                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             MAR 24 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-50523

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00111-WQH-1

  v.
                                                 MEMORANDUM *
ROBERTO ORTIZ-LARREYNAGA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                        Argued and Submitted March 2, 2010
                               Pasadena, California

Before: RYMER and WARDLAW, Circuit Judges, and KENNELLY, ** District
Judge.

       Roberto Ortiz-Larreynaga (“Ortiz”) appeals his conviction after trial for

violations of 21 U.S.C. §§ 952 and 960 (importation of marijuana) and 21 U.S.C.

§ 841(a)(1) (possession with intent to distribute marijuana). Ortiz contends that

        *
             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, United States District Judge for
the Northern District of Illinois, sitting by designation.
incriminating statements used at trial against him should have been suppressed

because the Miranda warnings given to him by the interrogating border patrol

agents were inadequate, rendering his waiver of those rights invalid. We affirm.

      Following Ortiz’s arrest at the San Ysidro Port of Entry, border patrol agents

interviewed Ortiz, first obtaining biographical data and then informing him of his

right to contact the El Salvadorian consulate, which he declined.1 The evidence

shows that the agents accurately advised Ortiz of each of his Miranda rights,

Miranda v. Arizona, 384 U.S. 436 (1966), and told him that if he understood each

right to initial the written Statement of Rights and Waiver form. After the reading

of each right, Ortiz said “yes” and initialed the place in the waiver form pertaining

to the right. Before any incriminating information was elicited from Ortiz, he was

asked to read aloud a statement from the waiver form confirming that each of his

rights was read and explained, that he fully understood those rights, and that he

waived them freely and voluntarily, without threat, intimidation, or any promises.

Ortiz then asked, “I don’t get no immunity?” and an agent clearly stated that Ortiz

had not been promised anything. Ortiz then signed the waiver form. The district

court denied Ortiz’s motion to suppress, reasoning that the “facts and




      1
          The interview was both videotaped and transcribed; we have reviewed both.

                                          2
circumstances . . . establish that [Ortiz] knowingly and intelligently waived his

Miranda rights and voluntarily made statements to the agents.” We agree.

      Ortiz contends that during the reading of his rights the agents made

statements undercutting and confusing the warnings that (1) he had the right to

remain silent, and (2) any statement he made could be used against him in court.

However, each of the statements of which he complains was made after Ortiz had

already indicated that he understood each of his individual Miranda rights. See

Moran v. Burbine, 475 U.S. 412, 421 (1986). The most troubling of the agents’

statements—that providing the agents with his version of the events would put

Ortiz “in a better light”—followed the agents’ clear statement that there was

nothing the agents could do for him other than write down Ortiz’s side of what

happened, and the evidence fails to show any signs that Ortiz was confused by this

statement. Cf. United States v. San Juan-Cruz, 314 F.3d 384, 387–88 (9th Cir.

2002). Moreover, Ortiz had no difficulties with mental capacity or language that

would suggest he did not understand his rights, see United States v. Bernard S.,

795 F.2d 749, 751-52 (9th Cir. 1986), and his will was not overborne, see United

States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988).

      AFFIRMED.




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