                  United States Court of Appeals
                              For the Eighth Circuit
                         ___________________________

                                 No. 19-1807
                         ___________________________

                              United States of America

                          lllllllllllllllllllllPlaintiff - Appellee

                                             v.

                              Evandro DaCruz-Mendes

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                              Submitted: April 13, 2020
                                Filed: July 27, 2020
                                   ____________

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
                         ____________

GRASZ, Circuit Judge.

      After his motion to suppress evidence was denied, Evandro DaCruz-Mendes
pled guilty to possession with intent to distribute methamphetamine in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A). The district court1 sentenced DaCruz-Mendes to


      1
       The Honorable Greg Kays, United States District Judge for the Western District
of Missouri.
115 months of imprisonment. DaCruz-Mendes now appeals, arguing the district court
erroneously denied his motion to suppress evidence because he did not knowingly
consent to a search or waive his Miranda rights.2 DaCruz-Mendes also argues the
district court erred in determining his sentence by failing to properly weigh certain 18
U.S.C. § 3553(a) factors. We affirm.

                                   I. Background

       DaCruz-Mendes, a native of Brazil, took a bus from Dallas, Texas to Kansas
City, Missouri in February 2015. Upon arriving in Missouri, Detective Mark Merrill
and a fellow detective stopped DaCruz-Mendes because the officers thought it was
suspicious DaCruz-Mendes was carrying only a small duffel bag. Detective Merrill
approached DaCruz-Mendes as he was speaking with a taxi driver, verbally identified
himself, and showed his badge. Detective Merrill asked DaCruz-Mendes, in English,
if he could speak with him, to which DaCruz-Mendes replied in English “Yes, inside.”
DaCruz-Mendes speaks Portuguese as his primary language, but has been
communicating in Spanish and English since first coming to the United States in 2002.

       Inside the terminal, Detective Merrill asked to see DaCruz-Mendes’s bus ticket
and passport, using the Spanish word for ticket, “boleto,” at least once. DaCruz-
Mendes gave the officers both a ticket and a passport, but the names listed did not
match. Detective Merrill then asked DaCruz-Mendes in English if he could look inside
his duffle bag, also using the Spanish word for drugs while pointing toward the bag.
DaCruz-Mendes responded “yes,” in English, and pointed to his bag. When Detective
Merrill searched the bag, DaCruz-Mendes voiced no objection. In the bag, Detective
Merrill found two Tupperware containers, covered in green plastic wrap, containing
methamphetamine.



      2
          See Miranda v. Arizona, 384 U.S. 436 (1966).

                                          -2-
       At this point, Detective Merrill placed DaCruz-Mendes under arrest and led him
to an office inside the bus terminal for further investigation. Given that English was
not DaCruz-Mendes’s first language, Detective Antonio Garcia, who was fluent in
Spanish, was called into the office to aid in the interview. Before beginning the
interview, Detective Garcia provided DaCruz-Mendes with a written copy of the
Miranda warnings in Spanish. DaCruz-Mendes read the entire form aloud in Spanish.
Then DaCruz-Mendes stated in Spanish he understood his rights and signed the
Miranda waiver. At no point did DaCruz-Mendes indicate he did not understand
Spanish. During the interview, he told Detective Garcia that he spoke Portuguese but
also understood Spanish.

      Detective Garcia went on to interview DaCruz-Mendes for approximately two
hours in Spanish. Over the course of the interview, DaCruz-Mendes provided precise
details, in Spanish, about the narcotics exchange in which he was involved.

      At one point during this interview, DaCruz-Mendes’s phone rang and displayed
the name “Gordito.” DaCruz-Mendes identified Gordito as the source in Texas for
whom he was transporting the methamphetamine. The officers then asked for
permission to search DaCruz-Mendes’s phone. Again, DaCruz-Mendes consented,
reading aloud an additional consent form written in Spanish and signing it.

      After being charged, DaCruz-Mendes moved to suppress the evidence gathered
from the search of his bag, his cell phone, and the interview with Detective Garcia,
arguing he lacked sufficient knowledge to consent given the language barrier. The
magistrate judge3 held a suppression hearing, and then recommended denying the
motion. The district court adopted the report and recommendation. DaCruz-Mendes
later pled guilty, reserving the right to appeal the suppression motion.

