                                                                        FILED
                                                            United States Court of Appeals
                               UNITED STATES COURT OF APPEALS       Tenth Circuit

                                        TENTH CIRCUIT                          August 13, 2014

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                           No. 13-8067
                                                             (D. Wyoming)
 SIGIFREDO MOLINA VARELA, a/k/a                     (D.C. No. 2:13-CR-00004-ABJ-2)
 Sigi Molina, a/k/a Sigi Varela,

              Defendant - Appellant.


                                       ORDER AND JUDGMENT *


Before MATHESON, EBEL and McHUGH, Circuit Judges.



          Defendant Sigifredo Molina-Varela appeals his conviction of conspiracy to

possess methamphetamine with intent to distribute and distribution of methamphetamine,

and possession of a firearm in furtherance of a drug felony. He challenges the district

court’s order denying his motion to suppress his post-arrest statements, claiming they

were not knowing or voluntary. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

          *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
                                   I.     BACKGROUND

                                        A. Factual History

       After a two-year investigation into a conspiracy to distribute methamphetamine in

the Cheyenne area, the Wyoming Division of Criminal Investigation obtained a warrant

to search the apartment occupied by Mr. Molina-Varela and his family. The execution of

the search warrant revealed evidence consistent with Mr. Molina-Varela’s participation in

the conspiracy, including small amounts of methamphetamine, drug ledgers, and

paraphernalia. The officers executing the warrant also discovered multiple firearms.

Based on this evidence, the officers arrested Mr. Molina-Varela and transported him to

the Campbell County Sheriff’s Office.

       Later that same day, Special Agents Trevor Budd and Chris McDonald questioned

Mr. Molina-Varela about his involvement in the conspiracy. Mr. Molina-Varela claims

the district court should have suppressed the inculpatory statements he made during this

interview because they were obtained in violation of his constitutional rights. The

resolution of this issue requires us to examine the totality of the circumstances

surrounding the interview, and therefore we discuss those facts in some detail.1

       Agents Budd and McDonald questioned Mr. Molina-Varela in a small interview

room at the Sheriff’s Office, which contained a table and enough chairs for Mr. Molina-

Varela and each of the agents to sit. A single door provided access to the room, which

       1
        We base our recitation of the facts on the district court’s findings and on our
review of the video of the recorded interview. See Supplemental Record on Appeal.
                                                 2
had no windows. During the interview, Mr. Molina-Varela was dressed in a prison-issued

jumpsuit, but was not wearing handcuffs or otherwise restrained. The agents wore plain

clothes. Neither agent raised his voice or threatened Mr. Molina-Varela during the

interview. Mr. Molina-Varela was 43 years old at the time of the interview, and was

fluent in English. In total, the interview lasted approximately two hours and twenty-two

minutes.

       Agent Budd began the interview by asking Mr. Molina-Varela for routine

information including his date of birth and social security number. Mr. Molina-Varela

provided this information, with little hesitation, from memory. During this initial phase of

the interview, Agent Budd volunteered that Mr. Molina-Varela’s dog had been placed in

protective custody with animal control. Mr. Molina-Varela then inquired about his

children, who had been at school when the officers executed the warrant and arrested

both Mr. Molina-Varela and the children’s mother. This inquiry prompted a conversation

regarding the children, during which the agents agreed to attempt to have them placed

with Mr. Molina-Varela’s stepson.

       Agent McDonald then informed Mr. Molina-Varela that law enforcement had

been investigating the conspiracy for two years and that they knew “a lot” but didn’t

know everything. Agent McDonald asked Mr. Molina-Varela for his address and

telephone number, as well as telephone numbers for other individuals suspected to be

involved in the conspiracy. Agent McDonald also inquired about Mr. Molina-Varela’s

                                                3
immigration status, the number of years he had been in the United States, and how long

he had lived at his current address. Again, Mr. Molina-Varela provided the information

requested without difficulty.

