                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4910


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

MOISES GARZA RAMIREZ,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:08-cr-00042-LHT-1)


Submitted:    April 20, 2009                     Decided:   May 8, 2009


Before WILKINSON and      NIEMEYER,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Richard E. Cassady, WILLIAMS & CASSADY, PLLC, Sylva, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Moises       Garza      Ramirez       appeals    the    district        court’s

order denying his motions to suppress evidence seized from his

home and his statements to law enforcement officers.                                 Ramirez

pled guilty to one count of possessing a firearm while being

illegally    in     the      United     States,      in    violation      of    18    U.S.C.

§ 922(g)(5) (2006), but reserved the right to appeal the denial

of his suppression motions.              We affirm.

             Ramirez first argues that the district court erred in

denying   his     motion      to   suppress        the    evidence    seized      from    his

home.     This court reviews the legal conclusions underlying the

denial of a motion to suppress de novo, while it reviews the

factual findings for clear error.                        United States v. Moreland,

437   F.3d   424,      429    (4th     Cir.    2006).        Also,    the      evidence    is

construed in the light most favorable to the Government, as the

prevailing party below.               United States v. Seidman, 156 F.3d 542,

547 (4th Cir. 1998).

             Consent given freely and voluntarily is a recognized

exception    to     the      Fourth    Amendment         warrant    requirement.          See

Schneckloth       v.   Bustamonte,        412      U.S.    218,     219   (1973).         “In

determining whether consent to search was freely and voluntarily

given, the totality of the circumstances surrounding the consent

must be examined.”            United States v. Lattimore, 87 F.3d 647, 650

(4th Cir. 1996).

                                               2
              Our review of the record leads us to conclude that

Ramirez freely and voluntarily consented to the search of his

home    and   the   district     court       properly      denied   his   motion   to

suppress with respect to the evidence seized from his home.

              Ramirez next claims that the district court erred in

denying his motion to suppress with respect to his statements

regarding ownership of the firearm and his immigration status.

Statements      obtained       from      a       defendant     during      custodial

interrogation are presumptively compelled in violation of the

Fifth    Amendment,       unless      the        Government     shows      that    law

enforcement officers adequately informed the defendant of his

rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and

obtained a waiver of those rights. United States v. Cardwell,

433 F.3d 378, 388-89 (4th Cir. 2005).                       We have reviewed the

record and conclude that Ramirez was not in custody for purposes

of Miranda at the time he made any of the challenged statements.

Accordingly, the district court did not err in denying Ramirez’s

motion   to    suppress    his     statements.        We   therefore      affirm   the

judgment of the district court.                  We dispense with oral argument

as the facts and legal contentions are adequately set forth in

the materials before the court and argument would not aid the

decisional process.

                                                                            AFFIRMED



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