                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-26-2005

USA v. Naranjo
Precedential or Non-Precedential: Precedential

Docket No. 03-4759




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                                  PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT




               No. 03-4759




    UNITED STATES OF AMERICA,


                     v.

            ADOLFO NARANJO,
                        Appellant




Appeal from the United States District Court
  for the Eastern District of Pennsylvania
        (Crim. No. 03-CR-00253-1)
    District Judge: Hon. James T. Giles


         Argued: January 18, 2005

  Before: ALITO, McKEE and SMITH,
             Circuit Judges.
                (filed: September 26, 2005 )




Attorneys for Appellant
MAUREEN KEARNEY ROWLEY
Chief Federal Defender
DAVID L. McCOLGIN
Supervising Appellate Attorney
ELAINE DeMasse (Argued)
Assistant Federal Defender
Federal Court Division
Defender Association of Philadelphia
Suite 540 West - Curtis Center
Independence Square West
Philadelphia, PA 19106

Attorneys for Appellee
PATRICK L. MEEHAN
United States Attorney
LAURIE MAGID
Deputy U.S. Attorney for Policy and Appeals
ROBERT A. ZAUZMER
Assistant U.S. Attorney
DAVID E. TROYER (Argued)
Assistant U.S. Attorney
615 Chestnut Street
Philadelphia, PA 19106



                             2
                          OPINION


McKEE, Circuit Judge.

       Adolfo Naranjo asks us to determine whether the District
Court erred in denying his suppression motion based upon the
investigating agents’ failure to give Miranda warnings before
obtaining an inculpatory custodial statement. He also appeals
the District Court’s denial of his request for a minor role
reduction in his sentence. For the reasons that follow, we will
reverse and remand the case to the District Court for further
proceedings consistent with this opinion.

                   I. Factual Background.

       In February 2003, Naranjo appeared at the Philadelphia
warehouse of Banocol Marketers. Banocol is headquartered in
Columbia, but imports and distributes produce in the United
States. Naranjo arrived unannounced and informed the
company’s vice president, Sander Daniel, of his desire to
purchase plantains for resale in New England. App. 287a - 295a.

       Daniel was suspicious because Naranjo appeared
unannounced and because of his apparent inexperience with
ripening, importing, and distributing produce. Naranjo also
lacked industry credentials and credit. Accordingly, Daniel
contacted U.S. Immigration and Customs Enforcement agents,
and Customs began investigating Naranjo.

       Utilizing cellular telephone records, the agents learned

                              3
that Naranjo lived at 1949 Pratt Street in Philadelphia,
Pennsylvania, and they placed that location under surveillance.
During the course of their surveillance they confirmed cellular
telephone conversations between Naranjo and Estaban Correa,
who lived at 444 Spencer Street in Philadelphia, Pennsylvania.
App. 73, 102.

       In early March, Banacol provided Naranjo with two
shipments of plantains. He resold them in Philadelphia, rather
than in New England as he had initially proposed. After taking
delivery of those shipments, Naranjo ordered 96 boxes of
plantains from Banacol. They arrived in Philadelphia as part of
a larger shipment on March 17, 2003. On March 18, 2003,
Customs agents investigated the shipment with the aid of a drug
detection dog. The dog “alerted” to one of the boxes, thereby
suggesting that the box contained a controlled substance. Upon
opening it, agents found approximately six kilograms of cocaine
inside. The agents seized the cocaine, replaced it with sham
cocaine, and also placed a transponder inside the box. The
transponder allowed them to track the box and signal when the
box was opened.

       Naranjo picked the box up on March 19, 2003, and
Banacol employees loaded it onto his truck at the direction of
undercover Customs agents. Later that day, Naranjo drove to a
grocery store and unloaded a box with the help of Correa, who
trailed Naranjo to the store. Within an hour, agents saw
Naranjo’s white truck at Correa’s residence, and the two were
observed looking through some boxes of plantains in the back
of Naranjo’s truck. Agents then saw Naranjo carry a box of
plantains into the house, accompanied by Correa and his

                              4
girlfriend, later identified as “Marguerita Orrego.”

