

not limited to, “the time, place and purpose of the encounter,

the words used by the officer, the officer's tone of voice and

general      demeanor,     the      presence      of     multiple     officers,        the

potential display of a weapon by an officer, and whether there

was any physical contact between the officer and the defendant.”

United States v. Day, 591 F.3d 679, 696 (4th Cir. 2010) (quoting

United States v. Weaver, 282 F.3d 302, 312 (4th Cir. 2002))

(internal      quotation     marks       omitted).       Also    pertinent       are   the

suspect’s      isolation     and     separation        from     family,    see     United

States    v.    Griffin,     7    F.3d    1512,   1519    (10th     Cir.   1993),      and

physical restrictions, United States v. Griffin, 922 F.2d 1343,

1347 (8th Cir. 1990).

                                            9
                                                B.

     The district court ruled, and the government argues, that a

Miranda warning         was    not    required        because      Hashime    was   not    in

custody.     There is no question that the officers interrogated

Hashime and the custody question is the only one remaining. 1                             The

government’s      case       rests    on        two    grounds:     law      enforcement’s

conduct toward and statements to Hashime prior to and during the

interrogation,         and    Hashime’s         tone    and     demeanor      during      the

interrogation.         We address each in turn.

     The    government         argues      that       the    law-enforcement        agents’

behavior establishes that the interrogation was non-custodial.

The government notes that, when the Hashime family was gathered

in the living room, an agent said that no one was under arrest.

Furthermore,      at    the    beginning         of    the    interview,      one   of    the

interrogators told Hashime that “most importantly we want you to

know that you don’t have to talk to us;” that Hashime could

“answer some questions or not answer questions;” and that he

could    “leave    any       time.”        JA    473.        The    interrogators        also

informed Hashime, both before and after reading him his Miranda

rights, that they were not there to arrest anyone but rather to

execute a search warrant, and that the ultimate decision about

     1
       Hashime does not raise any Fourth Amendment challenges to
the execution of the search warrant, and none are at issue here.

                                                10
arrest would be made by the prosecutor.                        The government also

emphasizes      that    the     interrogators       offered      Hashime     multiple

breaks   for    the     bathroom      and    coffee,     all    of   which   Hashime

declined.      The government notes that Hashime was not handcuffed

during the interrogation, that the door to the room in which he

was interrogated was open, and that Hashime was sitting in the

chair closest to the door.

     The government’s argument is fine as far as it goes, but it

wholly ignores the larger setting.                First, other statements made

by law enforcement undercut the government’s claim that Hashime

was consistently told that he could leave at any time and did

not need to answer any questions.                During the interrogation, one

of the officers told Hashime that, with respect to his prior

sexual history with minors, “I need to know, and I need you to

be completely honest with me here even if you’re afraid, I don’t

care if you say I don’t want to answer that or I’m afraid to

answer it, but I need to know the truth.”                       Likewise, when the

interrogator left to go upstairs, he told Hashime, “[L]ike I

said at the beginning, the search warrant we got to kind of keep

an eye on you . . . .         I can’t leave you here with nobody here.”

     Second,     even    to     the    extent     that    law    enforcement    told

Hashime that he did not have to answer questions and was free to

leave,   that    by    itself       does   not   make    the    interrogation   non-

custodial.       Although       a    statement    that    the    individual     being

                                            11
interrogated      is    free    to    leave      may    be     “highly     probative       of

whether,    in    the   totality      of    the    circumstances,          a    reasonable

person would have reason to believe he was ‘in custody,’” such a

statement “is not ‘talismanic’ or sufficient in and of itself to

show a lack of custody.”              United States v. Hargrove, 625 F.3d

170, 180 (4th Cir. 2010).             The broader setting makes clear why a

few isolated statements by law enforcement in the course of a

three-hour       interrogation       cannot       erase      its    custodial      nature.

Before the interrogation, Hashime had awoken at gunpoint to a

harrowing scene: his house was occupied by a flood of armed

officers who proceeded to evict him and his family and restrict

their    movements       once    let       back        inside.         Throughout         the

interrogation,      Hashime     was    isolated         from     his   family     members,

with his mother’s repeated requests to see him denied.                                  It is

little     wonder       that    Hashime          testified         that,       during     the

interrogation, “I didn’t think I had any chance to leave. . . .

