     Case: 15-41531      Document: 00513634861         Page: 1    Date Filed: 08/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-41531
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 12, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

OMAR GONZALEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:14-CR-463-4


Before DAVIS, BENAVIDES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Omar Gonzalez pleaded guilty to conspiracy to possess with intent to
distribute 1,000 pounds or more of marijuana. Gonzalez’s guilty plea was
conditional under Federal Rule of Criminal Procedure 11(a)(2), and he now
exercises the right he reserved to appeal the denial of his motion to suppress
statements made after he invoked his right to counsel.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-41531

      When reviewing a denial of a motion to suppress evidence, this court
reviews factual findings for clear error and the ultimate constitutionality of
law enforcement’s action de novo. See Ornelas v. United States, 517 U.S. 690,
699 (1996); United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010). “Factual
findings are clearly erroneous only if a review of the record leaves this [c]ourt
with a definite and firm conviction that a mistake has been committed.”
United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009) (internal quotation
marks and citation omitted). The clearly erroneous standard is particularly
deferential where “denial of a suppression motion is based on live oral
testimony.” United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005). In
addition to deferring to the district court’s factual findings, this court must
view the evidence in the light most favorable to the prevailing party. Id.
      Gonzalez fails to demonstrate that the magistrate judge’s credibility
determinations, which were adopted by the district court, are clearly
erroneous. In the first instance, testimony is not incredible as a matter of law
unless “it relates to facts that the witnesses could not possibly have observed
or to events which could not have occurred under the laws of nature.” United
States v. Valdez, 453 F.3d 252, 257 (5th Cir. 2006) (citation and internal
quotation marks omitted). The testimony that Gonzalez argues is incredible is
not incredible as a matter of law. As for any purported discrepancies within or
between the testimony of the agents who interviewed Gonzalez, the magistrate
judge was in the best position to observe the agents and resolve the purported
conflicts. United States v. Turner, 674 F.3d 420, 433 (5th Cir. 2012) (noting
that the district court would have been aware of inconsistency and other factors
not apparent from the appellate record). Moreover, this court has held that a
possible conflict in a witness’s testimony, standing alone, “is not a sufficient
basis upon which to conclude that the district court clearly erred in crediting



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                                   No. 15-41531

the [witness’s] testimony.” Id. Finally, Gonzalez cites no authority that holds
that an agent’s failure to record an interview necessarily undermines the
agent’s credibility.
      Given the magistrate judge’s credibility determinations, Gonzalez
cannot establish that his decision to reinitiate contact with agents and waive
his right to remain silent until counsel was provided was the product of police
overreaching. Because there is no evidence that Gonzalez’s confession was the
product of threats, inducements, or psychological pressure, the district court
did not err in finding Gonzalez’s Miranda waiver voluntary and denying the
motion to suppress on that basis. Moran v. Burbine, 475 U.S. 412, 421 (1986).
      Gonzalez did not argue below that “[a]s a constitutional safeguard
against coerced confessions, the district court must suppress confessions that
are not audio or video recorded where the defendant alleges in a motion to
suppress that his confession was coerced by police.” We therefore review for
plain error only. United States v. Peltier, 505 F.3d 389, 391- 92 (5th Cir. 2007).
To show plain error, the appellant must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If the appellant makes such a showing, this court
has the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Because he cites no
controlling precedent in support of his position, we cannot conclude that the
district court plainly erred. See United States v. Ramos Ceron, 775 F.3d 222,
226 (5th Cir. 2014) (holding that a defendant cannot demonstrate clear or
obvious error in the “absence of case law unequivocally supporting” a position
on appeal).
      AFFIRMED.




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