120 F.3d 957 (9th Cir. 1997), 96-10255, United States v. Solano-Godines

Docket Nº:96-10255.
Citation:120 F.3d 957
Party Name:D.A.R. 9240 UNITED STATES of America, Plaintiff-Appellee, v. Francisco SOLANO-GODINES, Defendant-Appellant.
Case Date:July 21, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 957

120 F.3d 957 (9th Cir. 1997)

D.A.R. 9240

UNITED STATES of America, Plaintiff-Appellee,


Francisco SOLANO-GODINES, Defendant-Appellant.

No. 96-10255.

United States Court of Appeals, Ninth Circuit

July 21, 1997

Argued and Submitted March 4, 1997.

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Robert J. McWhirter, Assistant Federal Public Defender, Phoenix, AZ, for Defendant-Appellant.

Tim Holtzen, Assistant United States Attorney, Phoenix, AZ, for the Plaintiff-Appellee.

Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding. D.C. No. CR-95-00437-SMM.

Before REINHARDT, HALL and THOMPSON, Circuit Judges.

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DAVID R. THOMPSON, Circuit Judge.

Francisco Solano-Godines (Solano) appeals his conviction and sentence after conditionally pleading guilty to one count of illegal reentry after deportation following a felony conviction, in violation of 8 U.S.C. § 1326(b)(1), and one count of false representation of United States citizenship, in violation of 18 U.S.C. § 911. He argues the district court erred in denying his pretrial motion to suppress statements he made at a prior civil deportation hearing because (1) he did not receive Miranda warnings before he made the statements, and (2) the statements were involuntary in light of the immigration judge's ability to draw an adverse inference from his silence. Solano also argues the district court erred in imposing a two-level upward adjustment in his base offense level under United States Sentencing Guideline section 3C1.1 for obstruction of justice.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm Solano's conviction but vacate his sentence and remand for resentencing. 1


On December 7, 1993, almost two years before the government brought the current charges, Solano appeared at a deportation hearing and responded to questioning by the immigration judge. In these responses, Solano made statements about his place of birth, citizenship, prior convictions, and prior lawful deportations. Like other typical respondents at deportation hearings, Solano was not given a Miranda warning. He was deported following the deportation hearing.

About two years later, at 11:00 a.m. on December 1, 1995, Solano attempted to enter the United States through the pedestrian lanes at the San Luis Port of Entry in Arizona. He told a U.S. customs officer that he was a United States citizen and presented a birth certificate bearing the name Jose Armando Gonzales. The customs officer detected some nervousness on Solano's part and some possible irregularities on his birth certificate. He therefore escorted Solano to the secondary inspection area for further investigation.

Inside the Immigration & Naturalization Service (INS) office, INS Inspector Raymond Nagy ran a computerized criminal history check on the name and birth date written on the birth certificate Solano had presented to the customs officer. The computer record indicated that Jose Armando Gonzales had an extensive criminal history and was currently serving a life prison sentence in California for murder.

Nagy and another INS inspector, Lisa Stubbs, brought Solano into an interview room. Solano again stated that he was Jose Armando Gonzales, a U.S. citizen born in California. He showed the inspectors additional false identification documents bearing the name Jose Armando Gonzales including a California identification card and a social security card.

Stubbs informed Solano that he was under arrest and recited the Miranda warnings. Although Solano refused to sign the INS's waiver-of-rights form, he did not request an attorney nor did he refuse to answer questions. The inspectors obtained inked fingerprint samples from Solano and faxed these to the FBI at approximately 11:30 a.m., hoping to determine the identity of the man they had in custody.

While the inspectors waited for the results of the fingerprint comparison, they left Solano alone in an interview room. At about 3 p.m. Officer Nagy called the FBI to check on the status of the fingerprint comparison, and was told the report was not yet ready.

No one from the INS questioned Solano further until about 4 p.m., when Inspector Joe Magana came on duty. Magana entered the interview room, and after a short conversation with Solano, Solano agreed to sign the waiver-of-rights form. He signed the form using his alias, "Jose Gonzales."

Magana then left to perform other duties. He returned about an hour later and told Solano that the person he claimed to be was

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supposed to be in prison for murder. Solano stated that he had been in prison for murder, but was released after the real killer, a buddy of his, was caught.

Between 6:00 p.m. and 7:00 p.m. one of the INS officers called the FBI to check on the status of the fingerprint results, and was informed that the FBI had lost Solano's fingerprint samples. The officers then faxed the FBI a new set.

At about 9:20 p.m., Inspector Luis Lemus called the California Department of Corrections to try to determine if Jose Armando Gonzales was actually in prison. After a few phone calls, he reached an officer at Pelican Bay who verified that Gonzales was in fact in custody at Pelican Bay as they spoke.

Inspectors Magana and Lemus told Solano they had verified that Jose Armando Gonzales was currently in prison at Pelican Bay. Solano then admitted his true name and that he was a citizen of Mexico, born in Acapulco. Soon after, at 10:08 p.m., the inspectors received a fax from the FBI, reporting that the fingerprint samples matched their records for Francisco Solano-Godines.

Solano was charged with illegal reentry after deportation following a felony conviction and false representation of United States citizenship. He filed a pretrial motion to suppress the statements he made two years earlier at his deportation hearing and the documentary "fruits" of those statements. The district court denied this motion. Solano then entered his conditional guilty pleas.

At sentencing, Solano objected to the presentence report's recommendation that the court upwardly adjust his base offense level for obstruction of justice under Sentencing Guideline § 3C1.1. The district court imposed the two-level adjustment and explained:

I find from the facts of the case, the defendant in fact attempted to obstruct justice in this case. He went beyond the means of the indictment in this case in merely presenting a false name. Because when confronted with the fact that the true facts were known, he did not recant. He kept up with ... this charade of false statements, and sent the government on a wild goose chase, which in fact required other investigative techniques over a 10- to 12-hour period of time, And I believe ... that he's entitled to the two point enhancement.

The district court sentenced...

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