        At this point, agents knew from signals they were
receiving from the transponder that the box of sham cocaine was
in Correa’s residence. Shortly thereafter, Naranjo and Correa
left the house and drove away in Naranjo’s truck. Naranjo was
later seen entering his residence on Pratt Street, and he remained
there until the following morning.

        Later that evening, after Correa, Orrego, and another
woman left the Spencer Street residence, the transponder tone
changed, indicating that the box of sham cocaine had been
opened. When Correa and Orrego returned to 444 Spencer
Street, they were approached by agents who informed the two of
the investigation and accompanied them into the residence.
Once inside, agents found a Banacol box of plantains and the
transponder inside the kitchen; the sham cocaine was no longer
in the box.

        On the morning of March 20, 2003, Customs Agent
Michael Rodgers and approximately eight other agents
converged on Naranjo as he left his Pratt Street residence and
attempted to enter his truck. Speaking in Spanish, Rodgers
identified himself and the other agents as police, and told
Naranjo to “put his hands up” and get out of the truck.1 App.


    1
      Rodgers testified that he wanted to “make sure that my
safety along with [Naranjo’s] safety was carried out to the
furthest. I just wanted to make sure that [Naranjo] absolutely
knew who we were immediately, that way there was no

                                5
101a. Rodgers’ gun was drawn as he approached Naranjo. App.
341a. Naranjo’s hands were then placed on the side of the
truck, and he was searched. Approximately $900 in cash was
seized from his pocket, and he was then handcuffed and
searched.2

        Agent Rodgers then asked Naranjo if they could enter the
residence, and Naranjo consented. After entering, Naranjo told
the agents that he lived on the second floor and lead them to his
one room apartment. He gave them the key, and the agents
obtained Naranjo’s permission to search it. During the search,
agents told Naranjo that he had been under surveillance for a
couple of days. Agent Rodgers then told him: “I’m going to be
straight up with you, if you’ll be straight with me. You’re not
under arrest at this point. I just wanted to —I want to know if
you’ll talk to us.” App. 116a. Rodgers also told Naranjo that he



confusion. I just didn’t want anybody to get hurt. . . .” He also
testified that they did not tell Naranjo that he was not under
arrest when they approached him and asked him to put his hands
up. App. 102a.
   2
     Since Rodgers testified that agents “still had their weapons
drawn, but after the search was conducted . . .they put their guns
away and no guns were not taken out for the rest of the day,” it
appears that agents besides Rodgers had their weapons drawn as
they converged upon Naranjo. However, the District Court did
not make any specific finding in this regard. Moreover, that fact
does not alter our analysis since it is clear that the interrogation
that followed was custodial for Miranda purposes. App. 342a.

                                 6
did not have to speak to the agents or “answer any of our
questions.” App. 116a.

       Rodgers then took Naranjo downstairs to an enclosed
porch where Naranjo sat, still handcuffed, on a foam mat. They
were joined by Special Agent Fleener and possibly others, and
Naranjo was again asked if he was willing to answer their
questions. The agents reiterated that he did not have to answer
questions, and that he could instead remain silent. Naranjo
agreed to speak with the agents, and they began questioning him
about his activities the previous day.3 Naranjo apparently
incriminated himself in the importation of cocaine through
Banocol Marketers. While they were questioning Naranjo, other
agents who were present told Agent Rodgers that they had
received authorization to arrest Naranjo that day. At the same
time, the agents agreed to Naranjo’s request to go to the
bathroom. According to Agent Rodgers, when Naranjo returned
from the bathroom, he told them he wanted to “speak more,” but
agents stopped him and gave him Miranda warnings.4 App


  3
    Naranjo also talked about other things, including his family
and his time in Columbia.
      4
       See Miranda v. Arizona, 384 U.S. 436 (1966). The
transcript of the suppression hearing is actually a bit confusing
as Agent Rodgers’ testimony suggests that he first remembered
to warn Naranjo after Naranjo returned from the bathroom;
however, the agent also testified that his decision to warn
Naranjo at that point stemmed from the fact that it was then
apparent that Naranjo was going to be arrested. App. 177a.

                               7
123a., 126a.

