U.S. v. Narvaez-Gomez

• Decision Date: 06 June 2007
• Docket Number: No. 05-50501.,05-50501.
• Citation: 489 F.3d 970
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis NARVAEZ-GOMEZ, aka Manuel Gomez-Feliz, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

489 F.3d 970

UNITED STATES of America, Plaintiff-Appellee, v. Luis NARVAEZ-GOMEZ, aka Manuel Gomez-Feliz, Defendant-Appellant.

No. 05-50501.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2006.

Filed June 6, 2007.

James Fife, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Roger W. Haines, Jr., and Michael J. Crowley, Assistant United States Attorneys, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-04-02781-BTM.

Before: ROBERT R. BEEZER, KIM McLANE WARDLAW, and RICHARD A. PAEZ, Circuit Judges.

BEEZER, Circuit Judge.

Defendant Luis Narvaez-Gomez ("Gomez"), also known as Manuel Gomez-Felis, appeals his conviction and sentence for illegal re-entry after removal in violation of 8 U.S.C. § 1326. Gomez contends that the district court improperly (1) denied his motion to suppress post-Miranda statements, (2) excluded his cross-examination of government witnesses regarding official record-keeping, (3) imposed a 16-level enhancement for committing a prior crime of violence and (4) imposed a sentence greater than two years in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm the conviction, vacate the sentence and remand for re-sentencing.

I

Gomez was born in Mexico and was deported from the United States to Mexico numerous times between 1990 and 2004. Early on September 24, 2005, city police detained Gomez in a public park in California for violating a city ordinance that prohibits smoking in the park. Based on Gomez's responses to their questions and his lack of identifying information, the police called the United States Border Patrol for assistance in ascertaining Gomez's identity.

Agent Jill Badousek responded to the call and arrived in the park at approximately 9:45 a.m. She asked Gomez his name, place of birth and whether he had any documents to show his legal presence in the United States. Gomez responded that his name was Pedro Gomez, that he was born in Mexico and that he had a legal permanent resident card at his house. Badousek conducted a records check. The check showed no immigration documents for a "Pedro Gomez." Badousek told Gomez of the negative results and asked if he wanted to be taken to his house to retrieve immigration documents. Gomez admitted that he did not have any such documents.

Badousek arrested Gomez, handcuffed him and put him in the back seat of her vehicle. Without giving Gomez a Miranda warning, Badousek asked whether he had ever been arrested by Border Patrol and whether he had ever been deported. Gomez answered both questions in the affirmative. Badousek brought Gomez to the Border Patrol station, where he was placed in a holding cell.

At approximately 2:00 p.m., Border Patrol agent Mark Hopkins interviewed Gomez with Badousek present. Hopkins first informed Gomez that he would be processed criminally rather than administratively and that he faced potential criminal charges. Hopkins then administered a Miranda warning and confirmed that Gomez understood his rights. Gomez waived his rights and indicated that he wanted to make a statement without an attorney present.

Hopkins questioned Gomez regarding (1) name, citizenship and birthplace, (2) whether Gomez had previously been deported, (3) where Gomez had entered the United States before that deportation, (4) whether Gomez left the United States after being ordered deported, (5) whether Gomez ever applied for permission to enter the United States, (6) whether Gomez had any documentation allowing him to enter or remain in the United States and (7) when Gomez most recently entered the United States. Gomez stated that he was a citizen of Mexico and had been previously deported. He admitted having no permission to enter the United States and no documentation allowing him to be in the United States.

Gomez was charged with violating 8 U.S.C. § 1326, which prohibits an alien from re-entering the United States after being deported or removed. He moved to suppress all of his statements to the Border Patrol agents. After an evidentiary hearing, the district court determined that only Gomez's statements to Badousek in her vehicle were inadmissible.

The government brought several motions in limine including a motion to prohibit references to document destruction and poor record-keeping by immigration officials. The district court granted the motion in part, allowing Gomez to question the completeness of his own immigration files. The court excluded cross-examination by Gomez suggesting that he had undocumented permission to enter the United States, unless he laid a foundation or made a proffer that he in fact applied for or received permission.

