                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                                                               F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                              December 13, 2006
                             FOR THE FIFTH CIRCUIT
                                                                           Charles R. Fulbruge III
                               __________________________                          Clerk

                                      No. 05-40974
                                   Summary Calendar
                               __________________________


UNITED STATES OF AMERICA,
                                                                       Plaintiff-Appellee,

versus

MARIA VERENICE MARIN-GUTIERREZ,

                                                                    Defendant-Appellant.

                 ___________________________________________________

                       Appeal from the United States District Court
                            for the Southern District of Texas
                                    (No. 5:04-CR-2609)
                 ___________________________________________________


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
                *
PER CURIAM:

         Maria Marin-Gutierrez appeals the denial of her motion to suppress. For the

reasons that follow, we affirm.

                                      DISCUSSION

         Marin-Gutierrez was charged in a two count indictment with conspiracy to possess


*
 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
with intent to distribute and possession with intent to distribute five or more kilograms

of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1) and 846. She filed a motion to

suppress all statements given to law enforcement agents following her arrest. After

conducting a hearing, the district court denied the motion. Marin-Gutierrez proceeded to

trial, and the jury found her guilty of both charges. The district court sentenced her to 135

months imprisonment on each count, to be served concurrently, and a five-year term of

supervised release. She timely appeals the denial of the motion to suppress.

       In our review of the denial of a motion to suppress, we review findings of fact for

clear error and conclusions of law de novo. United States v. Cardenas, 410 F.3d 287, 292

(5th Cir. 2005). A district court’s determination regarding the validity of a defendant’s

waiver of Miranda rights is a legal conclusion. Id. We give deference to the credibility

choices of the district court unless clearly erroneous. Id. Where the denial of a motion to

suppress is based on live testimony, the clearly erroneous standard is particularly strong

because the district court had the opportunity to observe the demeanor of the witnesses.

United States v. Gibbs, 421 F.3d 352, 356–57 (5th Cir. 2005).

       Marin-Gutierrez argues that the district court erred in denying her motion to

suppress. She contends that the statements she made to the DEA agents were not

voluntary because she did not understand her rights, the DEA agents used coercive

techniques, and she was ill. At the suppression hearing, Marin-Gutierrez testified that the

agents aggressively interrogated her, spoke about jail time, and indicated that if she

cooperated, she would be released. She testified that she feared losing her tourist visa,


                                             2
which would prohibit her from seeing family living in the United States and from working

in the United States. Marin-Gutierrez also testified that she was suffering from a fever at

the time of her arrest and, due to her illness and the shock of what had happened, did not

understand her rights as they were being explained to her by the border patrol agent when

he read the Miranda warnings. She explained that she did not understand her right to

remain silent.

       At the hearing, the border patrol agent testified that he read Marin-Gutierrez her

Miranda warnings on two occasions, once from a card in his pocket and once from an I-214

Form. He testified that he read them to her in Spanish. Evidence was presented that

Marin-Gutierrez signed the form, acknowledging her understanding of her rights. One

of the DEA agents testified and denied promising to release Marin-Gutierrez if she

cooperated. The agent also denied using any threatening techniques. The agent further

testified that, when Marin-Gutierrez stated she did not want to answer any more

questions, the agents concluded the interview. At the end of the hearing, the district court

stated that it credited the testimony of the agents that they did not overpower Marin-

Gutierrez and that Marin-Gutierrez understood her rights. The district court expressed

doubt that Marin-Gutierrez was actually ill since she had driven 150 miles by the time she

had reached the Mexican border.

       A defendant’s waiver of Miranda rights is effective only if voluntary. Cardenas, 410

F.3d at 292. The determination of the voluntariness of a defendant’s waiver of Miranda

rights is made on a case-by-case basis. Id. A critical component of the inquiry is whether


                                             3
the government exhibited coercive behavior. Id. at 293. In this regard, voluntariness

depends on the absence of police overreaching as opposed to a defendant’s free choice in

any general sense. Id. The district court specifically found the DEA agents’ testimony

that they did not use coercive techniques to be more credible than Marin-Gutierrez’s

testimony to the contrary.     Nothing in the record indicates that this credibility

determination was clearly erroneous. The record also shows that Marin-Gutierrez was

read Miranda warnings in Spanish, a language in which she is fluent, and that she signed

a form indicating her understanding of her rights. Though Marin-Gutierrez contests her

understanding of these proceedings due to an illness at the time, the district court found

that her testimony in this regard lacked credibility. With this record evidence, we

conclude that Marin-Gutierrez’s statements to the DEA agents were voluntary and that the

district court properly denied her motion to suppress.

                                    CONCLUSION

      The judgment of the district court is AFFIRMED.




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