US v. Cazares

• Decision Date: 07 May 1997
• Docket Number: 96-30108 and 96-30129.,No. 96-30098,96-30098
• Citation: 121 F.3d 1241
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adrian Parra CAZARES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Francisco ALVAREZ-SANCHEZ, Defendant-Appellant (Two Cases).
• Court: U.S. Court of Appeals — Ninth Circuit

121 F.3d 1241

UNITED STATES of America, Plaintiff-Appellee, v. Adrian Parra CAZARES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Francisco ALVAREZ-SANCHEZ, Defendant-Appellant (Two Cases).

Nos. 96-30098, 96-30108 and 96-30129.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 1997.

Decided May 7, 1997.

As Amended August 21, 1997.

COPYRIGHT MATERIAL OMITTED

Kenneth Ricardo Perry; Leland R. Berger, Portland, Oregon, for defendants-appellants.

Allen M. Garten, Assistant United States Attorney, Portland, Oregon, for plaintiff-appellee.

Before: FLETCHER and TASHIMA, Circuit Judges, and SCHWARZER,^* Senior District Judge.

SCHWARZER, Senior District Judge.

In November 1994, a confidential informant arranged to purchase 1.5 kilograms of cocaine from defendant Francisco Alvarez-Sanchez. On December 14, the informant and Alvarez-Sanchez met to consummate the deal. Defendant Adrian Parra Cazares retrieved the drugs from his apartment and delivered them to the informant and Alvarez-Sanchez. Immediately following the transaction, Parra Cazares and Alvarez-Sanchez were arrested.

The grand jury charged Parra Cazares and Alvarez-Sanchez in a three-count indictment with conspiracy to distribute and to possess with intent to distribute cocaine, with possession with intent to distribute cocaine, and with distribution of cocaine. 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 2. Alvarez-Sanchez pled guilty to the conspiracy count.¹ Parra Cazares went to trial and was found guilty on all three counts. The district court, in determining the sentence for each defendant, made a two-point upward adjustment for possession of a firearm in the course of the offense. See U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) ("U.S.S.G."). With this adjustment, Alvarez-Sanchez received a 140-month sentence; Parra Cazares was sentenced to 97 months.

Parra Cazares appeals on three grounds: failure to suppress his statement to the arresting officer, adjustment of his sentence for possession of a firearm, and failure to make findings regarding his participation in a conspiracy. Alvarez-Sanchez appeals the firearm possession adjustment only. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

DISCUSSION

I. APPEAL OF PARRA CAZARES

A. Miranda Claim

We review de novo whether Parra Cazares voluntarily waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and for clear error whether the waiver was knowing and intelligent. United States v. Doe, 60 F.3d 544, 546 (9th Cir.1995). The burden is on the government to show that Parra Cazares was aware of his rights and that he waived them. Terrovona v. Kincheloe, 912 F.2d 1176, 1180 (9th Cir.1990). In this case, the government produced evidence at the suppression hearing showing (1) that the arresting officer, Deputy Biles, read Parra Cazares his Miranda rights in English, (2) that Deputy Biles spoke some Spanish, (3) that Parra Cazares read the Miranda warning aloud in Spanish from a card, (4) that Deputy Biles followed along as Parra Cazares read, (5) that Parra Cazares gave an oral indication that he understood his rights upon being asked in Spanish whether he understood, and (6) that Parra Cazares was interviewed by an English-speaking officer, Deputy Walls, who testified that although Parra Cazares' English was limited, it was sufficiently functional for purposes of the interrogation. The district court found that there was no indication of duress or coercion and that the waiver was voluntary and knowing.

To solicit a waiver of Miranda rights, a police officer need neither use a waiver form nor ask explicitly whether the defendant intends to waive his rights. Terrovona, 912 F.2d at 1179. In this case, recitation of the rights in English and supervision of the reading in Spanish, accompanied by the officer's confirming that Parra Cazares understood his rights, is sufficient to establish that Parra Cazares knew his rights. See North Carolina v. Butler, 441 U.S. 369, 371, 373, 99 S.Ct. 1755, 1756, 1757, 60 L.Ed.2d 286 (1979). And the sum of the evidence presented to the district court supports the conclusion that "despite the language difficulties encountered by Parra Cazares, ... he understood his rights and ... knowingly, and intelligently waived them." United States v. Bernard S., 795 F.2d 749, 752 (9th Cir.1986).

