                                                             [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                       FILED
                                                           U.S. COURT OF APPEALS
                            No. 11-10179                     ELEVENTH CIRCUIT
                        Non-Argument Calendar                 DECEMBER 12, 2011
                      ________________________                    JOHN LEY
                                                                   CLERK
                 D.C. Docket No. 1:10-cr-20509-JEM-1



UNITED STATES OF AMERICA,


                               llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,


                                  versus


WILLIAM GORDON ISAAC,


                            llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                     ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                          (December 12, 2011)

Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:

      William G. Isaac, Jr. appeals his convictions for attempting to import into the

United States 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 952(a) and

963, and attempted possession with intent to distribute 500 grams or more of cocaine,

in violation of 21 U.S.C. §§ 841(a)(1) and 846. On appeal, Isaac argues that: (1) law

enforcement officials at the Miami airport, who detained him after Peruvian officials

notified them that they had discovered cocaine in his checked luggage upon his

departure from Lima, should have stopped questioning him once he invoked his right

to counsel by refusing to sign a Miranda v. Arizona, 384 U.S. 436 (1966), rights

waiver form; and (2) the district court failed to make any findings that he was able to

pay a fine, and improperly imposed a total fine of $25,000. After thorough review,

we affirm.

      We review a district court’s denial of a motion to suppress as a mixed question

of law and fact. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009).

Rulings of law are reviewed de novo, while the district court’s findings of fact are

reviewed for clear error. Id. Factual findings are reviewed in the light most favorable

to the prevailing party in the district court. Id. We review a district court’s decision

to impose a fine for clear error. United States v. Rowland, 906 F.2d 621, 623 (11th

Cir. 1990).

                                           2
      First, we are unpersuaded by Isaac’s Miranda claim. In Miranda, the Supreme

Court considered the scope of the Fifth Amendment privilege against

self-incrimination and held that the government “may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective to secure the

privilege against self-incrimination.” 384 U.S. at 444. An individual is considered

to be “in custody” for purposes of receiving Miranda protection where “there is a

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

formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (quotation

omitted).   “It is well established that ‘[t]he government must prove by a

preponderance of the evidence that [the defendant] made a knowing, voluntary and

intelligent waiver of his Miranda rights.” United States v. Chirinos, 112 F.3d 1089,

1102 (11th Cir. 1997) (citation omitted) (brackets in original). A waiver is effective

where the “totality of the circumstances surrounding the interrogation reveal both an

uncoerced choice and the requisite level of comprehension.” United States v.

Barbour, 70 F.3d 580, 585 (11th Cir. 1995) (quoting Moran v. Burbine, 475 U.S. 412,

421 (1986)).

      When a person undergoing a custodial interrogation states that he wishes to

remain silent, “the questioning must end, and if he expresses a desire to consult with

                                          3
an attorney, the questioning must cease until one is provided for him.” United States

v. Acosta, 363 F.3d 1141, 1151 (11th Cir. 2004). However, the Supreme Court has

held that law enforcement officers have no duty to stop an interrogation where the

suspect’s invocation of either of those rights is equivocal. Davis v. United States, 512

U.S. 452, 461-62 (1994). In Davis, the Supreme Court held:

      Invocation of the Miranda right to counsel requires, at a minimum, some
      statement that can reasonably be construed to be an expression of a
      desire for the assistance of an attorney. But if a suspect makes a
      reference to an attorney that is ambiguous or equivocal in that a
      reasonable officer in light of the circumstances would have understood
      only that the suspect might be invoking the right to counsel, our
      precedents do not require the cessation of questioning. Rather, the
      suspect must unambiguously request counsel.

512 U.S. at 459 (internal citations omitted). When an accused invokes his right to

have counsel present during a custodial interrogation, he may not be subjected to

further interrogation until counsel has been made available or the accused himself

initiates further communication, exchanges, or conversations with police. Edwards

v. Arizona, 451 U.S. 477, 484-85 (1981).

