United States v. Marcelino Portillo-Rivera , 702 F. App'x 600 ( 2017 )

FILED
NOT FOR PUBLICATION
NOV 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10111
Plaintiff-Appellee, D.C. No.
2:15-cr-01183-NVW-1
v.
MARCELINO PORTILLO-RIVERA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted October 18, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and WALLACE and CALLAHAN, Circuit
Judges.
Marcelino Portillo-Rivera was convicted pursuant to a conditional guilty
plea of one count of being an illegal alien in possession of a firearm. On appeal, he
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
asserts that his statements and the photographs found on his cell phone should have
been suppressed because the Miranda warnings were inadequate and he did not
waive his right to counsel. We affirm.1
The denial of a motion to suppress is reviewed de novo, but the factual
findings underlying the district court’s decision are reviewed for clear error.
United States v. Brobst, 558 F.3d 982, 995 (9th Cir. 2009); United States v. Perez-
Lopez, 348 F.3d 839, 844 (9th Cir. 2003).
1. The district court’s determinations that Portillo-Rivera was given
Miranda warnings and understood them is supported by the record.
Portillo-Rivera was given Miranda warnings in the field and again when he arrived
at the Border Patrol station, and he signed a form stating that he had been given a
Miranda warning. Portillo-Rivera’s testimony in the district court does not show
any sign of confusion as to his Miranda rights.
2. The district court’s determination that Portillo-Rivera did not invoke the
right to counsel with the clarity necessary to prohibit further questioning is also
sound. The record supports the district court’s findings that Portillo-Rivera “asked
whether he would still be able to have an attorney during trial if he talked with the
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As the parties are familiar with the facts and procedural history, we
restate them here only as necessary to explain our decision.
2
Border Patrol agents” and that Portillo-Rivera did not unambiguously request an
attorney. The government met its burden of clarifying Portillo-Rivera’s statements
regarding his right to counsel. Agents asked if Portillo-Rivera wished to speak
without an attorney present and informed him that he could invoke his right to
counsel at any time by asking for an attorney. See United States v. Rodriguez, 518
F.3d 1072, 1080 (9th Cir. 2008).
3. Portillo-Rivera’s remaining contentions do not merit relief. Even if
Agent Peterson’s testimony as to what Portillo-Rivera said might be considered
hearsay, it would be admissible. See United States v. Raddatz, 447 U.S. 667, 679
(1980) (“At a suppression hearing, the court may rely on hearsay and other
evidence, even though that evidence would not be admissible at trial.”). Finally,
the record belies Portillo-Rivera’s assertions that there was insufficient evidence
“to satisfy the Government’s burden to prove waiver,” and that the district court
erroneously shifted the burden of proof to Portillo-Rivera. The government
supported its assertion that Portillo-Rivera had waived his Miranda right with
testimony from agents Peterson, Kinnally, Berger, and Halaby, and the district
court specifically stated that the government had the burden of proof.
The district court’s denial of Portillo-Rivera’s motion to suppress, the
judgment of conviction, and the sentence, are AFFIRMED.
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