                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10525

                Plaintiff-Appellee,             D.C. No. CR-15-01299-GMS

 v.

RUBEN LEE CASTANEDA,

                Defendant-Appellant.            MEMORANDUM*

                   Appeal from the United States District Court
                            for the District of Arizona
                    G. Murray Snow, District Judge, Presiding

                       Argued and Submitted April 9, 2018
                           San Francisco, California

Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.

      After a stipulated facts bench trial, Ruben Lee Castaneda was convicted on

September 27, 2016 under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for being a felon in

possession of a firearm, and sentenced on December 19, 2016 to 51 months in prison,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
followed by three years of supervised release. Castaneda now appeals, challenging:

(1) the district court’s decision not to suppress evidence found in his backpack; (2)

its finding that he voluntarily waived his Miranda rights; (3) its application of the

Sentencing Guidelines; and (4) a condition of his supervised release. We affirm the

district court’s decision on all challenged issues.

      1. The district court did not err in determining that the firearm, ammunition,

and other contents of Castaneda’s backpack were admissible under the inevitable

discovery doctrine pursuant to an inventory search. An inevitable discovery ruling

-- which presents a mixed issue of law and fact -- is reviewed for clear error. United

States v. Reilly, 224 F.3d 986, 994 (9th Cir. 2000); United States v. Lang, 149 F.3d

1044, 1047–48 (9th Cir. 1998). For the inevitable discovery doctrine to apply in the

case of an inventory search: (1) the police must have had legitimate custody of the

property to be inventoried, either as a result of lawful arrest or by some other method;

and (2) the inventory search must be conducted according to standard agency

procedures. United States v. Mancera-Londono, 912 F.2d 373, 375–76 (9th Cir.

1990).

      Here, the district court did not err by determining police had legitimately taken

custody of the backpack in order to protect it. Castaneda was observed to have the

backpack in his possession shortly before his arrest; there was no secure place

available to leave the property; and no willing third party was on hand to take



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custody of the property. Further, police were not required to seek out a friend or

family member to take custody of Castaneda’s property. See Illinois v. Lafayette,

462 U.S. 640, 647 (1983) (“The reasonableness of any particular governmental

activity does not necessarily or invariably turn on the existence of alternative ‘less

intrusive’ means.”). Under these circumstances, the police could lawfully take

custody of Castaneda’s backpack in order to protect it. See Mancera-Londono, 912

F. 2d at 376 (holding that the rental car entered police custody lawfully when all

occupants were arrested and no third party was present).

      Nor did the district court err in determining that the inventory search of the

backpack was conducted according to standard agency procedures: the officers

testified that all arrestees’ property was searched and catalogued during the booking

process, written policies supported their testimony, and the policies were sufficiently

detailed regarding the situation at hand. See Lafayette, 462 U.S. at 648 (holding that

it is not “unreasonable for police, as part of the routine procedure incident to

incarcerating an arrested person, to search any container or article in his possession,

in accordance with established inventory procedures”) (internal quotation marks

omitted). Further, any mixed motives police had for conducting the inventory search

do not affect the validity of the inventory search, as the backpack would have been

inventoried according to routine procedure regardless. United States v. Bowhay,

992 F.2d 229, 231 (9th Cir. 1993).



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      2. The district court did not err when it found that Castaneda voluntarily

waived his Miranda rights. A district court’s finding that a Miranda waiver was

knowing and intelligent is a factual finding reviewed for clear error. United States

v. Liera, 585 F.3d 1237, 1246 (9th Cir. 2009). The validity of a Miranda waiver is

assessed in light of the totality of the circumstances, including the following factors:

(i) the defendant’s mental capacity; (ii) whether the defendant signed a written

waiver; (iii) whether the defendant was advised in his native tongue or had a

translator; (iv) whether the defendant appeared to understand his rights; (v) whether

the defendant’s rights were individually and repeatedly explained to him; and (vi)

whether the defendant had prior experience with the criminal justice system. United

States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007).

      It is undisputed that Castaneda did not sign a written waiver and that his rights

were explained to him only once. It is also undisputed that Castaneda speaks and

understands English, and that he had prior experience in the criminal justice system.