       At this point, Agent McDonald indicated that he and Agent Budd wanted to

interview Mr. Molina-Varela to learn more, but that he needed to inform Mr. Molina-

Varela of his rights before proceeding. Consequently, approximately twelve minutes into

the interview, Agent McDonald read aloud from a preprinted waiver of rights form (the

waiver form) to advise Mr. Molina-Varela of his Miranda2 rights:

               You have the right to remain silent. Anything you say can and
       will be used against you in a court of law. You have the right to talk
       to a lawyer and have him present while you are being questioned. If
       you cannot afford to hire a lawyer, one will be appointed to represent
       you at no cost before any questioning if you wish one. You can
       decide at any time to exercise these rights and not answer any
       questions or make any statements. Do you understand each of these
       rights?

       Although the waiver form next reads, “Having these rights in mind, do you waive

these rights and desire to make a statement at this time?,” R. Vol. 3 at 562, Agent

McDonald deviated from the written text and instead asked, “Having those in mind,

would you still mind talking to me?”

       After Agent McDonald read these warnings, Mr. Molina-Varela asked, “so you

will not help me on any [unintelligible] this?” to which Agent McDonald responded,

       2
        Miranda v. Arizona, 384 U.S. 436 (1966) (holding that criminal suspects subject
to custodial interrogation must be advised of certain constitutional rights and the
consequences of waiving those rights).
                                                4
“well, that’s, that’s—no I think we can, we can do something. I’m just saying I can’t

say—I can’t take those charges away [pause] right now.” When Mr. Molina-Varela did

not respond immediately, Agent McDonald asked if Mr. Molina-Varela would be

“willing to answer a few questions” or “talk for a little while longer.” Mr. Molina-Varela

nodded.

       Agent McDonald then asked Mr. Molina-Varela if he could read English. When

Mr. Molina-Varela answered affirmatively, Agent McDonald handed Mr. Molina-Varela

the waiver form, which he signed in the presence of both agents. The interview continued

for approximately two more hours, during which Mr. Molina-Varela made inculpatory

statements detailing his role in the conspiracy.

                                    B. Procedural History

       Prior to trial, Mr. Molina-Varela filed a motion in limine to suppress his interview

statements on the ground that the waiver of his Miranda rights and subsequent statements

were uninformed and involuntary. Specifically, Mr. Molina-Varela claimed Agent

McDonald coerced him into waiving his rights by using an impermissible promise of

leniency, and that he was so impaired by methamphetamine at the time of the interview

that it rendered his actions involuntary. After reviewing the video recording of the

interview and hearing testimony from Agent McDonald and Mr. Molina-Varela, the

district court denied the motion. It concluded there was nothing in Mr. Molina-Varela’s

behavior to indicate he was unable to make a voluntary confession due to the influence of

                                                   5
methamphetamine and that the statements Mr. Molina-Varela claimed were

impermissible promises of leniency were largely “cherry-picked” from the interview.

Considering Agent McDonald’s statements in context, the district court held they did not

render Mr. Molina-Varela’s waiver or his subsequent statements involuntary.

       At trial, Agent McDonald testified about the interview and described Mr. Molina-

Varela’s inculpatory statements. The jury convicted Mr. Molina-Varela on all charges

and he filed a timely notice of appeal.

                                   II.    DISCUSSION

       Mr. Molina-Varela argues the district court should have suppressed his statements

to Agents Budd and McDonald because the agents obtained the statements in violation of

his constitutional rights. The admissibility of a defendant’s inculpatory statements to law

enforcement officers implicates two constitutional protections: the Fifth Amendment

right against self-incrimination3 and the Fourteenth Amendment’s requirement that a

defendant be afforded appropriate due process. United States v. Cash, 733 F.3d 1264,

1280 & n. 12 (10th Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1569 (2014); see

Dickerson v. United States, 530 U.S. 438, 433 (2000). To be admissible under the Fifth

Amendment, law enforcement officers must inform the defendant of his Miranda rights

and the defendant must knowingly, intentionally, and voluntarily waive those rights

       3
        The Fifth Amendment is incorporated and made applicable to the State of
Wyoming by the Fourteenth Amendment. See Withrow v. Williams, 507 U.S. 680, 689
(1993).

