                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            SEP 07 2016

                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 15-50213

              Plaintiff-Appellee,                D.C. No. 3:14-cr-02735-LAB

 v.
                                                 MEMORANDUM*
OMAR ENRIQUE NAVA-MAYTOREL,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                      Argued and Submitted August 29, 2016
                              Pasadena, California

Before:       TASHIMA, SILVERMAN, and WATFORD, Circuit Judges.

      Omar Enrique Nava-Maytorel appeals the district court’s denial of his

motions to suppress particular evidence and statements, and challenges the 72-

month sentence imposed following his bench-trial conviction for possession of

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and aiding and abetting, in violation of 18 U.S.C. § 2. We have jurisdiction under

28 U.S.C. § 1291. We affirm the conviction, but remand for resentencing.

      Nava-Maytorel contends that he was unlawfully seized during his encounter

with Border Patrol agents and, therefore, the district court erred by failing to

suppress the evidence obtained during the subsequent search of his vehicle. We

review de novo the district court’s ruling on a motion to suppress. See United States

v. Evans, 786 F.3d 779, 784 (9th Cir. 2015). Contrary to Nava-Maytorel’s

contention, the record reflects that the district court concluded that the

approximately five-minute encounter was an investigative seizure supported by

adequate suspicion. We agree.

      At the suppression hearing, the district court credited testimony from Border

Patrol agents regarding the observations that led them to initiate the encounter with

Nava-Maytorel. Specifically, the agents testified that Nava-Maytorel abruptly

changed lanes upon passing a marked Border Patrol vehicle, and then pulled into a

rest stop that the agents believed was a common staging area for smugglers. The

agents further testified that Nava-Maytorel’s passenger appeared inordinately

concerned about the presence of Border Patrol at the rest stop, and that, after

parking and exiting his vehicle, Nava-Maytorel “flashed” his immigration papers

and stretched in a manner that appeared exaggerated. Finally, the agents testified

                                           2
that a records check indicated that Nava-Maytorel’s vehicle had crossed over from

Mexico earlier that day.

      We assume, without deciding, that Nava-Maytorel was seized when, during

the course of the encounter, an agent obtained and failed to return his immigration

documents. See United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.

1997). However, giving due weight to the inferences drawn by the Border Patrol

agents, see Evans, 786 F.3d at 788, and recognizing that “sometimes conduct that

may be entirely innocuous when viewed in isolation may properly be considered in

arriving at a determination that reasonable suspicion exists,” see United States v.

Montero-Camargo, 208 F.3d 1122, 1130 (9th Cir. 2000), we conclude that the

district court correctly found that the approximately five-minute encounter was a

permissible investigative seizure based on “reasonable suspicion supported by

articulable facts that criminal activity ‘may be afoot.’ ” See United States v.

Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).

      Nava-Maytorel next contends that, even if the initial encounter was lawful,

the district court should have suppressed the evidence because his subsequent

consent to a search of his vehicle was involuntary. We review for clear error the

district court’s determination that a defendant voluntarily consented to a search. See

United States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007). Whether consent is

                                           3
voluntary is a determination that we must make by evaluating the totality of the

circumstances, and by looking to several factors. See United States v. Patayan

Soriano, 361 F.3d 494, 502-03 (9th Cir. 2004). Here, though Nava-Maytorel was

not advised that he could refuse consent, the remainder of the relevant factors

indicate that his consent was voluntary. Nava-Maytorel was not in custody, and

Miranda warnings were not required. See United States v. Basher, 629 F.3d 1161,

1168 (9th Cir. 2011) (for purposes of a voluntariness analysis, defendant subject to

a Terry stop is not in custody and whether Miranda warnings were given is

“inapposite”). It is undisputed that the agents did not draw their weapons. Finally,

the agents did not suggest that failure to give consent “would be futile because the

officers could obtain a search warrant if they so desired.” See Washington, 490 F.3d

at 776. Under these circumstances, the district court did not clearly err in

determining that Nava-Maytorel’s consent was given voluntarily. See United States

v. Perez-Lopez, 348 F.3d 839, 845 (9th Cir. 2003).

      Nava-Maytorel next contends that the district court erred by denying his

motion to suppress his post-arrest statements on the basis that they were obtained in

violation of Miranda v. Arizona, 384 U.S. 436, 479 (1966). We review de novo the

adequacy of a Miranda warning. United States v. Williams, 435 F.3d 1148, 1151

(9th Cir. 2006). To the extent that Nava-Maytorel argues that his Spanish-language

                                           4
Miranda advisement was inadequate because the translation was ambiguous, this

claim is waived. See United States v. Olano, 507 U.S. 725, 733 (1993). The record

reflects that Nava-Maytorel was advised that, if he could not pay for the services of

an attorney, one would be appointed for him. The parties agree that Nava-Maytorel

asked whether it was “necessary” to have an attorney present, and that the

admonishing agent responded that it was Nava-Maytorel’s “right,” but it was “not

necessary.” Like the district court, we reject Nava-Maytorel’s contention that this

response was ambiguous or misleading. To the contrary, the record reflects that the

Miranda advisement was adequate. See Miranda, 384 U.S. at 479.

      Finally, Nava-Maytorel contends that the district court erred by denying his

request for a minor role adjustment under U.S.S.G. § 3B1.2. The district court did

not fully consider the recent amendment to the Guidelines governing minor role

adjustments, or have the benefit of our recent decision that the amendment applies

retroactively to direct appeals. See United States v. Quintero-Leyva, 823 F.3d 519,

524 (9th Cir. 2016). Accordingly, we vacate the sentence and remand for

resentencing so that the district court may consider Nava-Maytorel’s request for a

minor role reduction in light of the amended Guidelines. See id.

             VACATED in part, and REMANDED for resentencing.



                                          5
                                                                            FILED
United States v. Nava-Maytorel, No. 15-50213
                                                                            SEP 07 2016
WATFORD, Circuit Judge, dissenting:                                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


      The officers had reasonable suspicion to stop and question Nava-Maytorel,

but I don’t think his consent to search the car was voluntarily given.

      We apply a five-factor test when determining whether consent was

voluntary, and here as in United States v. Washington, 490 F.3d 765 (9th Cir.

2007), two of the factors favor the defendant, two favor the government, and one is

inapplicable. As in Washington, Nava-Maytorel had been seized for Fourth

Amendment purposes when the officers asked for consent, and the officers never

informed Nava-Maytorel that he had the right not to consent. (Nava-Maytorel had

been seized because the officers obtained and did not return his immigration

papers; in similar circumstances, we have held that a reasonable person would not

feel free to terminate the encounter and leave. See id. at 775; United States v.

Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997).) These two factors favor

Nava-Maytorel. In the government’s favor, the officers did not have their guns

drawn, and they did not tell Nava-Maytorel that they could obtain a search warrant

if he refused to consent. The last of the five factors—whether the officers gave

Miranda warnings—is not applicable here. See Washington, 490 F.3d at 776.

      In Washington, we held that the defendant’s consent was involuntary. Sure,

there are differences between this case and Washington in terms of the ancillary
                                                                                Page 2 of 2
facts, but as far as the five factors go there is no difference at all. Under

Washington, I think the district court clearly erred in finding that Nava-Maytorel’s

consent was voluntarily given.
