                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 03 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10405

              Plaintiff-Appellee,                D.C. No.
                                                 1:14-cr-00013-RVM-1
 v.

FLOYD MAFNAS MENDIOLA,                           MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                  for the District of the Northern Mariana Islands
                   Ramona V. Manglona, Chief Judge, Presiding

                      Argued and Submitted October 20, 2016
                                Honolulu, Hawaii

Before: WALLACE, FARRIS, and WATFORD, Circuit Judges.

      1. The district court properly denied Floyd Mendiola’s motion to suppress

the statements he made during the April 2014 meeting with the FBI. Mendiola was

not in custody during the interview, so there was no need to advise him of his

Miranda rights.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                             Page 2 of 5
      This court uses five factors to determine whether someone is in custody: “(1)

the language used to summon the individual; (2) the extent to which the defendant

is confronted with evidence of guilt; (3) the physical surroundings of the

interrogation; (4) the duration of the detention; and (5) the degree of pressure

applied to detain the individual.” United States v. Kim, 292 F.3d 969, 974 (9th Cir.

2002) (quoting United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001)).

While the second and fourth factors arguably favor Mendiola, we conclude that the

other three factors weigh against a finding of custody.

      When a suspect voluntarily agrees to meet with police with an understanding

that questioning will ensue, the first Kim factor weighs against a finding of

custody. See United States v. IMM, 747 F.3d 754, 766 (9th Cir. 2014). That is the

situation here. FBI Agent McDoulett testified that he “asked Mr. Mendiola if he

would come to [the FBI] office to listen to some recordings,” and Mendiola

testified that he voluntarily went to the FBI office in response to this request.

Although Mendiola had been admonished to abide by the FBI’s instructions as a

condition of his cooperation, that does not undermine the voluntariness of

Mendiola’s compliance with Agent McDoulett’s request.

      Turning to the third Kim factor, Mendiola was in the same conference room

he had been in during previous meetings with FBI agents, so the surroundings were
                                                                           Page 3 of 5
familiar. He was not isolated from the outside world: He had access to his cell

phone and access to the door, which was not blocked. We conclude that the

surroundings also weigh against a finding of custody.

      As to the fifth Kim factor, the FBI acknowledged that it put pressure on

Mendiola briefly during questioning, but the district court could properly find that

the pressure exerted did not rise to the level associated with detention. Mendiola

was not patted down, handcuffed, or otherwise restrained, and the FBI agents were

wearing plainclothes and had concealed any weapons they were carrying.

      Under the totality of the circumstances, we conclude that Mendiola was not

restrained in a way that is associated with a formal arrest, California v. Beheler,

463 U.S. 1121, 1125 (1983) (per curiam), especially when his previous meetings

with the FBI are considered. He testified that he went to these meetings

voluntarily (during which he was told that he was not under arrest) and that on

each occasion he was able to leave freely after the meetings ended.

      The Third Circuit’s decision in United States v. Jacobs, 431 F.3d 99 (3d Cir.

2005), is distinguishable. There, Jacobs was told to come to the FBI offices

immediately, and when she asked why, the agent declined to answer. Id. at 106.

The court noted that the pressure Jacobs felt to comply with this order was

increased by the fact that her handler had, over the course of their ten-year
                                                                           Page 4 of 5
relationship, paid her for information and used his position to influence the

criminal justice system to help her. Id. When Jacobs arrived at the FBI offices she

had to wait for thirty minutes in a room where suspects are interviewed, processed,

and detained, and then had to leave her five-year-old son in the interview room

while she met with the FBI agent. Id. at 103. Lastly, the court in Jacobs found

that she was questioned in a way that was confrontational and intimidating. Id. at

107. None of those facts is present here.

      2. The district court correctly concluded that Mendiola’s statements were

voluntary. His status as a confidential informant cannot be said to have overcome

his will, especially since he was familiar with law enforcement techniques and

testified that he had been advised that his decision to cooperate was voluntary. It is

true, as Mendiola notes, that the FBI promised to inform prosecutors about

Mendiola’s cooperation, but Agent McDoulett made clear that the FBI could not

promise him immunity from prosecution. As a result, this promise did not render

Mendiola’s statement involuntary. See United States v. Leon Guerrero, 847 F.2d

1363, 1366 (9th Cir. 1988). Nor does the fact that Agent McDoulett failed to

inform Mendiola that the FBI had decided to stop using him as a confidential

informant render his statements involuntary. While the agent’s tactics undoubtedly

amounted to deception, we have held that deception does not render a confession
                                                                              Page 5 of 5
involuntary. United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993).

Because the agent never promised Mendiola that his statements would not be used

against him, the Third Circuit’s decision in Jacobs is again distinguishable. 431

F.3d at 110.

       3. Even though Mendiola has been released from prison and his supervised

release term is set by statute, his challenge to the district court’s refusal to grant

him a reduction for minor role is not moot. See United States v. Montenegro-Rojo,

908 F.2d 425, 431 n.8 (9th Cir. 1990). We conclude that the district court did not

abuse its discretion in denying the reduction. The court permissibly concluded that

Mendiola’s behavior of bringing together the buyer and seller, arranging the price

and location of the buys, and allowing use of his residence for one of the buys, did

not warrant a minor role reduction. The district court incorrectly recited language

from the commentary to U.S.S.G. § 3B1.2 that has since been removed by

amendment, but that language related to the reduction for minimal role and its

removal from the Guidelines does not call into question the district court’s denial

of a reduction for minor role.

       AFFIRMED.
