                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 24 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50382

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00030-JLS-1

  v.
                                                 MEMORANDUM *
ANTONIO GONZALEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                       Argued and Submitted August 3, 2011
                               Pasadena, California

Before: REINHARDT and BERZON, Circuit Judges, and KENNELLY, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for Northern Illinois, Chicago, sitting by designation.
      Defendant-Appellant Antonio Gonzalez (“Gonzalez”) was convicted and

sentenced for the offense of attempting illegally to enter the United States

following deportation, in violation of 8 U.S.C. § 1326. He appeals, arguing that

there was insufficient evidence to support his conviction; that the district court

erred in admitting incriminating statements made by Gonzalez during a field

interrogation conducted without Miranda warnings; and that the government was

required to prove beyond a reasonable doubt the fact of a prior conviction. We

affirm.

      1. Gonzalez challenges the sufficiency of the evidence supporting his

conviction with regard to the substantial step element of attempted reentry. He

argues that, because he was under constant official surveillance while attempting to

enter the United States, the doctrine of official restraint rendered completion of the

offense legally impossible and thereby prevented him from taking a substantial

step towards completion of the crime. This position was rejected in United States

v. Leos-Maldonado, 302 F.3d 1061, 1063-64 (9th Cir. 2002).

      Gonzalez maintains that Leos-Maldonado did not consider whether the

substantial act could have resulted in a crime if carried to completion, contending

that under the common law principles of attempt incorporated into § 1326 by

Gracidas-Ulibarry, 231 F.3d 1188, 1192-94 (9th Cir. 2000) (en banc), there can be


                                           2
no attempt if completion of the crime is not possible. But Leos-Maldonado was

decided after, and took into account, Gracidas-Ulibarry; indeed, Leos-Maldonado

pointed out that the defendant in Gracidas-Ulibarry, whose conviction the en banc

court ultimately affirmed, was himself under official restraint at the time of his

violation. 302 F.3d at 1063 (citing Gracidas-Ulibarry, 231 F.3d at 1191-92, 1197-

98). We are bound by Leos-Maldonado. In any event, Leos-Maldonado’s holding

is consistent with common law principles of attempt. See Hernandez-Cruz v.

Holder, — F.3d —, 2011 WL 2652461 (9th Cir. July 8, 2011).

      2. Gonzalez also argues that the district court erroneously denied his motion

to suppress incriminating statements he made during a field interrogation, without

having been given the warnings required by Miranda v. Arizona, 384 U.S. 436

(1966). Whatever merit the argument might otherwise have, it cannot avail in light

of our closely similar precedents.

      A suspect’s custodial status for Miranda purposes is a mixed question of law

and fact, warranting de novo review. See United States v. Bassignani, 575 F.3d




                                           3
879, 883 (9th Cir. 2009). We review the factual findings underlying the district

court’s decision for clear error. Id.1

      “An officer’s obligation to give a suspect Miranda warnings before

interrogation extends only to those instances where the individual is ‘in custody.’”

United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002). “To determine whether

an individual was in custody, a court must, after examining all of the circumstances

surrounding the interrogation, decide whether there [was] a formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest.”

Id. (quotation marks omitted) (alteration in original). In so doing, the court must

focus its inquiry “on the objective circumstances of the interrogation, not the

subjective views of the officers or the individual being questioned.” Id. Under this

standard, “[a] defendant is in custody if a reasonable innocent person in such

circumstances would conclude that after brief questioning he or she would not be

free to leave.” Bassignani, 575 F.3d at 883 (quotation marks omitted).




      1
        Gonzalez argues that the district court's finding of reasonable suspicion was
clearly erroneous because there was no evidence on which the district court could
have based its decision – e.g., there was no affidavit or witness testimony from
Agent Pesusich. If Gonzalez means that Agent Pesusich lacked even reasonable
suspicion to support the stop, that contention was waived, because Gonzalez's
Miranda argument rests squarely on the proposition that Agent Pesusich had
probable cause, a more stringent standard than reasonable suspicion.

                                          4
      Here, the objective circumstances of Gonzalez’s interrogation did not

amount to custody under our precedents. United States v. Medina-Villa, 567 F.3d

507, 519-20 (9th Cir. 2009), held that the defendant was not in custody for

Miranda purposes where the border patrol agent blocked the defendant’s car to

prevent escape, approached with his gun drawn, and interrogated the defendant

regarding his citizenship and immigration status. United States v. Cervantes-

Flores, 421 F.3d 825, 829-30 (9th Cir. 2005) (per curiam), overruled in part on

other grounds by Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009),

similarly concluded that the defendant was not in custody after he was chased by a

border patrol agent three quarters of a mile into the desert during the early

morning, subdued, and handcuffed. Gonzalez was no more restrained, no more

isolated, and no more subject to law enforcement domination than the defendants

in those cases.

      That the border officer in Cervantes-Flores did not have probable cause for

the arrest in that case does not render its holding inapplicable. Although the

existence of probable cause may “be one factor to consider in determining

someone's custodial status in the twilight zone between detention and custody,

what ultimately matters to the determination of whether Miranda is triggered is

custody, which is determined not by the existence of probable cause, but by


                                           5
looking to the ‘objective circumstances of the interrogation.’” United States v.

Butler, 249 F.3d 1094, 1099 (9th Cir. 2001) (emphasis in original) (quoting

Stansbury v. California, 511 U.S. 318, 323 (1994)).

      3. Finally, Gonzalez argues that the government was required to prove

beyond a reasonable doubt the fact of a prior conviction. That contention is

foreclosed by United States v. Valdovinos-Mendez, 641 F.3d 1031 (9th Cir. 2011),

which concluded that “Almendarez–Torres has not been overruled by Nijhawan

and continues to constitute binding authority.” Id. at 1036.

      AFFIRMED.




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