The burden is on the government to prove voluntariness, but the voluntariness of a waiver "has always depended on the absence of police overreaching, not on `free choice' in any broader sense of the word." Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986). In the absence of evidence that the officers coerced or misled him into giving them a statement, and ample proof that the statement was voluntarily given after explanation of the Miranda rights, the district court did not err in admitting Parra Cazares' statement.

B. Adjustment for Possession of Firearms

Shortly after the defendants' arrest, police searched the Vancouver, Washington apartment where Parra Cazares had obtained the cocaine. In one of the bedrooms they discovered two loaded .9 mm handguns and a 30.06 rifle. The evidence at sentencing, viewed in the light most favorable to the government, established that from 1993 until mid-November 1994, Kittie St. Claire lived in the apartment in which the drugs were found. In June 1994, three men moved into the apartment with her, including Parra Cazares. They stayed in one of the three bedrooms in the apartment, which the record describes as located at the end of the hall to the right. Alvarez-Sanchez occasionally visited the apartment. During part of the time, one "Servanties," the father of St. Claire's children, also lived there. St. Claire moved out of the apartment in mid-November, leaving the three occupants in charge. The presentence report ("PSR") describes the location where the guns were found as the southeast bedroom, but the government did not establish whether that was the bedroom occupied by Parra Cazares.

Sentencing Guideline § 2D1.1(b)(1) provides for a two-level increase in offense level "if a dangerous weapon (including a firearm) was possessed." "The government must prove possession by a preponderance of the evidence before the court can apply the two-level increase under § 2D1.1(b)(1)." United States v. Mergerson, 4 F.3d 337, 350 (5th Cir.1993). We review the district court's finding that Parra Cazares possessed firearms in connection with a drug conspiracy for clear error. United States v. Willard, 919 F.2d 606, 609 (9th Cir.1990).

The district court observed that "the guns in the house, with the other drug paraphernalia were part of that conspiracy ... that house was under their sic, the control of both of these people. They had at least constructive possession ..." Its written findings state, in relevant part:

defendant is responsible for the actions of co-conspirators. Thus, the fact that the defendant did not personally possess the weapons is irrelevant. Two loaded handguns kept in an apartment in which drug activity takes place is enough to raise an inference of a connection between the guns and the drugs. Defendant has proffered nothing to show that the weapons were not related to the drug trafficking activity, nor has he attempted to show that the guns were possessed by someone not charged in the conspiracy.

"To demonstrate constructive possession the government must prove a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised dominion and control over the contraband." United States v. Kelso, 942 F.2d 680, 682 (9th Cir.1991) (internal quotations and citation omitted). In Kelso, we held that the presence of a gun in a bag holding drugs found behind the driver's seat of a car was insufficient to establish possession by the defendant, who was a passenger in the car. Id.; see also United States v. Soto, 779 F.2d 558, 560, amended by 793 F.2d 217 (9th Cir.1986) (under 18 U.S.C. § 1202(a)) ("mere presence as a passenger in a car from which the police recover weapons does not establish possession.").

The same reasoning applies to occupants of a house. In United States v. Reese, 775 F.2d 1066 (9th Cir.1985), the court held the evidence insufficient to establish a violation of 18 U.S.C. § 1202(a)(1) (felon in possession of a firearm), holding:

Although the firearms were discovered at Reese's house, Reese was not the only person residing there at the time the guns were found. Where, as here, a residence is jointly occupied, the mere fact that contraband is discovered at the residence will not, without more, provide evidence sufficient to support a conviction based on constructive possession against any of the occupants.

Id. at 1073; see also United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir.1992) (under 21 U.S.C. § 841) ("The defendant's mere proximity to the drug, her presence on the property where it is located, and her association with the person who controls it are insufficient to support a conviction for possession.").

The principle underlying these cases is the same, regardless of whether they involve proof of an offense or enhancement of a sentence. In Delgado v. United States, 327 F.2d 641 (9th Cir.1964), we explained that possession can be joint or several, constructive as well as actual, but it must also be knowing. It cannot be left to "pure speculation as to whether one defendant alone or the other defendant alone, or both of them, had possession." Id. at 642. In this case it is pure speculation whether Parra Cazares, though a resident of the apartment, ever had possession or dominion of any of the firearms.

The cases on which the government relies in its brief are all inapposite because in none of them was possession in question. United States v. Pitts, 6 F.3d 1366, 1368 (9th Cir. 1993) (witness testified she purchased guns for defend...