      A refusal to sign a waiver of rights form is not enough to constitute an

invocation of the right to counsel. Acosta, 363 F.3d at 1154 (citation omitted). In

Acosta, the defendant was arrested and subject to questioning by law enforcement

officials on suspicion of possession of drugs. Id. at 1142-43. During the interview,



                                           4
officers instructed Acosta to read a Miranda rights form aloud and to initial each

paragraph as the officer went through the form. Id. at 1143. Acosta acknowledged

that he understood his Miranda rights both by initialing each paragraph of the form

and also by reading the entire form aloud. Id. When asked if he wanted to waive his

rights, Acosta declined, but he later stated that he was willing to collaborate with the

police. Id. at 1144. However, he refused to sign the rights form “because I am not

going to waive my rights.” Id. We concluded that Acosta had not unambiguously

and unequivocally invoked his right to remain silent or his right to counsel while

being questioned. Id. at 1155. We employed an objective inquiry to determine

whether a reasonable officer under similar circumstances would have understood the

defendant’s statement as invoking his right to remain silent or his right to an attorney.

Id. at 1154. We noted that the defendant in Acosta might have refused to sign the

form because he (1) did not fully understand the form and was afraid of permanently

relinquishing a right, (2) might have been invoking his right to remain silent, or (3)

he did not want to sign a written waiver of his rights because he thought that a signed

waiver might be irrevocable. Id. As a result, the presence of multiple plausible,

differing interpretations rendered the act ambiguous. Id. at 1155.

      In this case, viewing the facts in the light most favorable to the government, the

district court did not err in denying Isaac’s motion to suppress his admission to law

                                           5
enforcement officials because first, he was verbally advised of and voluntarily waived

his Miranda rights, and second, Isaac did not unequivocally invoke his right to

counsel. At the suppression hearing, DEA Special Agent Temprano testified that he

verbally advised Isaac of his Miranda rights at the start of the interview, and Isaac

acknowledged that he understood his rights and did not ask for a lawyer at that point.

Moreover, Isaac himself admitted that Temprano read him Miranda rights and he both

understood and was familiar with those rights. Following the administration of the

verbal warnings, Isaac voluntarily agreed to answer the agents’ questions and made

several incriminating statements, including that the reason for the questioning was

due to his previous criminal charges, that he was involved in the importation of

cocaine because he was suffering financial distress, and the contents of his suitcase

in Peru included cocaine. The record thus shows that after being advised of his

rights, Isaac did not indicate unambiguously that he wished to invoke them. Edwards,

451 U.S. at 484-85. The record further shows that Isaac was not coerced or promised

anything in exchange for his statements. Based on the totality of the circumstances,

including the uncoerced nature of the interview and Isaac’s comprehension of his

rights, Isaac effectively waived his Miranda rights. Barbour, 70 F.3d at 585.

      Nor did Isaac ever clearly invoke his right to counsel during the interview, and,

therefore, law enforcement officers were under no duty to cease questioning. Davis,

                                          6
512 U.S. at 461-62. As noted, Isaac acknowledged that he understood Special Agent

Temprano’s verbal recitation of his Miranda rights and voluntarily agreed to proceed

with the questioning. When Temprano eventually procured a copy of a rights waiver

form, Isaac initialed the paragraphs on the upper-half of the rights waiver form, and

only when he was asked to sign the bottom of the rights waiver form did Isaac say

that he had spent many years doing legal research in prison and he would not sign any

forms without speaking to his attorney in California. The district court adopted the

magistrate’s finding that Isaac’s statement concerning an attorney was limited to the

act of not signing the waiver form, as opposed to invoking his Fifth Amendment right

to counsel during the interview. Similar to the defendant in Acosta, Isaac agreed to

answer the agents’ questions, but he might not have wanted to sign the rights form

because he was afraid that a signed waiver might be irrevocable. 363 F.3d at 1154.

As a result, his statement about the California attorney could be subject to multiple

reasonable interpretations, thereby rendering its meaning ambiguous. Id. at 1154-55.

      Following Isaac’s refusal to sign the rights waiver form, Temprano wrapped

up the interview by informing Isaac that the government would be interested in his

cooperation to further their investigation, including the source of the drugs, to which

Isaac responded that he did not have a buyer in the United States yet. Although this

was an incriminating statement, Isaac uttered the statement after being advised of, and

                                          7
voluntarily waiving his Miranda rights. Moreover, although he mentioned his

attorney in California, this was, as noted, in reference to the act of signing the rights

waiver form, and Isaac never clearly invoked his right to counsel with regard to the

agents’ line of questioning. Under these circumstances, a reasonable officer could

have understood only that Isaac might be invoking the right to counsel, and, thus, law

enforcement officers were not required to end the questioning. Davis, 512 U.S. at

459. Accordingly, the district court did not err in denying Isaac’s motion to suppress.

      We are also unpersuaded that the district court clearly erred in imposing a fine.