        After the warnings were given, Rodgers asked Naranjo
if he was willing to waive his rights and answer questions
without an attorney being present. Naranjo stated that he was,
and Agent Rodgers then gave him two forms. One form
outlined the rights that had just been read. The other was a
waiver form indicating that he wished to waive those rights.
Naranjo was given both forms to sign. Agent Rodgers and at
least one other agent who was present then signed both forms to
indicate that they had witnessed Naranjo’s signature on each
one. However, it is not disputed that Naranjo signed only the
advice of rights form. He never signed the waiver form.5

       Before Naranjo received his Miranda warnings, he told
the agents he had seen Correa open the box with the sham
cocaine, there was a mark on the box, the box contained
“breathing holes,” and when the box was dropped on the floor,
he could see three white bags. App. 132a-133a. After receiving
the warnings, Naranjo told Agents that the three packages he
saw could have been cocaine, Correa told him the packages
contained three kilos of cocaine, and a male was going to come
for them from the Spencer Street address. He also told the
agents that he had been arrested for drugs in Colombia and
served twenty months in prison. App. 132a-133a.


   5
     Agent Rodgers explained that Naranjo signed the waiver
form because, at the time Naranjo was given the form to sign,
Rodgers was distracted and looked away when someone called
his name. App. 188a.

                              8
       Following the statement, Naranjo was formally taken into
custody and transported to the Customs House. Upon arriving
there, he refused to speak further to the agents, and they
refrained from any additional questioning. He was thereafter
formally charged with possession of cocaine with the intent to
distribute.6

                   II. Procedural History.

       A federal grand jury returned an indictment charging
Naranjo with possession of cocaine with intent to distribute, and
attempted distribution of 6.75 kilograms of cocaine in violation
of 21 U.S.C. §§841(a)(1), and (b)(1)(A).

        Prior to trial, Naranjo moved to suppress both the
statements he made to Customs agents and physical evidence
seized from his apartment. The government conceded that
statements Naranjo gave before he was “Mirandized” would not
be offered at trial. However, the government maintained that
the statements Naranjo made after receiving Miranda warnings
were admissible. The District Court denied Naranjo’s motion
after a hearing. The court concluded that Naranjo “wanted to
talk [to the agents] and did,” that Naranjo was handcuffed
during the entire interrogation but comfortable, that “he was
talkative,” that he understood the Miranda warnings once they
were given, that he knew that he did not have to make any


   6
     On April 12, 2003, customs agents returned to the Correa
residence at Spencer Street where they recovered the sham
cocaine from behind a wall. App. 112-116.

                               9
statements, that he was aware of his right to counsel after he was
warned, and that his waiver of his Miranda rights was knowing
and voluntary.” App. 256a. The court concluded that Naranjo
believed that the “agents had connected him through their own
observations with the transport of cocaine and the delivery of
cocaine or at least, what he believed to be cocaine.” App. 257a.7

       The case then proceeded to trial, and Naranjo was
convicted on both counts of the indictment. The presentence
investigation report (“PSR”) introduced at sentencing held
Naranjo accountable for 6.017 kilograms of cocaine and
assigned a base offense level of 32, PSR ¶ 17, and a criminal
history category of I, PSR ¶ 29.8 Naranjo objected to the PSR
arguing that he should receive a minor role reduction. The court
rejected that argument and sentenced him to 121 months
imprisonment. This appeal followed.

                            III. Discussion.

A. Suppression of Post-Miranda Statements

           We review the District Court’s factual findings during the


       7
      The court also concluded that Naranjo voluntarily and
knowingly consented to the agents’ search of his room. Naranjo
does not contest that ruling.
   8
     For sentencing purposes, the jury unanimously found that
the amount of cocaine he was responsible for was more than
five kilograms.

                                  10
suppression hearing for clear error. We exercise plenary review
over the court’s legal rulings. United States v. Perez, 280 F.3d
318, 336 (3d Cir. 2002).

       The government concedes that Naranjo was in custody
when first interrogated by the agents on the enclosed porch.
Accordingly, it is clear that Miranda warnings should have
preceded that interrogation. See Miranda v. Arizona, 384 U.S.
436, 444 (1966). As noted above, the government agreed not to
use the pre-warning statement at trial, and the suppression
hearing therefore only addressed the post-warning statement.
However, Naranjo argues that the post-warning statement “was
merely the conclusion of a single seamless statement,” and that
the “post-warning portion makes little sense unless considered
in conjunction with the preceding part of the statement.”
Appellant’s Br. at 23

       The government notes that “only [the] last portion [of his
statement] was offered into evidence at trial,” and argues that
this portion was the result of a voluntary, intelligent and
knowing waiver of Miranda after Naranjo had been properly
warned. Appellee’s Br. at 15.