                                                6
before making the incriminating statements. See Missouri v. Seibert, 542 U.S. 600, 607

(2004). Where law enforcement officers have properly advised a defendant of his

Miranda rights and obtained a valid waiver of those rights, the Due Process Clause may

nevertheless prohibit the admission of the defendant’s inculpatory statements if they were

not made voluntarily. See Cash, 733 F.3d at 1280 n.12.

       It is unclear whether Mr. Molina-Varela contends his interview statements should

be suppressed because the Miranda warnings were insufficient, because his waiver was

not voluntary, or because the statements themselves were involuntary, and therefore,

violate due process. For practical purposes, this uncertainty does not much alter our

analysis because we consider the totality of the circumstances to determine the

voluntariness of both Mr. Molina-Varela’s waiver of his Miranda rights and the

voluntariness of his subsequent statements. See Colorado v. Connelly, 479 U.S. 157,

169–70 (1986) (“There is obviously no reason to require more in the way of a

‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment

confession context.”); Cash, 733 F.3d at 1280 n. 12 (“[R]egardless of whether we

evaluate the voluntariness of a statement through the lens of Miranda waiver, the

privilege against self-incrimination, or the Due Process Clause, our inquiry is the same—

we consider the totality of the circumstances.”).

       Accordingly, we first consider the sufficiency of the warnings. We then proceed to

the issue of whether Mr. Molina-Varela’s waiver and subsequent statements were

                                                    7
voluntary under the totality of the circumstances. With respect to this second issue, we

consider Mr. Molina-Varela’s specific claims that the agents engaged in coercive tactics,

including “trickery, false promises of leniency and misleading statements, and

subterfuge” to induce his waiver. Aplt. Reply Br. 11. Finally, we address Mr. Molina-

Varela’s contention that he was so impaired by methamphetamine at the time of the

interview that his actions were involuntary.

                                       A. Standard of Review

       When reviewing the district court’s denial of a motion to suppress, we review

legal conclusions de novo and findings of fact for clear error. United States v. Smith, 606

F.3d 1270, 1275 (10th Cir. 2010) [hereinafter Smith]. We accept the district court’s

factual findings unless clearly erroneous and consider the evidence in the light most

favorable to the district court’s determination. United States v. Lopez, 437 F.3d 1059,

1062 (10th Cir. 2006). It is the government’s burden to show a confession is admissible

by a preponderance of the evidence. Id. at 1063 (citing Seibert, 542 U.S. at 608 n.1).

                         B. The Sufficiency of the Miranda Warning

       Prior to conducting a custodial interrogation, law enforcement officers must advise

the suspect of four specific rights:

              [A suspect] must be warned prior to any questioning [1] that he has
       the right to remain silent, [2] that anything he says can be used against him
       in a court of law, [3] that he has the right to the presence of an attorney, and
       [4] that if he cannot afford an attorney one will be appointed for him prior
       to any questioning if he so desires.


                                                  8
Florida v. Powell, 559 U.S. 50, 59–60 (2010) (brackets in original). Mr. Molina-Varela

concedes each of these required elements of a Miranda warning are contained in the

written waiver form that Agent McDonald read and Mr. Molina-Varela signed.

Notwithstanding that concession, he claims the Miranda warnings were rendered

inadequate and misleading when Agent McDonald deviated from the language of the

written waiver form and asked, “having those [rights] in mind, would you still mind

talking with me?” 4 We disagree.

