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

                                                                  FILED
                                                                January 7, 2009
                                No. 08-50263
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee
v.

SANTIAGO BALTAZAR-BAEZA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 4:07-CR-207-4


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Santiago Baltazar-Baeza appeals his jury-trial conviction for aiding and
abetting possession with intent to distribute marijuana. He claims the district
court erred in denying his motion to suppress his confession, contending that his
signed waiver of Miranda rights was not made intelligently or voluntarily
because he had no food and little water for several days prior to signing the
waiver.


      *
      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should not be published and is not precedent except under the limited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.
                                  No. 08-50263

      “[S]tatements made by a defendant during custodial interrogation may not
be used against him at trial unless procedural safeguards are employed to
protect the defendant’s Fifth Amendment privilege against self-incrimination”.
United States v. Andrews, 22 F.3d 1328, 1337 (5th Cir. 1994).          Custodial
interrogation may be used to elicit a confession where a suspect has validly
waived his Miranda rights. United States v. Cardenas, 410 F.3d 287, 292 (5th
Cir. 2005). The Government bears the burden of showing, by a preponderance
of the evidence, that Baltazar’s Miranda waiver was valid. See United States v.
Garcia Abrego, 141 F.3d 142, 171 (5th Cir. 1998).
      “A defendant’s waiver of his Miranda rights is only effective if the waiver
is knowingly, intelligently, and voluntarily made.” Id. The inquiry whether a
waiver of Miranda rights is valid contains two distinct dimensions: “the
relinquishment of the right must have been voluntary in the sense that it was
the product of a free and deliberate choice rather than intimidation, coercion, or
deception”; and “the waiver must have been made with a full awareness of both
the nature of the right being abandoned and the consequences of the decision to
abandon it”. Cardenas, 410 F.3d at 293 (internal quotation marks and citation
omitted).
      A district court’s determination regarding the validity of a Miranda waiver
is a question of law that is reviewed de novo, but the factual findings underlying
the district court’s legal determination are reviewed only for clear error. E.g.,
Garcia Abrego, 141 F.3d at 171. “Where a district court’s denial of a suppression
motion is based on live oral testimony, the clearly erroneous standard is
particularly strong because the judge had the opportunity to observe the
demeanor of the witnesses.” United States v. Santiago, 410 F.3d 193, 197 (5th
Cir. 2005).
      The district court did not err, following a pretrial suppression hearing, in
finding that Baltazar was not subjected to coercive conduct by Border Patrol


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                                  No. 08-50263

Agents, and that he knowingly and intelligently waived his Miranda rights. See
Cardenas, 410 F.3d at 293; Garcia Abrego, 141 F.3d at 171-72; Andrews, 22 F.3d
at 1340. Therefore, the district court did not err in denying Baltazar’s motion to
suppress the confession. See Cardenas, 410 F.3d at 297. Accordingly, Baltazar’s
confession was admissible at trial because he knowingly, intelligently, and
voluntarily waived his Miranda rights before giving his confession.
      AFFIRMED.




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