I felt that I was . . . trapped and . . . had to stay where I

was and do what I was told.”            JA 64.

     We also cannot accept the argument that the home setting

here rendered the interrogation non-custodial.                         While courts are

generally        less     likely       to         characterize           as      custodial

interrogations in familiar settings like the home, see 2 Wayne

R. LaFave et al., Criminal Procedure § 6.6(e), at 738-40 (3d ed.

2007), the particular facts of Hashime’s interrogation cut in

                                            12
the    other    direction.       A    suspect     “may   not    feel       that   he    can

successfully terminate the interrogation if he knows that he

cannot    empty    his   home    of     his    interrogators     until       they      have

completed their search.”              United States v. Craighead, 539 F.3d

1073, 1083 (9th Cir. 2008).                   As Hashime testified during the

suppression hearing, prior to being interrogated he did not feel

that he could freely move through the house because the officers

“had people everywhere and telling us what to do, telling me

what to do, and telling me where not to go and where to go.”                             JA

64.

       This case is similar to United States v. Colonna, 511 F.3d

431    (4th     Cir.   2007),    where    we     found   that    an    interrogation

arising out of a search of the home was custodial for Miranda

purposes.       In Colonna, twenty-four FBI agents executed a search

warrant on the defendant’s home, looking for child pornography.

Id. at 433.        Our analysis in that case focused on many of the

same factors that guide our inquiry here: the large number of

armed law-enforcement agents, the suspect’s isolation during his

interrogation, and the suspect and his family’s loss of control

over    their    home.     See    id.    at     436.     Several      of    our   sister

circuits have found interrogations to be custodial in similar

circumstances.         See United States v. Cavazos, 668 F.3d 190, 194

(5th Cir. 2012); Craighead, 539 F.3d at 1089; United States v.

Mittel-Carey, 493 F.3d 36, 39-40 (1st Cir. 2007).

                                          13
       The government, following the district court, also argues

that     Hashime’s     tone    and    demeanor    during      the    interrogation

demonstrate that it was not custodial.                 It is true that Hashime

was     cooperative     with    his    interrogators.          He     admitted     he

possessed child pornography, explained how he had received it,

provided    passwords     to   his    computer,    and    described     where     the

files were located on his hard drive.                  Hashime told the agents

that “I want to help you,” and that “I love helping cops.                        I’ve

always loved cops.        I always wanted to be a cop.”               JA 540.     It

is also the case that the tone of the interrogation was calm and

in some instances almost chatty, with Hashime asking the agents

whether    the    investigation       would   affect    his   upcoming    vacation

plans and joking with them about the health hazards of smoking

cigarettes.

       Whatever the nature of Hashime’s tone and demeanor, it is

not dispositive here of the custodial inquiry.                      As the Supreme

Court has emphasized, the test for whether an interrogation was

custodial is an objective one: “[T]he subjective views harbored

by     either    the   interrogating      officers      or    the    person   being

questioned are irrelevant.             The test, in other words, involves

no consideration of the actual mindset of the particular suspect

subjected to police questioning.”             J.D.B. v. North Carolina, 131

S. Ct. 2394, 2402 (2011) (internal quotation marks and citations

omitted); see also United States v. Parker, 262 F.3d 415, 419

                                         14
(4th Cir. 2001) (“Custody determinations do not depend on the

subjective      views    of     either     the    interrogating         law    enforcement

officers or of the person being questioned, but depend instead

[on] the objective circumstances of the interrogation.”).

        The district court gave primary emphasis to the mannerisms

of the defendant, remarking that Hashime’s voice expressed “no

kind of hesitation, no nervousness,” and that his attitude was a

cooperative      one.         But     Hashime’s         attitude       -–    his    apparent

“forthcoming-ness” as the district court put it -- is more of a

subjective factor and goes primarily to the voluntariness of

Hashime’s confession.              The voluntariness inquiry and the Miranda

custody    inquiry       are,      however,       not    one    and    the     same.       See

Yarborough v. Alvarado, 541 U.S. 652, 667-78 (2004).