       In Miranda, the Supreme Court proclaimed:
       [W]ithout proper safeguards the process of in-
       custody interrogation of persons suspected or
       accused of crime contains inherently compelling
       pressures which work to undermine the
       individual’s will to resist and to compel him to
       speak where he would not otherwise do so freely.


                               11
394 U.S. at 467. A custodial statement must therefore be
voluntary. “Voluntariness” encompasses all interrogation
practices likely to pressure a suspect to such an extent that
he/she is precluded from making a free and rational decision
about abandoning the protections of the Constitution and giving
statements to police. Id. at 464-465.

       A more difficult constitutional problem is posed where,
as here, the dictates of Miranda are obeyed only after a suspect
has already made incriminating statements to investigators.
When that happens, in the absence of coercion, it is necessary to
determine if the intervening warnings were sufficient to inform
the suspect of his/her rights so that the suspect could properly
decide whether or not to waive the protections of Miranda and
make statements to police. Oregon v. Elstad, 470 U.S. 298
(1985). The inquiry therefore focuses on whether the rights
were knowingly and intelligently waived.

       In Oregon v. Elstad, the Supreme Court had to determine
the admissibility of a custodial statement that police obtained
only after they had first questioned a suspect without
administering Miranda warnings. The suspect gave the first
statement when police went to his home with an arrest warrant.
After the suspect’s mother led the officers to her son’s room,
they spoke with him and told him that they thought he was
involved in the burglary of a neighbor’s home. He responded by
saying, “Yes, I was there.” Id. at 301. He was then taken to a
patrol car and transported to the Sheriff’s Office where he was
given proper Miranda warnings. He then told police that he
understood his rights and that he “wished to speak with the
officers.” Id. He then gave a full statement that he subsequently

                               12
reviewed and signed. Following his conviction for burglary, he
appealed the trial court’s denial of his motion to suppress both
his unwarned oral statement and his written statement given
after receiving Miranda warnings. “He contended that the
[unwarned] statement he made in response to questioning at his
house ‘let the cat out of the bag,’ and tainted the subsequent
confession as ‘fruit of the poisonous tree.’” Id. at 302 (citations
omitted).

         The trial court had suppressed the initial statement, but
allowed the second statement into evidence after concluding it
“was given freely, voluntarily and knowingly by the defendant
after he had waived his right to remain silent and have counsel
present.” Id. The state appellate court reversed. In that court’s
view, the relevant constitutional inquiry was “‘whether there
was a sufficient break in the stream of events between [the]
inadmissible statement and the written confession to insulate the
latter statement from the effect of what went before.’” Id. at 303
(brackets in original). Given that court’s analysis, the
voluntariness of the second statement was irrelevant. The court
reasoned that, “[r]egardless of the absence of actual compulsion,
the coercive impact of the unconstitutionally obtained statement
remains, because in the defendant’s mind, it has sealed his fate.”
Id. The state appeals court reasoned that the brief period
between the two statements was simply not sufficient to
dissipate the coercive impact of the first statement because “the
cat was sufficiently out of the bag to exert a coercive impact on
[respondent’s] later admissions.” Id (brackets in original). The
Supreme Court granted certiorari to determine if “[t]he Self-
Incrimination Clause of the Fifth Amendment requires the
suppression of a confession, made after proper Miranda

                                13
warnings and a valid waiver of rights solely because the police
had obtained an earlier voluntary but unwarned admission from
the defendant.” Id.

       In holding that suppression was not required, the
Supreme Court explained why the appropriate inquiry was not
advanced by resort to metaphors such as “the cat was out of the
bag” or “the fruit of the poisonous tree.” 9 Id. at 303-06. We
have summarized the holding in Elstad as follows:

         [I]t was an unwarranted extension of Miranda to
         hold that a simple failure to administer warnings,
         unaccompanied by any actual coercion or other
         circumstances calculated to undermine the
         suspect’s ability to exercise his free will, so taints
         the investigatory process that a subsequent
         voluntary and informed waiver is ineffective for
         some indeterminate period.

