                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           MAY 10, 2007
                            No. 06-11139                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                  D. C. Docket No. 05-14075-CR-DLG

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

JESSIE LEE LONGORIA,
JUAN GERALDO ARREDONDO,


                                                      Defendants-Appellants.


                      ________________________

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

                             (May 10, 2007)

Before ANDERSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:
      Appellant Juan Geraldo Arrendondo appeals his conviction for possession

with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§ 841(a)(1). Arrendondo argues that his conviction should be overturned because

the district court erroneously denied his motion to suppress incriminating

statements that he made to law enforcement after his arrest.

      Appellant Jessie Lee Longoria appeals his 63-month sentence for conspiracy

to possess and distribute cocaine, in violation of 21 U.S.C. § 846. Longoria argues

that the district court erred by (1) applying a two-level enhancement for

obstruction of justice, and (2) calculating his offense level based on a finding that

he was responsible for 417.6 grams of cocaine.

I. Arrendondo’s Appeal

      We first address Arrendondo’s appeal. Specifically, Arrendondo argues that

he did not knowingly and intelligently waive his rights under Miranda v. Arizona,

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), when he spoke to law

enforcement officers because his rights were read to him in English instead of his

native language of Spanish. Thus, he contends that the district court erred in

denying his motion to suppress.

      We review the denial of a motion to suppress under a mixed standard of

review, reviewing the district court’s findings of fact for clear error and its



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application of law to the facts de novo. United States v. Thompson, 422 F.3d 1285,

1295 (11th Cir. 2005), cert. denied, 127 S. Ct. 748 (2006). Further, all facts are

viewed in the light most favorable to the party that prevailed in district court. Id.

We must accept a district court’s credibility determination “unless we are left with

the definite and firm conviction that a mistake has been committed.” United States

v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997) (internal quotations and citation

omitted). When deciding the ultimate issue of the voluntariness of a defendant’s

confession, we may substitute our independent judgment after a review of the

entire record. Cannady v. Dugger, 931 F.2d 752, 753-54 (11th Cir. 1991).

      The Fifth Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. Const. amend. V. 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, 86 S. Ct. at 1612. The Supreme Court articulated a two-pronged right against

self-incrimination: the right to remain silent, and the right to have counsel present

during custodial interrogation. 384 U.S. at 444-45, 86 S. Ct. at 1612. “The law in



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this area is clear: once an accused requests counsel, the officer cannot ask

questions, discuss the case, or present the accused with possible sentences and the

benefits of cooperation.” United States v. Gomez, 927 F.2d 1530, 1539 (11th Cir.

1991).

         An accused may waive his right against self-incrimination, so long as (1) the

defendant voluntarily relinquished his rights as the product of a free and deliberate

choice, rather than through intimidation, coercion, or deception; and (2) the

defendant made his decision with a full awareness of both the nature of the rights

being abandoned and the consequences of the decision to abandon them. United

States v. Barbour, 70 F.3d 580, 585 (11th Cir. 1995). “If a defendant cannot

understand the nature of his rights, he cannot waive them intelligently.” Miller v.

Dugger, 838 F.2d 1530, 1539 (11th Cir. 1988). A waiver of Miranda rights is

effective “[o]nly if the totality of the circumstances surrounding the interrogation

reveal[s] both an uncoerced choice and the requisite level of comprehension.”

Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410

(1986) (internal quotation and citation omitted). A written waiver “is not

inevitably either necessary or sufficient to establish waiver.” North Carolina v.

Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286 (1979).

         Once an accused has invoked his right to counsel, he cannot be subjected to



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further interrogation until counsel has been provided to him, even if he has been

advised of his rights. Gomez, 927 F.2d at 1537. However, the accused may waive

his right by reinitiating a conversation with law enforcement authorities. Id; see

also Henderson v. Singletary, 968 F.2d 1070, 1073-74 (11th Cir. 1992).

      In this case, Arrendondo admits that, although he initially indicated his

desire to speak with an attorney before speaking to the law enforcement officers,

he later initiated the conversation in which he made the incriminating statements.

He does not challenge the substance of the Miranda warnings or allege that he was

coerced into confessing; rather, he argues only that he did not understand English.

However, the evidence indicates that Arrendondo spoke fluent English and

engaged in conversations with the law enforcement officers in no other language

but English before his rights were read to him. There is no evidence that

Arrendondo asked for or needed an interpreter. Thus, the district court’s finding

that Arrendondo understood English is not clearly erroneous. After Arrendondo’s

rights were read to him in English, he stated, in English, that he understood his

rights. Accordingly, we conclude from the record that Arrendondo knowingly,

voluntarily, and intelligently waived his Miranda rights.