      3
      The Honorable John T. Maughmer, United States Magistrate Judge for the
Western District of Missouri.

                                         -3-
                                     II. Analysis

                               A. Motion to Suppress

      On appeal of a denial of a motion to suppress evidence we review the district
court’s legal conclusions de novo and its factual findings for clear error. United States
v. Vanover, 630 F.3d 1108, 1113 (8th Cir. 2011). The district court’s credibility
determinations are “virtually unreviewable on appeal.” United States v. Wright, 739
F.3d 1160, 1166–67 (8th Cir. 2014) (quoting United States v. Heath, 58 F.3d 1271,
1275 (8th Cir. 1995)).

       The Fourth Amendment prohibits unreasonable searches and seizures, but “[n]ot
all personal encounters between law enforcement and citizens fall within the ambit of
the Fourth Amendment.” United States v. Richards, 611 F.3d 966, 968 (8th Cir. 2010)
(alteration in original) (quoting United States v. Jones, 269 F.3d 919, 925 (8th Cir.
2001)). Consensual encounters between officers and citizens are permitted. Id. at
968–69. “Even when law enforcement officers have no basis for suspecting a
particular individual, they may pose questions, ask for identification, and request
consent to search luggage — provided they do not induce cooperation by coercive
means.” United States v. Drayton, 536 U.S. 194, 201 (2002). The encounter is
considered consensual so long as a reasonable person would feel free to terminate the
encounter or refuse to answer questions. Id.

       First, DaCruz-Mendes argues the district court clearly erred in its factual
findings surrounding the initial encounter with the police. He suggests the district
court failed to give due weight to evidence suggesting the encounter was not
consensual. However, the district court relied on officer testimony to conclude the
encounter was consensual and we will not disturb that credibility finding. See Wright,
739 F.3d at 1166-67. We see no clear error in the factual findings of the district court
as to this issue.

                                           -4-
       DaCruz-Mendes also suggests the district court committed legal error in finding
that the initial encounter with the police was consensual rather than an illegal seizure
under the Fourth Amendment. To determine whether an encounter with the police was
consensual, we consider the totality of the circumstances, looking at factors such as the
brandishing of weapons, the use of commands, or language indicating compliance is
necessary — among others. United States v. Aquino, 674 F.3d 918, 923 (8th Cir.
2012). Here, the district court’s findings surrounding the encounter support the
conclusion that DaCruz-Mendes did consent to the encounter. There was no clear error
in finding there was no brandishing of weapons, physical touch, or threats or
commands to indicate to DaCruz-Mendes that he was not free to terminate the
encounter. Though DaCruz-Mendes argues the presence of two officers stopping him
as he entered a taxi suggested a coercive show of police force, that alone is not enough
to create a seizure under the Fourth Amendment when considering the totality of the
circumstances. Accordingly, we find the initial encounter between the detectives and
DaCruz-Mendes was consensual.

      Likewise, a reasonable officer would believe DaCruz-Mendes had consented to
the search of his luggage despite the existing language barrier. “A consensual search
does not violate the Fourth Amendment if the consent was given voluntarily and
without coercion.” United States v. Meza-Gonzalez, 394 F.3d 587, 592 (8th Cir.
2005). Determining whether consent to search was given voluntarily requires an
analysis of the totality of the circumstances. United States v. Carr, 895 F.3d 1083,
1089 (8th Cir. 2018). We have found that individuals can consent to searches despite
language difficulties. See, e.g., United States v. Cedano-Medina, 366 F.3d 682,
684–87 (8th Cir. 2004); United States v. Mendoza-Cepeda, 250 F.3d 626, 629 (8th
Cir. 2001). In this case, DaCruz-Mendes was still in a public space when the bag
search was initiated. The police officers made no threats or misrepresentations.
DaCruz-Mendes did not object to the search at any point nor did he indicate that he did
not understand what Detective Merrill was asking. “[T]he Fourth Amendment requires
only that the police reasonably believe the search to be consensual.” United States v.

                                           -5-
Garcia, 197 F.3d 1223, 1227 (8th Cir. 1999) (quoting United States v. Sanchez, 156
F.3d 875, 878 (8th Cir. 1998)). DaCruz-Mendes’s responsiveness to the detective’s
questions and affirmative response when asked if his bag could be searched would
indicate to a reasonable officer that the search was consensual.

