United States v. Bernardo Buenaventura-Velasque

FILED
NOT FOR PUBLICATION JAN 14 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50484

Plaintiff - Appellee, D.C. No. 3:14-cr-02053-LAB-1

v.
MEMORANDUM*
BERNARDO BUENAVENTURA-
VELASQUEZ,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

Submitted October 23, 2015**
Pasadena, California

Before: KLEINFELD, RAWLINSON, and NGUYEN, Circuit Judges.

Defendant Bernardo Buenaventura-Velasquez (“Buenaventura”) was

convicted of two counts of attempted transportation of illegal aliens. 8 U.S.C. §

*
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).
1324(a)(1)(A)(ii). Buenaventura argues that his post-arrest statements to agents

should have been suppressed because they were involuntarily made. In the

alternative, Buenaventura argues that his post-arrest statements should have been

suppressed because his Miranda waiver was not knowing and intelligent. We have

jurisdiction under 28 U.S.C. §§ 1291 and 1294(1). We affirm.

Buenaventura alleged that his post-arrest statements were involuntary

because the agents who interrogated him promised him, off-camera and before the

actual interrogation, to help him keep his legal permanent resident (LPR) status in

exchange for his cooperation. Both agents involved in the interrogation denied the

existence of such a promise. After conducting a hearing, the district court found

that the agents did not promise Buenaventura any help with his immigration status.

The district court held that Buenaventura’s confession was voluntary, and that the

Miranda warnings were properly administered.

Buenaventura argues that the district court erred in determining that no

promise was made and concludes that this promise made his confession

involuntary.

2
“We review de novo the voluntariness of a confession and the factual

findings supporting the determination for clear error.” United States v. Heller, 551

F.3d 1108, 1112 (9th Cir. 2009). The test for a voluntary statement is whether

“considering the totality of the circumstances, the government obtained the

statement by physical or psychological coercion or by improper inducement so that

the suspect's will was overborne.” United States v. Leon Guerrero, 847 F.2d 1363,

1366 (9th Cir. 1988). The government must prove the voluntariness of the

statement “by a preponderance of the evidence.” Id. at 1365.

Here, the government proved that Buenaventura’s statement was voluntary.

The trial court’s conclusion at the suppression hearing that no promise was made

was permissible and not clear error in light of the testimony, Buenaventura’s

characteristics, the circumstances of the interrogation, and other evidence

presented. See United States v. Perez-Lopez, 348 F.3d 839, 844–45 (9th Circ.

2003). In the absence of the promise, there was nothing to indicate that the

confession was involuntary. See United States v. Haswood, 350 F.3d 1024,

1027–29 (9th Cir. 2003).

3
Alternatively, Buenaventura argues his subjective belief in a promise made

his Miranda waiver, though voluntary, not “intelligent and knowing.”

A valid Miranda waiver must be “voluntarily, knowingly, and intelligently

given.” United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998). For a waiver

to be knowing and intelligent, it must be made with a “full awareness of both the

nature of the right being abandoned and the consequences of the decision to

abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). Whether a waiver was

knowing and intelligent is a question of fact, and we review the trial court’s

conclusion on this issue for clear error. Doe, 155 F.3d at 1074.

The trial court did not clearly err in concluding the waiver was knowing and

intelligent, and its statements regarding Buenaventura’s desire to receive a benefit

for cooperating do not compel a different conclusion. Buenaventura was advised

in his native tongue, he appeared to understand his rights, and signed a written

waiver written in Spanish. See United States v. Crews, 502 F.3d 1130, 1140 (9th

Cir. 2007). Moreover, Buenaventura had previous experience with the justice

system informing him of his right to remain silent.

4
AFFIRMED.