II. Longoria’s Appeal

      We now turn to Longoria’s appeal of his sentence. We review the district



                                          5
court’s application of the Sentencing Guidelines de novo and its underlying factual

findings for clear error. United States v. Pope, 461 F.3d 1331, 1333 (11th Cir.

2006). Clear error will be present when “we are left with a definite and firm

conviction that a mistake has been committed” by the district court. United States

v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (citation omitted).

A. Obstruction of Justice Enhancement

      Under U.S.S.G. § 3C1.1, a two-level enhancement is appropriate if “the

defendant willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the course of the investigation, prosecution, or

sentencing of the instant offense of conviction.” This provision applies to conduct

including “committing, suborning, or attempting to suborn perjury.” U.S.S.G.

§ 3C1.1, comment. (n. 4(b)). Perjury in this context means “false testimony

concerning a material matter with the willful intent to provide false testimony,

rather than as a result of confusion, mistake, or faulty memory.” United States v.

Singh, 291 F.3d 756, 763 (11th Cir. 2002) (citation omitted).

      “When applying this enhancement, the district court [should] make specific

findings as to each alleged instance of obstruction by identifying the materially

false statements individually . . . . However, a general finding that an enhancement

is warranted suffices if it encompasses all of the factual predicates necessary for a



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perjury finding.” Id. (citations omitted). For the district court to make a finding

that a defendant perjured himself, four elements must be present: “(1) the

testimony must be under oath or affirmation; (2) the testimony must be false;

(3) the testimony must be material; and (4) the testimony must be given with the

willful intent to provide false testimony and not as a result of a mistake, confusion,

or faulty memory.” Id. at 763 n.4. We review the district court’s factual findings

necessary for an obstruction of justice enhancement based on perjury for clear error

and “accord great deference to the district court’s credibility determinations.” Id.

at 763 (citations omitted).

      Here, the district court individually identified material, false statements that

Longoria made during his testimony at trial. The record supports the district

court’s conclusion that Longoria intentionally made these false statements.

Therefore, we conclude that the district court’s findings were not clearly erroneous,

and the district court properly applied the § 3C1.1 obstruction of justice

enhancement.

B. Base Offense Level Calculation

      To calculate the base offense level for a drug conspiracy offense, the district

court must determine the quantity of illegal drugs properly attributable to the

defendant. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.), cert.



                                           7
denied, 545 U.S. 1127, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005); U.S.S.G.

§ 2D1.1(c). We review this factual determination for clear error. Id.

      The district court should consider “all acts and omissions committed, aided,

abetted . . . or willfully caused by the defendant . . . that occurred during the

commission of the offense of conviction” to make its determination. Id. at 1296

(quoting U.S.S.G. §1B1.3(a)(1)(A)). In cases involving drugs, “the defendant is

accountable for all quantities of contraband with which he was directly involved

and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable

quantities of contraband that were within the scope of the criminal activity that he

jointly undertook.” U.S.S.G. § 1B1.3, comment. (n.2). The district court may

consider relevant acquitted conduct when making sentencing calculations, so long

as the Guidelines are applied as advisory, the conduct is proven by a

preponderance of the evidence, and the sentence imposed does not exceed the

statutory maximum sentence authorized by the jury’s verdict. United States v.

Faust, 456 F.3d 1342, 1348 (11th Cir.), cert. denied, 127 S. Ct. 615 (2006).

      When a defendant raises an objection to the drug quantity used in calculating

his Guideline sentence, “the government bears the burden of establishing the

disputed fact by a preponderance of the evidence.” Rodriguez, 398 F.3d at 1296.

Although preponderance of the evidence is a relaxed evidentiary standard, “it does



                                            8
not grant the court a license to sentence a defendant in the absence of sufficient

evidence when that defendant has properly objected to a factual conclusion.” Id.

(citation omitted).

      Here, the evidence presented at trial supports the district court’s finding that

Longoria was responsible for 417.6 grams of cocaine. The evidence established

that Longoria supplied cocaine for three purchases, totaling 417.6 grams. To the

extent that Longoria argues that the district court’s finding is clearly erroneous

because he was acquitted of possessing the cocaine on the dates of the purchases,

this argument is foreclosed by our precedent. Faust, 456 F.3d at 1348. Moreover,

the record demonstrates that the district court applied the Guidelines as advisory

and imposed a sentence significantly below the 20-year maximum sentence

authorized by the jury’s verdict. See 21 U.S.C. § 841(b)(1)(C). Therefore, we find

no error in the district court’s sentencing of Longoria.

      In conclusion, we discern no reversible error as to either defendant.

Therefore, we affirm Arrendondo’s conviction and Longoria’s sentence.

      AFFIRMED.




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