 Reinert v. Larkins, 379 F.3d 76, 90 (3d. Cir. 2004) (internal
quotation marks omitted). Accordingly, in Elstad, the
transgression did not mandate automatic exclusion of the post-
warning statement. The Court explained that the “failure of
police to administer Miranda warnings does not mean that the
statements received have actually been coerced, but only that
courts will presume the privilege against compulsory self-
incrimination has not been intelligently waived.” Elstad, 470
U.S. at 310. However, an unintelligent waiver is not the same


   9
       See Wong Sun v. United States, 371 U.S. 471 (1963).

                                  14
thing as a coerced statement. Thus, “absent deliberately
coercive or improper tactics in obtaining the initial statement,
the mere fact that a suspect has made an unwarned admission
does not warrant a presumption of compulsion.” Id. at 314.

        Thus, where the statement is voluntary but made without
the benefit of proper Miranda warnings, “[a] subsequent
administration of Miranda warnings . . . should suffice to
remove the conditions that precluded admission of the earlier
statement. In that case, the finder of fact may reasonably
conclude that the suspect made a rational and intelligent choice
whether to waive or invoke his rights.” Id. In examining the
totality of the circumstances surrounding Elstad’s two
statements, the Court noted that “[n]either the environment nor
the manner of either ‘interrogation’ was coercive[.]” Id. at 315.
The initial interview took place during the middle of the day, in
the “living room area” of Elstad’s home and his mother was in
the kitchen “a few steps away.” Moreover, although the state
conceded that Elstad was technically in “custody” for Miranda
purposes, police had not informed him of that fact. In fact,
police had stopped briefly in his living room not to interrogate
him, “but to notify his mother of the reason for his arrest.” Id. at
315. The Court also noted that the initial failure to warn had
been inadvertent, and none of the officers had exploited the
unwarned statement “to pressure [him] into waiving the right to
remain silent.” Id. at 316.

       Elstad insisted that the initial failure to warn could only
be cured by an additional warning informing him that his prior
statement could not be used against him. The Court readily
dismissed that argument because such a requirement was

                                15
“neither practicable nor constitutionally necessary.” Id. at 316.10
Nevertheless, the Court emphasized that it was “in no way
retreat[ing] from the bright-line rule of Miranda.” Id. at 317.
The Court was not implying that “good faith excuses a failure to
administer Miranda warnings,” nor was the Court condoning
“inherently coercive police tactics or methods offensive to due
process . . . ” Id. The Court also refused to establish a set
formula for enforcing the “bright-line rule of Miranda.” Rather,
the Court proclaimed, “far from establishing a rigid rule, we
direct courts to avoid one; there is no warrant for presuming
coercive effect where the suspect’s initial inculpatory statement,
though technically in violation of Miranda, was voluntary.” Id.
at 318. Thus, “courts must examine the surrounding
circumstances and the entire course of police conduct with
respect to the suspect in evaluating the voluntariness of his
statements.” Id.

       After Elstad was decided, the Supreme Court addressed
a similar problem in Missouri v. Seibert, 542 U.S. 600, 124 S.
Ct. 2601 (2004). That case was decided after the District Court
denied Naranjo’s suppression motion here, and the court
therefore did not have the benefit of that analysis. In Seibert,
the Court was called upon to determine the admissibility of
unwarned statements taken pursuant to an official policy of
questioning suspects without first giving Miranda warnings and
then obtaining a second statement after administering warnings.


  10
     The Court explained that it had “never embraced the theory
that a defendant’s ignorance of the full consequences of his
decisions vitiates their voluntariness.” 470 U.S. at 316.

                                16
The Court referred to this policy as “question first” and
concluded that, “by any objective measure [it] reveal[ed] a
police strategy adapted to undermine Miranda warnings.” 124
S. Ct. at 2612.

       The Court noted that,

       [t]he warned phase proceeded after only a 15-to-
       20 minute pause, in the same place and with the
       same officer, who did not advise Seibert that her
       prior statement could not be used against her.
       These circumstances ch allen ge the
       comprehensibility and efficacy of the Miranda
       warnings to the point that a reasonable person in
       the suspect's shoes could not have understood
       them to convey a message that she retained a
       choice about continuing to talk.

