           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         January 15, 2009

                                     No. 08-30100 &                   Charles R. Fulbruge III
                                      No. 08-30102                            Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

RUBEN WILSON

                                                  Defendant - Appellant



                  Appeals from the United States District Court
                      for the Western District of Louisiana
                   USDC Nos. 97-CR-50081 and 06-CR-50112


Before HIGGINBOTHAM, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       Appellant Ruben Wilson (“Wilson”) appeals from two judgments, one
judgment relating to the denial of a motion to suppress and the other revoking
his supervised release. The appeals from the two judgments were consolidated
in this court. For the reasons discussed herein, we affirm.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           Nos. 08-30100 & 08-30102

I.    Background
      A.    Motion to Suppress
      In June 2006, Wilson and four other individuals were indicted relating to
possession of methamphetamine. In October 2006, Wilson filed a motion to
suppress a recorded statement he made to Task Force agents on February 14,
2006. Wilson contended that the statement was taken in violation of his Fifth
and Sixth Amendment rights, because it was coerced and unduly influenced by
threats and inducements. Wilson also argued that there was no probable cause
to arrest or detain him and no exigent circumstances for his warrantless arrest
and detention. Wilson subsequently filed an addendum to his motion asserting
that his recorded statement was also taken pursuant to an illegal detention in
violation of his Fourth Amendment rights. After a hearing, Wilson filed another
supplemental memorandum in support of his motion to suppress.
      On March 8, 2007, the magistrate judge issued a Report and
Recommendation (“R & R”) recommending that the district court deny Wilson’s
motion to suppress. Wilson filed objections to the R & R, arguing inter alia that
the magistrate judge ignored force, coercion, and subtle psychological pressures.
The district court conducted a de novo review of the portions of the R & R to
which objections were filed. The district court noted that during the hour and
a half interview,
      there was an extensive and intensive line of questioning, with ready
      and willing responses from Wilson. In total, he mentioned sixteen
      names of customers, suppliers, and contacts. He identified the
      automobiles regularly driven by some of those individuals. When
      asked, he divulged the cell phone numbers of those contacts that he
      could immediately recall. He freely answered questions regarding
      quantities, types, and costs of drugs during several specific drug
      transactions. . . .
            While carefully listening to the tape recording, [the court] did
      not detect a single instance of what could be described as “subtle
      psychological persuasion.”


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                           Nos. 08-30100 & 08-30102

By order dated June 26, 2007, the district court adopted the R & R.
      On October 1, 2007, the Government filed a notice that Wilson’s sentence
would be enhanced because of his prior felony drug conviction, pursuant to 21
U.S.C. § 851. On October 3, 2007, Wilson conditionally pled guilty to Count One
of the indictment, reserving his right to appeal the denial of his motion to
suppress. The district court sentenced Wilson to 120 months of imprisonment
as to Count One.
      After sentencing, Wilson timely filed a notice of appeal. Wilson contends
that the evidence at the suppression hearing established that (1) he was
unlawfully seized before and while giving his statement and (2) the statement
was the product of coercion and not given freely. Because Wilson’s guilty plea
was contingent on his right to appeal the denial of the motion to suppress,
Wilson requests that this court vacate his conviction and sentence and remand
this matter to the district court for further proceedings.
      B.      Revocation of Supervised Release
      Subsequent to the June 2006 indictment related to methamphetamine,
Wilson was arrested and detained on July 11, 2006. The Government requested
revocation of Wilson’s supervised release for violation of the condition requiring
that Wilson “not commit another Federal, State, or local crime.”          Wilson
admitted guilt to violation of conditions of the term of supervision. The court
sentenced Wilson to 27 months of imprisonment, to run concurrently with
Wilson’s sentence in the drug conviction case.         Wilson timely appealed,
contending that the district court violated his procedural due process rights
when revoking his supervised release and imposing a sentence based on the
revocation.
      The Government filed an unopposed motion to consolidate the two appeals,
which was granted.



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                            Nos. 08-30100 & 08-30102

II.   Discussion
      A.     Motion to Suppress
             1.     Standard of Review

      When reviewing the denial of a motion to suppress evidence, this court
reviews the district court’s factual findings for clear error and the district court’s
conclusions regarding the sufficiency of the warrant and the constitutionality of
law enforcement action de novo. United States v. Perez 484 F.3d 735, 739 (5th
Cir. 2007) (citing United States v. Cherna, 184 F.3d 403, 406 (5th Cir.1999)).
Whether a seizure has occurred is a factual determination reviewed for clear
error. United States v. Mask, 330 F.3d 330, 335 (5th Cir. 2003). “A factual
finding is not clearly erroneous if it is plausible in light of the record as a whole.”
United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008) (quoting United States
v. Jacquinot, 258 F.3d 423, 427 (5th Cir.2001)). We view the evidence in the
light most favorable to the party that prevailed in the district court, which is the
Government in this case. United States v. Chavez, 281 F.3d 479, 483 (5th Cir.
2002).