        In contrast to Hashime’s manner, the conduct of government

agents is an objective factor informing the inquiry of whether a

reasonable      person    would      have     felt      free   to     leave.        Thus   the

government properly noted such factors as the agents’ tone of

voice, statements that Hashime was not under arrest, and offer

of   multiple    breaks       to    the    defendant.          While    these      objective

factors the government offers do cut against custody, they are

decidedly        outweighed           by      other,           undisputed          objective

considerations -– among which is the sheer length of what the

government would prefer to characterize as an “interview,” but

which    was    plainly       an    hours-long       interrogation.            As    Hashime

                                             15
notes, his “house was swarming with federal and state agents, he

was rousted from bed at gunpoint, held with family members and

not allowed to move unless guarded, and ultimately separated

from his family and placed in a small storage room with two

agents where he was questioned” by investigators, Appellant’s

Br. at 15, who stated that he must remain under guard and that

they needed “to know the truth.”

     We thus hold that Hashime was in custody for the purposes

of Miranda.     Consequently, law enforcement’s failure to read him

his Miranda rights makes his testimony inadmissible and requires

that his conviction be reversed. 2

                                     III.

     Hashime    also   raises   an   Eighth    Amendment      proportionality

challenge to his mandatory fifteen-year sentence.                    (Hashime’s

guilty   plea   on   the   receipt   charge   carried   its    own   five-year

mandatory minimum.)        The defense emphasizes Hashime’s youth and

immaturity.     It contends that the offense conduct triggering the

mandatory fifteen-year minimum for production did not remotely

resemble “the typical production of child pornography.                  Rather

     2
       The government argues that, even if the district court
erred in not suppressing Hashime’s statements, the error was
harmless.    Given the seriousness and extent of Hashime’s
incriminating statements during the interrogation and the
important role they played at trial, we disagree.

                                      16
it    was    the    result    of     the   unfortunately           common    use    of   the

internet by sexually curious young people.”                         Appellant’s Br. at

40.    His case, he argues, was “rare”:                     “For the year 2010, the

average      age    of   those     convicted       of   production     was    42.”       Id.

(citing      U.S.    Sentencing       Comm’n,       Report    to    Congress:      Federal

Child Pornography Offenses 257 n.42 (2013)).

       The government argues that Eighth Amendment proportionality

review is not available for mandatory-minimum sentences of less

than life without parole, and that any such review would neither

be required by Supreme Court precedent nor compatible with our

own.    See, e.g., Ewing v. California, 538 U.S. 11, 30-31 (2003);

United States v. Malloy, 568 F.3d 166, 180 (4th Cir. 2009).                              The

government also contends that, even if proportionality review

were available for Hashime’s sentence, the mandatory minimums

for his child-pornography convictions would pass constitutional

muster.       The government notes that even after Hashime turned

eighteen,      he    had   sexual     contact        with    two    minor    boys.       And

irrespective of what might constitute relevant conduct under the

Sentencing         Guidelines,       the   offense       conduct      itself       included

“impersonating a young girl named ‘Tracy’” in order to solicit

nude photographs from minors.              Appellee’s Br. at 9.

       The    district       court     felt        considerable      unease    with      the

mandatory minimums sought by the government in this case.                                 At

sentencing, the court chafed at the prosecutors’ use of their

                                              17
charging authority to “get into sentencing decisions,” and their

lack    of    respect    for     the    sentencing          discretion       traditionally

accorded      district        courts.      JA        447.       It    stated       that   the

mandatory-minimum sentences the charges required it to impose

were not “fair or just,” arguing further that “[t]his is the

kind of case where the guidelines and mandatory minimums simply

do    not    reflect    the    realities        of    the    specific       case    and   the

specific defendant.”           JA 457.

       Our    reversal    of     the    conviction          makes    it    unnecessary     to

address any sentencing questions.                    It suffices to note that, in

line with our own review of the custody issue and the district

court’s comments at sentencing, this was a case in which both

police and prosecution applied a heavy foot to the accelerator.

We do not doubt for an instant that the defendant’s conduct here

was    reprehensible          and      worthy        of     both     investigation        and

punishment,        as   the    guilty    plea        attests.        But     attention     to

balance      and   degree      often    distinguishes          the    wise    exercise     of

prosecutorial discretion from its opposite.                         For now we leave to

the reflection of the appropriate authorities whether it was

necessary to throw the full force of the law against this 19-

year-old in a manner that would very likely render his life

beyond repair.