Id.
        Seibert had participated in a plan to incinerate the body
of her 12 year-old son by setting fire to her family’s mobile
home. Her son had died in his sleep, but she feared she would be
charged with neglect if investigators learned that he had bed
sores. In order to assure that she could not be blamed for
leaving him unattended when the mobile home burned, she
schemed to leave a mentally ill teenager she knew in the home.
Another son and his friend then set fire to it. Five days after the
fire, police arrested Seibert at the hospital where her son was
being treated for burns.

       Pursuant to their protocol, police took Seibert into

                                17
custody and questioned her for nearly 40 minutes without
warning her. After she finally admitted her role in setting the
fire, police allowed her a 20 minute break for coffee and a
cigarette. The interrogating officer then turned on a tape
recorder, gave her Miranda warnings, and she signed a waiver
of rights form. She was then confronted with her prewarning
statements, and she gave an inculpatory statement consistent
with the statement she had given without the benefit of Miranda
warnings.

        During the ensuing suppression hearing, the interrogating
officer candidly conceded that he made a “‘conscious decision’
to withhold Miranda warnings, thus resorting to an interrogation
technique he had been taught: question first, then give warnings,
and then repeat the question ‘until I get the answer that she’s
already provided once.’” 124 S. Ct. At 2606. In examining this
practice on appeal, a plurality of the Supreme Court explained,
“[t]he technique of interrogating in successive, unwarned and
warned phases raises a new challenge to Miranda.” 124 S. Ct.
At 2609. However, a majority of the Justices were unable to
agree on how to respond to that challenge. Writing for a four-
Justice plurality, Justice Souter stressed that “attention must be
paid to the conflicting objects of Miranda and question-first. .
. . The object of question-first is to render Miranda warnings
ineffective by waiting for a particularly opportune time to give
them, after the suspect has already confessed.” Id. at 2609.
Justice Souter explained that, just as Miranda requires no
“‘talismanic incantation[,]. . . . it would be absurd to think that
mere recitation of the litany suffices . . .”. Id. at 2609.

       The threshold issue when interrogators question

                                18
      first and warn later is . . . whether it would be
      reasonable to find that in these circumstances the
      warnings could function "effectively" as Miranda
      requires. Could the warnings effectively advise
      the suspect that he had a real choice about giving
      an admissible statement at that juncture? Could
      they reasonably convey that he could choose to
      stop talking even if he had talked earlier? For
      unless the warnings could place a suspect who has
      just been interrogated in a position to make such
      an informed choice, there is no practical
      justification for accepting the formal warnings as
      compliance with Miranda, or for treating the
      second stage of interrogation as distinct from the
      first, unwarned and inadmissible segment.

Id. at 2610. The plurality noted the differences between the
circumstances surrounding Seibert’s statement and Elstad’s
statement.

      the completeness and detail of the questions and
      answers in the first round of interrogation, the
      overlapping content of the two statements, the
      timing and setting of the first and the second, the
      continuity of police personnel, and the degree to
      which the interrogator's questions treated the
      second round as continuous with the first. In
      Elstad, it was not unreasonable to see the
      occasion for questioning at the station house as
      presenting a markedly different experience from
      the short conversation at home;            since a

                              19
       reasonable person in the suspect's shoes could
       have seen the station house questioning as a new
       and distinct experience, the Miranda warnings
       could have made sense as presenting a genuine
       choice whether to follow up on the earlier
       admission.

Id., at 2612. After reiterating that the circumstances did not
warrant suppression of Elstad’s statement, the Court concluded
that the circumstances of Seibert’s statement were “the opposite
extreme. . . ”. Id. Siebert’s

       unwarned interrogation was conducted in the
       station house, and the questioning was systematic,
       exhaustive, and managed with psychological skill.
       When the police were finished there was little, if
       anything, of incriminating potential left unsaid.
       The warned phase of questioning proceeded after
       a pause of only 15 to 20 minutes, in the same
       place as the unwarned segment. When the same
       officer who had conducted the first phase recited
       the Miranda warnings, he . . . did not advise that
       her prior statement could not be used. . . . The
       impression that the further questioning was a
       mere continuation of the earlier questions and
       responses was fostered by references back to the
       confession already given. It would have been
       reasonable to regard the two sessions as parts of
       a continuum, in which it would have been
       unnatural to refuse to repeat at the second stage
       what had been said before. These circumstances

                              20
       must be seen as challenging the comprehensibility
       and efficacy of the Miranda warnings to the point
       that a reasonable person in the suspect's shoes
       would not have understood them to convey a
       message that she retained a choice about
       continuing to talk.

