United States v. Luis Velazquez-Hernandez , 713 F. App'x 330 ( 2018 )

Case: 17-40478 Document: 00514358818 Page: 1 Date Filed: 02/22/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-40478
Fifth Circuit
Summary Calendar
FILED
February 22, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
LUIS VELAZQUEZ-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:16-CR-137-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Luis Velazquez-Hernandez pleaded guilty pursuant to a conditional plea
agreement to conspiracy to import methamphetamine and was sentenced
below the advisory guidelines range to 46 months of imprisonment and a three-
year term of supervised release. Velazquez-Hernandez appeals the district
court’s denial of his suppression motion, arguing that his oral and written
statements fell outside the six-hour “safe harbor” provision in 18 U.S.C.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-40478
§ 3501(c), that any delay was not justifiable, and that neither the statements
nor his Miranda 1 waiver had been voluntarily given. We review the district
court’s “factual findings for clear error and the ultimate constitutionality of law
enforcement action de novo,” United States v. Robinson, 741 F.3d 588, 594 (5th
Cir. 2014), viewing the evidence in the light most favorable to the prevailing
party―here, the Government―see United States v. Pack, 612 F.3d 341, 347 (5th
Cir. 2010), and deferring to the district court’s factual findings unless there is
“a definite and firm conviction that a mistake has been committed,” United
States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).
Given the record in this case, the district court’s finding that the six-hour
“safe harbor” period of § 3501(c) began running at 4:30 a.m. and concluded at
10:30 a.m. was not clearly erroneous. See id. Accordingly, Velazquez-
Hernandez’s oral statement was given within the six-hour “safe harbor” period.
To the extent that his written statement was given slightly outside of that
period, the delay was justifiable as it was due to law enforcement’s
investigation of the case, interview of the bus driver and other passenger,
checking of Velazquez-Hernandez’s story with his father, and request that
Velazquez-Hernandez commit his oral statement into writing. See United
States v. Boche-Perez, 755 F.3d 327, 337, 342 (5th Cir. 2014) (finding that
“delays related to legitimate law enforcement procedures, such as the
administrative booking of the arrestee; coordinating with multiple law
enforcement agencies or with the U.S. attorney’s office; or verifying alibis” are
reasonable).
Finally, to the extent Velazquez-Hernandez contends that his
statements or his Miranda waiver was involuntary, the § 3501(b) factors and
the totality of the circumstances favor a finding that the statements were
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2
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No. 17-40478
voluntarily obtained. See United States v. Cantu-Ramirez, 669 F.3d 619, 625-
27 (5th Cir. 2012). Velazquez-Hernandez confessed after validly waiving his
rights, including his right to counsel, and was aware of the charges levied
against him. There is no indication that the interview was hostile or coercive:
it lasted approximately three hours, which included a break; Velazquez-
Hernandez was given medicine when he requested it, along with food and
water; and there is no evidence that anyone promised Velazquez-Hernandez
anything or threatened him in any way. See id. at 627.
AFFIRMED.
3