       Nothing in Miranda requires an officer to ask specifically if the suspect waives his

rights. See Berghuis v. Thompkins, 560 U.S. 370, 384–87 (2010) (holding that police are

not required to obtain an express waiver of a defendant’s right to remain silent under

Miranda before commencing interrogation and “[W]here the prosecution shows that a

Miranda warning was given and that it was understood by the accused, an accused’s

uncoerced statement establishes an implied waiver of the right to remain silent.”). And

the question, “[h]aving those [rights] in mind, would you still mind talking to me?,” did

not render the warnings misleading. It simply asked whether, despite the just-explained

right not to speak, Mr. Molina-Varela would “mind” talking with the agents anyway. See

       4
         Mr. Molina-Varela also claims that his statements should be excluded because
Agent McDonald’s failure to advise him of his rights at the outset of the interrogation
constitutes a direct violation of Miranda. We do not address this argument because it was
not raised before the district court or argued in Mr. Molina-Varela’s opening brief. See
United States v. Holmes, 727 F.3d 1230, 1237 (10th Cir. 2013) (“[W]e do not permit new
arguments on appeal when those arguments are directed to reversing the district court.”);
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments
inadequately briefed in the opening brief are waived.”).
                                                  9
Powell, 559 U.S. at 60, 62–64 (holding that warnings need only reasonably convey to a

suspect his Miranda rights).

      The fact that Agent McDonald handed Mr. Molina-Varela the waiver form after

reading it out loud supports our conclusion. The waiver form includes the language Mr.

Molina-Varela now complains Agent McDonald omitted from the verbal recitation of

rights: an express inquiry as to whether Mr. Molina-Varela agreed to waive his Miranda

rights. Mr. Molina-Varela executed the written form, thereby indicating his intent to

waive the rights described in it and explained by Agent McDonald. Therefore, we

conclude that Agent McDonald informed Mr. Molina-Varela of his rights as required by

Miranda.

                C. Voluntariness of the Waiver and Inculpatory Statements

      Mr. Molina-Varela also argues that his Miranda waiver and subsequent statements

were involuntary because Agents Budd and McDonald engaged in over twelve minutes of

trickery, subterfuge, and false and misleading statements, which amounted to

psychological conditioning ploys used to coerce him into waiving his rights. Specifically,

he claims the agents misrepresented the strength of the evidence and feigned friendship

and kindness by discussing his children and his dog. In addition, Mr. Molina-Varela

contends Agent McDonald made an impermissible and misleading promise of leniency.

We are not persuaded that any of the aspects of the interrogation identified by Mr.

Molina-Varela rendered his waiver or his subsequent statements involuntary.

                                               10
       A Miranda waiver must be “‘voluntary in the sense that it was the product of a

free and deliberate choice rather than intimidation, coercion, or deception.’” Smith v.

Mullin, 379 F.3d 919, 932 (10th Cir. 2004) (quoting Moran v. Burbine, 475 U.S. 412, 421

(1986)). In determining whether Mr. Molina-Varela’s Miranda waiver and subsequent

statements were voluntary, we examine whether his will was “overborne by the

circumstances surrounding the giving of a confession.” Id. at 934. This requires us to

assess the totality of the circumstances. Id. Factors relevant to this assessment include the

personal characteristics of the accused and the details of the interrogation, including: the

suspect’s age, intelligence, and education; whether the suspect was informed of his or her

rights; the length and nature of the suspect’s detention and interrogation; and the use or

threat of physical force against the suspect. Id.

       1. Exaggeration of the Evidence and Feigned Friendliness

       Under this standard, we can easily dispose of Mr. Molina-Varela’s first two

allegations of coercive conduct. Agents Budd and McDonald did not misrepresent or

exaggerate the evidence that implicated Mr. Molina-Varela in a conspiracy to distribute

methamphetamine. Cf. Lopez, 437 F.3d at 1065 (concluding that a confession was

involuntary where, in addition to promising leniency, agents misrepresented the strength

of the evidence); Clanton v. Cooper, 129 F.3d 1147, 1158–59 (10th Cir. 1997)

(recognizing that a reasonable officer should have known that misrepresentations,

combined with promises of leniency, were more likely to render a confession

                                                    11
involuntary). To the contrary, Agent Budd’s and Agent McDonald’s representations to

Mr. Molina-Varela were true; they had been working the case for over two years and

knew enough about Mr. Molina-Varela’s involvement in the conspiracy to obtain a

search warrant for his apartment, which when executed yielded methamphetamine, a

drug ledger, and other paraphernalia.