In light of Castaneda’s detailed responses to questions and demeanor throughout

most of the interview, the district court did not err by finding that he had sufficient

mental capacity at the time of waiver -- regardless of any alleged methamphetamine

use or sleep deprivation -- and by giving credence to Castaneda’s statement that he

understood his rights. See United States v. Rodriguez-Rodriguez, 393 F.3d 849, 855

(9th Cir. 2005) (holding that heroin withdrawal did not render a Miranda waiver



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invalid because the defendant “spoke and interacted” during the interview),

overruled on other grounds as recognized in United States v. Aguila–Montes de Oca,

655 F.3d 915, 945–46 (9th Cir. 2011) (en banc). Additionally, because the district

court did not err by determining that the backpack evidence was admissible, it did

not err by finding that Castaneda’s statements were not provoked by confrontation

with illegally seized evidence.

      3. The district court did not err by applying U.S.S.G. § 2K2.1(a)(4)(B) without

making the prosecution prove that Castaneda knew that the firearm was a sawed-off

shotgun. We review a district court’s interpretation of the Sentencing Guidelines de

novo, its application of the Guidelines to the facts of the case for abuse of discretion,

and its factual findings for clear error. United States v. Garro, 517 F.3d 1163, 1167

(9th Cir. 2008). The plain language of § 2K2.1(a)(4)(B) does not include a scienter

requirement, and mens rea is not typically required at the sentencing stage unless a

sentencing factor: (1) alters the maximum penalty available for the crime committed;

(2) negates the presumption of innocence or relieves the prosecution’s burden of

proving guilt; or (3) creates a separate offense calling for a separate penalty.

McMillan v. Pennsylvania, 477 U.S. 79, 87–88 (1986).

      Here, the enhancement for a sawed-off shotgun only affects the minimum

penalty, not the statutory maximum of ten years. See United States v. Goodell, 990

F.2d 497, 500 (9th Cir. 1993).         Section 2K2.1(a)(4)(B) does not negate the



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presumption of innocence or the burden of proof as to the underlying violation of §

922(g), i.e., being a felon in possession of a firearm. See id. at 500 n.4. Finally, the

enhancement does not create a separate offense calling for a separate penalty. See

McMillan, 477 U.S. at 89–90 (holding that Pennsylvania’s use of “visible possession

of a firearm” as a sentencing factor did not “transform[] against its will a sentencing

factor into an ‘element’ of some hypothetical ‘offense’”).

       4. The district court did not commit plain error by requiring Castaneda “to

participate in a mental health program as directed by the probation officer which

may include taking prescribed medication” as a condition of his supervised release.

When, as in this case, a defendant does not object to a supervised release condition

in the district court, we review the district court’s decision for plain error. United

States v. Barsumyan, 517 F.3d 1154, 1160 (9th Cir. 2008). Plain error is (1) error,

(2) that is plain, and (3) affects substantial rights. Id.

       Although district courts generally have broad discretion in imposing

supervised release conditions, “[w]here [] a particularly significant liberty interest is

at stake, the district court must follow additional procedures and make special

findings.” United State v. Stoterau, 524 F.3d 988, 1005 (9th Cir. 2008) (citing

United States v. Williams, 356 F.3d 1045, 1053 (9th Cir. 2004)). Forcing an

individual to take certain psychoactive medications constitutes “a ‘particularly

severe’ invasion of liberty,” and thus the district court must make “on-the-record,



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medically-grounded findings that court-ordered medication is necessary” and

“involves no greater deprivation of liberty than is necessary.” Williams, 356 F.3d at

1053–57 (citation omitted).

      Here, without making findings on a medically-informed record, the district

court required Castaneda to “participate in a mental health program as directed by

the probation officer, which may include taking prescribed medication.” To pass

muster, this condition must be understood as limited to medications that do not

implicate Castaneda’s significant liberty interests. United States v. Daniels, 541

F.3d 915, 926 (9th Cir. 2008). While he is on supervised release, Castaneda may

challenge prescribed medication that he believes, in good faith, implicates his

significant liberty interests. Further, he may refuse to take the medication without

violating the terms of his supervised release until the district court either rules that

the medication does not implicate his liberty interests or makes the required

Williams findings.

      For the foregoing reasons, we affirm the district court’s ruling.

AFFIRMED.




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