United States v. Jessie Lee Longoria ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 10, 2007
No. 06-11139 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-14075-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSIE LEE LONGORIA,
JUAN GERALDO ARREDONDO,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 10, 2007)
Before ANDERSON, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Juan Geraldo Arrendondo appeals his conviction for possession
with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Arrendondo argues that his conviction should be overturned because
the district court erroneously denied his motion to suppress incriminating
statements that he made to law enforcement after his arrest.
Appellant Jessie Lee Longoria appeals his 63-month sentence for conspiracy
to possess and distribute cocaine, in violation of 21 U.S.C. § 846. Longoria argues
that the district court erred by (1) applying a two-level enhancement for
obstruction of justice, and (2) calculating his offense level based on a finding that
he was responsible for 417.6 grams of cocaine.
I. Arrendondo’s Appeal
We first address Arrendondo’s appeal. Specifically, Arrendondo argues that
he did not knowingly and intelligently waive his rights under Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), when he spoke to law
enforcement officers because his rights were read to him in English instead of his
native language of Spanish. Thus, he contends that the district court erred in
denying his motion to suppress.
We review the denial of a motion to suppress under a mixed standard of
review, reviewing the district court’s findings of fact for clear error and its
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application of law to the facts de novo. United States v. Thompson, 422 F.3d 1285,
1295 (11th Cir. 2005), cert. denied, 127 S. Ct. 748 (2006). Further, all facts are
viewed in the light most favorable to the party that prevailed in district court. Id.We must accept a district court’s credibility determination “unless we are left with
the definite and firm conviction that a mistake has been committed.” United States
v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997) (internal quotations and citation
omitted). When deciding the ultimate issue of the voluntariness of a defendant’s
confession, we may substitute our independent judgment after a review of the
entire record. Cannady v. Dugger, 931 F.2d 752, 753-54 (11th Cir. 1991).
The Fifth Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. In
Miranda, the Supreme Court considered the scope of the Fifth Amendment
privilege against self-incrimination and held that the government “may not use
statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” 384 U.S. at
444, 86 S. Ct. at 1612. The Supreme Court articulated a two-pronged right against
self-incrimination: the right to remain silent, and the right to have counsel present
during custodial interrogation. 384 U.S. at 444-45, 86 S. Ct. at 1612. “The law in
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this area is clear: once an accused requests counsel, the officer cannot ask
questions, discuss the case, or present the accused with possible sentences and the
benefits of cooperation.” United States v. Gomez, 927 F.2d 1530, 1539 (11th Cir.
1991).
An accused may waive his right against self-incrimination, so long as (1) the
defendant voluntarily relinquished his rights as the product of a free and deliberate
choice, rather than through intimidation, coercion, or deception; and (2) the
defendant made his decision with a full awareness of both the nature of the rights
being abandoned and the consequences of the decision to abandon them. United
States v. Barbour, 70 F.3d 580, 585 (11th Cir. 1995). “If a defendant cannot
understand the nature of his rights, he cannot waive them intelligently.” Miller v.
Dugger, 838 F.2d 1530, 1539 (11th Cir. 1988). A waiver of Miranda rights is
effective “[o]nly if the totality of the circumstances surrounding the interrogation
reveal[s] both an uncoerced choice and the requisite level of comprehension.”
Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410(1986) (internal quotation and citation omitted). A written waiver “is not
inevitably either necessary or sufficient to establish waiver.” North Carolina v.
Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286 (1979).
Once an accused has invoked his right to counsel, he cannot be subjected to
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further interrogation until counsel has been provided to him, even if he has been
advised of his rights. Gomez, 927 F.2d at 1537. However, the accused may waive
his right by reinitiating a conversation with law enforcement authorities. Id; see
also Henderson v. Singletary, 968 F.2d 1070, 1073-74 (11th Cir. 1992).
In this case, Arrendondo admits that, although he initially indicated his
desire to speak with an attorney before speaking to the law enforcement officers,
he later initiated the conversation in which he made the incriminating statements.
He does not challenge the substance of the Miranda warnings or allege that he was
coerced into confessing; rather, he argues only that he did not understand English.
However, the evidence indicates that Arrendondo spoke fluent English and
engaged in conversations with the law enforcement officers in no other language
but English before his rights were read to him. There is no evidence that
Arrendondo asked for or needed an interpreter. Thus, the district court’s finding
that Arrendondo understood English is not clearly erroneous. After Arrendondo’s
rights were read to him in English, he stated, in English, that he understood his
rights. Accordingly, we conclude from the record that Arrendondo knowingly,
voluntarily, and intelligently waived his Miranda rights.