The Sentencing Guidelines require the district court to impose a fine unless the

defendant establishes that he is unable to pay, and is unlikely to become able to pay,

any fine. U.S.S.G. § 5E1.2(a). Thus, the burden is on the defendant to prove his

inability to pay a fine. United States v. Hernandez, 160 F.3d 661, 665 (11th Cir.

1998). If a defendant establishes that he is unable to pay a fine or that the fine would

burden his dependents, the court may waive the fine or impose a lesser fine. U.S.S.G.

§ 5E1.2(e).

      Once a district court decides that a fine is appropriate, it must consider the

factors in § 5E1.2(d) to determine the amount of the fine. Hernandez, 160 F.3d at

665. These factors are: (1) the need for the sentence to reflect the seriousness of the

offense, promote respect for the law, provide just punishment, and afford adequate

                                           8
deterrence; (2) the defendant’s ability to pay the fine in light of his earning capacity

and financial resources; (3) the burden that the fine places on the defendant and his

dependents; (4) any restitution that the defendant has made or will be required to

make; (5) the collateral consequences of the conviction; (6) whether the defendant has

previously been fined for a similar offense; (7) the expected costs to the government

of any term of probation, imprisonment, or supervised release; and (8) any other

pertinent equitable considerations. U.S.S.G. § 5E1.2(d). In considering the second

factor, the financial inability of a defendant to post a bail bond and the fact that a

defendant is represented by appointed counsel are “significant indicators” of a

defendant’s present inability to pay, and, in conjunction with other factors, may

indicate that the defendant is unlikely to become able to pay a fine. U.S.S.G. § 5E1.2,

comment. (n.3).

      A district court is not required to make specific findings for each of the §

5E1.2(d) factors. United States v. Gonzalez, 541 F.3d 1250, 1256 (11th Cir. 2008).

However, the record must contain sufficient information with respect to the factors

to permit us to conclude that the district court did not clearly err in imposing or

setting the amount of the fine. Id. If the presentence investigation report (“PSI”)

presented information with respect to the factors, and the district court reviewed the

PSI prior to imposing the fine, we “infer without hesitation” that the district court

                                           9
considered the pertinent factors before imposing the fine. United States v. Khawaja,

118 F.3d 1454, 1459 (11th Cir. 1997). However, if the record does not reflect the

district court’s reasoned basis for imposing a fine, we must remand the case for the

necessary factual findings to be made. Gonzalez, 541 F.3d at 1256.

       Here, Isaac failed to establish that he lacked either the present or future ability

to pay a fine. Hernandez, 160 F.3d at 665. In the first place, Isaac failed to

demonstrate that he lacks the present ability to pay a fine because (1) a trust in his

name contained two unencumbered properties worth approximately $500,000 each;

(2) a public records search revealed a 2010 BMW M3 registered to Isaac; (3) while

on supervised release, Isaac reported rental income of approximately $3,000 a month

from a property located in Sherman Oaks, California; and (4) although Isaac had court

appointed counsel during his appeal, he had retained private counsel during his trial

and sentencing hearing. Isaac attempted to refute the PSI’s findings concerning his

ownership of the two properties, but he offered no actual evidence beyond his own

statement that the trust could be in his father’s name, and that he did not have access

to the trust’s assets.

       Moreover, Isaac was unable to establish that he would be unable to pay a fine

in the future. First, despite his claim that he lacked the ability to earn income, the PSI

revealed that he had a college degree in business administration, graduating cum

                                           10
laude. From 2008 to June 2010, Isaac worked as a property manager, earning

approximately $3,000 per month. In addition, although Isaac was incarcerated from

1999 through 2007, prior to that time period, he was a self-employed independent

contractor. Therefore, Isaac had at least some skills with which he could earn a

living. Further, both the PSI and the district court concluded that Isaac could

contribute to a fine while incarcerated, and the court specifically noted that it could

take account of the information contained in the PSI because the probation officer had

relied on public records. Khawaja, 118 F.3d at 1459. Lastly, the district court

imposed a fine at the bottom end of the guideline range on both counts. Thus,

because Isaac failed to meet his burden of showing that he could not pay any fine

either now or in the future, we affirm the district court’s decision to impose a fine.

      AFFIRMED.




                                          11