Id., 2612. (Footnote omitted).

        The plurality ruled the post-Miranda statement
inadmissible, explaining, “[a]lthough the Elstad Court expressed
no explicit conclusion about either officer's state of mind, it is
fair to read Elstad as treating the living room conversation as a
good-faith Miranda mistake, not only open to correction by
careful warnings before systematic questioning in that particular
case, but posing no threat to the warn-first practice generally.”
124 S. Ct. 2612. On the other hand, the question-first protocol
posed a general threat to Miranda. Accordingly, the Court held
that Seibert’s post-warning statement should have been
suppressed.

       Justice Breyer wrote a separate concurring opinion in
which he joined a separate concurrence of Justice Kennedy.
1124 S.Ct. at 2614. Justice Breyer believed that Miranda
warnings could only prove effective under the plurality’s
analysis when “certain circumstances --a lapse in time, a change
in location or interrogating officer, or a shift in the focus of the
questioning--intervene between the unwarned questioning and
any postwarning statement.” Id. at 2614.

       In his concurring opinion, Justice Kennedy agreed that

                                21
the question-first policy was designed to “circumvent Miranda,”
underm[ing] the Miranda warning and obscur[ing] its meaning.”
Id. He also agreed with the plurality that the focus was on
whether warnings in a “two-stage interview” could effectively
accomplish their object. Id. at 2616. However, he believed that
could only be determined through objective inquiry from the
perspective of the defendant, and that such an inquiry applies to
“both intentional and unintentional two-stage interrogations.”
Id., at 2626. Justice Kennedy would therefore have applied “a
narrower test” that would apply only where “the two-step
interrogation technique was used in a calculated way to
undermine the Miranda warning.” Id. Where the two-step
interrogation was not deliberately employed as a tactic, Justice
Kennedy believed that the analysis should still be governed by
Elstad. Id.

       Where, as in Seibert, no one view garners a majority of
the Justices, the Supreme Court has instructed us on how to
proceed. In Marks v. United States, 430 U.S. 188, 193 (1977),
the Court explained, “[w]hen a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent of
five Justices, the ‘holding of the Court may be viewed as that
position taken by those Members who concurred in the
judgments on the narrowest grounds.’” In Seibert, Justice
Kennedy’s opinion provides the narrowest rationale for
resolving the issues raised by two-step interrogations where
Miranda warnings are not administered until after police obtain
an inculpatory statement.

      Accordingly, unless the agents deliberately withheld
warnings, Elstad controls Naranjo’s Miranda claim. If the

                               22
initial failure to warn Naranjo was inadvertent,

       [t]he relevant inquiry is whether, in fact, the
       second statement was also voluntarily made. As
       in any such inquiry, the finder of fact must
       examine the surrounding circumstances and the
       entire course of police conduct with respect to the
       suspect in evaluating the voluntariness of his
       statements. The fact that a suspect chooses to
       speak after being informed of his rights is, of
       course, highly probative.

Elstad, 470 U.S. at 318. “If the deliberate two-step strategy has
been used, postwarning statements that are related to the
substance of prewarning statements must be excluded unless
curative measures are taken before the postwarning statement is
made.” Siebert, 124 S. Ct. at 2616 (Kennedy, J. concurring).
Such “[c]urative measures should be designed to ensure that a
reasonable person in the suspect's situation would understand
the import and effect of the Miranda warning and of the
Miranda waiver.” Id. This may include an inquiry into whether
or not the defendant was informed that his/her prior unwarned
statement can not be used as evidence, although it’s not
necessary to inform the suspect of that in every instance. Id., at
2613.11


  11
    No doubt mindful of its ruling in Elstad that a suspect need
not be informed that the prior unwarned statement is not
admissible under the circumstances there, in Seibert, the Court
explained: “We do not [require] a formal addendum warning

