                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 07-1182
                                 ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *       Appeal from the United States
      v.                                   *       District Court for the
                                           *       District of Nebraska.
David M. Garlewicz, also known             *
as Surfer Dave,                            *
                                           *
             Appellant.

                                 ________________

                              Submitted: June 11, 2007
                                  Filed: August 9, 2007
                                ________________

Before MELLOY, SMITH and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

      David Garlewicz pled guilty to one count of conspiracy to distribute and
possess with intent to distribute fifty grams or more of a mixture or substance
containing a detectable amount of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1) and 846. Under his plea agreement, Garlewicz reserved the right
to appeal the district court’s1 denial of his motion to suppress statements that he made


      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
to a law enforcement officer on November 3, 2005–a right he now exercises.
Garlewicz also appeals his sentence. We affirm.

I.    BACKGROUND

       On October 20, 2005, police in Kearney, Nebraska, executed a search warrant
for Garlewicz’s residence, arresting him for methamphetamine drug activity. The next
day, Garlewicz was arraigned in Nebraska state court. According to his brief, the
Nebraska court did not appoint counsel to him at the time because he planned to hire
his own attorney. Later that month, while in custody at the Buffalo County Detention
Center, Garlewicz wrote two inmate request forms, known as “kites,” to the court
requesting reduced bond and appointed counsel. On November 1, an attorney
appeared on Garlewicz’s behalf for the limited purpose of requesting a lower bond.
The Nebraska court then appointed different counsel to Garlewicz, though neither the
court nor counsel apparently advised him of the appointment.

       On that same day, Garlewicz wrote another kite requesting to meet with
Kearney Police Officer Douglas McCarty, Kearney’s chief drug investigator. The jail
staff advised Officer McCarty of Garlewicz’s request. The following day, he wrote
another kite with the same request. The jail staff again forwarded the request to
Officer McCarty. On November 3, Garlewicz’s stepsister met Officer McCarty at his
office and relayed the message that Garlewicz wanted to speak with him.

       Following up on Garlewicz’s three requests, Officer McCarty, alone and
unarmed, met with Garlewicz for about an hour on November 3, 2005, at the detention
center. He believed that Garlewicz was interested in becoming a confidential
informant. Officer McCarty made an audio recording of the meeting using a digital
recorder. At the beginning of the meeting, he read a standard statement of Miranda2


      2
       See Miranda v. Arizona, 384 U.S. 436 (1966).

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rights to Garlewicz from a printed form. Garlewicz signed the form just below the
printed statement of rights and additionally signed a “Waiver of Rights” statement at
the bottom of the form acknowledging that he read, understood and willingly waived
those rights. According to Officer McCarty, Garlewicz was cordial, appeared
comfortable, did not appear to be under the influence of alcohol or drugs, and did not
appear nervous. The recording confirms Officer McCarty’s observations.

       During the interview, Officer McCarty warned Garlewicz that he was preparing
to send a federal indictment package on Garlewicz to federal prosecutors. He then
said, “If you can convince me that . . . it’s in my best interest not to go that route, . . .
then I’d be more than happy to talk to you.” The two then discussed Garlewicz’s drug
activities and what Garlewicz knew about other individuals in the drug trade. In the
context of a discussion about one particular individual, Garlewicz expressed some
apprehension about whether Officer McCarty would disclose Garlewicz as a source
of information. In response, Officer McCarty said, “Nothing you tell me right now
is going any further than right here.” Near the end of the interview, Garlewicz
commented, “I’ve been thinking that ever since I decided to talk to you who I could
talk to you about.” At no point in the interview did Garlewicz attempt to stop the
interview or request an attorney.

       On March 22, 2006, a federal grand jury indicted Garlewicz for his
methamphetamine activities. Garlewicz moved to suppress the November 3, 2005
statements that he made to Officer McCarty, but the district court denied his motion.
Garlewicz subsequently pled guilty pursuant to a plea agreement, reserving his right
to appeal the denial of his suppression motion. At sentencing, after computing
Garlewicz’s advisory sentencing range under the United States Sentencing Guidelines
as 151 to 188 months’ imprisonment and hearing argument for a departure, the district
court sentenced Garlewicz to 151 months in prison. Garlewicz appeals the denial of
his suppression motion and his sentence.