      Agents Budd and McDonald also acted permissibly in discussing the placement of

Mr. Molina-Varela’s children and the location of his dog. Mr. Molina-Varela initiated the

conversation about his children and Agents Budd and McDonald merely agreed to

facilitate their placement with a family member. Nothing about Agent Budd’s and Agent

McDonald’s general politeness, friendliness, or helpfulness during the interview was

coercive. Compare Spano v. New York, 360 U.S. 315, 323 (1959) (holding that using a

patrolman who was the suspect’s childhood friend to convince the suspect to confess so

that the patrolman would not be in trouble from his superiors was coercive), with United

States v. Posada-Rios, 158 F.3d 832, 866 (5th Cir. 1998) (exhibiting sympathy to create

an atmosphere of trust does not demonstrate prohibited police overreaching). Thus, we

are not persuaded by Mr. Molina-Varela’s claims that Agents Budd and McDonald

impermissibly exaggerated the evidence or feigned friendship.

      2. Promise of Leniency and Misleading Statements

      Mr. Molina-Varela next contends that he was coerced into waiving his Miranda

rights and incriminating himself during the interview by Agent McDonald’s statement “I

                                              12
think we can, we can do something. I’m just saying I can’t say—I can’t take those

charges away [pause] right now.” According to Mr. Molina-Varela, this statement is an

impermissible and misleading promise of leniency that rendered his waiver and

subsequent inculpatory statements involuntary. In rejecting this argument, we first

determine that Agent McDonald did not make an impermissible promise of leniency, but

that the statement was somewhat misleading. But we conclude that even treating Agent

McDonald’s statement as a promise of leniency, and weighing the misleading nature of

the statement, it did not overcome Mr. Molina-Varela’s will and render his waiver and

confession involuntary.

       “Under Supreme Court and Tenth Circuit precedent, a promise of leniency is

relevant to determining whether a confession was involuntary and, depending on the

totality of the circumstances, may render a [waiver or] confession coerced.” Lopez, 437

F.3d at 1064 (quoting Clanton, 129 F.3d at 1159); accord Clanton, 129 F.3d at 1159

(discussing the effect of an alleged promise of leniency on the voluntariness of the

defendant’s confession in the context of a 42 U.S.C. § 1983 claim); United States v.

Roman-Zarate, 115 F.3d 778, 780, 782–84 (10th Cir. 1997) (examining whether a

promise of leniency rendered a confession involuntary). For example, in Lopez, we

determined that law enforcement officers had made an impermissible promise of leniency

where the agent set out four pieces of paper marked with the terms “murder,” “mistake,”

“60,” and “6,” and then told the defendant “‘if you cooperate, you know, . . . you could

                                                13
be looking at six years. And if you don’t cooperate and give us answers, you could be

looking at 60 years.’” 437 F.3d at 1061, 1065. We explained that the agent had used the

papers to make a specific and compelling promise that the defendant would spend 54

fewer years in prison if he confessed to killing the victim by mistake, and then reinforced

the promise by relating stories of other suspects who had received lighter sentences after

confessing to killing by mistake. Id. at 1065. The promise was not a “limited assurance”

that is permissible as an interrogation tactic; it was “of the sort that may indeed critically

impair a defendant’s capacity for self-determination.” Id. Upon concluding that the agent

had made an impermissible promise of leniency, we next considered whether under the

totality of the circumstances, the defendant’s statements were coerced and therefore

involuntary. Noting that the agent had also misrepresented the strength of evidence

against the defendant and threatened to prosecute the defendant’s mother for perjury if

she provided alibi testimony, we held that the defendant’s inculpatory statements were

involuntary, and therefore, inadmissible, even though the agent had informed the

defendant of his Miranda rights. Id. at 1061, 1065.

