United States v. David Velasco-Castaneda

FILED
NOT FOR PUBLICATION JUL 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50360
Plaintiff - Appellee, D.C. No. 3:09-cr-04640-L
v.
MEMORANDUM*
DAVID VELASCO-CASTANEDA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted April 20, 2011**
Before: SKOPIL, FARRIS, and LEAVY, Circuit Judges.
David Velasco-Castaneda appeals from his conviction for importation of
marijuana and hashish, in violation of 21 U.S.C. §§ 952 and 960. We have
jurisdiction under 28 U.S.C. § 1291. We review for clear error the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
finding that a Miranda waiver is knowing and intelligent, United States v. Garibay,
143 F.3d 534, 536 (9th Cir. 1998), and we affirm.
Velasco-Castaneda contends the district court erred when it denied his
motion to suppress and found that he knowingly and intelligently waived his
Miranda rights before making incriminating statements.
Velasco-Castaneda is fluent in English, his rights were individually read to
him, and he verbally and physically indicated he understood each right. While
there is no written waiver, nothing in the record suggests Velasco-Castaneda
suffered from any incapacity that prevented him from understanding the nature of
his rights or the consequences of waiving them. See United States v. Crews, 502
F.3d 1130, 1140 (9th Cir. 2007). Moreover, the district court’s determinations that
Velasco-Castaneda’s questions demonstrated his understanding that he had the
right not to speak, and that he waived that right by volunteering information
without the promise of a reward are not clearly erroneous. Accordingly, the
district court did not clearly err in its determination that, under the totality of the
circumstances, Velasco-Castaneda made a knowing and intelligent waiver. See id.
AFFIRMED.
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