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II.   DISCUSSION

      A.     Motion to Suppress

       Garlewicz argues that at the November 3, 2005 interview with Officer McCarty,
he did not effectively waive his Sixth Amendment right to counsel, and that even if
he did, Officer McCarty induced him to make incriminating statements involuntarily.
“We review the factual findings of a district court under the clear error standard, and
review de novo conclusions of law based on those factual findings, such as whether
a Miranda waiver was valid or a confession was voluntary.” United States v. Sanders,
341 F.3d 809, 817 (8th Cir. 2003). In addition, we examine the totality of the
circumstances to determine the voluntariness of Garlewicz’s statements. See United
States v. Hyles, 479 F.3d 958, 966 (8th Cir. 2007). “A statement is involuntary when
it was extracted by threats, violence, or express or implied promises sufficient to
overbear the defendant’s will and critically impair his capacity for self-determination.”
Id. (quotation omitted).

        The parties do not dispute the salient facts surrounding Garlewicz’s Miranda
waiver during his meeting with Officer McCarty on November 3, 2005. Garlewicz
initiated the meeting, making three requests on consecutive days to meet with Officer
McCarty. At the meeting, Garlewicz appeared comfortable, did not appear to be under
the influence of alcohol or drugs and did not appear nervous. Throughout the
interview, Garlewicz provided lucid responses to Officer McCarty’s questions. Prior
to any substantive discussion, Officer McCarty read a standard statement of Miranda
rights to Garlewicz from a printed form and provided the form to Garlewicz. Officer
McCarty explained, “Due to the fact that you called me, I just read these because I
want you to understand you don’t have to talk to me,” to which Garlewicz replied, “I
understand.” Garlewicz signed below the printed rights and signed the bottom portion
of the form under the “Waiver of Rights” statement that read, “I have read the above
statement of my rights and I understand each of these rights and, having these rights

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in mind, I waive them and willingly make a statement.” The form clearly indicates
the rights to silence and counsel and warns that “[a]nything you say can and will be
used against you in a court of law.” On these facts, we hold that Garlewicz waived
his Sixth Amendment right to counsel.

      As a general matter . . . an accused who is admonished with the warnings
      prescribed by this Court in Miranda has been sufficiently apprised of the
      nature of his Sixth Amendment rights, and of the consequences of
      abandoning those rights, so that his waiver on this basis will be
      considered a knowing and intelligent one. . . . “Once it is determined that
      a suspect’s decision not to rely on his rights was uncoerced, that he at all
      times knew he could stand mute and request a lawyer, and that he was
      aware of the State’s intention to use his statements to secure a
      conviction, the analysis is complete and the waiver is valid as a matter
      of law.”

Patterson v. Illinois, 487 U.S. 285, 296 (1988) (quoting Moran v. Burbine, 475 U.S.
412, 422-23 (1986)).

       Garlewicz argues further that his waiver was not “knowing” because he was
unaware that the Nebraska court had appointed counsel to him. There is no evidence
in the record indicating when the Nebraska court appointed counsel to Garlewicz or
when he learned of the appointment. Even if we assume that the court had appointed
counsel to him prior to the meeting with Officer McCarty and that he was unaware of
the appointment at the time of the meeting, these facts have no bearing on the waiver
analysis, which requires in this respect only that Garlewicz knew of his right to an
attorney. Cf. Miranda, 384 U.S. at 444.

      Garlewicz also cites United States v. Red Bird for the proposition that “[a]ny
statement about the charged crime that government agents deliberately elicit from a
defendant without counsel present after the defendant has been indicted must be
suppressed under the Sixth Amendment exclusionary rule.” 287 F.3d 709, 713 (8th


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Cir. 2002) (citing Massiah v. United States, 377 U.S. 201, 207 (1964)). Red Bird is
distinguishable. Unlike the present case, in Red Bird, as in Massiah, the Government
initiated the post-arraignment contact with the defendant. Red Bird, 287 F.3d at 711-
12; Massiah, 377 U.S. at 202-03. “[I]f police initiate interrogation after a defendant’s
assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver
of the defendant’s right to counsel for that police-initiated interrogation is invalid.”
Michigan v. Jackson, 475 U.S. 625, 636 (1986) (emphases added). Where the
defendant initiates contact, however, he may validly waive his Sixth Amendment
rights, even if he is represented by an attorney. Patterson, 487 U.S. at 291; Michigan
v. Harvey, 494 U.S. 344, 352 (1990) (“[N]othing in the Sixth Amendment prevents
a suspect charged with a crime and represented by counsel from voluntarily choosing,
on his own, to speak with police in the absence of an attorney.”). Because Garlewicz
initiated the November 3, 2005 meeting with Officer McCarty and knowingly,
intelligently and voluntarily waived his Sixth Amendment right to counsel, the district
court did not err in denying his motion to suppress the statements he made at that
meeting.