             2.     Analysis
      On February 14, 2006, Shreveport Task Force agents (collectively
“officers”) and Wilson’s federal probation officer, Kenneth Mays, went to Wilson’s
residence. Mays met Wilson at Wilson’s home, and they walked into Wilson’s
driveway. In the driveway, two officers confronted Wilson and told him that he
was the subject of an investigation involving a conspiracy. Wilson had known
one officer, Hank Haynes, since the early 1990’s based on prior contact with law
enforcement. Wilson previously had contacted Haynes in April 2005 to arrange
a meeting in Texas.
      In the driveway, Haynes told Wilson that this was “serious,” and if he
wanted to cooperate, “now is the time.” Wilson agreed to cooperate and asked


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                           Nos. 08-30100 & 08-30102

to get his shoes and cell phone inside the home. The officers permitted Wilson
to retrieve the items from his home under their supervision.
      The officers then transported Wilson to a public park in one of the officer’s
SUVs. The officers permitted Wilson to keep his cell phone, did not brandish
any weapons during their encounter with Wilson, did not frisk or search Wilson’s
person either in front of the residence or at any time during the interview, and
did not handcuff Wilson. The officers showed Wilson an unsigned affidavit and
arrest warrant to inform him how much they already knew of Wilson’s drug
trafficking activities. The officers wanted Wilson’s assistance in prosecuting
other members of the conspiracy, as Wilson had previously done. The officers
then advised Wilson of his Miranda rights, and Wilson executed a Miranda
waiver before conducting a taped interview. The officers testified that had
Wilson refused to go with them to be interviewed, they would have left.
      Wilson contends that he was unlawfully seized before and while giving his
recorded statement. Viewing the evidence in the light most favorable to the
Government, we find no reversible error in the district court’s denial of the
motion to suppress the recorded statement. Wilson was not seized in violation
of the Fourth Amendment, and Wilson voluntarily gave the recorded statement.
A reasonable person in Wilson’s situation would have believed that he was free
to leave. See Brendlin v. California, 127 S. Ct. 2400, 2405-06 (2007); United
States v. Lara, 638 F.2d 892, 896 (5th Cir. 1981).
      We affirm the district court’s denial of Wilson’s motion to suppress.
      B.    Revocation of Supervised Release
            1.    Standard of Review
      In the district court, Wilson did not raise the issue that the court violated
his procedural due process rights when revoking his supervised release. We,
therefore, review the revocation of supervised release under the plain error



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                               Nos. 08-30100 & 08-30102

standard.1 United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008).
Under this standard, Wilson is entitled to relief only if “(1) there is an error, (2)
that is clear and obvious, and (3) that affects his substantial rights.” United
States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc). “If these factors are
established, the decision to correct the forfeited error still lies within our sound
discretion, which we will not exercise unless the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id.
              2.     Analysis
       The Supreme Court has established the minimum requirements of due
process in parole revocation proceedings:

       (a) written notice of the claimed violations of parole; (b) disclosure
       to the parolee of evidence against him; (c) opportunity to be heard
       in person and to present witnesses and documentary evidence; (d)
       the right to confront and cross-examine adverse witnesses (unless
       the hearing officer specifically finds good cause for not allowing
       confrontation); (e) a ‘neutral and detached’ hearing body such as a
       traditional parole board, members of which need not be judicial
       officers or lawyers; and (f) a written statement by the factfinders as
       to the evidence relied on and reasons for revoking parole.
Morrissey v. Brewer, 408 U.S. 471, 489 (1972).
       Wilson acknowledges that it can be inferred from the hearing that Wilson
did receive notice of the alleged violation, received some disclosure of the
evidence against him, had an opportunity to appear, and had notice of his right
to be represented by counsel. Wilson pled guilty to the drug conspiracy, thereby
admitting to an offense which was in violation of his supervised release. In light
of the foregoing, the district court did not plainly err in revoking Wilson’s
supervised release.




       1
         Wilson concedes in his reply brief that this court should review this issue under the
plain error standard.

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                         Nos. 08-30100 & 08-30102

III.   Conclusion

       For the foregoing reasons, we AFFIRM the district court’s judgments
denying Wilson’s motion to suppress and revoking Wilson’s supervised release.




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