USA v. Brandon Ivory

Filing

UNPUBLISHED OPINION FILED. [09-41042 Affirmed] Judge: EHJ , Judge: JES , Judge: EBC. Mandate pull date is 10/22/2010 for Appellant Brandon D. Ivory [09-41042]

USA v. Brandon Ivory

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Case: 09-41042

Document: 00511250930

Page: 1

Date Filed: 10/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41042 S u m m a r y Calendar October 1, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. B R A N D O N D. IVORY, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 5:09-CR-928-1

B e fo r e JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges. P E R CURIAM:* B r a n d o n D. Ivory appeals his convictions for possession with intent to d is t r ib u t e more than 100 kilograms of marijuana and for conspiring to do so. He c o n t e n d s that the district court should have sua sponte conducted a hearing to d e t e r m in e whether his confession was voluntary. See Jackson v. Denno,

3 7 8 U.S. 368 (1964) (remanding for a hearing on a confession's voluntariness). He concedes that review is only for plain error because he did not raise the issue in the district court. See United States v. Guanespen-Portillo, 514 F.3d 393, 402
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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(5 t h Cir. 2008); United States v. Iwegbu, 6 F.3d 272, 274 (5th Cir. 1993). "Under t h e plain error standard, [this court] will reverse only if (1) there is an error, (2 ) the error is clear under current law, and (3) the error affects the defendant's s u b s t a n t ia l rights." Guanespen-Portillo, 514 F.3d at 402. When those three s h o w in g s are made, this court has the discretion to correct the error if it has a s e r io u s effect on the integrity, fairness, or public reputation of the judicial p r o c e e d in g s . Id. at 402-403. A trial court must conduct a voluntariness hearing o n its own motion if the evidence reflects a genuine question of the voluntariness o f a confession. See Guanespen-Portillo, 514 F.3d at 402; United States v.

R e n te r ia , 625 F.2d 1279, 1282-83 (5th Cir. 1980). Citing United States v. Powe, 591 F.2d 833, 845-46 (D.C. Cir. 1979), Ivory a r g u e s that his confession was involuntary because it was induced by assertions t h a t Ivory could help himself by confessing. A confession is not rendered

in v o lu n t a r y simply because a suspect is advised that "there are advantages to c o o p e r a t in g ." United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1348 (5th Cir. 1 9 9 4 ). "It is reasonable to assume that the cooperation of an arrested person o ft e n is prompted by a desire for leniency for himself or others," and statements m a d e in such circumstances are not per se involuntary. United States v.

R o b e r ts o n , 582 F.2d 1356, 1368 (5th Cir. 1978). Moreover, a federal agent t e s t ifie d without contradiction that the agents told Ivory that they could not p r o m i s e him anything and that he would have to talk to the United States A tto rn e y . Ivory offered little more than vague allusions to the voluntariness of his c o n f e s s i o n . He stated that he confessed only because he was tired, but the c o n fe s s io n itself was highly detailed, and the record does not indicate that the in t e r r o g a t io n was especially long, although it ended around 2:00 a.m. Ivory o ffe r e d no direct evidence of threats or inherently coercive behavior. Moreover, h e never moved to suppress the confession; rather, his lawyer affirmatively s t a t e d there was nothing to suppress. 2

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O f slightly greater significance, Ivory testified at trial that he was not a d v is e d of his Miranda 1 rights prior to his confession. The record does not show t h a t the district court made any explicit or specific finding that Ivory was m ir a n d iz e d prior to confessing. However, the district court was aware of Ivory's t e s t im o n y as well as the starkly contrasting testimony from a federal agent in r e b u t ta l. In addition, the court had been explicitly advised that there was no s u p p r e s s io n issue. Because the evidence as a whole did not clearly raise a g e n u in e question of voluntariness before the district court, we find no clear or o b v io u s error in the failure to have a voluntariness hearing. The judgment of t h e district court is AFFIRMED. See Guanespen-Portillo, 514 F.3d at 403-05.

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

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