Gomez was convicted in March 2005 and sentenced on June 7, 2005. The district court applied a 16-level enhancement under the Sentencing Guidelines based on the finding that Gomez's prior conviction for shooting at an inhabited dwelling constituted a crime of violence under the guidelines. Gomez received a sentence of 96 months imprisonment. He timely appealed the judgment and sentence on June 15, 2005.

II

Gomez argues that the district court erred in denying his motion to suppress the statements he made after receiving Miranda warnings. We review de novo a district court's decision to admit statements that may have been obtained in violation of Miranda. United States v. Rodriguez-Rodriguez, 393 F.3d 849, 855 (9th Cir.2005). Underlying factual findings are reviewed for clear error. Id.

A defendant's post-Miranda statements may be inadmissible if law enforcement officers use a two-step interrogation process. See Missouri v. Seibert, 542 U.S. 600, 617, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). A two-step interrogation involves eliciting an unwarned confession, administering the Miranda warnings and obtaining a waiver of Miranda rights, and then eliciting a repeated confession. See id. at 609-10, 124 S.Ct. 2601. If the interrogators deliberately employ the two-step strategy, the district court must suppress post-warning statements unless the interrogators take curative measures to apprise the defendant of his rights; if the two-step method is not deliberate, the post-warning statements are admissible if voluntarily made. Id. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring); see also United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir.2006) (Justice Kennedy's concurrence in Seibert is the Court's holding because it is narrowest grounds with which majority of the Court would agree).

Which appellate standard we use to review a district court's deliberateness finding is a matter of first impression. We determine that a deliberateness finding is appropriately reviewed as a factual finding for clear error. Cf. United States v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005) (in case involving pre- and post-warning statements, only voluntariness determination was reviewed de novo). Employing the clear error standard is consistent with our review of similar district court determinations as to credibility and deliberateness. See United States v. Celestine, 324 F.3d 1095, 1101 (9th Cir.2003) (credibility determinations are reviewed for clear error); Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir.1991) (reviewing "whether the defendant's mind was overborne—i.e., was his waiver knowing and intelligent—for clear error" (internal quotations omitted)); United States v. Kimball, 884 F.2d 1274, 1278 & n. 3 (9th Cir. 1989) (whether government deliberately induced defendant to make incriminating statements is reviewed for clear error). Even if a deliberateness finding is not clearly erroneous, we review de novo the ultimate determination that a defendant's statements were voluntary. Williams, 435 F.3d at 1151, 1158.

Deliberateness may be found if "objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning." Id. at 1158. Objective evidence includes "the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and post-warning statements." Id. at 1159 (citing Seibert, 542 U.S. at 615, 124 S.Ct. 2601).

The district court concluded that agents Hopkins and Badousek did not deliberately employ the two-step method when interrogating Gomez.¹ The court properly considered the objective and subjective evidence of deliberateness including the informal setting and brief nature of Badousek's prewarning interrogation, Hopkins' involvement only during the post-warning interrogation, and the lack of any reference to the prewarning statements during the more comprehensive post-warning interrogation. The change in setting and time span of approximately four hours between statements also indicate a lack of deliberateness. Cf. United States v. Carrizales-Toledo, 454 F.3d 1142, 1152 (10th Cir.2006) (moving defendant to different vehicle and waiting for other agents to arrive provided sufficient time delay and change in setting). We conclude that the district court correctly determined that Badousek and Hopkins did not deliberately employ a two-step interrogation. Gomez does not dispute that he voluntarily made his post-warning statements. The district court properly denied Gomez's motion to suppress the statements.

III

Gomez argues that the district court committed constitutional error by prohibiting him from cross-examining government witnesses regarding official record-keeping. We review de novo the question "[w]hether limitations on cross-examination are so severe as to violate the Confrontation Clause." United States v. Shryock, 342 F.3d 948, 979 (9th Cir.2003) (citing United States v....