       Notwithstanding his waiver, Garlewicz also argues that his statements were
nonetheless involuntary because they were induced by Officer McCarty’s promises.
Near the start of the interview, Officer McCarty warned Garlewicz that he was putting
together a federal indictment package for Garlewicz but then said, “If you can
convince me that . . . it’s in my best interest not to go that route, . . . then I’d be more
than happy to talk to you.” Then, near the end of the interview, after Garlewicz
sought assurances that their meeting was confidential, Officer McCarty said, “Nothing
you tell me right now is going any further than right here.” Assuming arguendo that
Officer McCarty’s statements constitute promises, we hold that under the totality of
the circumstances, these statements were insufficient to overbear Garlewicz’s will and
critically impair his capacity for self-determination. See Hyles, 479 F.3d at 966.
Garlewicz initiated contact with Officer McCarty, making three separate requests to
meet with him. During the interview he commented, “I’ve been thinking that ever

                                            -6-
since I decided to talk to you who I could talk to you about.” At the time of the
interview, Garlewicz was 37 years old, spoke English, did not appear to be under the
influence of medication or drugs, had prior experience with the criminal justice system
and was calm. Officer McCarty was unarmed, nonviolent and made no threats, and
the recording of the interview reveals no signs of duress on Garlewicz’s part. See
United States v. Shan Wei Yu, 484 F.3d 979, 985-86 (8th Cir. 2007) (affirming a
district court’s denial of a motion to suppress statements made to a federal agent
where the evidence showed that the defendant spoke English and was not under the
influence of medication or drugs and that the agent used no coercion or inappropriate
tactics). In short, the totality of the circumstances shows that Garlewicz’s statements
to Officer McCarty were the product of his own unimpeded free will. As a result, the
district court did not err in finding that Garlewicz’s statements were voluntary.

      B.     Sentencing

       Garlewicz argues that the district court violated United States v. Booker, 543
U.S. 220 (2005), by refusing to consider his request for a sentence below the advisory
guidelines range. We disagree. The district court sentenced Garlewicz according to
the steps we have laid out since Booker: it first determined the appropriate guidelines
sentencing range, then examined the propriety of a traditional departure under the
guidelines, and finally considered the factors set forth in 18 U.S.C. § 3553(a) to
determine whether to vary from the guidelines. See United States v. Haack, 403 F.3d
997, 1002-03 (8th Cir. 2005). The district court’s decision not to depart is
unreviewable. United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007); see also
18 U.S.C. § 3742(a). To the extent that Garlewicz argues that the district court should
have alternatively granted him a downward variance, we review the district court’s
decision for reasonableness, a standard similar to the abuse of discretion standard. See
United States v. Pepper, 486 F.3d 408, 411 (2007). We presume that a sentence
reflecting a proper application of the sentencing guidelines is reasonable. Rita v.
United States, --- U.S. ---, 127 S. Ct. 2456, 2462 (2007); United States v. Cain, 487

                                          -7-
F.3d 1108, 1114 (8th Cir. 2007). Garlewicz has advanced no argument here that the
district court improperly applied the guidelines, and he has not otherwise rebutted the
presumption of reasonableness. Moreover, our review of the record shows that the
district court committed no error in its consideration of the relevant sentencing factors.
See Pepper, 486 F.3d at 411 (“A sentencing court abuses its discretion if it fails to
consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or considers only the
appropriate factors but commits a clear error of judgment in weighing those factors.”)
(quotation omitted). We therefore affirm the district court’s sentence as reasonable.

III.   CONCLUSION

      We affirm the district court’s denial of Garlewicz’s motion to suppress and
affirm his sentence.

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