                                           18
                               IV.

     For the foregoing reasons, we reverse Hashime’s conviction

on the production and distribution counts.   The case is remanded

for further proceedings consistent with this decision.

                                             REVERSED AND REMANDED

                               19
KING, Circuit Judge, concurring:

       I concur fully in Judge Wilkinson’s excellent opinion for

the panel.         I write separately, however, to draw attention to a

misperception of the law of this Court with respect to whether a

sentence short of life imprisonment may be reviewed to ensure

that   it    is    constitutionally         proportionate        to    the   offense    of

conviction, and not cruel and unusual in contravention of the

Eighth Amendment.              Every other court of appeals permits just

that     sort      of   proportionality          review   under       the    appropriate

circumstances.          So does ours, as I shall demonstrate, though the

conventional wisdom may say otherwise.

       After Hashime submitted his principal brief, in which he

argued      that    his   fifteen-year       sentence      was    unconstitutionally

disproportionate, he moved for initial hearing en banc.                                See

Fed. R. App. P. 35(a).               As justification for so doing, Hashime

asserted that we had “held previously, as opposed to every other

Circuit, that a sentence of a term of years (as opposed to a

sentence      of    life),      is   not    subject       to   the     proportionality

principle under the Eighth Amendment.”                     Appellant’s Motion for

Hearing     En     Banc   at    1.     We   denied    initial         hearing   en   banc

because, as Judge Gregory (joined by Judge Davis) presaged, “if

Hashime’s appeal is resolved on the [threshold] Miranda issue,

his Eighth Amendment argument will be moot.”                          United States v.

                                            20
Hashime,    722    F.3d    572,    572    (4th       Cir.   2013)     (Gregory,   J.,

concurring in denial of hearing en banc).

     And now that scenario has come to pass.                        See ante at 18

(“Our reversal of the conviction makes it unnecessary to address

any sentencing questions.”).              Still, it bears revisiting Judge

Gregory’s observation that our Eighth Amendment precedent as it

applies to defendants sentenced to a term of years “seemingly

materialized from thin air,” and has “inexplicably morphed” over

the years.     Hashime, 722 F.3d at 573.              Our most recent published

iteration of the rule occurred in United States v. Malloy, 568

F.3d 166 (4th Cir. 2009), where we recited that because the

defendant    in   that    case    had    “received      less   than    life   without

parole,     proportionality       review       is    not    available    under    our

precedent.”       Id. at 180 (citing United States v. Ming Hong, 242

F.3d 528, 532 (4th Cir. 2001)).                Malloy accurately characterized

Ming Hong, in which we unabashedly asserted that “[t]his court

has held that proportionality review is not available for any

sentence less than life imprisonment without the possibility of

parole.”     242 F.3d at 532 (emphasis added) (citing United States

v. Polk, 905 F.2d 54, 55 (4th Cir. 1990)).

     Unfortunately,       our     opinion       in   Ming    Hong     misstated   the

precise language of Polk, in which we merely observed that the

Supreme Court’s decision in Solem v. Helm, 436 U.S. 277 (1983),

“does not require a proportionality review of any sentence less

                                          21
than life imprisonment without possibility of parole.”                        905 F.2d

at    55   (emphasis       added)   (citation    omitted).          Obviously,      to

withhold     a     potential    avenue   of     review       entirely    by     simply

declaring that it is “not available” is hardly the same thing as

exercising the discretion to only infrequently engage in such

review under certain circumstances.                  Even before Ming Hong, we

neglected to capture the essence of what Solem and Polk actually

instructed, as we confidently maintained that “[i]t is well-

settled that proportionality review is not appropriate for any

sentence less than life imprisonment without the possibility of

parole.”      United States v. Lockhart, 58 F.3d 86, 89 (4th Cir.

1995)      (emphasis       added)   (citing      Polk).           The   irrefutable

implication of Solem and Polk, however, is to the contrary, that

is, proportionality review of a term-of-years sentence — though

not required in every case, or even, perhaps, in most cases —

is,     contrary     to    Lockhart    and    Ming     Hong,      appropriate      and

available in some cases.