       Turning to the facts of this case, unlike the specific promise of a 54-year reduction

of sentence we found to be compelling in Lopez, Agent McDonald’s statement was vague

and noncommittal. He did not describe any specific benefit Mr. Molina-Varela would

enjoy if he cooperated or any particular penalty he would face if he did not. Therefore,

Agent McDonald’s statement did not constitute a promise of leniency.

                                                  14
       However, even if the statement could be construed as a promise of leniency, we

have no trouble concluding that, under the totality of the circumstances, it was not so

compelling as to overcome Mr. Molina-Varela’s will. Unlike the statement in Lopez,

Agent McDonald’s statement was too vague and generic to have critically impaired Mr.

Molina-Varela’s ability to evaluate whether or not to waive his Miranda rights. It simply

reinforced the obvious fact of which Mr. Molina-Varela was clearly aware—that

cooperation with law enforcement officers could be beneficial. In fact, Agent McDonald

made the statement in response to Mr. Molina-Varela’s own attempt to negotiate a more

favorable outcome in exchange for his cooperation. See, e.g., United States v. Toles, 297

F.3d 959, 967 (10th Cir. 2002) (holding a confession was voluntary and noting that it was

the defendant who raised the possibility of a benefit); see generally Wayne R. LaFave et

al., 2 Crim. Proc. § 6.2(c) (3d ed.) (collecting cases and concluding that some courts have

held that promises of leniency are less coercive where they are made in response to a

solicitation from the accused).

       As for Mr. Molina-Varela’s argument that Agent McDonald’s statement was

misleading, we agree that it may have implied inaccurately that Agent McDonald had the

power to take Mr. Molina-Varela’s charges away. Cf. United States v. Lewis, 24 F.3d 79,

82 (10th Cir. 1994) (a statement was voluntary where the law enforcement officer

promised to make the defendant’s cooperation known to the United States Attorney’s

Office but told the defendant that he himself could make no deals); United States v. Lux,

                                                15
905 F.2d 1379, 1382 (10th Cir. 1990) (finding that a confession was voluntary where the

law enforcement officer allegedly told the appellant she could either testify or be a

codefendant, but that only the United States Attorney could help her). But we cannot

agree that the statement was sufficiently misleading to overcome Mr. Molina-Varela’s

will. Balancing the effect of the misleading inference against the totality of the

circumstances, including other details of the interview and Mr. Molina-Varela’s personal

characteristics, we conclude that his waiver and subsequent inculpatory statements were

voluntary.

       The fact that Agent McDonald properly advised Mr. Molina-Varela of his

Miranda rights and Mr. Molina-Varela expressly waived those rights by executing the

written waiver form is “strong proof” that Mr. Molina-Varela’s waiver and confession

were voluntary. United States v. Amos, 984 F.2d 1067, 1074 (10th Cir. 1993); see Seibert,

542 U.S. at 609 (“maintaining that a statement is involuntary even though given after

warnings and voluntary waiver of rights requires unusual stamina, and litigation over

voluntariness tends to end with the finding of a valid waiver”); Berkemer v. McCarty, 468

U.S. 420, 433 n.20 (1984) (“[C]ases in which a defendant can make a colorable argument

that a self-incriminating statement was ‘compelled’ despite the fact that the law

enforcement authorities adhered to the dictates of Miranda are rare.”).

       Moreover, Mr. Molina-Varela was not subject to physical punishment or the use or

threat of force. Agents Budd and McDonald did not raise their voices, make any threats,

                                                 16
or act in any way that was intimidating. As discussed, Agents Budd and McDonald at all

times during the interview were polite and friendly. Both agents were dressed in plain

clothes and sat throughout the majority of the interview. The interview room, although

small, was large enough for everyone to sit comfortably. In fact, Mr. Molina-Varela

appeared to be relatively relaxed and comfortable throughout the interview. He wore a

jumpsuit but was not handcuffed or otherwise restrained. See Smith, 606 F.3d at 1277

(holding that a waiver was voluntary where the interview took place in a room large

enough to accommodate adequately the interviewers, the suspect was not handcuffed

during the interview, and there was no indication that he was treated impolitely or

touched forcefully while being interviewed).