II. Longoria’s Appeal
We now turn to Longoria’s appeal of his sentence. We review the district
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court’s application of the Sentencing Guidelines de novo and its underlying factual
findings for clear error. United States v. Pope, 461 F.3d 1331, 1333 (11th Cir.
2006). Clear error will be present when “we are left with a definite and firm
conviction that a mistake has been committed” by the district court. United States
v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (citation omitted).
A. Obstruction of Justice Enhancement
Under U.S.S.G. § 3C1.1, a two-level enhancement is appropriate if “the
defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction.” This provision applies to conduct
including “committing, suborning, or attempting to suborn perjury.” U.S.S.G.
§ 3C1.1, comment. (n. 4(b)). Perjury in this context means “false testimony
concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.” United States v.
Singh, 291 F.3d 756, 763 (11th Cir. 2002) (citation omitted).
“When applying this enhancement, the district court [should] make specific
findings as to each alleged instance of obstruction by identifying the materially
false statements individually . . . . However, a general finding that an enhancement
is warranted suffices if it encompasses all of the factual predicates necessary for a
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perjury finding.” Id. (citations omitted). For the district court to make a finding
that a defendant perjured himself, four elements must be present: “(1) the
testimony must be under oath or affirmation; (2) the testimony must be false;
(3) the testimony must be material; and (4) the testimony must be given with the
willful intent to provide false testimony and not as a result of a mistake, confusion,
or faulty memory.” Id. at 763 n.4. We review the district court’s factual findings
necessary for an obstruction of justice enhancement based on perjury for clear error
and “accord great deference to the district court’s credibility determinations.” Id.
at 763 (citations omitted).
Here, the district court individually identified material, false statements that
Longoria made during his testimony at trial. The record supports the district
court’s conclusion that Longoria intentionally made these false statements.
Therefore, we conclude that the district court’s findings were not clearly erroneous,
and the district court properly applied the § 3C1.1 obstruction of justice
enhancement.
B. Base Offense Level Calculation
To calculate the base offense level for a drug conspiracy offense, the district
court must determine the quantity of illegal drugs properly attributable to the
defendant. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.), cert.
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denied, 545 U.S. 1127, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005); U.S.S.G.
§ 2D1.1(c). We review this factual determination for clear error. Id.
The district court should consider “all acts and omissions committed, aided,
abetted . . . or willfully caused by the defendant . . . that occurred during the
commission of the offense of conviction” to make its determination. Id. at 1296
(quoting U.S.S.G. §1B1.3(a)(1)(A)). In cases involving drugs, “the defendant is
accountable for all quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable
quantities of contraband that were within the scope of the criminal activity that he
jointly undertook.” U.S.S.G. § 1B1.3, comment. (n.2). The district court may
consider relevant acquitted conduct when making sentencing calculations, so long
as the Guidelines are applied as advisory, the conduct is proven by a
preponderance of the evidence, and the sentence imposed does not exceed the
statutory maximum sentence authorized by the jury’s verdict. United States v.
Faust, 456 F.3d 1342, 1348 (11th Cir.), cert. denied, 127 S. Ct. 615 (2006).
When a defendant raises an objection to the drug quantity used in calculating
his Guideline sentence, “the government bears the burden of establishing the
disputed fact by a preponderance of the evidence.” Rodriguez, 398 F.3d at 1296.
Although preponderance of the evidence is a relaxed evidentiary standard, “it does
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not grant the court a license to sentence a defendant in the absence of sufficient
evidence when that defendant has properly objected to a factual conclusion.” Id.
(citation omitted).
Here, the evidence presented at trial supports the district court’s finding that
Longoria was responsible for 417.6 grams of cocaine. The evidence established
that Longoria supplied cocaine for three purchases, totaling 417.6 grams. To the
extent that Longoria argues that the district court’s finding is clearly erroneous
because he was acquitted of possessing the cocaine on the dates of the purchases,
this argument is foreclosed by our precedent. Faust, 456 F.3d at 1348. Moreover,
the record demonstrates that the district court applied the Guidelines as advisory
and imposed a sentence significantly below the 20-year maximum sentence
authorized by the jury’s verdict. See 21 U.S.C. § 841(b)(1)(C). Therefore, we find
no error in the district court’s sentencing of Longoria.
In conclusion, we discern no reversible error as to either defendant.
Therefore, we affirm Arrendondo’s conviction and Longoria’s sentence.
AFFIRMED.
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