      Although our recent line of authority addressing the issue

has, understandably, visited ambiguity and confusion upon the

bench and bar, the way going forward is clear.                     Where, as here,

“there is an irreconcilable conflict between opinions issued by

three-judge panels of this court, the first case to decide the

issue is the one that must be followed, unless and until it is

overruled     by    this    court   sitting     en    banc   or   by    the    Supreme

                                         22
Court.”   McMellon v. United States, 387 F.3d 329, 334 (4th Cir.

2004) (en banc).    The 1990 decision in Polk, authored by our

distinguished predecessor Judge Russell, thus states the law of

our circuit:   where a sentence of less than life imprisonment

has been imposed upon a defendant, proportionality review under

the Eighth Amendment is discretionary.

                               23


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 07-4852

UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

JAMES E. GOODE,

                                              Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:06-cr-00262)

Submitted:   January 17, 2008             Decided:   January 23, 2008

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Carl J. Roncaglione, Jr., Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Lisa G. Johnston,
Assistant United States Attorney, Huntington, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           James    E.   Goode   pled     guilty    to   receipt    of   child

pornography in violation of 18 U.S.C. § 2252(a)(2) (2000), and was

sentenced to the mandatory minimum term of five years imprisonment.

The court also imposed a ten-year term of supervised release.              See

18 U.S.C.A. § 3583(k) (West Supp. 2007).                 Goode appeals his

sentence on the ground that the advisory guideline range was

incorrectly calculated.     We affirm.

           The district court adopted the guideline calculation set

out in the presentence report, overruling Goode’s objections and

finding that the guideline range would have been 37-46 months, but

was increased to the statutory minimum term of 60 months under U.S.

Sentencing Guidelines Manual § 5G1.1(b) (2002).*             Goode does not

dispute that he was subject to the 60-month minimum term or that

the guideline range was 60 months pursuant to § 5G1.2(b).                   He

contends   that    the   court   should    have    applied   USSG    §   2G2.4

(possession of child pornography) instead of § 2G2.2 (trafficking

in child pornography), and erred in making an enhancement for

distribution under subsection (b)(2)(E).           Both issues pertain only

to the initial computation of the guideline range before the

application of § 5G1.1(b).       We conclude that the district court

correctly determined that Goode’s guideline range was 60 months and

     *
      Goode’s offense was committed in October 2003.     The 2002
Guidelines Manual was applied to avoid ex post facto issues.

                                   - 2 -
sentenced him accordingly.

           We therefore affirm the sentence imposed by the district

court.   We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           AFFIRMED

                               - 3 -


                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 10-1112
                                    ___________

United States of America,                *
                                         *
              Appellee,                  *
                                         * Appeal from the United States
         v.                              * District Court for the
                                         * Southern District of Iowa.
Timothy Jermaine Gunn,                   *
                                         * [UNPUBLISHED]
              Appellant.                 *
                                    ___________

                              Submitted: July 20, 2010
                                 Filed: July 28, 2010
                                  ___________

Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
                         ___________

PER CURIAM.

       In this direct criminal appeal, Timothy Gunn challenges the sentence the district
     1
court imposed following his guilty plea to knowingly and intentionally conspiring to
distribute at least 50 grams of a mixture containing cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. On appeal, counsel has moved to withdraw
and has filed a brief under Anders v. California, 386 U.S. 738 (1967). Gunn has filed
a pro se supplemental brief, arguing that the court should have held a hearing to

         1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
evaluate his competency, that trial counsel was ineffective, and that the district court
improperly denied his motion to withdraw his plea.

       We conclude that the issues raised in the direct appeal fall within the scope of
the appeal waiver that Gunn entered into knowingly and voluntarily and that
enforcement of the waiver would not result in a miscarriage of justice. See United
States v. Andis, 333 F.3d 886, 890-92 (8th Cir. 2003) (en banc).2

      Finally, having reviewed the record independently pursuant to Penson v. Ohio,
488 U.S. 75 (1988), we find no nonfrivolous issues that are not covered by the appeal
waiver. Accordingly, we grant counsel leave to withdraw, and we dismiss the appeal.
                       ______________________________

      2
       The issues raised by Gunn’s pro se supplemental brief are more properly the
subject of a proceeding brought pursuant to 28 U.S.C. § 2255, and thus we do not
address them at this time.

                                          -2-