       Similarly, the later search of DaCruz-Mendes’s cell phone was also consensual.
Before his cell phone was searched, DaCruz-Mendes read aloud and signed a consent
form in Spanish. And, by this point, Detective Garcia had been speaking with
DaCruz-Mendes in Spanish for some time. During this conversation, DaCruz-Mendes
provided a detailed discussion about the drug exchange in which he was involved.
Based on this interaction, Detective Garcia reasonably believed DaCruz-Mendes
voluntarily gave consent to search his cell phone and understood what his consent
entailed. Given that DaCruz-Mendes and Detective Garcia were able to communicate
to each other over the course of the interview, DaCruz-Mendes read and signed the
consent disclosure, and there was no indication of coercion, a reasonable officer would
believe DaCruz-Mendes had consented, making the cell phone search consistent with
the Fourth Amendment. See Garcia, 197 F.3d at 1227.

      Finally, the district court did not clearly err in concluding DaCruz-Mendes’s
waiver of his Miranda rights was knowing and voluntary. For a waiver to be
voluntary, it must first be “the product of a free and deliberate choice rather than
intimidation, coercion, or deception.” United States v. Vinton, 631 F.3d 476, 483 (8th
Cir. 2011) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). And, the waiver
must be undertaken “with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.” Id. (quoting Moran,
475 U.S. at 421). DaCruz-Mendes does not allege coercion or intimidation, only that
he did not understand Spanish well enough to waive his Miranda rights with full
awareness. DaCruz-Mendes read the Miranda waiver aloud in Spanish and he
indicated to Detective Garcia that he understood the content. Now, DaCruz-Mendes
argues he did not understand. However, following the Miranda waiver, Detective

                                          -6-
Garcia spoke with him for roughly two hours in Spanish. During this time DaCruz-
Mendes provided specific details about the drug trade in which he was involved. This
long, thorough conversation held in Spanish contradicts DaCruz-Mendes’s claim that
he did not understand Spanish enough to appreciate the Miranda rights he waived.
Since the record reflects both an absence of coercion or intimidation, and the requisite
understanding of Spanish to appreciate the value of his Miranda rights, DaCruz-
Mendes’s waiver of those rights was valid.

                                    B. Sentencing

       DaCruz-Mendes was sentenced to 115 months of imprisonment following his
guilty plea. The United States Sentencing Guidelines Manual (“Guidelines”)
recommended a sentence of 108 to 135 months of imprisonment. On appeal, DaCruz-
Mendes challenges his sentence, arguing the district court improperly weighed
mitigating and § 3553(a) factors.

       We review the substantive reasonableness of a sentence using a deferential abuse
of discretion standard. United States v. Mitchell, 914 F.3d 581, 587 (8th Cir. 2019).
An abuse of discretion occurs when a district court “fails to consider a relevant factor
that should have received significant weight . . . [or] gives significant weight to an
improper or irrelevant factor.” United States v. Berry, 930 F.3d 997, 1000 (8th Cir.
2019) (alterations in original) (quoting United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc)). Additionally, the district court has discretion in
determining how to weigh sentencing factors, and on appeal a defendant “must show
more than the fact that the district court disagreed with his view of what weight ought
to be accorded certain sentencing factors.” United States v. Long, 906 F.3d 720, 727
(8th Cir. 2018) (quoting United States v. Townsend, 617 F.3d 991, 995 (8th Cir.
2010)). We presume sentences within the Guidelines recommended range are
reasonable. United States v. Duke, 932 F.3d 1056, 1062 (8th Cir. 2019).


                                          -7-
       Here, DaCruz-Mendes argues the district court failed to properly weigh certain
factors in his favor and meaningfully consider those mitigating factors. To the
contrary, the district court properly undertook an analysis of the § 3553(a) factors,
addressing them specifically at the sentencing hearing. How the district court chose
to weigh those factors was within its discretion. Long, 906 F.3d at 727. Additionally,
the 115-month sentence was squarely within the recommended range. This sentence
is presumed reasonable and there is no evidence suggesting the district court failed to
give due consideration to any factors. Since the district judge gave due consideration
when weighing all factors and the sentence fell within the Guidelines range, we find
no abuse of discretion.

                                   III. Conclusion

      For the foregoing reasons, we affirm the judgment of the district court.
                        ______________________________




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