United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 8, 2007
Charles R. Fulbruge III
Clerk
No. 05-41589
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID JUAREZ-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-836-ALL
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Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
David Juarez-Perez (Juarez) appeals his conviction for
possession with intent to distribute marijuana. Juarez appeals
the denial of his motion to suppress, arguing that the district
court failed to apply the correct legal standard by virtue of its
failure to make the findings necessary to deny the motion, i.e.,
that Juarez initiated further contact with the agents and that he
knowingly and voluntarily waived the right to counsel.
Once an accused has invoked his right to counsel, his
responses to further police questioning are admissible only after
*
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this opinion should not be published and is not precedent except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.
No. 05-41589
-2-
a finding that he “‘(a) initiated further discussions with the
police, and (b) knowingly and intelligently waived the right he
had invoked.’” United States v. Cruz, 22 F.3d 96, 98 n.6 (5th
Cir. 1994) (quoting Smith v. Illinois, 469 U.S. 91, 95 (1984)).
The district court did not explicitly rule whether Juarez or the
DEA agents initiated discussion of his case; nevertheless, we
will assume that the district court impliedly found that Juarez
initiated the conversation because such finding is essential to
the constitutional inquiry and, additionally, is supported by
Agent Melvin Sinoben’s testimony and the waiver form. See Reich
v. Lancaster, 55 F.3d 1034, 1057 (5th Cir. 1995). To the extent
that Juarez’s testimony conflicted with that of Sinoben on this
issue, we assume that the district court accepted the
Government’s version of events as more credible. See United
States v. Santiago, 410 F.3d 193, 198 (5th Cir. 2005), cert.
denied, 126 S. Ct. 1565 (2006).
Our review of the record indicates that Juarez did not raise
the issue whether he voluntarily waived his right to counsel in
the district court. That issue is therefore waived. See United
States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006).
AFFIRMED.