       There is also nothing about the duration of the detention and interview that

suggests coercion. The interview occurred on the same day as Mr. Molina-Varela’s arrest

and lasted less than two and a half hours. See Berghuis, 560 U.S. at 387 (holding that an

interrogation that lasted three hours was not coercive); Smith, 606 F.3d at 1277 (holding

that a waiver was voluntary where the suspect had been under arrest for approximately

three hours prior to questioning). Furthermore, at the time of the interview, Mr. Molina-

Varela was a 43-year-old adult, who spoke and understood English well. He appeared

intelligent, and nothing in the record suggests otherwise. And Mr. Molina-Varela is no




                                               17
stranger to the criminal justice system; therefore “[t]he concepts encompassed by

Miranda were not foreign to him.” Mullin, 379 F.3d at 934.5

       The totality of the circumstances do not indicate that Mr. Molina-Varela’s waiver

and subsequent confession were anything but the product of an informed and voluntary

choice. Agents Budd and McDonald did not impermissibly exaggerate the evidence or

feign friendship. Nor was Agent McDonald’s statement an impermissible promise of

leniency. But even if we were to treat it as such, and also consider the misleading nature

of the statement, it was not so compelling or misleading that it overcame Mr. Molina-

Varela’s will under the totality of the circumstances. For these reasons, we conclude that

Mr. Molina-Varela’s waiver and subsequent statements were voluntary.

       3. Mr. Molina-Varela’s methamphetamine use did not render his Miranda
          waiver invalid.

       Finally, Mr. Molina-Varela claims that his waiver was invalid because he was high

on methamphetamine at the time of the interview. A state of intoxication does not

automatically render a waiver invalid. Smith, 606 F.3d at 1276; United States v.

Augustine, 742 F.3d 1258, 1265 (10th Cir.), cert. denied, 134 S. Ct. 2155 (2014) (“The

mere fact of drug or alcohol use will not suffice to overcome evidence showing that the

defendant was sufficiently in touch with reality so that he knew his rights and the

consequences of abandoning them.” (internal quotation marks omitted)). Instead, the

       5
        The record reveals that Mr. Molina-Varela had been previously arrested on
charges of DUI; aggravated assault and use of a firearm; theft of service and theft by
unlawful taking; and for failure to appear.
                                              18
question remains “whether a [suspect’s] will was overborne by the circumstances

surrounding the giving of a confession.” Smith, 606 F.3d at 1276–77; United States v.

Curtis, 344 F.3d 1057, 1066 (10th Cir. 2003) (examining whether the impairment was

“such that the confession was not voluntary and that Defendant was not operating under

his own free will.” (brackets omitted)). Here, that question is easily answered in the

negative.

       The district court made factual findings that Mr. Molina-Varela was not so

impaired by methamphetamine use that he could not make a voluntary confession.

Indeed, the court found there were no “obvious” signs that Mr. Molina-Varela was under

the influence of methamphetamine at all. Instead, the court observed that he appeared at

all times during the interview to be lucid, and was “alert yet relaxed.” He spoke clearly

and responded to Agent Budd’s and Agent McDonald’s questions appropriately and at

times asked them clarifying questions. He also exhibited concern for the situation and for

his children. Our review of the video recording of the interview establishes that these

findings are not clearly erroneous. Thus, we conclude that Mr. Molina-Varela was not so

impaired by his methamphetamine use that his Miranda waiver was invalid.




                                                19
                                III.      CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s decision to admit Mr.

Molina-Varela’s post-arrest statements.

                                          ENTERED FOR THE COURT



                                          Carolyn B. McHugh
                                          Circuit Judge




                                              20
