NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 26 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30044

Plaintiff-Appellee, D.C. No. 3:15-cr-05133-BHS-1 v.

HILARIO ORTIZ-CALDERON, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 17-30045

Plaintiff-Appellee, D.C. No. v. 3:08-cr-05312-BHS-1

HILARIO ORTIZ-CALDERON,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Submitted May 8, 2018** Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: GOULD and IKUTA, Circuit Judges, and FREUDENTHAL,*** District Judge.

Hilario Ortiz-Calderon pleaded guilty to being a felon in possession of a

firearm and to illegal re-entry. After a bench trial he was convicted of possession

of methamphetamine with the intent to distribute. Before the trial, Ortiz-Calderon

moved to suppress drug evidence seized from his garage and statements he made to

officers around the time of his arrest. After an evidentiary hearing, the district

court found that Ortiz-Calderon and his wife, Sandra Mercado, had voluntarily

consented to a search of the house and garage and that his statements were

admissible because he had voluntarily, knowingly, and intelligently waived his

Miranda rights. We affirm.

We review a district court’s denial of a motion to suppress de novo. United

States v. Ewing, 638 F.3d 1226, 1229 (9th Cir. 2011). A district court’s factual

findings are reviewed for clear error. Id. A district court’s assessment of whether

consent to search was voluntarily given is also reviewed for clear error. United

States v. Brown, 563 F.3d 410, 414 (9th Cir. 2009).

Ortiz-Calderon first argues that neither he nor Mercado consented to a

search of the garage—where methamphetamine was found. In assessing the

*** The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation.

2 voluntariness of consent, we look to the totality of the circumstances, and consider

the following five factors: “(1) whether the person was in custody; (2) whether the

officers had their guns drawn; (3) whether a Miranda warning had been given; (4)

whether the person was told that he had the right not to consent; and (5) whether

the person was told that a search warrant could be obtained.” United States v.

Reid, 226 F.3d 1020, 1026 (9th Cir. 2000).

The district court found that Ortiz-Calderon was in custody when he gave

his consent, but that the arrest was peaceable and that no officer touched or drew

his firearm. It further determined that Ortiz-Calderon was read Miranda warnings

in Spanish, that he was informed that he had the right to refuse consent to the

search and to limit the scope of the search, and that there was no evidence he was

told that a warrant could be obtained if consent was refused. Testimony in the

record supports the district court’s conclusions on each point. We hold that the

district court did not clearly err in finding that Ortiz Calderon consented to the

search.

Similarly, the district court did not err in finding that Mercado consented to

a search of the garage. Mercado signed a consent to search form that explicitly

allowed for a search of “outbuildings.” The form also made clear that she could

revoke or limit consent at any time. The district court also found that Mercado

understood English well, that the officers did not threaten her, and that she was not

3 told that a warrant would be sought if she refused consent. The record supports

these findings.

Ortiz-Calderon next seeks to suppress statements he made to officers after

his arrest. Statements made by a defendant in custody are admissible only if the

defendant’s waiver of his Miranda rights was “voluntary, knowing, and

intelligent.” United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998) (quoting

United States v. Binder, 769 F.2d 595, 599 (9th Cir. 1985)). For a waiver to be

voluntary, the defendant must be aware of “the nature of the right being abandoned

and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S.

412, 421 (1986). Here, looking to the totality of the circumstances, the district

court found that Ortiz-Calderon had voluntarily, knowingly, and intelligently

waived his Miranda rights.

Ortiz-Calderon does not deny that he was read his Miranda rights. He

argues, however, that some of his statements were made before being read his

rights, and that those statements should be suppressed. The district court found

otherwise, crediting the testimony of Officer Martinez, who said that Ortiz-

Calderon was not questioned before Officer Martinez read him his rights in

Spanish. Some testimony suggests that Officer Haggerty questioned Ortiz-

Calderon before Officer Martinez gave the Miranda warnings. But the testimony

is ambiguous, and the district court resolved any factual dispute by crediting

4 Officer Martinez’s testimony. Factfinder credibility assessments are afforded

deference. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). “Where there

are two permissible views of the evidence, the factfinder’s choice between them

cannot be clearly erroneous.” United States v. Mercado-Moreno, 869 F.3d 942,

959 (9th Cir. 2017) (quoting Anderson, 470 U.S. at 574). Here, the district court’s

finding that Ortiz-Calderon was not questioned before being read his rights is not

clearly erroneous.

Even if we were to assume that Ortiz-Calderon made statements before

being read his rights, and that those statements should have been suppressed, any

error was harmless. See United States v. Butler, 249 F.3d 1094, 1098 (9th Cir.

2001). Statements that Ortiz-Calderon made after Officer Martinez read him his

rights, together with other evidence, are sufficient to support conviction.

Finally, Ortiz-Calderon argues that Federal Rule of Criminal Procedure

12(d) requires the district court to explicitly resolve all discrepancies in the record.

In support of this conclusion, he cites to United States v. Prieto-Villa, 910 F.2d 601

(9th Cir. 1990). However, Prieto-Villa holds only that a district court must make

factual findings and that an appellate court will not affirm based on a conflicting

record that could support a denial of a motion to suppress. Id. at 607–08. Federal

Rule of Criminal Procedure 12(d) requires only that a court “state its essential

findings on the record.” An essential finding is one that is necessary for appellate

5 review of the legal conclusions involved. Prieto-Villa, 910 F.2d at 610. Here, the

district court made factual findings, supported by the record, that were sufficient to

conclude that Ortiz-Calderon knowingly, voluntarily, and intelligently waived his

Miranda rights, and to conclude that Ortiz-Calderon and his wife both consented to

the search of the garage. Those findings satisfy Rule 12(d). We decline to address

Ortiz-Calderon's argument that his sentence was substantively unreasonable

because it was not distinctly argued on appeal. See Entm't Research Grp., Inc. v.

Genesis Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997).

AFFIRMED.

6