                               23
        Of course, as noted above, the District Court here did not
have the benefit of the Seibert analysis. There is, therefore, no
finding as to whether Miranda warnings were initially omitted
as an interrogation technique or because of mere oversight.
Although the District Court noted Agent Rodgers’ inexperience,
the court was not aware of the need to inquire into the factors
outlined in Seibert. We can not assume that Agent Rodgers’
omission was inadvertent or a “rookie mistake” absent a finding
to that effect by the District Court. See United States v. Stewart,
388 F.3d 1079, 1091 (7th Cir. 2004) (“On the record before us,
. . . we cannot determine whether the admission of [the
defendants’s] confession was improper under Seibert, or, if not
improper under Seibert, whether the initial unwarned confession
would flunk the voluntariness standard of Elstad such that the
taint would carry over to the second warned confession.”).

        Thus, the District Court did not articulate sufficient
findings to allow us to review its ruling in light of Seibert. As
noted above, the Court in Elstad focused on the extent of the
first interrogation, the extent to which the first and second
interrogation overlapped, the personnel involved, the timing, the
setting of the two sessions and their continuity. 124 S. Ct. at
2612. The answer to some of these questions is apparent from




that a previous statement could not be used . . . but its absence
is clearly a factor that blunts the efficacy of the warnings and
points to a continuing, not a new, interrogation.”124 S.Ct. at
2613, n.7.


                                24
the record before us.12 However, the findings are not sufficient
to allow for a proper review in the wake of Seibert.
Accordingly, we will remand to the District Court for additional
proceedings consistent with this opinion.13

                   B. Naranjo’s Sentence.

       As we noted above, Naranjo also appeals the District
Court’s failure to grant a sentencing adjustment for his minor
role pursuant to U.S.S.G. § 3B1.2. The District Court imposed
sentence under a sentencing regime that assumed that the
Sentencing Guidelines were mandatory.




     12
         For example, it is apparent that both interrogations
occurred on the enclosed porch, that warnings were given as
soon as Naranjo returned from the restroom, and that the same
group of agents were present for both statements. The court also
credited testimony that Naranjo was told that he did not have to
talk to the agents. The court noted, on different occasions, that
Narnanjo “was talkative,” and “wanted to talk.” App. At 255a.
It also appears, however, that Naranjo was not initially told that
he had the right to talk to them only in the presence of legal
counsel and that counsel would be appointed for him if he could
not afford one.
    13
        On remand, it may be necessary or desireable for the
District Court to reopen the suppression hearing in order to
make further inquiry that will support additional findings
pursuant to the pronouncements in Seibert.

                               25
       After Naranjo was sentenced, the Supreme Court decided
United States v. Booker, 125 S.Ct. 738 (2005). Briefly stated,
“[t]he Court held that 18 U.S.C. § 3553(b)(1), the provision of
the Sentencing Reform Act that makes the Guidelines
mandatory, was [unconstitutional] and that it must be severed
and excised [from the Guidelines].” United States v. Ordaz, 398
F.3d 236, 239 (3d Cir. 2005).

        In United States v. Davis, 407 F.3d 162 (3d Cir. 2005)
(en banc), we explained how we would resolve direct appeals of
sentences imposed before Booker was decided when the
Guidelines were to be mandatory rather than advisory. In Davis,
we stated that where we could not determine “whether the
District Court would have imposed a greater or lesser sentence
under an advisory framework,” prejudice in a plain error
analysis “can be presumed.” Id. at 164-65. We reasoned that,
given the law of sentencing after Booker, “[f]ailure to remand
for resentencing . . . could adversely affect the fairness and
integrity of the proceedings.” Id at 165. Thus, we concluded
that defendants sentenced under the prior mandatory guideline
regime whose sentences were on direct appeal at the time of the
Booker decision should have their sentencing challenge
remanded to the District Court for resentencing pursuant to the
pronouncements of Booker.

       Thus, on remand, if the District Court again denies
Naranjo’s suppression motion after making the findings of fact
and appropriate inquiry under Seibert, the court may reimpose
the judgment of conviction, and resentence Naranjo in light of
the teachings of Booker.


                              26
                           III.

       For the foregoing reasons, we will vacate Naranjo’s
sentence and remand for further proceedings consistent this
opinion.




                            27
